[XXXXX ONLY]
Exhibit 2.5
FIRST AMENDMENT TO
AMENDED AND RESTATED MERGER AGREEMENT
This First Amendment to Amended and Restated Agreement and Plan of Merger,
dated as of November 29, 1999, is entered into among Capital Re Corporation, a
Delaware corporation (the "Company"), ACE Limited, a company incorporated with
limited liability under the Cayman Islands Companies Law ("Parent"), and CapRe
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Subsidiary") as of
WHEREAS, the Company, Parent and Merger Subsidiary entered into an
Agreement and Plan of Merger dated as of June 10, 1999 (the "Original
Agreement"); and
WHEREAS, the Company, Parent and Merger Subsidiary entered into an Amended
and Restated Agreement and Plan of Merger dated as of October 26, 1999 (the
"Amended Agreement") amending and restating the Original Agreement; and
WHEREAS, the Company, Parent and Merger Subsidiary desire to amend the
Amended Agreement as provided in this First Amendment;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto hereby agree as follows:
Section 1. Amendment to Amended Agreement.
Section 1.4 of the Amended Agreement is hereby deleted in its entirety and
replaced with the following:
1.4 Reservation of Right to Revise Structure.
In the event the sum of (i) the aggregate Cash Component of the
Merger, plus (ii) the aggregate amount of cash paid by Parent to acquire
Company Common Stock prior to closing (including the $1.3 million already
expended) other than Company Common Stock acquired directly from the
Company, plus (iii) an amount reasonably calculated to equal the cash to be
paid in lieu of fractional shares, plus (iv) the aggregate amount of cash
expected to be paid in respect of Dissenting Shares (assuming the amount of
cash paid per each Dissenting Share will equal the fair market value of the
Merger Consideration received per each share participating in the
merger)(the sum of (i) through (iv)
being the "Total Cash Consideration") exceeds one-half of the sum of (i)
the fair market value of the aggregate Merger Consideration, plus (ii) the
aggregate amount of cash paid by Parent to acquire Company Common Stock
prior to closing (including the $1.3 million already expended) other than
Company Common Stock acquired directly from the Company, plus (iii) the
amount of cash paid in respect of Dissenting Shares, (the sum of (i)
through (iii) being the "Total Consideration"), at Parent's election, the
Merger may alternatively be structured so that Merger Subsidiary is merged
with and into the Company. No change in structure shall (1) alter or change
the amount or kind of the Merger Consideration, (2) materially impede or
delay the consummation of the transactions contemplated by this Agreement
or (3) materially and adversely affect the ability of any party to timely
perform its obligations under this Agreement or otherwise to consummate the
transactions contemplated by this Agreement. If Parent makes any such
election, the parties agree to execute an appropriate amendment to this
Agreement and any other documents necessary in order to reflect such
election.
Section 2. Reference to and Effect on the Amended Agreement.
(a) On and after the date of this First Amendment, each reference in the
Amended Agreement to "this Agreement," "hereunder," "hereof," or "herein" shall
mean and be a reference to the Amended Agreement as amended by this First
Agreement.
(b) Except as specifically amended above, the Amended Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
(c) The execution and delivery of this First Amendment shall not operate as
a waiver of any right, power or remedy of any party to the Amended Agreement.
Section 3. Governing Law.
This First Amendment shall be construed and enforced in accordance with the
laws of the State of Delaware.
Section 4. Counterparts and Method of Execution.
This First Amendment may be executed in several counterparts, all of which
together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties have not signed the same counterpart. This
First Amendment may be executed by written signature in hand or by facsimile
signature, stamp or similar means, and any such method of execution shall be
sufficient to cause this First Amendment to be executed.
Section 5. Section Titles.
Section titles are for descriptive purposes only and shall not control or
alter the meaning of this First Amendment as set forth in the text.
IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
CAPITAL RE CORPORATION
By: ___________________________
ACE LIMITED
By: ___________________________
CAPRE ACQUISITION CORP.
By: ___________________________
