Exhibit 10.44
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INVESTMENT AGREEMENT
BY AND AMONG
PLATINUM UNDERWRITERS HOLDINGS, LTD.,
THE ST. XXXX COMPANIES, INC.,
AND
RENAISSANCERE HOLDINGS, LTD.
DATED AS OF SEPTEMBER 20, 2002
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TABLE OF CONTENTS
PAGE
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1. Purchase and Sale of Shares..............................................2
1.1 Sale and Issuance of Shares................................2
1.2 Purchase Price.............................................2
1.3 The Closing................................................3
1.4 Subsequent Exercise of Over-Allotment Option in the IPO....3
2. Representations and Warranties of the Company............................3
3. Representations and Warranties of St. Xxxx................................
4. Representations and Warranties of the Purchaser..........................8
5. Conditions to the Purchaser's Obligation at Closing.....................10
5.1 Representations and Warranties............................10
5.2 RenRe Agreements..........................................10
5.3 Opinions..................................................10
5.4 Initial Public Offering of Common Shares and Units........11
5.5 Formation Agreement.......................................11
5.6 Prospectus..................................................
5.7 Amendments to Quota Share Agreements......................11
5.8 Regulatory Approval.......................................11
6. Conditions to the Company's Obligations at Closing......................11
6.1 Representations and Warranties............................11
6.2 RenRe Agreements..........................................12
6.3 Initial Public Offering of Common Shares and Units........12
7. Board of Directors......................................................12
7.1 Nomination of Directors...................................12
7.2 Resignations..............................................13
7.3 Board.....................................................13
7.4 Non Assignability.........................................14
7.5 Purchaser Confidentiality.................................14
7.6 Company Confidentiality...................................16
8. Legend..................................................................17
9. Termination.............................................................17
9.1 Grounds for Termination...................................17
9.2 Effect of Termination.....................................17
10. Miscellaneous...........................................................17
10.1 Survival..................................................18
10.2 Mutual Covenants..........................................18
10.3 Expenses..................................................18
10.4 Entire Agreement..........................................18
10.5 Severability..............................................19
10.6 Liability.................................................19
10.7 Notices...................................................19
10.8 Governing Law, etc........................................20
10.9 Jurisdiction..............................................21
10.10 Waiver of Jury Trial......................................21
(i)
10.11 Captions..................................................21
10.12 Public Announcements......................................21
10.13 Indemnity.................................................21
10.14 Recovery from Company Directors and Officers..............22
10.15 No Limited on Rights of Parties to Compete................23
Exhibit A Transfer Restrictions, Registration Rights and
Standstill Agreement........................................E-A-1
Exhibit B Option Agreement............................................E-B-1
Exhibit C Services and Capacity Reservation Agreement.................E-C-1
Exhibit D Draft of Amendment No. 6 to Registration Statement..........E-D-1
Exhibit E Formation Agreement Amendment...............................E-E-1
Exhibit F Quota Share Agreement Amendments............................E-F-1
Schedule 2.7 Platinum Governmental Consents
Schedule 2.12 Intercompany Agreements
Schedule 3.3 St. Xxxx Governmental Consents
Schedule 4.4 RenRe Governmental Consents
(ii)
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (this "Agreement") is made as of the 20th day
of September, 2002, by and among Platinum Underwriters Holdings, Ltd., a Bermuda
company (the "Company"), The St. Xxxx Companies, Inc., a Minnesota corporation
("St. Xxxx") and RenaissanceRe Holdings, Ltd., a Bermuda company (the
"Purchaser").
WHEREAS, the Company plans to conduct an initial public offering (the
"IPO") of its common shares, par value $0.01 per share (the "Common Shares"),
and a concurrent initial public offering of its equity security units (the
"ESUs"), each unit initially consisting of a contract to purchase Common Shares
from the Company on a date to be specified in 2005 and a 1/40 or 2.5% ownership
interest in a senior note of Platinum Underwriters Finance, Inc., an indirect
subsidiary of the Company, due on a date to be specified in 2007, in connection
with the Formation and Separation Agreement, to be entered into prior to the
date of completion of the IPO, between the Company and St. Xxxx (the "Formation
Agreement"); capitalized terms used but not defined herein have the meanings
ascribed thereto in the Formation Agreement;
WHEREAS, the Company wishes (i) to sell to the Purchaser, and the
Purchaser wishes to purchase from the Company, the number of Common Shares set
forth in this Agreement at the time of delivery of the Firm Public Offering
Shares, (ii) to sell to the Purchaser the number of Optional RenRe Shares (as
defined herein) as the Purchaser may specify pursuant to this Agreement at the
time of delivery (if any) of the Optional Public Offering Shares and (iii) to
grant to the Purchaser an option to purchase up to an additional 2,500,000
Common Shares (the "RenRe Option") pursuant to an option agreement in the form
attached hereto as EXHIBIT B (the "RenRe Option Agreement");
WHEREAS, the Company and the Purchaser wish to enter into a business
relationship and to document the terms thereof;
WHEREAS, in connection with the sale of Common Shares and of the RenRe
Option to the Purchaser hereunder, the Company has prepared a private placement
offering memorandum dated the date hereof (as amended or supplemented prior to
the closing of the purchase of the Common Shares and the RenRe Option, the
"Offering Memorandum") including a description of the Common Shares and the
RenRe Option, and a description of the Company; and
WHEREAS, the Company, St. Xxxx and the Purchaser have agreed that this
Agreement, together with the Transfer Restrictions, Registration Rights and
Standstill Agreement relating to the Shares attached as EXHIBIT A (the
"Standstill Agreement"), the RenRe Option Agreement attached as EXHIBIT B, the
Services and Capacity Reservation Agreement (the "Services Agreement") attached
as EXHIBIT C (the Standstill Agreement, the RenRe Option Agreement and the
Services Agreement, collectively, the "RenRe Agreements"), the other exhibits
and schedules hereto and the Confidentiality Agreement (as defined herein),
shall constitute the entire understanding and agreement among the Company, St.
Xxxx and the Purchaser with regard to the subject matter hereof;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF SHARES.
1.1 SALE AND ISSUANCE OF SHARES.
(a) Subject to the terms and conditions of this Agreement, the
Company agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended
(the "Act"), at the time of the delivery of the Firm Public Offering
Shares (as defined in the Formation Agreement), (i) 3,960,000 Common
Shares (the "Firm RenRe Shares"), which Common Shares shall equal 9.9%
of the sum of the outstanding Firm Public Offering Shares, Firm St.
Xxxx Shares and Firm RenRe Shares, and (ii) and the RenRe Option;
(b) in the event of any exercise of the Over-Allotment Option
by the underwriters in the underwriters' discretion in whole or in
part, subject to the terms and conditions of this Agreement, the
Company agrees to sell to the Purchaser, in a transaction exempt from
the registration requirements of the Act, at the time of delivery of
the Optional Public Offering Shares, an additional number of Common
Shares (the "Optional RenRe Shares", and together with the Firm RenRe
Shares, the "Shares") to be determined in the Purchaser's discretion
and notice thereof to be provided to the Company by the Purchaser at a
reasonable time prior to the closing of the sale of the Optional Public
Offering Shares, but not to exceed the lesser of (i) the number of
Common Shares required for the Purchaser to retain a 9.9% ownership
interest in the Company, and (ii) 594,000 Common Shares (which is the
maximum number of additional Common Shares that may be necessary for
Purchaser to retain its 9.9% ownership of the sum of the outstanding
Firm Public Offering Shares, Optional Public Offering Shares, Firm St.
Xxxx Shares, Optional St. Xxxx Shares, Firm RenRe Shares and Optional
RenRe Shares).
(c) The parties hereto shall conduct the IPO, the ESU
Offering, the St. Xxxx Investment and the sale of the Common Shares
hereunder in accordance with the terms (including amounts invested,
price per share, percentage ownership, and valuations) set forth in the
schedule transmitted electronically by the Chief Financial Officer of
the Purchaser to representatives of St. Xxxx and the Company at
approximately 3:00 p.m. on September 18, 2002 (which schedule sets
forth a minimum and maximum price per share and other financial terms
based upon the price per share), with such changes thereto as the
parties shall otherwise agree.
1.2 PURCHASE PRICE.
(a) The aggregate purchase price for the Firm RenRe Shares and
the RenRe Option shall be equal to the product of (i) the "Initial
Public Offering Price" less the "Underwriting Discount" for one Common
Share specified on the front cover page of the final prospectus with
respect to the IPO of the Common Shares multiplied by (ii) the number
of Firm RenRe Shares being sold to the Purchaser.
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(b) The aggregate purchase price for the Optional RenRe Shares
shall be equal to the product of (i) the "Initial Public Offering
Price" less the "Underwriting Discount" for one Common Share specified
on the front cover page of the final prospectus with respect to the IPO
of the Common Shares (such per share price to be equal to the Firm Per
Share RenRe Price) multiplied by (ii) the number of Optional RenRe
Shares being sold to the Purchaser.
1.3 THE CLOSING. The closing (the "Closing") of the purchase
and sale of the Firm RenRe Shares (and if the Over-Allotment Option is
exercised prior to the Closing, the Optional RenRe Shares) shall be
held at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, simultaneously with the initial closing of the IPO. At
the Closing, the Company will deliver certificates for the Shares
registered in the name of the Purchaser (or such Person or Persons as
the Purchaser shall designate by written notice at least five days
prior to the Closing, PROVIDED that any such Person is a foreign
corporation within the meaning of Section 7701(a)(3) and (5) of the
Code (a "Foreign Corporation") substantially all of the capital stock
of which is directly or indirectly owned by the Purchaser, is a
Qualified Institutional Buyer (as such term is defined in Rule 144A
under the Act) and enters into a Standstill Agreement in the form of
EXHIBIT A) against payment of the purchase price therefor by wire
transfer in immediately available funds to an account or accounts
outside the United States of America specified by the Company.
1.4 SUBSEQUENT EXERCISE OF OVER-ALLOTMENT OPTION IN THE IPO.
(a) If the underwriters in the IPO exercise their Over-Allotment Option
at any time after the closing date of the IPO, a second closing will be
held at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, simultaneously with the second closing of the IPO (the
"Second Closing").
(b) At the Second Closing, the Company will deliver
certificates for the Optional RenRe Shares registered in the name of
the Purchaser (or such Person or Persons as the Purchaser shall
designate by written notice at least five days prior to the Second
Closing, PROVIDED that any such Person is a Foreign Corporation
substantially all of the capital stock of which is directly or
indirectly owned by the Purchaser, is a Qualified Institutional Buyer
(as such term is defined in Rule 144A under the Act) and enters into a
Standstill Agreement in the form of EXHIBIT A) against payment of the
purchase price therefor by wire transfer in immediately available funds
to an account or accounts specified by the Company outside the United
States of America.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Purchaser that:
2.1 The Offering Memorandum, as of the date hereof did not
contain, and as of the Closing and the Second Closing (if any) will not
contain, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
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2.2 The Company has been duly organized and is validly
existing as a company in good standing under the laws of Bermuda, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Memorandum, and has been duly
qualified as a foreign company for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; each subsidiary of the Company has been duly organized
and is validly existing as a corporation or a company in good standing
under the laws of its jurisdiction of organization, with corporate
power and authority to own its properties and conduct its business as
described in the Offering Memorandum, and has been duly qualified as a
foreign corporation or company for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns
or leases properties or conducts any business, or will own or lease
property or conduct business at the Closing, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
2.3 The Company is duly authorized to execute, deliver and
perform this Agreement and the RenRe Agreements; this Agreement has
been duly authorized, executed and delivered by the Company and each of
the RenRe Agreements has been duly authorized by the Company and,
assuming that the parties to this Agreement and the RenRe Agreements
other than the Company have the power and authority to enter into and
perform such agreements and that such agreements have been duly
authorized, executed and delivered by such parties and are valid, legal
and binding agreements of such parties, enforceable against such
parties in accordance with their terms, this Agreement is, and the
RenRe Agreements, when executed and delivered will be, valid and
binding agreements of the Company, enforceable against the Company in
accordance with its or their terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium,
or other laws now or hereafter in effect affecting creditors' rights
generally, (ii) the enforceability thereof is subject to the general
principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), and (iii) no representation or
warranty is made with respect to the enforceability of indemnification
and contribution provisions relating to violations under the Act
contained in the Standstill Agreement;
2.4 The Company has an authorized capitalization as set forth
in the Offering Memorandum, and all of the issued shares of capital
stock of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and conform in all material respects to
the description of the capital stock contained in the Offering
Memorandum; all of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully paid and non-assessable and will be owned directly or
indirectly by the Company at the Closing, free and clear of all liens,
encumbrances, equities or claims; except as described in the RenRe
Option Agreement and in the Offering Memorandum under the captions
"Certain Relationships and Related Transactions--Formation and
Separation Agreement--Pre-Emptive Rights", "Certain Relationships and
Related Transactions--Option Agreement" and "Description of the Equity
Security Units", the holders of outstanding shares of capital stock of
the Company
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are not entitled to pre-emptive or other rights to acquire the Shares;
there are no outstanding securities convertible into or exchangeable
for, or warrants, rights or options to purchase from the Company, or
obligations of the Company to issue, Common Shares or any other class
of capital stock of the Company (except as set forth in the Offering
Memorandum under the captions "Management", "St. Xxxx Investment and
Principal Shareholders", "Certain Relationships and Related
Transactions--Option Agreement", "Description of the Equity Security
Units" and "Underwriting"); there are no restrictions on subsequent
transfers of the Shares under the laws of Bermuda or the United States
(other than, pursuant to the securities laws of the United States, by
affiliates of the Company and other than as described in the Offering
Memorandum under the caption "Description of Our Common Shares"); and
no party has the right to require the Company to register securities
except as disclosed in the Offering Memorandum;
2.5 All of (i) the Shares to be issued and sold by the Company
to the Purchaser hereunder, (ii) the Common Shares issuable upon
exercise of the RenRe Option, (iii) the Common Shares to be issued and
sold by the Company in the IPO (the "IPO Shares") and (iv) the St. Xxxx
Shares have been duly authorized and, when issued and delivered against
payment therefor as provided herein and therein, will be validly issued
and fully paid and non-assessable and will conform in all material
respects to the description of the Common Shares contained in the
Offering Memorandum;
2.6 The issue and sale of the IPO Shares, the ESUs, the RenRe
Option and the St. Xxxx Shares by the Company, the issuance of the
Common Shares of the Company upon exercise of the RenRe Option, and the
compliance by the Company with all of the provisions of this Agreement
and the RenRe Agreements will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or give rise to a right of termination under (i) the
memorandum of association or bye-laws or other organizational document
of the Company or any of its subsidiaries, (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its
subsidiaries is subject, or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, except, in the case of clause (ii) or (iii), as would
not, individually or in the aggregate, have a material adverse effect
on the consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries (taken as a whole)
following the Closing, or affect the due authorization and valid
issuance of the IPO Shares, the Shares, the ESUs, the RenRe Option or
the St. Xxxx Investment Shares;
2.7 Neither the Company nor any of its subsidiaries is in
violation of its memorandum of association or bye-laws or other
organizational documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound; and, except as set forth on
Schedule 2.7, no consents, approvals, authorizations, orders,
registrations or qualifications of or with any court or governmental
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agency or body having jurisdiction over the Company is required for the
execution, delivery or performance by the Company of this Agreement or
the RenRe Agreements;
2.8 No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Purchaser to Bermuda or any political subdivision or
taxing authority thereof or therein in connection with the sale and
delivery by the Company of the Shares or the RenRe Option to or for the
account of the Purchaser; and no registration, documentary, recording,
transfer or other similar tax, fee or charge by any Bermuda government
authority is payable in connection with the execution, delivery,
filing, registration or performance of this Agreement;
2.9 Assuming the accuracy of the representations and
warranties set forth in Sections 4.5 through 4.9, the offer, sale and
issuance of the Shares and the RenRe Option to be issued in conformity
with the terms of this Agreement and the issuance of the Common Shares
to be issued upon exercise of the RenRe Option constitute transactions
exempt from the registration requirements of Section 5 of the Act and
in compliance with all applicable securities laws of the United States
and each of the states whose laws govern the issuance of any Shares or
the RenRe Option;
2.10 The sale of the Shares, the RenRe Option and any Common
Shares issuable upon exercise of the RenRe Option will not be
registered under any U.S. federal or state securities law, and the
Shares and the RenRe Option will be offered and sold in reliance upon
the exemptions from registration provided by the no-action letters
regarding Black Box Incorporated (publicly available June 26, 1990) and
Squadron, Ellenoff, Plesent & Xxxxxx (publicly available February 28,
1992) (the "Black Box No-Action Relief"), and applicable exemptions
under state securities laws. In this connection, the Company represents
that it is familiar with the Black Box No-Action Relief;
2.11 Assuming the Purchaser has the requisite power and
authority to be the lawful owner of the Shares, upon issuance and
delivery to the Purchaser or its designee at the Closing or the Second
Closing of certificates representing the Firm RenRe Shares and the
Optional RenRe Shares, as applicable, good and marketable title to such
Shares will pass to the Purchaser or its designee free and clear of any
liens or encumbrances;
2.12 The Company has made available to the Purchaser or its
representatives copies of the current drafts as set forth on Schedule
2.12 of each agreement between the Company and St. Xxxx or any of their
respective affiliates contemplated by the Formation Agreement, and each
agreement executed by such parties will not contain any material
changes from the draft agreement previously made available to the
Purchaser or its representatives (excluding changes contemplated by
Exhibit F hereto), and no additional agreements shall have been entered
into between any of such parties after the date of this Agreement,
in each case except for material changes or new such agreements
approved by the Purchaser, and provided, further that it is understood
that a security arrangement in favor of St. Xxxx Reinsurance Company
Limited will be implemented by Platinum Re (UK) Limited, such
arrangement to be similar to the trust agreements referenced in items
9 and 20 of Schedule 2.12 (with appropriate changes in light of
applicable United Kingdom requirements and practice).
2.13 The certificate of the Chief Executive Officer of the
Company delivered pursuant to the second sentence of Section 5.1 shall
be deemed a representation and warranty by the Company to the Purchaser
as to the matters covered thereby; and
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2.14 Except for the representations and warranties contained
in this Agreement and the RenRe Agreements and the disclosure set forth
in the Offering Memorandum, neither the Company nor any other Person
makes any express or implied representation or warranty on behalf of or
with respect to the Company or any of the Post-closing Subsidiaries of
the Company, and the Company hereby disclaims any representation or
warranty not contained herein or therein.
