AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT
Exhibit 2.2
Execution
Copy
AMENDMENT
NO. 2 TO SECURITIES PURCHASE AGREEMENT
This
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT (this “Amendment”), dated as of
September 28, 2009, is entered into among PartnerRe Ltd., a Bermuda exempted
company (“Parent”), and
the other parties
hereto.
W
I T N E S S E T H :
WHEREAS,
Parent and the other parties hereto are the parties to that certain Securities
Purchase Agreement dated as of July 4, 2009 (as amended by Amendment No. 1
thereto, the “Block Purchase
Agreement”), which contemplates, as a first step in Parent acquiring the
Company, the acquisition by Purchaser of all of the Company Shares and Company
Warrants owned by the Sellers;
WHEREAS,
simultaneously with entering into the Block Purchase Agreement, Parent entered
into the Transaction Agreement with the Company and Purchaser, pursuant to
which, among other things, Parent has agreed to cause Purchaser to commence an
exchange offer following the Closing for all of the outstanding Company Shares
and Company Warrants not owned by Purchaser and, provided that Purchaser and its
Affiliates own at least 90% of the outstanding Company Shares following
consummation of the exchange offer, the merger of the Company with and into
Purchaser as soon as practicable thereafter;
WHEREAS,
the parties to the Transaction Agreement are entering into Amendment No. 1 to
the Transaction Agreement (the “Transaction Agreement
Amendment”) contemporaneously with this Amendment to amend the
Transaction Agreement to, among other things and subject to certain conditions
therein, eliminate the requirement that Purchaser make the exchange offer
following the Closing, and instead provide for the acquisition of the remaining
outstanding Company Shares not owned by Purchaser and its Affiliates following
the Closing by means of a merger of the Company with and into Purchaser on the
terms and subject to the conditions set forth in the Transaction Agreement
Amendment;
WHEREAS,
the parties to the Block Purchase Agreement desire to amend certain provisions
of the Block Purchase Agreement impacted by the structural changes to the
Transaction Agreement; and
WHEREAS,
in accordance with Section
11.02 of the Block Purchase Agreement, the parties hereto wish to effect the
amendments to the Block Purchase Agreement provided hereunder.
NOW,
THEREFORE, the
Block Purchase Agreement is amended as follows:
1. Definitions;
References. All capitalized terms used herein, unless
otherwise defined herein, shall have the meanings given them in the Block
Purchase Agreement, and each reference in the Block Purchase Agreement to “this
Agreement”, “hereof”, “herein”, “hereunder” or “hereby” and each other similar
reference shall be deemed to refer to the Block Purchase Agreement as amended
hereby and as previously amended by Amendment No. 1 thereto. Each reference to
the “the date hereof”, “the date of this Agreement” and each other similar
reference contained in the Block Purchase Agreement shall refer to July 4,
2009. Each reference to “Transaction Agreement” shall refer to the
Transaction Agreement as amended by the Transaction Agreement
Amendment.
2. Closing. Notwithstanding
anything in Section 2.02(a) of the Block Purchase Agreement to the contrary, so
long as a Non-Acceleration Event (as defined in the Transaction Agreement
Amendment) shall not have occurred, the Closing shall occur on the later to
occur of (a) October 2, 2009 and (b) one Business Day after all conditions set
forth in Article 8 of the Block Purchase Agreement are satisfied or waived
(other than those conditions that by their nature cannot be satisfied until or
immediately prior to the Closing); provided that if a
Non-Acceleration Event shall have occurred prior to the Closing, the provisions
of this Section 2 shall be inapplicable and the provisions of Section 2.02(a) of
the Block Purchase Agreement shall apply without regard to this Section
2.
3. Amendment to Exhibit
E. Exhibit E to the
Block Purchase Agreement is hereby amended and restated in its entirety as set
forth in Exhibit
E attached hereto.
4. Subsequently Acquired Company Shares
or Company Warrants. Section 5.04 of the Block Purchase
Agreement is hereby amended and restated in its entirety as
follows:
“Section
5.04. Subsequently
Acquired Company Shares or Company
Warrants. (a) Prior to the Effective Time (as
defined in the Transaction Agreement), if any Seller or any of its Affiliates
purchases or otherwise acquires beneficial ownership of any Company Shares or
Company Warrants in addition to those Company Shares and Company Warrants set
forth opposite such Seller’s (or, if applicable, any of its Affiliate’s) name on
Exhibit A
hereto, such Company Shares or Company Warrants shall be subject to the terms
and conditions of this Agreement to the same extent as if they were owned by
such Seller as of the date hereof and Exhibit A hereto
shall be adjusted accordingly to give effect to such purchase or acquisition;
provided, however, that
if such Company Shares or Company Warrants are purchased or otherwise acquired
after the Closing, but prior to the Effective Time (as defined in the
Transaction
2
Agreement),
the Per Share Consideration and Per Warrant Consideration shall not be paid as
provided in Article 2, and instead, such Seller hereby agrees that at any
meeting (whether annual or special and whether or not adjourned or postponed) of
the holders of Company Shares, however called, or in connection with any written
consent of the holders of Company Shares, such Seller shall vote (or cause to be
voted) or deliver a consent (or cause a consent to be delivered) with respect to
such Company Shares to the fullest extent that such Company Shares are entitled
to be voted at the time of any vote or action by written consent:
(i) in
favor of the approval and adoption of the Merger Agreement (as defined in the
Transaction Agreement) and the Merger; and
(ii) against
any (A) Company Acquisition Proposal (as defined in the Transaction Agreement),
(B) reorganization, recapitalization, liquidation or winding-up of the Company
or any other extraordinary transaction involving the Company or (C) corporate
action the consummation of which would frustrate the purposes, or prevent or
delay the consummation, of the Merger.