3. REPRESENTATIONS AND WARRANTIES OF ST. XXXX. St. Xxxx hereby
represents and warrants that:
3.1 St. Xxxx has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Minnesota;
3.2 St. Xxxx is duly authorized to execute, deliver and
perform this Agreement; this Agreement has been duly authorized,
executed and delivered by St. Xxxx and, assuming that parties to this
Agreement other than St. Xxxx have the power and authority to enter
into and perform this Agreement and that this Agreement has been duly
authorized, executed and delivered by such parties and are valid, legal
and binding agreements of such parties, enforceable against such
parties in accordance with their terms, this Agreement is a valid and
binding agreement of St. Xxxx, enforceable against St. Xxxx in
accordance with its terms, except that (i) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium, or other
laws now or hereafter in effect affecting creditors' rights generally,
and (ii) the enforceability thereof is subject to the general
principles of equity (whether such enforceability is considered in a
proceeding in equity or at law);
3.3 Except as set forth on Schedule 3.3, no consents,
approvals, authorizations, orders, registrations or qualifications of
or with any court or governmental agency or body having jurisdiction
over St. Xxxx is required for the execution, delivery or performance by
St. Xxxx of this Agreement;
3.4 The execution, delivery and performance by St. Xxxx with
all applicable provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, or give rise to a right of termination under (i) the
certificate of incorporation or by-laws of St. Xxxx, (ii) any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which St. Xxxx is a party or by which St. Xxxx is
bound or to which any of the properties or assets of St. Xxxx is
subject, or (iii) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over St. Xxxx
or any of its properties, except, in the case of clause (ii) or (iii),
as would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of St. Xxxx and its subsidiaries, taken as a
whole, or of the Transferred Business;
3.5 The historical financial statements and schedules of
Predecessor included in the Offering Memorandum present fairly in all
material respects the underwriting
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results of Predecessor as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the
Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein);
3.6 Except for the representations and warranties contained in
this Agreement, St. Xxxx does not make any express or implied
representation or warranty on behalf of or with respect to St. Xxxx or
the Transferred Business, and St. Xxxx hereby disclaims any
representation or warranty not contained herein.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants that:
4.1 The Purchaser has been duly organized and is validly
existing as a company in good standing under the laws of Bermuda;
4.2 The Purchaser is duly authorized to execute, deliver and
perform this Agreement and the RenRe Agreements; this Agreement has
been and each of the RenRe Agreements when executed and delivered at or
prior to the Closing will have been duly authorized, executed and
delivered by the Purchaser and, assuming that parties to this Agreement
and the RenRe Agreements other than the Purchaser have the power and
authority to enter into and perform such agreements and that such
agreements have been duly authorized, executed and delivered by such
parties and are valid, legal and binding agreements of such parties,
enforceable against such parties in accordance with their terms, this
Agreement is, and the RenRe Agreements, when executed and delivered
will be, valid and binding agreements of RenRe, enforceable against
RenRe in accordance with its or their terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other laws now or hereafter in effect affecting
creditors' rights generally, (ii) the enforceability thereof is subject
to the general principles of equity (whether such enforceability is
considered in a proceeding in equity or at law) and (iii) no
representation or warranty is made with respect to the enforceability
of indemnification and contribution provisions relating to violations
under the Act contained in the Standstill Agreement;
4.3 The execution, delivery and performance by the Purchaser
with all applicable provisions of this Agreement and the Standstill
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
give rise to a right of termination under (i) the memorandum of
association or bye-laws of the Purchaser, (ii) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Purchaser is a party or by which the Purchaser is bound or to which
any of the properties or assets of the Purchaser is subject, or (iii)
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Purchaser or
any of its properties, except, in the case of clause (ii) or (iii), as
would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of the Purchaser and its subsidiaries, taken as a
whole;
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4.4 Except as set forth on Schedule 4.4, no consents,
approvals, authorizations, orders, registrations or qualifications of
or with any court or governmental agency or body having jurisdiction
over the Purchaser is required for the execution, delivery or
performance by the Purchaser of this Agreement or any of the RenRe
Agreements.
4.5 The Purchaser hereby confirms that the Shares and the
RenRe Option to be acquired by the Purchaser will be acquired for
investment for the Purchaser's own account or the account of any
subsidiary of the Purchaser, substantially all of the capital stock of
which is directly or indirectly owned by Purchaser (PROVIDED that any
such subsidiary is a Foreign Corporation and a Qualified Institutional
Buyer (as such term is defined in Rule 144A under the Act)), not as a
nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that the Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the
same, PROVIDED that nothing in this Section 4.5 shall prevent the
Purchaser from transferring the Shares and the RenRe Option to be
acquired by the Purchaser in accordance with the Standstill Agreement,
and in any case in accordance with all applicable law. The Purchaser
further represents that the Purchaser is a foreign person within the
meaning of Sec. 801.1(e)(2)(i) of the Premerger Notification Rules, 16
CFR Sec. 801.1(e)(2)(i);
4.6 The Purchaser understands that the Shares and the RenRe
Option it is purchasing have not been registered under the Act in
reliance on the exemptions from registration provided by the no-action
letters regarding Black Box Incorporated (publicly available June 26,
1990) and Squadron, Ellenoff, Plesent & Xxxxxx (publicly available
February 28, 1992) (the "Black Box No-Action Relief"), and absent
registration, may not be offered or sold within the United States
except pursuant to an exemption from such registration or in a
transaction not subject to the registration requirements of the Act. In
this connection, the Purchaser represents that it is familiar with the
Black Box No-Action Relief and Rule 144 under the Act, understands the
resale limitations imposed by Rule 144 and by the Act and acknowledges
and accepts that the Shares and the RenRe Option it is purchasing have
not been registered by the Company for sale to it in reliance on the
Black Box No-Action Relief;
4.7 The Purchaser is a Foreign Corporation and a Qualified
Institutional Buyer (as such term is defined in Rule 144A under the
Act);
4.8 The Purchaser has not been offered Common Shares in the
IPO by any of the underwriters of the IPO, and prior to the date of
this Agreement has not attended a road show presentation in connection
with the IPO;
4.9 The Purchaser has been furnished access to such
information and documents as it has requested, including all draft
agreements set forth on Schedule 2.12, and has been afforded an
opportunity to ask questions of and receive answers from
representatives of the Company concerning the Company and the
Transferred Business;
4.10 The Purchaser is a "non-resident" for the purposes of the
Xxxxxxx Xxxxxxxx Xxxxxxx Xxx 0000 and regulations made thereunder;
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4.11 The certificate of the Chief Executive Officer, Chief
Financial Officer or any Executive Vice President of the Purchaser
delivered pursuant to the second sentence of Section 6.1 shall be
deemed a representation and warranty by the Purchaser to the Company
hereunder as to the matters covered thereby;
4.12 To the Purchaser's knowledge, based upon actual
knowledge, a review of documents publicly filed with the Securities and
Exchange Commission by the Purchaser and the beneficial owners of
equity securities of the Purchaser, neither the Purchaser nor any other
Person (including any direct or indirect shareholder of the Purchaser)
is or will become a "United States shareholder" of the Company within
the meaning of Section 951(b) of the Code as the result of (i) the
acquisition by the Purchaser of any Common Shares, the RenRe Option or
any other rights under this Agreement or the RenRe Agreements or (ii)
the nomination or election of a Purchaser Designee to the Company's
board of directors pursuant to Section 7 of this Agreement. For
purposes of the representation in this Section 4.12, the Purchaser will
assume that all direct and indirect shareholders of the Purchaser own
no Common Shares and possess no voting rights in the Company other than
as a result of the items described in (i) and (ii) above;
4.13 The Purchaser will promptly submit a Disclaimer of
Control with the Maryland Insurance Administration in connection with
the transactions and arrangements contemplated hereby; and
4.14 Except for the representations and warranties contained
in this Agreement and the RenRe Agreements, neither RenRe nor any other
Person makes any express or implied representation or warranty on
behalf of or with respect to RenRe, and RenRe hereby disclaims any
representation or warranty not contained herein or therein.
5. CONDITIONS TO THE PURCHASER'S OBLIGATION AT CLOSING. The obligation
of the Purchaser to purchase the Firm RenRe Shares and the RenRe Option at the
Closing is subject to the fulfillment to its satisfaction on or prior to the
Closing of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Company and St. Xxxx in Sections 2 and 3 shall
be true and correct as of the Closing with the same force and effect as
if they had been made on and as of such date, the Company shall not
have breached in any material respect its covenants and agreements made
and the Company shall have performed or satisfied all conditions on its
part to be performed or satisfied herein at or prior to the Closing.
The Chief Executive Officer or the Treasurer of the Company shall have
delivered at the Closing a certificate stating that each of the
conditions specified in the preceding sentence has been fulfilled which
certificate shall also be delivered at any Second Closing.
5.2 RENRE AGREEMENTS. The Company shall have duly executed and
delivered the RenRe Agreements.
5.3 OPINIONS. Xxxxxxx, Xxxx & Xxxxxxx, counsel to the Company,
shall have delivered to the Purchaser their written opinions,
reasonably acceptable to the Purchaser, dated the day of the Closing,
with respect to (a) the due organization of the Company, (b)
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the due authorization, issuance and non-assessability of the Shares,
the RenRe Option and the Common Shares issuable upon exercise of the
RenRe Option, (c) the due authorization and execution of this
Agreement, the Standstill Agreement and the RenRe Option Agreement by
the Company and (d) the absence of pre-emptive rights as a result of
the issuance of the Shares and the RenRe Option, which opinion shall
also be delivered at any Second Closing.
5.4 INITIAL PUBLIC OFFERING OF COMMON SHARES AND UNITS. The
closing of the IPO and the sale of the ESUs each substantially on the
terms set forth in the draft of Amendment No. 6 to the Company's
Registration Statement on Form S-1 attached as EXHIBIT D hereto shall
have occurred (or shall occur simultaneously with the Closing).
5.5 FORMATION AGREEMENT. The delivery of the Cash Contribution
and the transfer of the Transferred Assets as contemplated by the draft
Formation Agreement referenced as item 1 on Schedule 2.12 hereto shall
have occurred (or shall occur simultaneously with the Closing), and
the Formation Agreement shall have been executed by the parties thereto
and shall be in full force and effect. St. Xxxx and the Company shall
have amended the Formation Agreement to insert the provision in the
[caad 136]Nform attached as EXHIBIT E hereto.
5.6 PROSPECTUS. The information set forth in the final
prospectus used in connection with the IPO shall not differ in any
material respects from that set forth in the Offering Memorandum.
5.7 AMENDMENTS TO QUOTA SHARE AGREEMENTS. St. Xxxx and the
Company shall have caused the parties to the Quota Share Agreements
filed as exhibits to Amendment No. 6 to the Company's Registration
Statement on Form S-1 (attached as EXHIBIT D hereto) to amend such
agreements to insert the provisions substantially in the form attached
as EXHIBIT F hereto.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligation
of the Company to sell the Firm RenRe Shares and the RenRe Option to the
Purchaser at the Closing (or, if applicable, the Optional RenRe Shares at the
Second Closing) is subject to the fulfillment to the Company's satisfaction on
or prior to the Closing (or, if applicable, the Second Closing) of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser in Section 4 shall be true and correct as
of the Closing or the Second Closing, as applicable, with the same
force and effect as if they had been made on and as of such date, the
Purchaser shall not have breached in any material respect its covenants
and agreements made herein and the Purchaser shall have performed or
satisfied all conditions on its part to be performed or satisfied
herein at or prior to the Closing or the Second Closing, as applicable.
The Chief Executive Officer, Chief Financial Officer or
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the Treasurer of the Purchaser shall have delivered at the Closing or
the Second Closing, as applicable, a certificate stating that each of
the conditions specified in the preceding sentence has been fulfilled.
6.2 RENRE AGREEMENTS. The Purchaser shall have duly executed
and delivered the RenRe Agreements.
6.3 INITIAL PUBLIC OFFERING OF COMMON SHARES AND UNITS. The
closing of the IPO and of the ESU Offering shall have occurred (or
shall occur simultaneously with the Closing).
7. BOARD OF DIRECTORS.
7.1 NOMINATION OF DIRECTORS. (a) So long as the Purchaser and
its subsidiaries beneficially own, in the aggregate, a number of Common
Shares equal to at least 62.5% of the sum of the Firm RenRe Shares and
the Optional RenRe Shares (if any) purchased under this Agreement (as
adjusted for stock splits, recapitalizations or the like), the Company
will nominate, at each shareholder meeting at which directors are
elected, and use its commercially reasonable efforts to cause the
election of, one person designated by Purchaser (the "Purchaser
Designee") to the Company's Board of Directors and to maintain such
person as a director of the Company, PROVIDED, HOWEVER, that no
officer, director or employee of the Purchaser or of any of its
subsidiaries may be a Purchaser Designee. The initial Purchaser
Designee and any subsequent Purchaser Designee must be reasonably
acceptable to the Company. The Company agrees to use its commercially
reasonable efforts to cause the appointment of the Purchaser Designee
to the executive committee of its Board of Directors and, subject to
applicable law, rules or regulations of the Securities and Exchange
Commission (the "SEC") or rules of any securities exchange on which the
Company's Common Shares are listed, to the nominating committee and
corporate governance committee of its Board of Directors, if any.
(b) The Company agrees to use its commercially reasonable
efforts to cause the election of a Purchaser Designee to the Company's
board of directors, including by soliciting proxies from its
shareholders for such Purchaser Designee and by voting all management
proxies in favor of such Purchaser Designee except for such proxies
that specifically indicate to the contrary or where prohibited by
applicable law. The Purchaser agrees to vote any Common Shares directly
or indirectly owned by it in favor of its nominee to the Company's
Board of Directors at any meeting of shareholders of the Company.
(c) The Company further agrees that if any Purchaser Designee
ceases to be a director of the Company for any reason whatsoever (other
than as a result of action in conformity with paragraph 7.2 below), it
will promptly seek the approval of the remaining directors to appoint a
new Purchaser Designee to fill such vacancy.
(d) So long as Purchaser and its subsidiaries beneficially
own, in the aggregate, a number of Common Shares equal to at least
62.5% of the sum of the Firm RenRe Shares and the Optional RenRe Shares
(if any) purchased under this Agreement
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(as adjusted for stock splits, recapitalizations or the like),
Purchaser shall have the right to designate a representative (the
"Observer") to attend (but not to vote at) meetings of the Board of
Directors and to receive notices, agendas, minutes and all other
materials distributed to participants of such meetings, PROVIDED,
HOWEVER, that the Company reserves the right to withhold any
information and to exclude such Observer from any meeting or portion
thereof if, by access to such information or by attendance at such
meeting the Company, acting reasonably and in good faith, determines
that (i) , based upon advice of nationally recognized outside counsel,
such Observer receiving such information or having such access could
reasonably be expected to cause the Company or any of its subsidiaries
to violate applicable law, or (ii) such Observer receiving such
information or having such access could reasonably be expected to
adversely affect the attorney-client privilege between the Company and
its counsel. Any person designated by Purchaser to be its Observer
(with the exception of Purchaser's Chief Executive Officer and Chief
Financial Officer, each of whom is hereby deemed to be acceptable to
the Company) must be reasonably acceptable to the Company.
(e) Notwithstanding anything to the contrary in this
Agreement, if there shall occur a Change in Control of the Purchaser,
the Company shall have no obligation or duties under Section 7.1
(a)-(d) and, upon request of the Company, the Purchaser shall cause the
Purchaser Designee to immediately resign from the Company's Board of
Directors. A "Change in Control" of Purchaser shall be deemed to have
occurred if (i) any person or group (as defined for purposes of Section
13 of the Securities Exchange Act of 1934, as amended) (excluding
Purchaser or any wholly-owned subsidiary thereof) becomes the
beneficial owner of more than 50% of the outstanding equity securities
representing the right to vote for the election of directors or (ii)
there shall occur a merger, consolidation or other business combination
in which Purchaser is acquired (unless the stockholders of Purchaser
immediately before such business combination own, directly or
indirectly, immediately following such business combination, at least a
majority of the combined voting power of the entity resulting from such
business combination).
7.2 RESIGNATIONS. If the Purchaser beneficially owns less than
a number of Common Shares equal to 62.5% of the sum of the Firm RenRe
Shares and the Optional RenRe Shares (if any) purchased under this
Agreement (as adjusted for stock splits, recapitalizations or the
like), upon the request of the Company the Purchaser shall cause the
Purchaser Designee to immediately resign as a director of the Company.
The Purchaser agrees to enter into a written agreement with any
Purchaser Designee, whereby the Purchaser Designee shall obligate
himself to so resign under the circumstances set forth in Section
7.1(e) or this Section 7.2.
7.3 BOARD. For three years from the anniversary of the date of
the Closing (the "Limitation Period"), the Company [shall not] increase
the number of directors on its board of directors to more than nine
without the prior written consent of the Purchaser, such consent to be
provided in the Purchaser's sole discretion; PROVIDED, HOWEVER, that
such three-year Limitation Period shall be extended for up to
additional two years so long as Purchaser is accounting for its
investment in the Company via the equity method and Purchaser
reasonably believes (and shall represent to the Company upon its
reasonable
-13-
request) that its ability to continue to equity account for its
investment in the Company would be compromised by an increase in the
number of directors.
7.4 NON ASSIGNABILITY. Notwithstanding anything to the
contrary in this Agreement or any of the RenRe Agreements, the rights
and obligations of the Purchaser under this Article 7 may not be
assigned by the Purchaser without the prior written consent of the
Company.
7.5 [PURCHASER CONFIDENTIALITY. Commencing upon completion of
the IPO and the Closing hereunder:
(a) The Purchaser shall, shall cause its Subsidiaries to, and
shall use commercially reasonable efforts to cause any officer,
director, employee, agent or representative of the Purchaser or any of
its Subsidiaries (collectively, the "Purchaser Representatives") to,
keep all Company Confidential Information (as defined herein)
confidential and shall not use any Company Confidential Information in
any manner to the detriment of the Company, except that (i) Company
Confidential Information may be used by the Purchaser or any of its
Subsidiaries in connection with performing any of its respective
obligations under, or furnishing any of the services required to be
performed or furnished by the Purchaser or any of its Subsidiaries
under, this Agreement or any of the RenRe Agreements, and Company
Confidential Information may be disclosed to those Purchaser
Representatives who need to know such information for the purpose of
performing any of such obligations or furnishing any of such services
(it being understood that such Purchaser Representatives shall be
informed by the Purchaser of the confidential nature of such
information), (ii) Company Confidential Information received by the
Purchaser Designee or the Observer may be used by the Purchaser, its
Subsidiaries and the Purchaser Representatives for purposes of
evaluating Purchaser's continued investment in the Company (it being
understood that such Purchaser Representatives shall be informed by the
Purchaser of the confidential nature of such information), (iii) any
disclosure of such information may be made to which the Company
consents in writing, and (iv) the Purchaser may make the disclosures
contemplated by Section 7.5(b). The Company acknowledges and agrees
that Purchaser, its Subsidiaries and its Affiliates are actively
engaged in the business of reinsurance and insurance and other
risk-exposed activities and markets, and nothing in this Section 7.5
shall be deemed to limit or restrict the conduct of the business of
such entities as currently conducted or proposed to be conducted except
as explicitly provided herein.
(b) In the event that the Purchaser or the Purchaser
Representatives are requested or become legally compelled (by law,
regulation, stock exchange rule, oral questions, interrogatories,
requests for information or document subpoena, civil investigative
demand or similar process) to disclose any of the Company Confidential
Information, the Purchaser shall provide the Company with prompt
written notice of such request so that the Company may seek a
protective order or other appropriate remedy (and the Purchaser shall
cooperate in obtaining such protective order or other appropriate
remedy) and/or waive compliance with the provides of this Section 7.5.
In the event that such protective order or other remedy is not
obtained, or that the Company waives compliance with the provisions of
this Section 7.5, the Purchaser shall furnish only that
-14-
portion of that Company Confidential Information which the Purchaser is
advised by counsel is legally required.
(c) For purposes of this Section 7.5, "Company Confidential
Information" shall mean all confidential business, financial or other
information of the Company or its Subsidiaries furnished by or on
behalf of the Company or its Subsidiaries other than information which
(i) was already in possession of the Purchaser or its Subsidiaries, (A)
provided that such information is not known by the Purchaser to be
subject to a confidentiality agreement with or other obligation of
secrecy to the Company or another party and (B) was not Evaluation
Material obtained pursuant to the Confidentiality Agreement (as defined
below), (ii) is or becomes generally available to the public other than
as a result of a disclosure by the Purchaser or the Purchaser
Representatives in violation of this Agreement or the Confidentiality
Agreement, (iii) is independently developed by the Purchaser or its
Subsidiaries without reference to the Company Confidential Information,
or (iv) becomes available to the Purchaser or any of its Subsidiaries
on a non-confidential basis from a source other than the Company or its
advisors, provided that such source is not known by the Purchaser or
any of its Subsidiaries to be bound by a confidentiality agreement with
or other obligation of secrecy to the Company or another party.
(d) Unless otherwise agreed to by the Purchaser and the
Company, the obligations of the Purchaser under Sections 7.5(a),
7.5(b) and 7.5(c) shall be binding until termination of the Services
Agreement.
(e) The Purchaser hereby agrees that, unless otherwise agreed
to by the Company, during the eighteen-month period commencing on the
date of Closing neither the Purchaser nor any of its Subsidiaries will
hire or solicit to employ any employees of the Company or any of its
Subsidiaries with the title of Assistant Vice President or more senior,
so long as they are employed by the Company or any of its subsidiaries,
without obtaining the prior written consent of the Company, except that
the Purchaser shall not be precluded from hiring any employee who has
been terminated by the Company prior to commencement of employment
discussions between the Purchaser and such employee, provided such
hiring is consistent with such employee's contractual obligations to
the Company, and the Purchaser shall not be precluded from engaging in
a general solicitation of employment by virtue of a newspaper
advertisement or other medium of general circulation.
(f) The Purchaser shall cause the Observer to hold in
confidence and trust any information it obtains in connection with
attending meetings (or receiving materials in connection with such
meetings) of the Company's Board of Directors pursuant to Section
7.1(d) of this Agreement, and to act in a fiduciary manner with respect
to such information as if such representative was a member of the
Company's Board of Directors.
(g) The Confidentiality Agreement, dated as of July 23, 2002
(as amended or supplemented through the date hereof, the
"Confidentiality Agreement"), among the Company, St. Xxxx and the
Purchaser shall continue in full force and effect
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until the completion of the IPO and the Closing of the transactions
contemplated hereunder, at which time it shall terminate with no
further force and effect.]
7.6 COMPANY CONFIDENTIALITY. Commencing upon completion of the
IPO and the Closing hereunder:
(a) The Company shall, shall cause its Subsidiaries to, and
shall use commercially reasonable efforts to cause any officer,
director, employee, agent or representative of the Company or any of
its Subsidiaries (collectively, the "Company Representatives") to, keep
all Purchaser Confidential Information (as defined herein) confidential
and shall not use any Purchaser Confidential Information in any manner
to the detriment of the Purchaser, except that (i) any Purchaser
Confidential Information may be made to which the Purchaser consents in
writing, and (ii) the Company may make the disclosures contemplated by
Section 7.6(b). The Purchaser acknowledges and agrees that the Company,
its Subsidiaries and its Affiliates are expected to be actively engaged
in the business of reinsurance and insurance and other risk-exposed
activities and markets, and nothing in this Section 7.6 shall be deemed
to limit or restrict the conduct of the business of such entities as
currently conducted or proposed to be conducted except as explicitly
provided herein.
(b) In the event that the Company or the Company
Representatives are requested or become legally compelled (by law,
regulation, stock exchange rule, oral questions, interrogatories,
requests for information or document subpoena, civil investigative
demand or similar process) to disclose any of the Purchaser
Confidential Information, the Company shall provide the Purchaser with
prompt written notice of such request so that the Purchaser may seek a
protective order or other appropriate remedy (and the Company shall
cooperate in obtaining such protective order or other appropriate
remedy) and/or waive compliance with the provides of this Section 7.6.
In the event that such protective order or other remedy is not
obtained, or that the Purchaser waives compliance with the provisions
of this Section 7.6, the Company shall furnish only that portion of
that Purchaser Confidential Information which the Company is advised by
counsel is legally required.
(c) For purposes of this Section 7.5, "Purchaser Confidential
Information" shall mean all confidential business, financial or other
information of the Purchaser or its Subsidiaries furnished by or on
behalf of the Purchaser or its Subsidiaries other than information
which (i) was already in possession of the Company or its Subsidiaries,
provided that such information is not known by the Company to be
subject to a confidentiality agreement with or other obligation of
secrecy to the Purchaser or another party, (ii) is or becomes generally
available to the public other than as a result of a disclosure by the
Company or the Company Representatives in violation of this Agreement,
(iii) is independently developed by the Company or its Subsidiaries
without reference to the Purchaser Confidential Information, or (iv)
becomes available to the Company or any of its Subsidiaries on a
non-confidential basis from a source other than the Purchaser or its
advisors, provided that such source is not known by the Company or any
of its Subsidiaries to be bound by a confidentiality agreement with or
other obligation of secrecy to the Purchaser or another party.
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(d) Unless otherwise agreed to by the Purchaser and the
Company, the obligations of the Company under Sections 7.6.(a), 7.6.(b)
and 7.6(c) shall be binding until termination of the Services
Agreement.
7.7 SPECIFIC PERFORMANCE. Each of the Purchaser and the
Company acknowledges that the other party would not have an adequate
remedy at law for money damages if any of the covenants or agreements
of the other party in Section 7.5 or 7.6 of this Agreement were not
performed in accordance with its terms and therefore agrees that the
other party shall be entitled to specific enforcement of such covenants
or agreements and to injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity.
8. LEGEND. The Company and the Purchaser agree that the certificates
for the Shares shall bear the following legend thereon, which legend shall
remain until the date the securities represented by such certificates are
transferred in accordance with the provisions of the Standstill Agreement. In
the event of the termination of the Standstill Agreement pursuant to Section 13
thereof, the second sentence of the legend shall be removed:
THESE SECURITIES WERE SOLD IN A PRIVATE PLACEMENT, WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AND MAY BE OFFERED OR SOLD ONLY IF
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR IF AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. THESE SECURITIES ARE SUBJECT TO THE
PROVISIONS OF A STANDSTILL AGREEMENT DATED __________, 2002, BY AND
BETWEEN THE ISSUER AND THE PURCHASER IDENTIFIED THEREIN, AND MAY NOT BE
SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH.
9. TERMINATION.
9.1 GROUNDS FOR TERMINATION. This Agreement may be terminated
by any party as set forth on Schedule 9.1 This Agreement may also be
terminated:
(a) at any time prior to the Closing, by mutual written agreement of
the Company, St. Xxxx and the Purchaser;
(b) at any time prior to the Closing, by any of St. Xxxx, the Company
or the Purchaser if there shall be any law or regulation that makes consummation
of the transactions contemplated hereby illegal or otherwise prohibited or if
consummation of the transactions contemplated hereby would violate any
nonappealable final order, decree or judgment of any court or governmental body
having competent jurisdiction; or
(c) at any time prior to the Closing, if St. Xxxx notifies in writing
the Company and the Purchaser that it has abandoned the IPO.
The party desiring to terminate this Agreement pursuant to clause 9.1(b) shall
give written notice of such termination to the other parties.
9.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 9.1, such termination shall be without liability
of either the Company or the Purchaser (or any stockholder, director,
officer, employee, agent, consultant, advisor or representative of such
party) to any other party; provided that no such termination shall
relieve any party of liability for any breach of this Agreement prior
to such termination.
10. MISCELLANEOUS.
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10.1 SURVIVAL. The representations and warranties set forth in
Section 2, Sections 3.1 through 3.4 and Section 4 shall survive until
three years after the date of the Closing. Except as otherwise provided
herein, all covenants and agreements (but not representations and
warranties, which are governed by the preceding sentence) of the
parties herein shall survive the Closing until expiration of the
applicable statute of limitations.
10.2 MUTUAL COVENANTS. The Company, St. Xxxx and the Purchaser
mutually covenant to use their commercially reasonable efforts to
obtain any required regulatory approvals, consents or acceptances
required for the consummation of the transactions contemplated by this
Agreement as promptly as is practicable after the date hereof. For
greater certainty, the Purchaser will use commercially reasonable
efforts to seek acceptance by the Maryland Insurance Administration of
its Disclaimer of Control of the Company.
10.3 EXPENSES. Irrespective of whether the Closing is
effected, the Company shall pay all expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and delivery to the Purchaser of the Offering
Memorandum (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of
each amendment or supplement thereto, (b) the preparation, printing and
delivery to the Purchaser of this Agreement, (c) the preparation,
issuance and delivery of the certificates for the Shares to the
Purchaser, including any transfer taxes, any stamp or other duties
payable upon the sale, issuance and delivery of the Shares to the
Purchaser, and (d) the fees and disbursements of the Company's counsel,
accountants and other advisors; PROVIDED, HOWEVER, that nothing in the
foregoing shall affect the allocation of expenses as between the
Company and St. Xxxx as set forth in the Formation Agreement. Except as
provided in this Section, the Purchaser shall pay all of its own costs
and expenses in connection with the transactions contemplated hereby,
including the fees of its counsel. The Purchaser acknowledges and
agrees that neither St. Xxxx nor any of its subsidiaries is a guarantor
of, or is otherwise responsible for, the Company's profitability or
viability. The Purchaser further acknowledges that the organization of
the Company and the provisions of this Agreement are designed to
attempt to ensure that neither St. Xxxx nor any of its subsidiaries can
alone control the business or affairs of the Company. The Purchaser
further acknowledges that, except as expressly set forth herein, all
representations and warranties contained herein concerning the Company
have been given by the Company and not by St. Xxxx. The Purchaser
further acknowledges that all representations and warranties of St.
Xxxx set forth in Sections 3.5 and 3.6 will expire at the Closing and
that any inaccuracies in such representations and warranties shall not
give rise to any claim by the Purchaser against St. Xxxx.
10.4 ENTIRE AGREEMENT. This Agreement, the RenRe Agreements,
the other exhibits and schedules hereto and the Confidentiality
Agreement (which Confidentiality Agreement shall terminate as of
Closing) contain the entire understanding of the parties with respect
to the subject matter of such agreements and supersede all prior
agreements and undertakings, both written and oral, between the parties
hereto with respect to the subject matter of such agreements. This
Agreement may not be amended nor may any provision be waived except by
a writing signed, in the case of an amendment, by each party hereto
and, in the case of a waiver, by the party against whom the waiver is
to be
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effective. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof unless
the other party is materially prejudiced thereby, nor shall any single
or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law. This Agreement is
not assignable by either of the parties without the prior written
consent of the other, except that prior to Closing, this Agreement may
be transferred or assigned by the Purchaser to any one or more of its
subsidiaries, substantially all of the capital stock of which is
directly or indirectly owned by the Purchaser, that is a Foreign
Corporation and a Qualified Institutional Buyer (as such term is
defined in Rule 144A under the Act), PROVIDED that each such assignee
enters into an agreement substantially identical to this Agreement and
reasonably satisfactory to the Company and St. Xxxx and a Standstill
Agreement substantially in the form of EXHIBIT A, PROVIDED FURTHER that
no such transfer will relieve the Purchaser of its obligations
hereunder. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, any subsidiary to whom the Shares are
delivered pursuant hereto, and their respective successors and
permitted assignees.
10.5 SEVERABILITY. If any term, provision or restriction of
this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions
and restrictions of this Agreement shall remain in full force and
effect, unless such action would substantially impair the benefits to
any party of the remaining provisions of this Agreement.
10.6 LIABILITY. Notwithstanding anything to the contrary
herein, no party shall have any liability to any other party hereto if
the Closing is not effected for any reason other than for breach of
this Agreement by any such party. In no event shall any party have any
liability to any other party hereto for lost profits or consequential,
special or other than actual damages.
10.7 NOTICES. Any notices and other communications required to
be given pursuant to this Agreement shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered
personally, mailed by registered or certified mail (postage prepaid,
return receipt requested), or delivered by facsimile or by telex, as
follows:
If to the Company:
Platinum Underwriters Holdings, Ltd.
Clarendon Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Xxxxxxxxx: General Counsel
Telecopier: (000) 000-0000
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with a copy to:
Xxxxx X. Xxxxxx
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
If to St. Xxxx:
The St. Xxxx Companies, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
If to the Purchaser:
RenaissanceRe Holdings Ltd.
Xxxxxxxxxxx Xxxxx
0-00 Xxxx Xxxxxxxx
Xxxxxxxx XX00 Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxxx, General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxx X. X'Xxxxxxxx
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
10.8 GOVERNING LAW, ETC. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York,
without regard to the conflicts of laws rules of such State. This
Agreement may be executed in one or more counterparts, which together
will constitute a single agreement.
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10.9 JURISDICTION. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in the United States
District Court for the Southern District of New York or, if such court
shall not have jurisdiction over such suit, any New York State court
sitting in New York City, so long as such courts shall have subject
matter jurisdiction over such suit, action or proceeding, and that any
cause of action arising out of this Agreement shall be deemed to have
arisen from a transaction of business in the State of New York, and
each of the parties hereby irrevocably consents only with respect to
such suits, actions or proceedings to the jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding which is brought
in any such court has been brought in an inconvenient forum. Without
limiting the foregoing, each party agrees that service of process on
such party as provided in Section 10.7 shall be deemed effective
service of process on such party.
10.10 WAIVER OF JURY TRIAL. Each of the parties hereto
irrevocably waives any and all right to trial by jury in any legal
proceeding arising out of or related to this Agreement or the
transactions contemplated hereby.
10.11 CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction
or interpretation hereof.
10.12 PUBLIC ANNOUNCEMENTS. No party to this Agreement shall
make, or cause to be made, any press release or public announcement
(other than with respect to any required disclosure under the
Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, the U.K. Financial Services and Markets Xxx 0000 or
applicable insurance law) in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any news
media without the prior written consent of the other parties, and the
parties shall cooperate as to the timing and contents of any such press
release or public announcement.
10.13 INDEMNITY.
(a) The Company shall indemnify and hold harmless, to the
fullest extent permitted by law, Purchaser from any losses, damages,
expenses or liabilities ("Damages"), arising out of actions or claims
of third parties (excluding Purchaser's subsidiaries and controlled
affiliates) arising out of any untrue statement or alleged untrue
statement of any material fact contained in the registration statements
on Form S-1 relating to the IPO and the sale of the ESUs, in any
prospectus or preliminary prospectus included in such registration
statement or in any amendment or supplement thereto filed with the SEC
(collectively, "Registration Documents") or insofar as such Damages
arise out of the omission or alleged omission from any Registration
Document of a material fact required to be stated therein or necessary
to make the statements made therein not misleading, and will reimburse
the Purchaser for any legal or other expenses reasonably
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incurred by the Purchaser in investigating or defending any such
actions or claims as such expenses are incurred; PROVIDED that the
Company is not liable in any such case to the extent that any such
Damages arise out of an untrue statement or alleged untrue statement or
omission or alleged omission made in any Registration Document in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Purchaser expressly for inclusion in
such Registration Document.
(b) Purchaser shall indemnify and hold harmless, to the
fullest extent permitted by law, the Company against any Damages to
which the Company may become subject, under the Securities Act or
otherwise, insofar as such Damages arise out of any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Documents or insofar as such Damages arise out of the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Documents in reliance
upon and in conformity with written information furnished to the
Company by Purchaser expressly for inclusion in such Registration
Document; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) St. Xxxx and the Company each hereby agree and acknowledge
that as of the date hereof the only information provided by the
Purchaser for inclusion in the draft of Amendment No. 6 to the
Company's Registration Statement on Form S-1 attached as EXHIBIT D
hereto consists of (i) the last sentence of the first paragraph under
the heading "Prospectus Summary--The Company--RenaissanceRe's Share
Ownership and Business Arrangements", (ii) the first sentence of the
last paragraph under the heading "Prospectus Summary--The Company--
RenaissanceRe's Share Ownership and Business Arrangements", (iii) the
final sentence of the first paragraph under the heading "Certain
Relationships and Related Transactions--The RenaissanceRe Investment"
on and (iv) the final sentence of the first paragraph under the heading
"Certain Relationships and Related Transactions--The RenaissanceRe
Investment--Business Arrangements", and that, as between St. Xxxx, the
Company and the Purchaser, the Purchaser shall bear no other
responsibility for the preparation of the Registration Statement other
than as to the written information furnished to the Company by or on
behalf of the Purchaser expressly for inclusion in such Registration
Document.
10.14 RECOVERY FROM COMPANY DIRECTORS AND OFFICERS. In any
legal action commenced by the Purchaser against the Company, any of its
Subsidiaries or the officers and/or directors of the Company or such
Subsidiaries, the Purchaser will not recover from any officer or
director of any of the Company or its Subsidiaries any amount that is
in excess of the amount the Company and/or such Subsidiaries are able
to indemnify such officer or director, other than in the circumstance
where such indemnification of such officer or director by the Company
and/or such Subsidiaries is restricted due to such officer or director
having engaged in fraud, intentional misconduct or criminal acts. The
Purchaser and the Company agree that the officers and directors of the
Company and its Subsidiaries are third party beneficiaries of the
agreement set forth in this Section 10.14.
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10.15 NO LIMIT ON RIGHT OF PARTIES TO COMPETE. Nothing in
this Agreement or any agreement contemplated hereby shall in any
circumstances be interpreted to limit or prevent, in any respect, the
Company from competing with the Purchaser, or the Purchaser from
competing with the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year hereinabove first written.
RENAISSANCERE HOLDINGS, LTD.
By:
------------------------------------------
Name:
Title:
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
------------------------------------------
Name:
Title:
THE ST. XXXX COMPANIES, INC.
By:
------------------------------------------
Name:
Title:
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EXHIBIT A
[Letterhead of Platinum Underwriters Holdings, Ltd.]
_________ __, 2002
RenaissanceRe Holdings Ltd
Xxxxxxxxxxx Xxxxx
0-00 Xxxx Xxxxxxxx
Pembroke HM 19
Bermuda
TRANSFER RESTRICTIONS, REGISTRATION RIGHTS
AND STANDSTILL AGREEMENT
Ladies and Gentlemen:
Pursuant to an Investment Agreement, dated September 20, 2002, among
Platinum Underwriters Holdings, Ltd, a Bermuda company (the "Company"), The St.
Xxxx Companies, Inc. ("St. Xxxx") and the Purchaser identified therein
("Purchaser") (the "Investment Agreement"), the Company has agreed to sell to
Purchaser or its permitted assignees, and Purchaser has agreed to purchase from
the Company, (i) 3,960,000 Common Shares, par value $0.01 per share, of the
Company and, in certain circumstances described in the Investment Agreement, has
the right to purchase up to an additional 594,000 Common Shares (collectively,
the "Shares") and (ii) an option (the "RenRe Option") to purchase up to
2,500,000 additional Common Shares pursuant to the RenRe Option Agreement
attached as Exhibit B to the Investment Agreement.