(b) This
Section 5.04 shall terminate and be of no further force or effect whatsoever as
of the earlier of (a) the approval and adoption of the Merger Agreement (as
defined in the Transaction Agreement) and the Merger in accordance with the
Swiss Merger Act (as defined in the Transaction Agreement) and (b) the
termination of the Transaction Agreement in accordance with its
terms.”
5. Reasonable Best Efforts; Further
Assurances.
Section 7.01 of the Block Purchase Agreement is amended hereby by deleting
“2.01,” from the last sentence of such Section; provided that if a Merger End
Date (as defined in the Transaction Agreement Amendment) occurs, this Section 5
of this Amendment shall be deemed inapplicable and of no further force and
effect.
6. Conditions.
(a) Section
8.01(h) shall be disregarded and deemed inapplicable; provided that if a Merger End
Date occurs prior to the
Closing, to the extent reasonably necessary, Parent shall have obtained
exemptive and no-action relief from the SEC permitting Purchaser to commence and
consummate the Offer in compliance with the General Rules of the
AMF.
(b) Clause
(i) of Section 8.01(e) shall be disregarded and deemed inapplicable; provided that if a Merger End
Date occurs prior to
3
the
Closing, this clause (b) shall be deemed inapplicable and of no further force
and effect.
(c) Section
8.01(f) is hereby amended by adding the words “, unless the issuance of the
Parent Shares in the Offer and the Merger would reasonably be expected to
qualify for an exemption from the registration requirements of the 1933 Act”
immediately prior to the period.
7. Investor
Agreement. Exhibit B to the
Block Purchase Agreement is hereby amended by amending and restating the
definition of “Restriction Termination Date” contained therein in its entirety
as follows:
“Restriction Termination Date”
means the date that is the later to occur of (i) six months after the date
hereof and (ii) the earlier to occur of (A) three months after the Effective
Time (as such term is defined in the Transaction Agreement) and (B) May 31,
2010; provided that if
a Merger Failure Event (as defined in Amendment No. 1 to the Transaction
Agreement dated as of September 28, 2009) occurs, the reference to “Effective
Time” shall be deemed to refer to January 1, 2010.
8. Amendment to Exhibit A. Exhibit A to the
Block Purchase Agreement is hereby amended by amending and restating the row
beginning with “Trident III Professionals Fund, L.P.” contained therein in its
entirety as follows:
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““Trident III
Professionals Fund, L.P.
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217,624
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194,095
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97,701
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CHF
907,492.08”
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9. Effectiveness and
Ratification. All of the provisions of this Amendment shall be effective
as of the date hereof. Except as specifically provided for in this
Amendment, the terms of the Block Purchase Agreement are hereby ratified and
confirmed and remain in full force and effect.
10. Counterparts. This
Amendment may be executed and delivered (including by facsimile or electronic
transmission) in any number of counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute a single
instrument.
11. Governing Law;
Jurisdiction. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflicts of law rules of such state. Any suit, action or
proceeding arising under this Amendment shall be resolved in accordance with the
terms set forth in Sections 11.08 and 11.09 of the Block Purchase
Agreement.
[Remainder of page intentionally left
blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their duly authorized representatives as of the date first above
written.
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By:
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/s/ Xxxxxxx Xxxxxx | ||
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Name:
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Xxxxxxx Xxxxxx | ||
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Title:
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Director and Chief Executive Officer | ||
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Xxxxxxx
& Xxxxxxxx Capital Partners V (Cayman), X.X.
Xxxxxxx
& Xxxxxxxx Capital Partners V (Cayman Parallel), X.X.
Xxxxxxx
& Xxxxxxxx Capital Associates V (Cayman), L.P.
By:
Xxxxxxx
& Xxxxxxxx Investors V (Cayman), L.P., general partner of Xxxxxxx
& Xxxxxxxx Capital Partners V (Cayman), L.P. and Xxxxxxx &
Xxxxxxxx Capital Partners V (Cayman Parallel),
L.P.
By:
Xxxxxxx
& Xxxxxxxx Investors V (Cayman), Ltd., general partner of Xxxxxxx
& Xxxxxxxx Capital Associates V (Cayman), L.P. and Xxxxxxx &
Xxxxxxxx Investors V (Cayman), L.P.
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Vice
President
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Trident
III, L.P.
By: Stone
Point Capital LLC, as manager
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By:
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/s/
Xxxxx
Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Principal
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Trident
III Professionals Fund, L.P.