Unless the context otherwise requires, each reference herein to the
Securities Act, the Exchange Act or Rule 144 (or any other rule, regulation or
form promulgated under either such statute) shall be deemed to mean, as of any
time, such statute, rule, regulation or form as then in effect, after all
amendments thereto, or, if not then in effect, any successor statute, rule,
regulation or form as then in effect, after all amendments thereto.
The Company and Purchaser are entering into this Agreement to define
the future relationship between the Company and Purchaser and in consideration
of the mutual covenants and agreements contained herein.
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
capitalized terms have the respective meanings set forth below:
"AFFILIATE" means, with respect to one person, any other person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such person.
"BENEFICIAL OWNER" and "BENEFICIALLY OWN" means, with respect to any
person
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(i) securities that such person or any of such person's Affiliates,
directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act, including without
limitation pursuant to any agreement, arrangement or understanding,
whether or not in writing; PROVIDED that a person shall not be deemed
the "beneficial owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such person or
any of such person's Affiliates until such tendered securities are
accepted for payment, purchase or exchange, (B) any security as a
result of an oral or written agreement, arrangement or understanding to
vote such security if such agreement, arrangement or understanding: (1)
arises solely from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and Regulations under
the Exchange Act, and (2) is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(ii) securities that are beneficially owned, directly or indirectly, by
any other person (or any Affiliate thereof) with which such person (or
any of such person's Affiliates) has any agreement, arrangement or
understanding (whether or not in writing, but excluding customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities until the
expiration of forty days after the date of such acquisition), for the
purpose of acquiring, holding, voting (except pursuant to a revocable
proxy as described in the proviso to subparagraph (i) above) or
disposing of any Voting Securities.
"COMMON SHARES" means the common shares, par value U.S. $0.01 per
share, of the Company.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"PURCHASER GROUP" means RenRe and its Subsidiaries at such time.
"REGISTRABLE SHARES" means, at any time, any and all Common Shares
owned by the Purchaser Group, whether issued to RenRe pursuant to the Investment
Agreement or the RenRe Option or otherwise acquired, as the case may be, other
than shares that have ceased to be Registrable Shares. Common Shares cease to be
Registrable Shares (a) when a registration statement with respect to the
disposition of such shares has become effective under the Securities Act and
such shares shall have been disposed of pursuant to such registration statement,
or (b) when such shares have been sold pursuant to Rule 144 under the Securities
Act.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of or compliance with the demand rights set forth in Section 3(a)
and piggy-back rights set forth in Section 3(b), including, (a) all SEC and
stock exchange or National Association of Securities Dealers, Inc. registration
and filing fees, (b) all fees and expenses of complying with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Shares), (c) the cost of printing or preparing any registration statement,
prospectus, offering circular, agreement among underwriters, underwriting
agreement, blue sky memorandum, share certificates and any other
E-A-2
documents in connection with the offering, purchase, sale and delivery of the
Registrable Shares, (d) the costs and charges of any transfer agent and
registrar and any custodian or attorney-in-fact appointed to act on behalf of
Purchaser, (e) all messenger and delivery expenses of the Company, (f) the
reasonable fees and expenses of any qualified independent underwriter, (g) the
reasonable fees and disbursements of counsel for the Company and the Company's
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance and (h) any road show and marketing expenses; PROVIDED that Purchaser
shall pay the fees and disbursements of its own counsel, if any, and all
underwriting discounts, commissions and transfer taxes, if any, relating to the
sale or disposition of its Registrable Shares.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SUBSIDIARY" means, as to any person, (i) any corporation 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such person and/or one or more Subsidiaries
of such person and (ii) any other person in which such person and/or one or more
Subsidiaries of such person has a 50% equity interest at the time.
"VOTING SECURITIES" means securities of the Company with the power to
vote with respect to the election of directors generally, including, without
limitation, Common Shares (or, where reference is made to the "voting securities
of another corporation," such term shall mean securities that are generally
entitled to vote in the election of directors of such other corporation).
"WHOLLY OWNED SUBSIDIARY" means, as to any person, (i) any corporation
100% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person and/or one or
more Wholly Owned Subsidiaries of such person and (ii) any other person in which
such person and/or one or more Wholly Owned Subsidiaries of such person has a
100% equity interest at the time.
2. RESTRICTIONS ON TRANSFERS.
(a) Purchaser agrees that, prior to the first anniversary of the
Closing (as defined in the Investment Agreement), it will not, directly or
indirectly, sell, transfer or otherwise dispose of any of the Shares or any
interest therein, except that Purchaser may transfer Shares under the following
circumstances:
(i) to any Wholly Owned Subsidiary of Purchaser that enters into a
standstill agreement with the Company containing terms and conditions
substantially identical to those in this Agreement, PROVIDED that any
such transferee shall not, at the time of the transfer or at any time
thereafter, be other than a Foreign Corporation (as such term is
defined in the Investment Agreement) and a Qualified Institutional
Buyer (as such term is defined in
E-A-3
Rule 144A under the Securities Act), and in any case in accordance with
all applicable law;
(ii) pursuant to any tender offer or exchange offer which is
recommended by the Board of Directors of the Company; or
(iii) in a transfer by operation of law upon consummation of a merger
or consolidation of Purchaser into another person.
(b) Notwithstanding anything to the contrary in this Agreement,
Purchaser may not, at any time, directly or indirectly, sell, transfer or
otherwise dispose of more than 9.9% of the Common Shares outstanding at the time
of such sale, transfer or other disposition to any person that generates 50% or
more of its gross revenue in its most recent fiscal year for which financial
statements are available, by writing property or casualty insurance or
reinsurance, except in the following circumstances: (i) in connection with any
tender offer or exchange offer made to all holders of outstanding Common Shares;
(ii) to a Wholly Owned Subsidiary of Purchaser provided that such Wholly Owned
Subsidiary agrees in writing with the Company to the same transfer restrictions
as are contained in this Section 2; or (iii) in a transfer by operation of law
upon consummation of a merger or consolidation of Purchaser into another person.
(c) For the avoidance of doubt, no transfer of Shares, RenRe Option
Shares or the RenRe Option or any interest therein pursuant to this Section 2 or
pursuant to the Option Agreement shall result in any increase in the number of
Demand Requests (as defined below) available.
3. REGISTRATION RIGHTS.
(a) DEMAND RIGHTS.
(i) From and after the first anniversary of the Closing
(unless the Company consents to an earlier date, such consent not be
unreasonably withheld), Purchaser has the right, on four occasions, to
require the Company to file a registration statement on Form X-0, X-0
or S-3 (or Form F-1, F-2 or F-3) or any similar or successor to such
Forms under the Securities Act for a public offering Registrable
Shares, by delivering to the Company written notice, with a copy to St.
Xxxx, stating that such right is being exercised, naming, if
applicable, the members of the Purchaser Group whose Registrable Shares
are to be included in such registration (collectively, the "Demanding
Shareholders"), specifying the number of each such Demanding
Shareholder's Registrable Shares to be included in such registration
and describing the intended method of distribution thereof (a "Demand
Request"); PROVIDED that, from and after the fifth anniversary of the
Closing, Purchaser has the right to two additional Demand Requests if
on such date Purchaser is the beneficial owner (directly or indirectly)
of more than 9.9% of the Common Shares then outstanding. Upon receipt
of a Demand Request, the Company shall use its reasonable best efforts
to promptly effect the registration under the Securities Act of the
Registrable Shares included in the Demand Request to permit the
Demanding Shareholders to sell or otherwise dispose of its Registrable
Shares included in the registration in accordance with the method or
methods of distribution intended by the Demanding Shareholders. The
E-A-4
rights and obligations of the parties listed under this Section 3(a)(i)
are subject to the other provisions of this Agreement.
(ii) The Company's obligations pursuant to Section 3(a)(i)
above are subject to the following conditions:
(A) the Company is not obligated to fulfill a Demand
Request if it has fulfilled a Demand Request received during
the period of 12 months immediately preceding the date of
receipt of such Demand Request;
(B) the Company is not obligated to fulfill a Demand
Request unless the Demand Request is for such number of
Registrable Shares with a market value that is equal to at
least $50 million as of the date of such Demand Request,
provided that the last Demand Request (as specified in Section
3(a)(i) of this Agreement) will not be subject to the
limitations of this Section 3(a)(ii)(B);
(C) the Company shall, if requested by Purchaser,
undertake a "road show" and other customary marketing efforts
in connection with the sale of Registrable Shares pursuant to
such registration, at such times and in such manner as
Purchaser may reasonably request;
(D) the Company is not obligated to fulfill the
requirements herein with regard to any registration relating
to a Demand Request:
(1) during any period of time (not to exceed
ninety (90) days in the aggregate during any period
of twelve (12) consecutive months) after the Company
has determined to proceed with a Securities Act
registration of any of its securities and is
diligently proceeding to complete such registration
or any offering of securities pursuant thereto
(whether for its own account or that of any
shareholder but excluding any registration on Form
S-8 under the Securities Act or any similar or
successor form) if, in the judgment of a nationally
recognized investment banking firm (which may be
acting as managing underwriter for any such offering
or as financial advisor to the Company), the
fulfillment of such requirements or such filing would
have an adverse effect on the offering,
(2) during any period of time (not to exceed
ninety (90) days during any period of twelve (12)
consecutive months) when the Company is in possession
of material, non-public information that the Company
would not be required to disclose publicly in the
absence of any Securities Act registration of its
securities, and the disclosure of which would be
materially injurious to the Company, or
(3) during any period of time (not to exceed
ninety (90) days during any period of twelve (12)
consecutive months) when the Company is engaged in,
or has determined to engage in and is proceeding
diligently with, any program for the purchase of, or
any tender offer or exchange offer for, its capital
securities, and determines, on advice of nationally
E-A-5
recognized independent U.S. counsel knowledgeable in
such matters, that such program or offer and the
requested registration may not proceed concurrently
without violating Regulation M under the Exchange
Act;
(E) the Company is not required to maintain the
effectiveness of a registration statement filed pursuant to
Section 3(a)(i) for a period in excess of 90 consecutive days,
which period shall be tolled during any period in which the
Company invokes its rights under Section 3(f); PROVIDED,
HOWEVER, that, from and after the third anniversary of the
Closing and receipt thereafter by the Company of written
instructions from Purchaser to such effect, in the case of any
registration of Registrable Shares on Form S-3 or F-3 which
are intended to be offered on a continuous or delayed basis,
such 90-day period shall be extended until all such
Registrable Securities are sold, PROVIDED that Rule 415, or
any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis, PROVIDED --------
FURTHER that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which (1)
includes any prospectus required by Section 10(a) of the
Securities Act or (2) reflects facts or events representing a
material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of
information required to be included in (1) and (2) above to be
contained in periodic reports filed pursuant to Section 12 or
15(d) of the Exchange Act in the registration statement and
PROVIDED FURTHER that Purchaser shall give the Company written
notice, with a copy to St. Xxxx, at least ten business days
prior to the beginning of any fiscal quarter in which
Purchaser intends to attempt to sell, transfer or otherwise
distribute any Common Shares pursuant to this subsection (E)
which are offered on a continuous or delayed basis, which
notice shall specify the aggregate number of Common Shares
Purchaser intends to attempt to sell, transfer or dispose of
in such fiscal quarter:
(F) and shall not be required to file or maintain any
registration statement that permits a delayed or continuous
offering to be made for more than 30 consecutive days, which
period shall be tolled during any period in which the Company
invokes its rights under Section 3(f), after such registration
statement becomes effective;
(G) any underwriting agreement entered into in
connection with any public offering pursuant to this Section 3
shall contain a provision pursuant to which the managing
underwriter of any such public offering shall agree to use its
reasonable best efforts to avoid selling Registrable Shares to
any one person or group of related persons (other than another
dealer acting as an underwriter or member of any selling group
in connection with such public offering) if, as a result of
such sale, any person would beneficially or of record own
directly or indirectly through a foreign corporation, or
constructively under applicable rules contained in the
Internal Revenue Code of 1986, as amended (the "Code"), more
than 9.9% of the Voting Securities; and
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(H) Purchaser is entitled to designate any one or
more lawful methods of distribution permitted pursuant to the
registration statement (including a firm commitment
underwriting) to be the method of distribution for the
registration pursuant to this Section 3(a), and Purchaser will
sell its Registrable Shares included in the registration in
the designated methods (and, in the case of any underwriting,
on the same terms and conditions as the Company and any other
selling shareholder); the intended methods of distribution
shall be indicated in the Demand Request and shall be finally
determined prior to filing the registration statement. In any
distribution pursuant to a Demand Request involving an
underwriter, Purchaser is entitled to select any nationally
recognized investment banking firm to act as underwriter,
PROVIDED that with respect to any Demand Requests and
piggy-back registrations for which the Company -------- bears
the costs and expenses pursuant to Section 3(g), such
selection of an underwriter by Purchaser is subject to the
consent of the Company, such consent not to be unreasonably
withheld.
(iii) Subject to Section 3(c), the Company may elect to
include in any registration statement filed pursuant to this Section
3(a) any Common Shares to be issued by it or held by any of its
Subsidiaries or by any other shareholders only to the extent such
shares are offered and sold pursuant to, and on the terms and subject
to the conditions of, any underwriting agreement or distribution
arrangements entered into or effected by the Demanding Shareholders.
(iv) Purchaser may withdraw a Demand Request at any time. A
Demand Request withdrawn pursuant to this Section 3(a)(iv) is deemed
not to have been made for purposes of Section 3(a) and is of no further
effect if and only if Purchaser pays or reimburses the Company for all
expenses and costs incurred by the Company in connection with such
Demand Request.
(b) "PIGGY-BACK" RIGHTS. If at any time after the Closing the Company
proposes to register, for its own account or for the account of any shareholder,
any Common Shares on a registration statement on Form X-0, X-0 or S-3 (or Form
F-1, F-2 or F-3) or any similar or successor to such Forms under the Securities
Act for purposes of a public offering of such Common Shares, other than pursuant
to a Demand Request, Purchaser has the right to include any Registrable Shares
in such registration. The Company shall give prompt written notice of any such
proposal, including the intended method of distribution of such Common Shares,
to Purchaser. Subject to Section 3(c), upon the written request (a "Piggy-Back
Request") of Purchaser, given within fifteen (15) business days after the
transmittal of any such written notice, the Company will use its reasonable best
efforts to include in such public offering any or all of the Registrable Shares
then held by Purchaser or, if applicable, the Purchaser Group, to permit the
sale of such Registrable Shares pursuant to the intended method or methods of
distribution; PROVIDED that any participation in such public offering by
Purchaser must be on substantially the same terms as the Company's and each
other shareholder's participation therein; and PROVIDED FURTHER, that the total
number of Common Shares to be included in any such public offering may not
exceed the Maximum Number (as defined below), and Common Shares must be
allocated to give effect to this proviso as provided in Section 3(c). Purchaser
has the right to withdraw a Piggy-Back Request by giving written notice to the
Company of its election to withdraw such
E-A-7
request at least five (5) business days prior to the proposed filing date of
such registration statement. Each Piggy-Back Request by Purchaser must specify
the members of the Purchaser Group whose Registrable Shares are to be included
in the registration and the number of shares for each such member. The Company
is entitled to select any nationally recognized investment banking firm as
underwriter in a registration pursuant to this Section 3(b).
(c) ALLOCATION OF SECURITIES INCLUDED IN A PUBLIC OFFERING. If the
managing underwriter or placement agent for any public offering effected
pursuant to Section 3(a) or Section 3(b) (or, if there is none, a nationally
recognized investment banking firm acting as financial advisor to the Company)
advises the Company and Purchaser in writing that the number of Common Shares
sought to be included in such public offering (including those sought to be
offered by the Company and those sought to be offered by St. Xxxx and Purchaser)
exceeds the maximum number of Common Shares whose inclusion in such public
offering would not be reasonably likely to have an adverse effect on the price,
timing or distribution of the Common Shares included in such public offering
(the "Maximum Number"), the Company shall allocate Common Shares to be included
in such public offering up to the Maximum Number as follows:
(i) in the case of any registration pursuant to Section 3(a),
first to the Demanding Shareholders, subject, if applicable, to
allocation below the Maximum Number in such manner as they may agree
among themselves; then, as to any excess, to the Company; and
(ii) in the case of any registration pursuant to Section 3(b),
first to the Company for its own account; then to Purchaser and each
other shareholder designated by the Company, subject to allocation
below the Maximum Number pro rata according to the number of
Registrable Shares held by the Purchaser Group or by such other
shareholder, as the case may be.
Purchaser may allocate any allocation made to it pursuant to this Section 3(c)
among the members of the Purchaser Group as it wishes. The Company may allocate
any allocation made to it pursuant to Section 3(c)(i) among itself, its
Subsidiaries and its shareholders as it wishes, and may allocate any allocation
made to it for its own account pursuant to Section 3(c)(ii) among itself and its
Subsidiaries as it wishes.
(d) INDEMNIFICATION.
(i) The Company shall indemnify, to the extent permitted by
law, and hold harmless Purchaser and each member of the Purchaser Group
and each underwriter against any losses, claims, damages or
liabilities, joint or several, or actions in respect thereof
("Claims"), to which such indemnified party may become subject, under
the Securities Act or otherwise, insofar as such Claims arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, in any
prospectus or preliminary prospectus included in such registration
statement or in any amendment or supplement thereto filed with the SEC
(collectively, "Registration Documents") or insofar as such Claims
arise out of or are based upon the omission or alleged omission to
state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made
E-A-8
therein not misleading, and will reimburse any such indemnified party
for any legal or other expenses reasonably incurred by such indemnified
party in investigating or defending any such Claim as such expenses are
incurred; PROVIDED that the Company is not liable in any such case to
the extent that any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Registration Document in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
such indemnified party specifically for use in the preparation of such
Registration Document.
(ii) In connection with any registration in which Purchaser is
participating, Purchaser shall indemnify, to the extent permitted by
law, and hold harmless the Company and each underwriter against any
Claims to which each such indemnified party may become subject under
the Securities Act or otherwise, insofar as such Claims arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Document, or insofar as any
claims arise out of or are based upon the omission or alleged omission
to state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made therein not
misleading; PROVIDED, HOWEVER, that such indemnification is payable
only if, and to the extent that, any such Claim arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Registration Document in reliance upon
and in conformity with written information furnished to the Company by
or on behalf of Purchaser or any member of the Purchaser Group
specifically for use in the preparation of such Registration Document.
(iii) Any person entitled to indemnification under Section
3(d)(i) or (ii) above shall notify promptly the indemnifying party in
writing of the commencement of any Claim if a claim for indemnification
in respect thereof is to be made against an indemnifying party under
this Section 3(d), but the omission of such notice shall not relieve
the indemnifying party from any liability which it may have to any
indemnified party otherwise than under Section 3(d)(i) or (ii). In case
any action is brought against an indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying
party is entitled to participate in, and, to the extent that it
chooses, to assume the defense thereof with counsel reasonably
acceptable to the indemnified party, who may be counsel for the
indemnifying party unless the indemnified party reasonably concludes
such counsel would have a conflict of interest in representing both
indemnified and indemnifying parties (PROVIDED, that the Company is not
responsible for the fees and expenses of more than one counsel for all
indemnified parties with respect to any Claim or group of Claims
alleged to have arisen from similar facts); and, after notice from the
indemnifying party to the indemnified party that it so chooses, the
indemnifying party is not liable for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The
indemnifying party is not liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. No
indemnifying party may, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in
E-A-9
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(iv) If for any reason the foregoing indemnity is unavailable
to, or is insufficient to hold harmless, an indemnified party in
respect of any Claim, (a) if the indemnified party is an underwriter,
then each indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative benefits received
by Purchaser and the Company, on the one hand, and the indemnified
party, on the other, from the offering of securities to which such
Registration Documents relate, (b) as between the Company and
Purchaser, the indemnifying party shall contribute to the amount paid
or payable by the indemnified party as a result of any Claim in such
proportion as is appropriate to reflect the relative benefits to and
the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other, in connection with the statements or
omissions that resulted in such Claims, as well as any other relevant
equitable considerations. If, however, the allocation provided in
clause (a) or (b) of the immediately preceding sentence is not
permitted by applicable law, or if the indemnified party failed to give
the notice required by clause (iii) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect both the relative
benefits and the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions that
resulted in such Claims as well as any other relevant equitable
considerations. The relative benefits received by Purchaser and the
Company, on the one hand, and by the underwriters, on the other, shall
be deemed to be in the same proportion as the total net proceeds from
the offering of the securities (before deducting expenses) received by
Purchaser and the Company, on the one hand, bear to the total
underwriting discounts and commissions received by the underwriters, on
the other hand, in connection with such offering. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable in respect of any Claim shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such Claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) is entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(v) As a condition to their obligations under this Section
3(d), each of the Company and Purchaser must have received from each
underwriter of Registrable Shares included in a registration statement
filed under the Securities Act pursuant to Section 3(a) or 3(b) an
undertaking to indemnify, to the extent permitted by law, and hold
harmless the Company and Purchaser against (or if such indemnity is
unavailable or is insufficient to hold harmless an indemnified party,
to provide contribution, on substantially the same basis provided to
such underwriter in accordance with Section 3(d)(iv), in respect of)
any
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Claims to which each such indemnified party may become subject under
the Securities Act or otherwise, insofar as such Claims arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Document, or insofar as any
claims arise out of or are based upon the omission or alleged omission
to state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made therein not
misleading; provided, however, that such indemnification (or
contribution, as the case may be) shall be payable only if, and to the
extent that, any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Registration Document in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
such underwriter specifically for use in the preparation thereof.
Notwithstanding the foregoing, no underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Registrable Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such underwriter otherwise has been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. The obligation of any underwriters to provide indemnification
(or contribution, as the case may be) pursuant to this paragraph (v)
shall be several in proportion to their respective underwriting
commitments and not joint.
(vi) The maximum liability of Purchaser to indemnify or
contribute payments pursuant to this Section 3(d) may not exceed the
aggregate net proceeds from the sale of Common Shares (including the
sale of Common Shares, if any, pursuant to the exercise of an
over-allotment option) to Purchaser in such registration.
(vii) The obligations of the Company pursuant to this Section
3(d) are in addition to any liability which the Company may otherwise
have and extends, upon the same terms and conditions, to each officer,
director and general partner of any underwriter or Purchaser and to
each person, if any, who controls any underwriter or Purchaser within
the meaning of the Securities Act. The obligations of Purchaser
pursuant to this Section 3(d) are in addition to any liability which
Purchaser may otherwise have and extends, upon the same terms and
conditions, to each officer, director and general partner of the
Company, any underwriter and to each person, if any, who controls the
Company or any underwriter within the meaning of the Securities Act.
The obligations of any underwriter pursuant to this Section 3(d) are in
addition to any liability which such underwriter may otherwise have and
extends, upon the same terms and conditions, to each officer, director
and general partner of the Company or Purchaser and to each person, if
any, who controls the Company or Purchaser within the meaning of the
Securities Act.
(viii) The indemnification provisions set forth in this
section are the sole and exclusive remedy of the parties hereto for any
and all claims for indemnification under this Agreement.
(e) REQUIREMENTS WITH RESPECT TO REGISTRATION. If and whenever the
Company is required by the provisions hereof to use its reasonable best efforts
to register any Registrable Shares under the Securities Act, the Company shall,
as promptly as practicable:
E-A-11
(i) Prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use its reasonable best
efforts to cause such registration statement to become and remain
effective for the periods specified herein.
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement current and to comply with the provisions of the Securities
Act and any regulations promulgated thereunder with respect to the sale
or other disposition of such Registrable Shares, for as long as a
prospectus relating to any such Registrable Shares is required to be
delivered under the Securities Act, subject to the limitation in
Section 3(a)(ii)(F).
(iii) Furnish to each member of the Purchaser Group
participating in the offering copies (in reasonable quantities) of
summary, preliminary, final, amended or supplemented prospectuses, in
conformity with the requirements of the Securities Act and any
regulations promulgated thereunder, and other documents as reasonably
may be required in order to facilitate the disposition of such
Registrable Shares, but only while the Company is required under the
provisions hereof to keep the registration statement current.
(iv) Use its reasonable best efforts to register or qualify
the Registrable Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions in the
United States as the managing underwriter or placement agent (or, if
none, Purchaser) shall reasonably request, and do any and all other
acts and things which may be reasonably necessary to enable such
managing underwriter, placement agent or Purchaser to consummate the
disposition of the Registrable Shares in such jurisdictions; PROVIDED,
HOWEVER, that in no event is the Company required to qualify to do
business as a foreign corporation in any jurisdiction where it is not
so qualified; to execute or file any general consent to service of
process under the laws of any jurisdiction; to take any action that
would subject it to service of process in suits other than those
arising out of the offer and sale of the securities covered by the
registration statement; or to subject itself to taxation in any
jurisdiction where it has not theretofore done so unless the Company
shall have received a reasonably satisfactory indemnity in respect
thereto; or to subject itself to any insurance regulation in any
jurisdiction in which it has not theretofore been so subject.
(v) Notify Purchaser, at any time when a prospectus relating
to any Registrable Shares covered by such registration statement is
required to be delivered under the Securities Act, of the Company's
becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and, subject to the
limitation in Section 3(a)(ii), promptly prepare and furnish to
Purchaser and each underwriter a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
the purchasers of the Registrable Shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a
E-A-12
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
then existing.
(vi) As soon as practicable after the effective date of such
registration statement, and in any event within eighteen (18) months
thereafter, make generally available to Purchaser an earnings statement
(which need not be audited) covering a period of at least twelve (12)
consecutive months beginning after the effective date of the
registration statement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act, including at the
Company's option, Rule 158 thereunder.
(vii) Deliver promptly to Purchaser, upon Purchaser's written
request, copies of all correspondence between the SEC and the Company,
its counsel or auditors and all memoranda relating to discussions with
the SEC or its staff with respect to the registration statement and
permit Purchaser to do such investigation, upon reasonable advance
notice, with respect to information contained in or omitted from the
registration statement as it deems reasonably necessary. Purchaser
agrees that it will use its reasonable best efforts not to interfere
unreasonably with the Company's business when conducting any such
investigation. Purchaser shall not, and shall not permit any member
(other than a member controlling Purchaser) of the Purchaser Group and
shall use its reasonable best efforts to cause any member of the
Purchaser Group controlling Purchaser and any underwriter in connection
with such offering not to, disclose any material non-public information
received from the Company pursuant to this Section 3(e)(vii) unless
such material non-public information becomes generally known on a
non-confidential basis other than as a result of the breach of any
obligation of confidentiality.
(viii) The Company agrees that it will use its reasonable best
efforts to obtain "cold comfort" letters from the Company's independent
public accountants (including one letter when such registration
statement goes effective and one at the closing) in customary form and
covering such matters of the type customarily covered by such "cold
comfort" letters.
(ix) Enter into underwriting or placement agreements in the
customary form, including, without limitation, representations and
warranties and indemnification and contribution provisions for any
underwriter or placement agent selling Registrable Shares hereunder.
(x) Use its commercially reasonable efforts to qualify (and
remain qualified) for registration on Form S-3 or F-3, as applicable.
(f) USE OF REGISTRATION STATEMENT. Purchaser shall, and shall cause
each other member (other than a member controlling Purchaser) of the Purchaser
Group and shall use its reasonable best efforts to cause each member of the
Purchaser Group controlling Purchaser and each underwriter in connection with
any public offering to, upon receipt by Purchaser of the Company's notice
pursuant to Section 3(e)(v), promptly discontinue the disposition of Registrable
Shares pursuant to the prospectus and registration statement contemplated by
such notice, until such time as Purchaser and the underwriters have received
copies of the amended or supplemented prospectus contemplated by Section 3(e)(v)
and upon such receipt by Purchaser,
E-A-13
Purchaser shall, and shall use its reasonable best efforts to cause each
underwriter in connection with any public offering to, deliver to the Company
all copies in the possession of Purchaser or any such underwriter at the time of
receipt by Purchaser of the Company's notice pursuant to Section 3(e)(v) of any
prospectus covering Registrable Shares.
(g) EXPENSES.
(i) The Company shall pay (to the extent permitted by the
Bermuda Companies Act 1981 as then in effect) the Registration Expenses
(other than underwriting discounts and commissions, which shall be
borne by Purchaser) incurred in connection with the first two Demand
Requests, and Purchaser shall pay the Registration Expenses (including
the underwriting discounts and commissions) incurred in connection with
all other Demand Requests, PROVIDED that in each case, each of the
Company and Purchaser shall pay the expenses of its own legal counsel
and PROVIDED FURTHER, that to the extent the Company files a
registration statement in response to a Demand Request made prior to
the first anniversary of the Closing, Purchaser will pay the
Registration Expenses (including the underwriting discounts and
commissions) and such Demand Request shall not be considered one of the
first two Demand Requests for purposes of this Section 3(g)(i).
(ii) With respect to the Registration Expenses (other than
underwriting discounts and commissions, which shall be borne by
Purchaser) incurred in connection with any piggy-back registration
under Section 3(b), Purchaser shall only pay such portion of such
expenses that is equal to the fraction, (A) the numerator of which is
the number of Registrable Shares registered (subject to any cutback)
pursuant to the applicable Piggy-Back Request of Purchaser, and (B) the
denominator of which is the total number of Common Shares registered
under the applicable registration statement.
(h) CERTAIN OBLIGATIONS OF PURCHASER. Purchaser shall provide such
information to the Company as the Company may reasonably request in connection
with any registration hereunder of Registrable Shares for Purchaser's account
and shall dispose of any such Registrable Shares pursuant to any registration
hereunder in the manner contemplated thereby, and shall notify the Company in
writing if it becomes aware of any material change or inaccuracy in such
information.
(i) TRANSFER OF RENRE OPTION. In the event Purchaser transfers the
RenRe Option to one or more transferees pursuant to Section 6(c) of the RenRe
Option Agreement, following execution by any such transferee and delivery to the
Company of an instrument reasonably acceptable to the Company acknowledging that
such transferee has become a party to this Agreement and assumed Purchaser's
rights and obligations hereunder, all references herein to Purchaser with
respect to Registrable Shares consisting of Common Shares issuable pursuant to
the RenRe Option Agreement shall be deemed to apply (i) in the case of a
transfer of the RenRe Option in whole, solely to the transferee of the RenRe
Option and (ii) in the case of a transfer of the RenRe Option in part,
collectively either to the transferees of the RenRe Option or, if Purchaser has
retained a portion of the RenRe Option, to Purchaser and such transferee(s). The
Company shall be entitled to rely solely upon the instructions of Purchaser or
the transferee of the RenRe Option designated in writing by RenRe with respect
to any rights granted hereunder
E-A-14
to the holders of Registrable Option Shares. The number of demand and piggy back
registration rights afforded Purchaser hereunder shall apply in aggregate to
Purchaser and any and all said transferees, without any increase in the number
of said demand and piggy back registration rights. There are no registration
rights with respect to the RenRe Option itself.
(j) LOCK-UP ARRANGEMENTS. Purchaser agrees that, upon the request of
the Company, it shall agree to any lock-up arrangement requested by any
underwriter for up to a 90 day period following the effectiveness of any
Securities Act registration statement covering the Company's capital securities
(but excluding any registration on Form S-8 under the Securities Act or any
similar successor form), PROVIDED, that if such registration statement relates
to a public offering of Common Shares, other than pursuant to a Demand Request,
Purchaser has the right to submit a Piggy-Back Request to the Company pursuant
to Section 3(b) without regard to the notice requirement in such section.
(k) AVAILABILITY OF RULE 144. The Company shall use its reasonable best
efforts to ensure that the information requirement set forth in paragraph (c) of
Rule 144 is satisfied so that the safe harbor provided by Rule 144 is available
to Purchaser for all transfers of Registrable Shares made after the 90th day
after the Company becomes subject to the reporting requirements of Section 13 of
the Exchange Act. Upon request made by Purchaser at any time during such period,
the Company will provide Purchaser with a written statement confirming that the
Company has been subject to and has complied with the reporting requirements as
provided in said paragraph (c), unless the Company has included such a statement
in its then-latest annual or quarterly report filed with the SEC.
(l) TERMINATION OF CERTAIN RIGHTS. The rights of Purchaser to make a
Piggy-Back Request pursuant to Section 3(b) shall terminate on the first day
after the Closing on which Purchaser does not have a right to make a Demand
Request pursuant to Section 3(a) (the "Termination Date"); PROVIDED that, as to
any Registrable Shares that are subject to a Demand Request or Piggy-Back
Request duly delivered on or prior to the Termination Date, such termination
will be delayed until such shares have been disposed of pursuant to such
registration statement or such offering has been completed or abandoned.
4. STANDSTILL AND VOTING PROVISIONS; SHARE REPURCHASES.
(a) Purchaser agrees that except as contemplated in the Investment
Agreement, Purchaser and its Subsidiaries will not, and Purchaser will use its
commercially reasonable efforts to cause its Affiliates and any officer,
employee, agent or representative of Purchaser or such Affiliates (collectively,
the "Representatives") to not, directly or indirectly, (i) advise or encourage
any party or entity with respect to the voting of any Voting Securities in an
attempt to cause a Change in Control of the Company, (ii) initiate or otherwise
solicit shareholders of the Company for the granting of any proxy or the
approval of one or more shareholder proposals, or induce any other party or
entity to seek any proxy or to initiate any shareholder proposal, that in any
case results or is designed to result in a Change in Control of the Company, or
(iii) directly or indirectly acquire, announce an intention to acquire, or agree
to acquire, by purchase or otherwise, beneficial ownership of any Voting
Securities, if, immediately after any such acquisition, Purchaser or any
Subsidiary of Purchaser would beneficially or of record own, in the aggregate,
more than 19.9% of the Voting Securities then outstanding, except with the prior
E-A-15
written approval of the Company, provided, that nothing herein shall limit
the ability of Purchaser or any of its Affiliates to discuss any matter,
including a Change in Control of the Company with St. Xxxx or any of its
Affiliates. A "Change in Control" of the Company is deemed to have occurred
if (i) any person or group (as defined for purposes of Section 13 of the
Securities Exchange Act of 1934, as amended) (excluding the Company or any
Subsidiary thereof) becomes the beneficial owner of more than 50% of the
outstanding equity securities of the Company representing the right to vote
for the election of directors or (ii) there shall occur a merger,
consolidation or other business combination in which the Company is acquired
(unless the shareholders of the Company immediately before such business
combination own, directly or indirectly, immediately following such business
combination, at least a majority of the combined voting power of the entity
resulting from such business combination).
(b) In the event that the Company determines to effect repurchases of
its Common Shares (and, if applicable, New Securities, as defined below) in a
repurchase program approved by its board of directors, then Purchaser must sell
to the Company, on each day on which any Common Shares are so repurchased at a
price equal to the average price of repurchases by the Company on such day, such
number of Common Shares necessary to limit Purchaser's beneficial ownership
interest in the Company to no more than 19.9% of the outstanding Voting
Securities (on an Unadjusted Basis (as defined in the Company's bye-laws)) after
all such repurchases, or such higher limit as the Company may approve in
writing; PROVIDED, that Purchaser may require that any repurchases from it by
the Company must be at the average purchase price of any repurchases effected by
the Company on such day pursuant to Rule 10b-18 under the Exchange Act. The
precise number of Common Shares to be repurchased by the Company from Purchaser
will be rounded up to the nearest round lot number.
(c) Notwithstanding anything in Section 4(b) to the contrary, if (i)
Purchaser beneficially owns less than 19.9% of the outstanding Voting Securities
on an Unadjusted Basis (as defined in the Company's bye-laws) or such higher
limit as the Company may approve in writing other than as a result of any
voluntary sale of Common Shares by Purchaser, and (ii) Purchaser thereafter
purchases Common Shares to maintain such beneficial ownership level at 19.9% or
such higher limit as the Company may approve in writing either (A) in accordance
with its pre-emptive rights under Section 5 or (B) in the open market, in each
case within 60 days after suffering such dilution, then any repurchases by the
Company of its Common Shares in the period that is six months plus one day from
the trade date of any such purchase by Purchaser in accordance with clause (A)
or (B) may only be effected in a manner that either does not trigger Purchaser's
obligation pursuant to Section 4(b) to sell back Common Shares to the Company,
or would not result in any requirement by Purchaser to disgorge profits pursuant
to Section 16(b) of the Exchange Act.
(d) Purchaser shall use its commercially reasonable efforts to cause
all Voting Securities beneficially owned directly or indirectly by it or any
Subsidiary to be present for quorum purposes, in person or represented by proxy
at every meeting of holders of Common Shares (or, if applicable, in any matter
to be acted upon by written consent of shareholders without a meeting).
E-A-16
5. PRE-EMPTIVE RIGHTS.
(a) If the Company proposes to issue (a "DILUTIVE TRANSACTION") any
Common Shares or any securities convertible into or exchangeable for or carrying
in any way the right to acquire Common Shares (the "NEW SECURITIES"), Purchaser
will have the right to subscribe for up to such number of New Securities as is
necessary to maintain Purchaser's beneficial ownership interest in the Company
at the same percentage owned immediately prior to the Dilutive Transaction
(assuming conversion or exchange of the New Securities; PROVIDED, HOWEVER, that
Purchaser shall not have a right to subscribe for any New Securities if the
ownership of such New Securities would cause Purchaser to beneficially own in
excess of 19.9% of the outstanding Voting Securities, or such higher limit as
the Company may approve in writing. The precise number of New Securities to be
issued to Purchaser will be rounded up to the nearest round lot number. For the
avoidance of doubt, the issuance of Common Shares upon the settlement of the
Purchase Contracts forming part of the ESUs is deemed to be a Dilutive
Transaction.
(b) If the Company proposes to issue New Securities, it shall give
Purchaser 30 days' written notice of its intention, describing the type and
number of New Securities and the price and terms upon which the Company proposes
to issue the same. Purchaser shall have ten days from the date of receipt of any
such notice to agree to purchase up to Purchaser's PRO RATA share of New
Securities specified above for the same price paid to the Company in connection
with such Dilutive Transaction (i.e., less underwriting discounts and
commissions) by giving written notice to the Company and stating therein the
quantity of New Securities to be purchased.
(c) In the event that Purchaser fails to exercise its pre-emptive right
within the ten-day notice period, the Company shall have 120 days thereafter to
sell the New Securities with respect to which Purchaser's pre-emptive right was
not exercised, upon the same terms specified in the Company's notice to
Purchaser (except that underwriting discounts and commissions may be paid),
PROVIDED that the Company shall not be obligated to issue such New Securities.
To the extent the Company does not sell all the New Securities offered within
such 120-day period, the Company shall not thereafter issue or sell such New
Securities without first again offering such securities to Purchaser in the
manner provided above.
(d) Notwithstanding anything in this Section 5 to the contrary, the
parties hereby agree that
(i) any New Securities issued pursuant to (A) any director or
employee benefit plans of the Company or (B) any acquisition
transaction engaged in by the Company are not to be deemed Dilutive
Transactions and that, consequently, no pre-emptive rights will attach
with respect to New Securities issued pursuant to clauses (A) and (B);
(ii) Purchaser's pre-emptive rights to subscribe for New
Securities will terminate without any further action by either party
hereto at such time as Purchaser beneficially owns less than 6.25% of
the outstanding Common Shares;
(iii) Purchaser shall have no pre-emptive rights with respect
to any proposed Dilutive Transaction if (A) to the extent a proposed
Dilutive Transaction is an
E-A-17
underwritten public offering, the underwriters request a reduction of
the number of New Securities to be issued, or (B) prior to a Dilutive
Transaction a nationally recognized investment bank mutually agreed by
the parties advises Purchaser and the Company in writing that Purchaser
exercising pre-emptive rights in connection with such Dilutive
Transaction would materially hinder or interfere with such proposed
Dilutive Transaction;
(iv) with respect to any New Securities that are securities
convertible into or exchangeable for or carrying in any way the right
to acquire Common Shares ("Convertible New Securities"), the terms of
such Convertible New Securities issuable to Purchaser upon exercise of
the pre-emptive rights shall contain provisions which preclude
conversion into or exchange for the underlying Common Shares until such
time as Purchaser's ownership of Voting Securities measured immediately
after such conversion or exchange is no more than 19.9% of the total
number of outstanding Voting Securities, or such higher limit as the
Company may approve in writing. Ownership for this purpose will be
determined under Section 958 of the Code. These special limitations on
conversions or exchanges shall lapse upon a transfer of the Convertible
New Securities by Purchaser to a person with which Purchaser has no
constructive ownership relationship under Section 958 of the Code; and
(v) Purchaser shall have no pre-emptive rights in the event of
an issuance of Common Shares upon the conversion or exchange of New
Securities with respect to the issuance of which Purchaser had
pre-emptive rights.
(e) COOPERATION.
(i) For so long as Purchaser has the right to exercise any
pre-emptive rights pursuant to this Section 5, each party hereto shall
use its commercially reasonable efforts to obtain all authorizations,
consents, orders and approvals of all governmental authorities and
officials that may be or become necessary in connection with
Purchaser's exercise of such rights, and will cooperate reasonably with
the other party in promptly seeking to obtain all such authorizations,
consents, orders and approvals. The parties hereto agree to cooperate
reasonably, complete and file any joint applications for any
authorizations from any governmental authorities reasonably necessary
or desirable to effectuate the transactions contemplated by this
Section 5. The parties hereto agree that they will keep each other
apprised of the status of matters relating to the exercise of the
pre-emptive rights contemplated under this Section 5, including
reasonably promptly furnishing the other with copies of notices or
other communications received by the Company or Purchaser, from all
third parties and governmental authorities with respect to the
pre-emptive rights contemplated by this Section 5.
(ii) For so long as Purchaser has the right to exercise any
pre-emptive rights pursuant to this Section 5, the Company and
Purchaser agree to reasonably promptly prepare and file, if necessary,
any filing under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, with the Federal Trade Commission (the "FTC") and the
Antitrust Division of the Department of Justice (the "DOJ") in order to
enable Purchaser to exercise such pre-emptive rights under this Section
5. Each party hereby
E-A-18
covenants to cooperate reasonably with the other such party to the
extent reasonably necessary to assist in making any reasonable
supplemental presentations to the FTC or the DOJ, and, if requested by
the FTC or the DOJ, to reasonably promptly amend or furnish additional
information thereunder.
(iii) Any reasonable out-of-pocket costs and expenses arising
in connection with actions taken pursuant to this Section 5(e) shall be
borne by Purchaser.
6. SPECIFIC PERFORMANCE. Each of Purchaser and the Company acknowledges
that the other party would not have an adequate remedy at law for money damages
if any of the covenants or agreements of the other party in this Agreement were
not performed in accordance with its terms and therefore agrees that the other
party shall be entitled to specific enforcement of such covenants or agreements
and to injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
7. LEGEND. Each of the Company and Purchaser agrees that the
certificates for the Shares and the RenRe Option shall bear the following legend
thereon, which legend shall remain until the date the securities represented by
such certificates are transferred in accordance with the provisions of this
Agreement. In the event of the termination of this Agreement pursuant to Section
13, the second sentence of the legend shall be removed:
THESE SECURITIES WERE SOLD IN A PRIVATE PLACEMENT, AND ANY COMMON
SHARES ISSUED UPON EXERCISE HEREOF WILL BE ISSUED AND SOLD, WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AND MAY BE OFFERED OR
SOLD ONLY IF REGISTERED UNDER THE SECURITIES ACT OF 1933 OR IF AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. THESE SECURITIES ARE SUBJECT
TO THE PROVISIONS OF A TRANSFER RESTRICTIONS, REGISTRATION RIGHTS AND
STANDSTILL AGREEMENT DATED __________, 2002, BY AND BETWEEN THE ISSUER
AND THE PURCHASER IDENTIFIED THEREIN, AND MAY NOT BE SOLD OR
TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH.
8. ENTIRE AGREEMENT. This Agreement, the Investment Agreement, the
Services Agreement, the RenRe Option Agreement and the Confidentiality Agreement
(which Confidentiality Agreement shall terminate as of Closing), contain the
entire understanding of the parties with respect to the subject matter of such
agreements. This Agreement may not be amended or any provision waived except by
a writing signed, in the case of an amendment, by each party hereto and, in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof unless the other party is materially
prejudiced thereby, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights and remedies provided by law.
9. ASSIGNMENT. This Agreement is not assignable by either of the
parties without the prior written consent of the other, except that this
Agreement may be assigned by the Purchaser to (i) any Subsidiary of Purchaser
that is a Foreign Corporation (as defined in the Investment
E-A-19
Agreement) and a Qualified Institutional Buyer (as such term is defined in Rule
144A under the Act), PROVIDED that such assignee enters into an assumption
agreement reasonably satisfactory to the Company, and, PROVIDED FURTHER that no
assignment pursuant to this clause shall relieve Purchaser of its obligations
hereunder, and (ii) Purchaser may assign in whole or in part its rights and
obligations under this Agreement (excluding Sections 4 and 5 hereof) to any
transferee of Registrable Shares representing more than 4% of the outstanding
Common Shares. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
10. SEVERABILITY. If any term, provision or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and restrictions of this
Agreement shall remain in full force and effect, unless such action would
substantially impair the benefits to either party of the remaining provisions of
this Agreement.
11. NOTICES. Any notices and other communications required to be given
pursuant to this Agreement shall be deemed to have been duly given or made as of
the date delivered or mailed if delivered personally, mailed by registered or
certified mail (postage prepaid, return receipt requested), or delivered by
facsimile or by telex, as follows:
If to the Company:
Platinum Underwriters Holdings, Ltd.
Clarendon Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxx XX (00)
Xxxxxxx
Xxxxxxxxx: General Counsel
Telecopier: (000) 000-0000
with copies to:
Xxxxx X. Xxxxxx
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
If to Purchaser:
RenaissanceRe Holdings Ltd.
Xxxxxxxxxxx Xxxxx
0-00 Xxxx Xxxxxxxx
Xxxxxxxx XX00 Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxxx, General Counsel
Telecopier: (000) 000-0000
E-A-20
with copies to:
Xxxx X. X'Xxxxxxxx
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
12. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
only upon the execution and delivery of this Agreement by the parties hereto and
the occurrence of the Closing under the Investment Agreement.
13. TERMINATION. This Agreement shall terminate upon the occurrence of
any of the following:
(a) the written agreement of the Company and Purchaser to terminate
this Agreement; or
(b) Purchaser shall cease to own Voting Securities.
provided, that the provisions set forth in Section 4(a) hereof will continue in
effect until six months after the termination of this Agreement.
14. EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
15. GOVERNING LAW, ETC. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflicts of laws rules of such State. This Agreement may be executed in one
or more counterparts, which together will constitute a single agreement.
16. JURISDICTION. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in the United States District Court for the Southern District of New
York or, if such court shall not have jurisdiction over such suit, any New York
State court sitting in New York City, so long as such courts shall have subject
matter jurisdiction over such suit, action or proceeding, and that any cause of
action arising out of this Agreement shall be deemed to have arisen from a
transaction of business in the State of New York, and each of the parties hereby
irrevocably consents only with respect to such suits, actions or proceedings to
the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Without limiting the foregoing,
each party agrees that service of process on such party by hand delivery as
provided in Section 11 shall be deemed effective service of process on such
party.
E-A-21
17. WAIVER OF JURY TRIAL. Each of the parties hereto irrevocably waives
any and all right to trial by jury in any legal proceeding arising out of or
related to this Agreement or the transactions contemplated hereby.
18. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
E-A-22
If you are in agreement with the foregoing, please sign the
accompanying copy of this letter and return it to the Company, whereupon this
letter shall be a binding agreement between you and the Company.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
----------------------------------
Name:
Title:
Accepted and agreed as of the date first written above:
RENAISSANCERE HOLDINGS, LTD.
By:
-----------------------------------------
Name:
Title:
E-A-23
EXHIBIT B
RENAISSANCERE OPTION AGREEMENT
NONE OF THE RENRE OPTION (AS DEFINED BELOW) AND THE COMMON SHARES DELIVERABLE
UPON EXERCISE OF THE RENRE OPTION HAVE BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933. NEITHER THE RENRE OPTION, NOR ANY INTEREST THEREIN, NOR ANY COMMON
SHARES DELIVERABLE UPON EXERCISE THEREOF MAY BE ASSIGNED OR OTHERWISE
TRANSFERRED, DISPOSED OF OR ENCUMBERED EXCEPT FOLLOWING RECEIPT BY PLATINUM
UNDERWRITERS HOLDINGS, LTD. (THE "COMPANY") OF EVIDENCE SATISFACTORY TO IT,
WHICH MAY INCLUDE AN OPINION OF UNITED STATES COUNSEL, THAT SUCH TRANSFER DOES
NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR STATE SECURITIES LAWS AND
UPON OBTAINMENT OF ANY REQUIRED GOVERNMENT APPROVALS. TRANSFER (AS DEFINED IN
THE COMPANY'S BYE-LAWS) OF THE RENRE OPTION OR ANY INTEREST THEREIN, OR ANY
COMMON SHARES DELIVERABLE UPON EXERCISE THEREOF, MAY BE DISAPPROVED BY THE BOARD
OF DIRECTORS OF THE COMPANY IF, IN ITS REASONABLE JUDGMENT, IT HAS REASON TO
BELIEVE THAT SUCH TRANSFER MAY EXPOSE THE COMPANY, ANY SUBSIDIARY THEREOF, ANY
SHAREHOLDER OR ANY PERSON CEDING INSURANCE TO THE COMPANY OR ANY SUCH SUBSIDIARY
TO ADVERSE TAX OR REGULATORY TREATMENT IN ANY JURISDICTION. COMMON SHARES
OBTAINED UPON EXERCISE OF THE RENRE OPTION ARE SUBJECT TO SUBSTANTIAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN SECTION 6(C) OF THIS OPTION AGREEMENT.
This OPTION AGREEMENT is made this [___] day of September 2002 between
PLATINUM UNDERWRITERS HOLDINGS, LTD., a company organized under the laws of the
Islands of Bermuda (the "Company"), and RENAISSANCERE HOLDINGS LTD., a company
organized under the laws of the Islands of Bermuda ("RenRe").
R E C I T A L S :
WHEREAS, the Company is contemplating an initial public offering (the
"Public Offering") of its common shares of par value U.S. $0.01 per share (the
"Common Shares");
WHEREAS, RenRe and the Company have entered into an Investment
Agreement, dated as of September 20, 2002 (the "Investment Agreement") in which
RenRe and the Company have set forth certain terms of their continuing
relationship following the Public Offering; and
WHEREAS, as contemplated by the Investment Agreement, contingent upon
the consummation of the Public Offering, RenRe will purchase from the Company a
number of Common Shares determined as set forth in the Investment Agreement and
the RenRe Option, as defined below, exercisable under the circumstances
specified in this Agreement.
NOW, THEREFORE, in furtherance of the transactions contemplated by the
Investment Agreement, and in consideration of the mutual promises, covenants and
agreements set forth
E-B-1
therein and herein, the receipt and sufficiency of which are acknowledged, the
parties hereby agree as follows:
1. (a) The Company grants RenRe an option (the "RenRe Option") to
purchase for cash up to 2,500,000 Common Shares (the "RenRe Option Shares")
following the completion of the Public Offering.
(b) The RenRe Option is exercisable, at an exercise price per Common
Share equal to 120 percent of the initial public offering price per Common Share
(the "RenRe Option Price"), in whole or in part at any time prior to the tenth
anniversary of the completion of the Public Offering (the "Exercise Period").
(c) An "Exercise Date" is any day during an Exercise Period, other than
a Saturday, Sunday or other day on which banking institutions in New York City
or Bermuda are authorized or obligated by law or executive order to close (a
"Business Day"). A RenRe Option may be exercised as provided herein until 12:01
A.M., New York City time, on the first day after the expiration of the Exercise
Period.
(d) Notwithstanding anything to the contrary in this Agreement, RenRe's
beneficial ownership interest in the Common Shares may not at any time and under
any circumstances exceed 19.9% of the then outstanding Common Shares or such
higher limit as the Company may approve in writing. It is agreed and understood
that, prior to any exercise of the RenRe Option, RenRe shall, if necessary,
dispose of such number of Common Shares so that, immediately after any exercise
of the RenRe Option, except with the prior written approval of the Company,
RenRe will not beneficially own more than 19.9% of the then outstanding Common
Shares.
(e) RenRe Option Shares upon issue will rank equally in all respects
with the other Common Shares of the Company, but in no case will any RenRe
Option Shares carry any option or other right to subscribe for further
additional shares.
(f) RenRe is not, solely by virtue hereof, entitled to any rights of a
shareholder in the Company either at law or in equity.
(g) Upon any merger, amalgamation, consolidation, scheme of arrangement
or similar transaction involving the Company and any third party that is not a
subsidiary of the Company, or any sale of all or substantially all the assets of
the Company to any third party that is not a subsidiary of the Company (each, a
"Transaction") in which all holders of Common Shares become entitled to receive,
in respect of such shares, any capital stock, rights to acquire capital stock or
other securities of the Company or of any other person, any cash or any other
property, or any combination of the foregoing (collectively, "Transaction
Consideration"), the RenRe Option shall entitle RenRe to receive all Transaction
Consideration that RenRe would have been entitled to if it had exercised the
RenRe Option in full immediately prior to the Transaction (to the extent it
remains unexercised and without regard to the limitations in Section 1(c)
hereof), in each case upon payment by RenRe of the RenRe Option Price as in
effect immediately prior to such time. In determining the kind and amount of
Transaction Consideration that RenRe would be entitled to receive in respect of
any Transaction pursuant to this Section 1(g), RenRe shall be entitled to
exercise any rights of election as to the kinds and amounts of consideration
receivable
E-B-2
in such Transaction that are provided to holders of Common Shares in such
Transactions. Any adjustment in respect of a Transaction pursuant to this
Section 1(g) shall become effective immediately after the effective time of
such Transaction, retroactive to any record date therefor. The Company shall
take such action as is necessary to ensure that RenRe shall be entitled to
receive Transaction Consideration upon the terms and conditions provided in
this Section 1(g). Notwithstanding the foregoing, if an adjustment is made
pursuant to this Section 1(g) in respect of a Transaction that involves a
Change of Control (as defined below), RenRe shall be entitled to exercise the
RenRe Option pursuant to this Section 1(g) without regard to Section 1(c)
hereof. A Transaction is deemed to have involved a "Change of Control" if the
beneficial owners of the outstanding Common Shares immediately prior to the
effective time of such Transaction are not the beneficial owners of a
majority of the total voting power of the surviving or acquiring entity in
the Transaction, as the case may be, immediately after such effective time.
2. (a) To exercise the RenRe Option in accordance with Section 1(b)
hereof, RenRe shall provide written notice to the Company of its intention to
exercise all or a portion of the RenRe Option at least ten (10) Business Days
prior to the intended Exercise Date (such notice must indicate the number of the
RenRe Option Shares RenRe intends to purchase upon exercise of the RenRe Option
and must be in writing signed by or on behalf of RenRe and delivered or sent to
the Company in accordance with Section 8 hereof).
(b) The Company shall issue and allot RenRe Option Shares upon exercise
of the RenRe Option and payment of the total price payable therefor.
(c) Concurrently with the issuance of the RenRe Option Shares pursuant
to Section 2(b) above, RenRe shall pay the aggregate RenRe Option Price for any
exercise hereunder by wire transfer of immediately available funds to an account
specified at least five (5) Business Days in advance by the Company such RenRe
Option Price being an amount in U.S. dollars equal to the product of (i) the
number of RenRe Option Shares that RenRe intends to purchase pursuant to any
exercise of the RenRe Option and (ii) the RenRe Option Price.
(d) Notwithstanding anything to the contrary in this Agreement, the
RenRe Option may not be exercised under this Agreement unless the required
regulatory approvals set forth in Section 5 shall have been obtained.
3. (a) In case the Company at any time after the date that the number of
Common Shares issuable pursuant to the Public Offering and the RenRe Investment
has been determined:
(A) declares or pays a dividend or makes any other
distribution with respect to its capital stock in Common Shares such
that the number of Common Shares outstanding is increased,
(B) subdivides or splits-up its outstanding Common Shares,
such that the number of Common Shares outstanding is increased,
(C) combines its outstanding Common Shares into a smaller
number of Common Shares or
E-B-3
(D) effects any reclassification of the Common Shares other
than a change in par value (including any such reclassification in
connection with an amalgamation or merger in which the Company is the
surviving entity or a reincorporation of the Company),
the number of Common Shares purchasable upon exercise of the RenRe Option shall
be proportionately adjusted so that RenRe will be entitled to receive the kind
and number of Common Shares or other securities of the Company which it would
have been entitled to receive after the happening of any of the events described
above if the RenRe Option had been exercised immediately prior to the happening
of such event or any record date with respect thereto. An adjustment made
pursuant to this paragraph 3(a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
(b) In case the Company issues rights, options or warrants to all
holders of its outstanding Common Shares entitling them to subscribe for or
purchase Common Shares at a price per share which is lower at the record date
mentioned below than the then Current Market Value (as defined in Section 3(d)),
the number of RenRe Option Shares that RenRe may purchase thereafter upon the
exercise of the RenRe Option will be determined by multiplying the number of
RenRe Option Shares theretofore purchasable upon exercise of the RenRe Option by
a fraction, of which the numerator is the sum of (A) the number of Common Shares
outstanding on the record date for determining shareholders entitled to receive
such rights, options or warrants plus (B) the number of additional Common Shares
offered for subscription or purchase, and of which the denominator shall be the
sum of (A) the number of Common Shares outstanding on the record date for
determining shareholders entitled to receive such rights, options or warrants
plus (B) the number of shares which the aggregate offering price of the total
number of Common Shares so offered would purchase at the Current Market Value
(as defined below in Section 3(d)) per share of Common Shares at such record
date. Such adjustment shall be made whenever such rights, options or warrants
are issued, and shall become effective immediately after the record date for the
determination of shareholders entitled to receive such rights, options or
warrants.
(c) In the event the Company distributes to all holders of its Common
Shares any of the capital stock of any of its subsidiaries (each, a
"Subsidiary"), the RenRe Option will upon such distribution be deemed to be an
option to purchase the kind and number of shares of the capital stock of the
Subsidiary which RenRe would have been entitled to receive after such
distribution had the RenRe Option been exercised immediately prior to such
distribution or any record date with respect thereto. The roll-over of the RenRe
Option into an option to purchase shares of capital stock of the applicable
Subsidiary pursuant to this Section 3(c) will become effective immediately after
the effective date of the distribution of shares of the capital stock of the
applicable Subsidiary to shareholders of the Company described above.
(d) For the purpose of any computation under Section 3(b), the "Current
Market Value" of such Common Shares on a specified date is deemed to be the
average of the daily closing prices per share for the ten consecutive Trading
Days (as defined below) ending on the day before the applicable record date.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day on which the Common Shares are not traded on the applicable
securities exchange or on the applicable securities market. The closing price
for each day is the reported last sale price regular way or, in case no such
reported sale
E-B-4
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if the
Common Shares are not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the Common Shares are listed
or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the NASDAQ National Market or, if the Common
Shares are not listed or admitted to trading on any national securities
exchange or quoted on the NASDAQ National Market, the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm reasonably selected from time to time by the
Board of Directors of the Company for that purpose.
(e) In the event the Company shall, in any calendar year, by dividend
or otherwise, distribute to all or substantially all holders of its Common
Shares (the "Current Distribution") (i) any dividend or other distribution of
cash, evidences of indebtedness, or any other assets or properties (other than
as described in Sections 3(a)-(c) above) or (ii) any options, warrants or other
rights to subscribe for or purchase any of the foregoing, with a fair value (as
determined in good faith by the Company's Board of Directors) per Common Share
that, when combined with the aggregate amount per Common Share paid in respect
of all other such distributions to all or substantially all holders of its
Common Shares within such calendar year, exceeds (1) for calendar year 2003, the
Initial Dividend (as defined below) or (2) for any subsequent calendar year, an
amount equal to the Initial Dividend increased at a rate of 10% per annum from
January 1, 2003, compounded annually on December 31 of each year commencing in
2003 (such excess of the Current Distribution being herein referred to as the
"Excess Distribution Amount"), the per share RenRe Option Price in effect
immediately prior to the close of business on the date fixed for such payment
shall be reduced by the Excess Distribution Amount, such reduction to become
effective immediately prior to the opening of business on the day following the
date fixed for such payment. The "Initial Dividend" means the distributions
described in items (i) and (ii) above paid by the Company to all or
substantially all holders of its Common Shares during the 2003 calendar year as
determined by the Company's Board of Directors, up to a maximum of $0.44 per
Common Share.
(f) Whenever the number of Common Shares purchasable by RenRe upon the
exercise of the RenRe Option is adjusted, as herein provided, the RenRe Option
Price shall be adjusted by multiplying the RenRe Option Price immediately prior
to such adjustment by a fraction, of which the numerator shall be the number of
RenRe Option Shares purchasable upon the exercise of the RenRe Option
immediately prior to such adjustment, and of which the denominator shall be the
number of RenRe Option Shares purchasable immediately thereafter.
(g) No adjustment in the number of RenRe Option Shares purchasable upon
the exercise of the RenRe Option need be made under Section 3(b) and (c) if the
Company issues or distributes, pursuant to this Agreement, to RenRe the shares,
rights, options, warrants, securities or assets referred to in those paragraphs
which RenRe would have been entitled to receive had the RenRe Option been
exercised prior to the happening of such event or the record date with respect
thereto. No adjustment need be made for a change in the par value of the RenRe
Option Shares.
(h) For the purpose of this Section 3, the term "Common Shares" shall
mean (i) the class of stock consisting of the Common Shares of the Company, or
(ii) any other class of stock
E-B-5
resulting from successive changes or reclassification of such shares other than
consisting solely of changes in par value. In the event that at any time, as a
result of an adjustment made pursuant to Section 3(a) above, RenRe will become
entitled to receive any securities of the Company other than Common Shares,
thereafter the number of such other securities so receivable upon exercise of
the RenRe Option and the RenRe Option Price of such securities will be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the RenRe Option Shares contained
in paragraphs (a) through (f), inclusive, above; PROVIDED, HOWEVER, that the
RenRe Option Price will at no time be less than the aggregate par value of the
Common Shares or other securities of the Company obtainable upon exercise of the
RenRe Option.
(i) In the case of Section 3(b), upon the expiration of any rights,
options or warrants or if any thereof shall not have been exercised, the RenRe
Option Price and the number of Common Shares purchasable upon the exercise of
the RenRe Option shall, upon such expiration, be readjusted and shall thereafter
be such as they would have been had they been originally adjusted (or had the
original adjustment not been required, as the case may be) as if (A) the only
Common Shares so issued were the Common Shares, if any, actually issued or sold
upon the exercise of such rights, options or warrants and (B) such Common
Shares, if any, were issued or sold for the consideration actually received by
the Company upon such exercise plus the aggregate consideration, if any,
actually received by the Company for the issuance, sale or grant of all such
rights, options or warrants whether or not exercised; PROVIDED, FURTHER, that no
such readjustment may have the effect of increasing RenRe Option Price or
decreasing the number of Common Shares purchasable upon the exercise of the
RenRe Option by an amount in excess of the amount of the adjustment initially
made in respect to the issuance, sale or grant or such rights, options or
warrants.
(j) In the case of Section 3(b), on any change in the number of Common
Shares deliverable upon exercise of any such rights, options or warrants, other
than a change resulting from the antidilution provisions hereof, the number of
RenRe Option Shares thereafter purchasable upon the exercise of the RenRe Option
shall forthwith be readjusted to such number as would have been obtained had the
adjustment made upon the issuance of such rights, options or warrants not
converted prior to such change (or rights, options or warrants related to such
securities not converted prior to such change) been made upon the basis of such
change.
(k) The Company may at its option, at any time during the term of the
RenRe Option, reduce the then current RenRe Option Price to any amount and for
any period of time deemed appropriate by the Board of Directors of the Company,
including such reductions in the exercise price as the Company considers to be
advisable in order that any event treated for Federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the recipients.
4. The Company undertakes to use commercially reasonable efforts to
increase its authorized share capital prior to the dates upon which the RenRe
Option shall become exercisable to a level sufficient to satisfy any exercise of
the RenRe Option.
5. (a) For so long as the RenRe Option is exercisable hereunder, each
party hereto shall (i) use its commercially reasonable efforts to obtain all
authorizations, consents, orders and approvals of all governmental authorities
and officials that may be or become necessary for the
E-B-6
performance of its obligations pursuant to this Agreement and (ii) cooperate
reasonably with the other party in promptly seeking to obtain all such
authorizations, consents, orders and approvals. The parties hereto agree to
cooperate reasonably, complete and file any joint applications for any
authorizations from any governmental authorities reasonably necessary or
desirable to effectuate the transactions contemplated by this Agreement. The
parties hereto agree that they will keep each other apprised of the status of
matters relating to the exercise of the RenRe Option, including reasonably
promptly furnishing the other with copies of notices or other communications
received by the Company or RenRe, from all third parties and governmental
authorities with respect to the RenRe Option.
(b) For so long as the RenRe Option is exercisable, the Company and
RenRe agree to reasonably promptly prepare and file, if necessary, any filing
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act") with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the Department of Justice (the "DOJ") in order to enable RenRe to
exercise such RenRe Option pursuant to this Agreement. Each party hereby
covenants to cooperate reasonably with the other such party to the extent
reasonably necessary to assist in making reasonable supplemental presentations
to the FTC or the DOJ, and, if requested by the FTC or the DOJ, to reasonably
promptly amend or furnish additional information thereunder.
(c) Any reasonable out-of-pocket costs and expenses arising in
connection with actions taken pursuant to this Section 5 shall be borne by
RenRe.
6. (a) The RenRe Option and the RenRe Option Shares may not be assigned or
otherwise transferred, disposed of or encumbered by RenRe (or any subsequent
transferee) in whole or in part except as provided in this Section 6.
(b) In the event of a merger of RenRe into another person, or a sale,
transfer or lease to another person of all or substantially all the assets of
RenRe, the RenRe Option or the RenRe Option Shares may be transferred as part of
such transaction to the other party to such transaction.
(c) On and after the date which is the second anniversary of the
closing date of the Public Offering, RenRe may transfer the RenRe Option or the
RenRe Option Shares, in whole or in part, in one or more private transaction(s)
to up to three institutional accredited investors; PROVIDED, HOWEVER, that any
proposed transfer is conditioned upon
(i) receipt by the Company of evidence satisfactory to it,
which may include an opinion of United States counsel that such
transfer would not require registration under the Securities Act or
state securities laws and upon the obtainment of any required
government approvals (which approvals the Company agrees to use
commercially reasonable efforts to assist in obtaining); and
(ii) the proposed transferee executing and delivering
instruments reasonably acceptable to the Company acknowledging
(A) that the RenRe Option and the RenRe Option Shares
have not been registered under the Securities Act and,
accordingly, the transferee may not offer,
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sell, assign, pledge or otherwise transfer the RenRe Option or
any RenRe Option Shares except pursuant to an effective
registration statement under the Securities Act covering such
RenRe Option Shares or pursuant to an available exemption from
the registration requirements of the Securities Act and in
compliance with all applicable state securities laws;
(B) that the Company is entitled to decline to
register any transfer (as defined in the Company's bye-laws)
of RenRe Option Shares, and any transfer of RenRe Option and
RenRe Option Shares shall be void, unless (i) such transfer is
made pursuant to and in accordance with Rule 144 (PROVIDED
that the Company (or its designated agent for such purpose)
may request a certificate satisfactory to it of compliance by
the transferor with the requirements of Rule 144), (ii) such
transfer is made pursuant to another available exemption from
the registration requirements of the Securities Act (PROVIDED
that, if not already a party hereto, the intended transferee
agrees to abide by the provisions of this Section 6(c)(ii),
and PROVIDED, FURTHER, that, if the Company requests, the
transferor first provides the Company (or such agent) with
evidence satisfactory to it, which may include an opinion of
U.S. counsel satisfactory to the Company, to the effect that
such transfer is made pursuant to another available exemption
from the registration requirements of the Securities Act),
(iii) such transfer is made pursuant to an effective
registration statement under the Securities Act covering the
RenRe Option Shares being transferred, including a
registration statement filed pursuant to the Standstill
Agreement and in all cases pursuant to this clause (B) such
transfer is in compliance with all applicable state securities
laws (the Company being entitled to waive or modify the
foregoing transfer requirements, generally or in any
particular case, to the extent that it determines, on advice
of U.S. counsel, that compliance with such requirements is not
necessary to ensure compliance with the Securities Act or any
applicable state securities laws, or such modification is
necessary to ensure compliance with the Securities Act or any
applicable state securities laws, as the case may be) and (iv)
such transferee agrees to be bound by the provisions of this
Agreement;
(C) that, except as provided below, no RenRe Option
Share shall be held in book-entry form, and each certificate
representing a RenRe Option Share shall be evidenced by a
certificate bearing a restrictive legend (the "Legend")
substantially in the form set forth below:
THE COMMON SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS. SUCH SHARES
MAY NOT BE HELD IN BOOK-ENTRY FORM. SUCH SHARES ARE ALSO
SUBJECT TO RESTRICTIONS ON TRANSFER (AS DEFINED IN THE
BYE-LAWS OF
E-B-8
THE COMPANY) SET FORTH IN THE TRANSFER RESTRICTIONS,
REGISTRATION RIGHTS AND STANDSTILL AGREEMENT, DATED AS OF
SEPTEMBER __, 2002, BETWEEN RENAISSANCERE HOLDINGS LTD. AND
PLATINUM UNDERWRITERS HOLDINGS, LTD. (THE "COMPANY"), WHICH
MAY REQUIRE, AMONG OTHER THINGS, THE PRIOR RECEIPT BY THE
COMPANY FROM THE TRANSFEROR OR THE TRANSFEREE OF EVIDENCE
SATISFACTORY TO IT, WHICH MAY INCLUDE AN OPINION OF U.S.
COUNSEL OR UNDERTAKINGS TO BE BOUND BY SUCH AGREEMENT. SUCH
SHARES ARE ALSO SUBJECT TO RESTRICTIONS IN THE BYE-LAWS OF THE
COMPANY, INCLUDING RESTRICTIONS ON TRANSFER AND VOTING
INTENDED TO ENSURE THAT NO PERSON BECOMES OR IS DEEMED TO
BECOME A 10% SHAREHOLDER OF THE COMPANY (AS EXPLAINED IN SUCH
BYE-LAWS).
(D) that the transferee shall become a party to the
Transfer Restrictions, Registration Rights and Standstill
Agreement, with the attendant rights and obligations
thereunder; PROVIDED, FURTHER, that any proposed transfer may
be disapproved by the Board of Directors of the Company if, in
their reasonable judgment, they have reason to believe that
such transfer may expose the Company, any subsidiary thereof,
any shareholder or any person ceding insurance to the Company
or any such subsidiary to adverse tax or regulatory treatment
in any jurisdiction. In connection with or following any
transfer of RenRe Option Shares in accordance with clause (i)
or (iii) of Section 6(c)(ii)(B) (except in the case of a
transfer of RenRe Option Shares to an "affiliate" of RenRe, as
such term is defined in the Securities Act, in accordance with
clause (i) of Section 6(c)(ii)(B)), and upon the surrender of
any certificate or certificates representing such RenRe Option
Shares to the Company (or such agent), the Company shall cause
to be issued in exchange therefor a new certificate or
certificates that represent the same Common Shares and do not
bear the Legend (or shall permit such shares to be held in
book-entry form). The Company shall use commercially
reasonable efforts to cause each RenRe Option Share
transferred as contemplated by clause (i) or (iii) of Section
6(c)(ii)(B) to be duly listed on each securities exchange, and
to be accepted for quotation in each interdealer quotation
system, on or in which any Common Shares are listed or quoted
at the time of such transfer (PROVIDED that the approval for
such listing or quotation has been obtained by the Company),
in each case so that the RenRe Option Share so transferred
will be freely transferable on each such exchange and in each
such system to the same extent as the Common Shares then
listed thereon or quoted therein; and
(E) such transferee shall not become a "10%
Shareholder" (as defined in Section 6(d) below) immediately
after such transfer (assuming for purposes of this
determination that the RenRe Option Shares were actually owned
by the transferee); and
(iii) such transfer not resulting, directly or indirectly, in
a transfer to any Specified Person (as defined below) of more than 9.9%
of the Common Shares
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outstanding at the time of such transfer, or the right to acquire
pursuant to the RenRe Option more than 9.9% of the Common Shares
outstanding at the time of such transfer, except in the following
circumstances: (A) in connection with any tender offer or exchange
offer made to all holders of outstanding Common Shares; (B) to any
Wholly Owned Subsidiary (as defined in the Standstill Agreement) of
RenRe provided that such Wholly Owned Subsidiary agrees in writing with
the Company to the same transfer restrictions as are contained in this
Section 6(c); or (C) a transfer by operation of law upon consummation
of a merger or consolidation of RenRe into another Person (as defined
in the Investment Agreement). For purposes of this Section 6(c)(iii),
"Specified Person" means any Person that generates 50% or more of its
gross revenue in its most recent fiscal year for which financial
statements are available by writing property or casualty insurance or
reinsurance.
(d) In connection with any transfer of all or a portion of the RenRe
Option pursuant to Section 6(c), the Company shall prepare an option agreement
substantially identical to this Agreement (or, in the case of a partial
transfer, option agreements) issuable to the transferee (and transferor, in the
case of partial transfer) upon surrender to the Company of the existing option
agreement upon consummation of the transfer. Upon said consummation, the
transferee shall have such rights and obligations with respect to the number of
RenRe Option Shares covered by the portion of the RenRe Option transferred to
such transferee as the rights and obligations of RenRe hereunder. As used
herein, "10% Shareholder" means a person who owns, in aggregate, (i) directly,
(ii) with respect to persons who are United States persons, by application of
the attribution and constructive ownership rules of Sections 958(a) and 958(b)
of the Code or (iii) beneficially, directly or indirectly, within the meaning of
Section 13(d)(3) of the United States Securities Exchange Act of 1934, issued
shares of the Company carrying 10% or more of the total combined voting rights
attaching to all issued shares.
(e) Any transferee of all or part of the RenRe Option pursuant to
Section 6(c) hereof (or any subsequent transferee who holds any portion of the
RenRe Option as a result of a transfer pursuant to this Section 6(e)) may
transfer, in whole but not in part, its portion of the RenRe Option to a
subsequent transferee; PROVIDED that any such transfer shall be subject to the
terms and conditions set forth in Sections 6(c) and 6(d) hereof.
7. The issuance of share certificates upon the exercise of the RenRe
Option shall be without charge to RenRe. The Company shall pay, and indemnify
RenRe from and against, any issuance, stamp, documentary or other taxes (other
than transfer taxes and income taxes), or charges imposed by any governmental
body, agency or official by reason of the exercise of the RenRe Option or the
resulting issuance of Common Shares.
8. This Agreement may not be amended except in a written instrument signed
by the Company and RenRe.
9. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand (with receipt confirmed), or by certified mail, postage
prepaid and return receipt requested, or by facsimile addressed as follows (or
to such other address as a party may designate by written notice to the others)
and shall be deemed given on the date on which such notice is received:
E-B-10
If to RenRe:
RenaissanceRe Holdings Ltd.
Xxxxxxxxxxx Xxxxx
0-00 Xxxx Xxxxxxxx
Xxxxxxxx XX00 Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxxx, General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxx X. X'Xxxxxxxx
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to the Company:
Platinum Underwriters Holdings, Ltd.
Clarendon Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Xxxxxxxxx: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
10. This Agreement, the Standstill Agreement, the Services Agreement, the
Confidentiality Agreement (which Confidentiality Agreement shall terminate as of
Closing) and the Investment Agreement constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof.
11. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, and their respective successors and permitted assigns. Nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto, and their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
E-B-11
12. This Agreement may not be assigned by any party hereto, except to a
party to whom RenRe transfers the RenRe Option or RenRe Option Shares in
accordance with Section 6 of this Agreement or Section 2 of the Standstill
Agreement, and then only in accordance with those sections.
13. The headings contained in this Agreement are for convenience only and
do not affect the meaning or interpretation of this Agreement.
14. (a) This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York (without regard to principles of conflict
of laws).
(b) The parties hereto shall promptly submit any dispute, claim, or
controversy arising out of or relating to this Agreement, including effect,
validity, breach, interpretation, performance, or enforcement (collectively, a
"Dispute") to binding arbitration in New York, New York at the offices of
Judicial Arbitration and Mediation Services, Inc. ("JAMS") before an arbitrator
(the "Arbitrator") in accordance with JAMS' Comprehensive Arbitration Rules and
Procedures and the Federal Arbitration Act, 9 X.X.X.xx.xx. 1 ET SEQ. The
Arbitrator shall be a former judge selected from JAMS' pool of neutrals. The
parties agree that, except as otherwise provided herein respecting temporary or
preliminary injunctive relief, binding arbitration shall be the sole means of
resolving any Dispute. Judgment on any award of the Arbitrators may be entered
by any court of competent jurisdiction.
(c) The costs of the arbitration proceeding and any proceeding in court
to confirm or to vacate any arbitration award or to obtain temporary or
preliminary injunctive relief as provided in paragraph (d) below, as applicable
(including, without limitation, actual attorneys' fees and costs), shall be
borne by the unsuccessful party and shall be awarded as part of the Arbitrator's
decision, unless the Arbitrator shall otherwise allocate such costs in such
decision.
(d) This Section 14 shall not prevent the parties hereto from seeking
or obtaining temporary or preliminary injunctive relieve in a court for any
breach or threatened breach of any provision hereof pending the hearing before
and determination of the Arbitrator. The parties hereby agree that they shall
continue to perform their obligations under this Agreement pending the hearing
before and determination of the Arbitrator, it being agreed and understood that
the failure to so provide will cause irreparable harm to the other party hereto
and that the putative breaching party has assumed all of the commercial risks
associated with such breach or threatened breach of any provision hereof by such
party.
(e) The parties agree that the State and Federal courts in The City of
New York shall have jurisdiction for purposes of enforcement of their agreement
to submit Disputes to arbitration and of any award of the Arbitrator.
15. Capitalized terms used but not defined in this Agreement have the
meanings specified in the Investment Agreement.
16. This Agreement becomes effective contingent upon the consummation of
the Public Offering automatically and with no action on the part of any person.
E-B-12
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
and attested by its duly authorized officers and to be dated as of September __,
2002.
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
-------------------------------
Name
Title
RENAISSANCERE HOLDINGS LTD.
By:
-------------------------------
Name
Title
E-B-13
EXHIBIT C
SERVICES AND CAPACITY RESERVATION AGREEMENT
-------------------------------------------
SERVICES AND CAPACITY RESERVATION AGREEMENT
This Agreement, dated as of September [____ ], 2002, is
entered into by and between Platinum Underwriters Holdings, Ltd.
("PLATINUM"), a company organized and existing under the laws of Bermuda
and RenaissanceRe Holdings Ltd. ("RENAISSANCERE"), a company organized and
existing under the laws of Bermuda.
WHEREAS, Platinum has requested that RenaissanceRe cause
Renaissance Reinsurance Ltd. or another one or more of its affiliates
reasonably acceptable to Platinum(such affiliates, collectively,
"RENAISSANCE") to provide certain services and reserve capacity for one or
more of Platinum's reinsurance subsidiaries (such subsidiaries,
collectively, the "COMPANY");
WHEREAS, RenaissanceRe has agreed to cause Renaissance to
provide services and reserve capacity for the Company pursuant to the terms
hereof;
NOW THEREFORE, in consideration of the premises
and the mutual covenants and agreements contained herein and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. SERVICES AND CAPACITY RESERVATION TO BE PROVIDED.
(a) CONSULTING SERVICES.
Upon request of Platinum, no more frequently than twice for
each Annual Period (as hereinafter defined), in October and March or at
such other times as may be agreed to by Renaissance, Renaissance shall:
(i) following receipt from the Company of necessary
information requested by Renaissance pursuant to the final paragraph of
this Section 1(a), provide advice and analysis to the Company with respect
to the risk measurement and management of the Company's aggregate
catastrophe exposures; and
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(ii) analyze such of the Company's property catastrophe
treaties as are furnished to Renaissance and provide a retrocession pricing
indication, such analysis to indicate which underlying treaties are causing
debits and credits in the quotations to be provided under paragraph (b) of
this Section 1;
PROVIDED, HOWEVER, that neither RenaissanceRe nor
Renaissance shall make any management decisions on behalf of the Company or
undertake to commit the Company to any course of action, and all decisions
as to the Company's catastrophe treaties and catastrophe exposure shall be
the sole responsibility of the Company.
All such services (the "CONSULTING SERVICES") shall be
performed by Renaissance from Renaissance's offices located in Bermuda. At
no time shall Renaissance render such services to the Company at the
Company's offices. It is understood and agreed that nothing herein shall
obligate Renaissance to perform services in contravention of other
contractual relationships.
The Company shall provide to Renaissance any information
that Renaissance shall reasonably deem necessary to perform such services,
subject to any applicable privilege and confidentiality limitations.
(b) MANDATORY RESERVATION OF RETROCESSIONAL CAPACITY.
Renaissance will provide, upon written request of Platinum
and with respect to each Annual Period, a quote for specifically requested
non-marine property catastrophe retrocessional coverage for the Company
(the "RETROCESSIONAL COVERAGE"). The maximum aggregate amount of
Retrocessional Coverage that Renaissance agrees to hold available for the
Company shall be US$100,000,000 for each Annual Period. Quotations shall be
made at least 30 days before the inception of each Annual Period and shall
be made on an excess of loss or proportional basis, as requested by
Platinum. Such quotations shall be based on Renaissance's analysis of
exposure, limit, retention, exclusions and other treaty terms at the time
of the quote and such other factors that Renaissance deems necessary or
appropriate. The rates quoted with respect to the Retrocessional Coverage
shall not be reduced as a result of the compensation paid by Platinum
pursuant to Section 3 of this Agreement.
(c) RETROCESSIONAL QUOTATIONS
With respect to Section 1(b) above, it is mutually
understood that it is the parties
E-C-2
expectation that the rates quoted will be comparable, as determined solely
by Renaissance, to similar third party assumed retrocessional quotations
provided by Renaissance.
2. TERM.
Renaissance shall provide the services described in Section
1 for five consecutive annual periods commencing on October 1, 2002 and
ending on September 30, 2007 (the "Annual Periods").
3. PRICE OF SERVICES.
(a) In consideration for the obligation of Renaissance to
provide Consulting Services and mandatory reservation of retrocessional
capacity to the Company pursuant to Section 1 above, Platinum shall pay
Renaissance US$4,000,000 at the inception of this Agreement and on each
October 1 beginning October 1, 2003 through and including October 1, 2006.
(b) No later than thirty (30) days after the end of each
Annual Period, Platinum shall pay Renaissance an adjustment fee
("ADJUSTMENT FEE") equal to the amount, if any, by which 3.5% of the
aggregate gross written non-marine non-finite property catastrophe premium
(including reinstatements) of the Company (as classified by the Company in
accordance with accepted industry practice) for the applicable Annual
Period exceeds the amount paid with respect to Section 3(a). In the event
that 3.5% of such gross written non-marine non-finite property catastrophe
premium (including reinstatements) in an Annual Period is less than or
equal to the amount paid with respect to Section 3(a), Renaissance shall
not be entitled to an Adjustment Fee for that Annual Period.
(c) The consideration provided in Section 3(a) and (b) above
shall be in addition to any retrocessional premiums paid to Renaissance
with respect to the Retrocessional Coverage bound by Renaissance for the
benefit of Platinum and the Company
4. CONFIDENTIAL AND PROPRIETARY INFORMATION.
The parties acknowledge that this Agreement does not
constitute a sale, lease, license, or other transfer by Renaissance of any
proprietary systems or intellectual property of Renaissance.
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5. RELATIONSHIPS AMONG THE PARTIES.
Nothing in this Agreement shall cause the relationship
between the Company on the one hand and Renaissance on the other to be
deemed to constitute an agency, partnership or joint venture. The terms of
this Agreement are not intended to constitute any of the parties or their
affiliates a joint employer for any purpose. Each of the parties agrees
that the provisions of this Agreement as a whole are not intended to, and
do not, constitute control of the other party (or any affiliates thereof)
or provide it with the ability to control such other party (or any
affiliates thereof), and each party hereto expressly disclaims any right or
power under this Agreement to exercise any power whatsoever over the
management or policies of the other (or any affiliates thereof). Nothing in
this Agreement shall oblige either party hereto to act in breach of the
requirements of any law, rule or regulation applicable to it, including
securities, insurance and trade regulation laws and regulations, written
policy statements of securities commissions, insurance and other regulatory
authorities, and the by-laws, rules, regulations and written policy
statements of relevant securities and self-regulatory organizations.
6. GOVERNING LAW.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to its
conflict of laws principles.
7. ARBITRATION.
(a) As a condition precedent to any right of action under this
Agreement, any dispute or difference between the parties hereto relating to
the formation, interpretation, or performance of this Agreement, or any
transaction under this Agreement, whether arising before or after
termination, shall be submitted for decision to a panel of three
arbitrators (the "PANEL") at the offices of Judicial Arbitration and
Mediation Services, Inc. in accordance with the Streamlined Arbitration
Rules and Procedures of Judicial Arbitration and Mediation Services, Inc.
(b) The party demanding arbitration shall do so by written notice
complying with the terms of Section 11. The arbitration demand shall state
the issues to be resolved and shall name the arbitrator appointed by the
demanding party.
(c) Within 30 days of receipt of the demand for arbitration, the
responding party shall notify the demanding party of any additional issues
to be resolved in the arbitration and the name of the responding party's
appointed arbitrator. If the responding party refuses or neglects to
appoint an arbitrator within 30 days following receipt of the written
arbitration demand, then the demanding party may appoint the second
arbitrator, but
E-C-4
only after providing 10 days' written notice of its intention to do so, and
only if such other party has failed to appoint the second arbitrator within
such 10 day period.
(d) The two arbitrators shall, before instituting the hearing,
select an impartial arbitrator who shall act as the umpire and preside over
the hearing. If the two arbitrators fail to agree on the selection of a
third arbitrator within 30 days after notification of the appointment of
the second arbitrator, the selection of the umpire shall be made by the
American Arbitration Association. Upon resignation or death of any member
of the Panel, a replacement will be appointed in the same fashion as the
resigning or deceased member was appointed. All arbitrators shall be active
or former officers of property/casualty insurance or reinsurance companies,
or Lloyd's underwriters, and shall be disinterested in the outcome of the
arbitration.
(e) Within 30 days after notice of appointment of all arbitrators,
the Panel shall meet and determine timely periods for briefs, discovery
procedures and schedules for hearings. The Panel shall have the power to
determine all procedural rules for the holding of the arbitration,
including but not limited to the inspection of documents, examination of
witnesses and any other matter relating to the conduct of the arbitration.
The Panel shall interpret this Agreement as an honorable engagement and not
as merely a legal obligation and shall make its decision considering the
custom and practice of the applicable insurance and reinsurance business.
The Panel shall be relieved of all judicial formalities and may abstain
from following the strict rules of law. The decision of any two arbitrators
shall be binding and final. The arbitrators shall render their decision in
writing within 60 days following the termination of the hearing. Judgment
upon the award may be entered in any court of competent jurisdiction.
(f) Except as otherwise provided herein, all proceedings pursuant
hereto shall be governed by the laws of the State of New York without
giving effect to any choice or conflict of laws provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New
York.
(g) The parties agree that any disputes subject to arbitration
pursuant to this Section 7 that may also be subject to arbitration
proceedings between respective affiliates of the parties shall be
consolidated with and subject to arbitration pursuant to this Section 7.
The parties further agree that all issues that are limited to a specific
foreign jurisdiction under an agreement between the respective affiliates
of the parties shall be determined by this Panel pursuant to the
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consolidation, in reference to the governing law of the applicable
agreement.
(h) Each party shall bear the expense of its own arbitrator and
shall share equally with the other party the expense of the umpire and of
the arbitration.
(i) Arbitration hereunder shall take place in New York, New York
unless the parties agree otherwise.
8. ASSIGNMENT.
Neither this Agreement nor the rights or obligations
hereunder shall be assignable by either party hereto, by operation of law
or otherwise, without the prior written consent of the other party hereto,
and any purported assignment shall be null and void. Subject to the
foregoing, this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
9. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement, and
supersedes all prior agreements and understandings (oral and written), by
and among the parties hereto with respect to the subject matter hereof.
10. NO THIRD PARTY RIGHTS.
Nothing contained in this Agreement, express or implied,
establishes or creates, or is intended or will be construed to establish or
create, any right in or remedy of, or any duty or obligation to, any third
party.
11. NOTICES.
All notices, requests, claims, demands, and other
communications hereunder will be in writing and shall be deemed to have
been duly given if delivered by hand (with receipt confirmed), or by
certified mail, postage prepaid and return receipt requested, or by
facsimile addressed as follows (or to such other address as a party may
designate by written notice to the others) and shall be deemed given on the
date on which such notice is received:
E-C-6
If to RenaissanceRe:
RenaissanceRe Holdings Ltd.
Xxxxxxxxxxx Xxxxx
0-00 Xxxx Xxxxxxxx
Xxxxxxxx XX00 Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxxxx, General Counsel
Facsimile: (000) 000-0000
If to Platinum:
Platinum Underwriters Holdings, Ltd.
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxx.: Xxxxxxx X. Xxxxxxxxxxx
Facsimile: (000) 000-0000
12. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
13. AMENDMENT; MODIFICATION.
The parties may by written agreement, subject to any
regulatory approval as may be required, (a) extend the time for the
performance of any of the obligations or other acts of the parties hereto
(b) waive any inaccuracies in the documents delivered pursuant to this
Agreement, and (c) waive compliance with or modify, amend or supplement any
of the agreements contained in this Agreement or waive or modify
performance of any of the obligations of any of the parties hereto. This
Agreement may not be amended or modified except by an instrument in writing
duly signed on behalf of the parties hereto.
14. WAIVER.
No failure by any party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the
continuation or repetition of the circumstances giving rise to such right,
unless expressly waived in writing.
15. SEVERABILITY.
To the extent any provision of this Agreement shall be invalid
or unenforceable, it shall be considered deleted herefrom and the
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remaining provisions of this Agreement shall be unaffected and shall
continue in full force and effect.
16. HEADINGS.
Headings contained in this Agreement are for reference
purposes only. They shall not affect in any way the meaning or
interpretation of this Agreement.
17. CONDITION PRECEDENT.
The closing of the initial public offering of common stock of
Platinum is a condition precedent to the effectiveness of this Agreement
and the rights, duties and obligations of the parties hereunder.
18. INDEMNIFICATION
(a) Platinum unconditionally agrees to indemnify and hold
harmless RenaissanceRe, Reniassance and each of its officers, directors,
employees, representatives, agents, affiliates and successors (each, an
"Indemnified Person"), from and against any and all liabilities of, costs
incurred by (including, without limitation, reasonable fees and expenses,
including reasonable counsel fees and expenses), or damages to any
Indemnified Person arising under or resulting from or in connection with,
or in any way related to, this Agreement and the transactions and services
contemplated hereby (collectively, "Losses"), including such Losses
incurred by third parties for which any Indemnified Person may be liable;
provided, however, there shall be excluded from such indemnification any
such liabilities, costs or damages that arise out of, or are based upon,
any action or failure to act by RenaissanceRe, Renaissance or their
respective directors, employees, representatives, agents, affiliates or
successors, other than an action or failure to act undertaken at the
request of Platinum, that is found in a final judicial determination to
constitute bad faith, willful misconduct or gross negligence on the part of
such party.
(b) An Indemnified Person who is claiming indemnification from
Platinum pursuant to the provisions of 18(a) above, shall promptly deliver
a written notification of each claim for indemnification, accompanied by a
copy of all papers served, if any, and specifying in detail the nature of,
basis for, and estimated amount of the claim for indemnification to
Platinum (the "Indemnifying Person"). If an Indemnified Person fails to
promptly notify the Indemnifying Person, then the obligation to indemnify
shall be reduced by the amount of liability that is attributable to or
becomes definite as a result of the delay in notification. The Indemnifying
Person shall have the right to assume the defense of any matter for which a
claim of indemnification is made against it with
E-C-8
counsel it selects, at its own expense. The Indemnifying Person shall not,
except with the consent of each Indemnified Person, which consent shall not
be unreasonably withheld or delayed, consent to the entry of any judgment,
or enter into any settlement, that does not include the giving by the
claimant or plaintiff to the Indemnified Person of a release from all
liability in respect to the claim or litigation. Each Indemnified Person
shall cooperate in providing information, formulating a defense or as
otherwise reasonably requested by the Indemnifying Person.
(c) Each Indemnified Person shall provide written, detailed
statements to the Indemnifying Person, on a calendar monthly basis, of any
expenses, costs or other liabilities for which indemnification is claimed.
The Indemnifying Person shall reimburse such amounts within thirty (30)
business days of receiving any such statement or shall notify in writing
the Indemnified Person claiming indemnification if it denies liability and
the reasons for the denial.
19. TERMINATION.
This Agreement may not be terminated except as provided
herein. Notwithstanding the foregoing, either party may terminate this
Agreement in the event that the other is deemed impaired or insolvent by
applicable regulatory or judicial authorities or is the subject of
conservation, rehabilitation, liquidation, bankruptcy or other similar
insolvency proceedings.
20. OBLIGATIONS.
RenaissanceRe shall cause Renaissance to perform each of
Renaissance's obligations under this Agreement and shall be responsible for
any breach by Renaissance of such obligations. Platinum shall cause the
Company to perform each of the Company's obligations under this Agreement
and shall be responsible for any breach by the Company of such obligations.
21. SURVIVAL.
The provisions of Sections 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16,
18, 20 and 21 hereof shall survive termination of this Agreement.
E-C-9
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
RenaissanceRe HOLDINGS LTD.
By:
----------------------------
Name:
Title:
PLATINUM UNDERWRITERS
HOLDINGS, LTD.
By:
----------------------------
Name:
Title:
X-X-00
XXXXXXX X
XXXXX XX XXXXXXXXX XX. 0 TO REGISTRATION STATEMENT
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[to come]
E-D-1
EXHIBIT E
FORMATION AGREEMENT AMENDMENT
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[to come]
E-E-1
EXHIBIT F
QUOTA SHARE AGREEMENT AMENDMENTS
--------------------------------
[to come]
E-F-1
Schedule 2.7
PLATINUM GOVERNMENTAL CONSENTS
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[to come]
Schedule 2.12
INTERCOMPANY AGREEMENTS
-----------------------
[to come]
Schedule 3.3
ST. XXXX GOVERNMENTAL CONSENTS
------------------------------
[to come]
Schedule 4.4
RENRE GOVERNMENTAL CONSENTS
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[to come]
Schedule 9.1
TERMINATION
-----------
[to come]