By: Stone
Point Capital LLC, as manager
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By:
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/s/ Xxxxx
Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Principal
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Vestar
Capital Partners V, L.P.
By: Vestar
Associates V, L.P.
Its: General
Partner
By: Vestar
Managers V Ltd.
Its: General
Partner
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By:
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/s/ Xxxx
X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Managing
Director
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Vestar
Executives V, L.P.
By:
Vestar Associates V, L.P.
Its: General
Partner
By:
Vestar Managers V Ltd.
Its:
General Partner
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By:
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/s/
Xxxx
X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Managing
Director
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Vestar
Capital Partners V-A, L.P.
By:
Vestar Managers V Ltd.
Its:
General Partner
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By:
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/s/ Xxxx
X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Managing
Director
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Vestar
Holdings V, L.P.
By:
Vestar Managers V Ltd.
Its: General
Partner
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By:
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/s/ Xxxx
X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Managing
Director
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Crestview
Partners (Outbound), L.P.
By: Crestview
Partners GP (Outbound), L.P.,its
general partner
By:
Crestview,
L.L.C., its general partner
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Partner
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Crestview
Partners TE (Outbound), L.P.
By: Crestview
Partners GP (Outbound), L.P., its general
partner
By:
Crestview,
L.L.C., its general partner
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Partner
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Crestview
Partners ERISA (Outbound), L.P.
By: Crestview
Partners GP (Outbound), L.P., its general
partner
By:
Crestview,
L.L.C., its general partner
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By:
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/s/
Xxxxxx Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Partner
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Crestview
Partners (PF), L.P.
By: Crestview
Partners GP, L.P., its general partner
By:
Crestview,
L.L.C., its general partner
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Partner
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Crestview
Offshore Holdings (Cayman), L.P.
By: Crestview
Partners GP, L.P., its general partner
By:
Crestview,
L.L.C., its general partner
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By:
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/s/ Xxxxxx
Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Partner
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Caisse
de depot et placement du Québec
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Vice-President,
Investments
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By:
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/s/ Xxxxxxxx
Xxxxxxxxxx
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Name:
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Xxxxxxxx
Xxxxxxxxxx
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Title:
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Manager
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Allegheny
New Mountain Partners (Cayman), L.P.
By: New
Mountain Investments II (Cayman), L.P., itsGeneral
Partner
By: NMI
II (Cayman) GP, Ltd., its General Partner
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Director
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New
Mountain
Partners II (Cayman), L.P.
By: New
Mountain Investments II (Cayman), L.P., itsGeneral
Partner
By: NMI
II (Cayman) GP, Ltd., its General Partner
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Director
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New
Mountain Affiliated Investors II (Cayman), L.P.
By: New
Mountain Investments
II (Cayman), L.P., itsGeneral
Partner
By: NMI
II (Cayman) GP, Ltd., its General Partner
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx | ||
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Title:
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Director
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PARIS
RE HOLDINGS LIMITED
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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General
Counsel
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PARTNERRE
HOLDINGS II SWITZERLAND GMBH
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By:
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/s/
Xxxxx Xxxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxxx
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Title:
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Director
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By:
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/s/
Xxxxxxx Winands
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Name:
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Xxxxxxx
Winands
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Title:
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Director
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EXHIBIT
E
Form of Parent
Note
PROMISSORY
NOTE
| CHF [___________] |
___________,
20__
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FOR VALUE RECEIVED, the undersigned,
PartnerRe Ltd., a Bermuda exempted company (“Maker”), by this promissory
note (this “Note”)
promises to pay to the order of ____________ (“Lender”), at [address], the
principal sum of CHF [_________], on the Maturity Date (as defined below), and
to pay interest on the unpaid principal amount hereof from and including the
date hereof to but not including the date of payment in full of such principal
amount at the rate of 3.00% per annum (calculated on the basis of actual days
elapsed in a year consisting of 365 or 366 days, as
applicable). Capitalized terms used herein without definition have
the meanings given to them in the Transaction Agreement dated as of July 4, 2009
(as amended, modified or supplemented from time to time, the “Transaction Agreement”)
between Maker and PARIS RE Limited, a Swiss corporation.
The
principal and interest hereof shall be due and payable in full on the “Maturity Date,” which shall be
the earliest of (i) one day after the Effective Time, (ii)
three months after the termination of the Transaction Agreement, (iii) one day
after the Share Capital Repayment is paid in full and (iv) five months after the
Closing, or if such date is not a Business Day, on the first Business Day
thereafter. As used herein, “Business Day” means a day,
other than Saturday, Sunday or other day on which commercial banks in New York,
Paris or Zurich are authorized or required by Applicable Law to
close.
Maker may
prepay the principal amount plus interest due in part or in full at any time,
from time to time, without premium or penalty. All payments on this
Note shall be made in Swiss Francs, being the legal currency of Switzerland, and
shall be made without set-off, counterclaim, deduction, withholding on account
of taxes levied or imposed under the laws of the jurisdiction in which the Maker
is organized, or restrictions or conditions of whatever nature.
Maker
represents, warrants and covenants that the issuance and delivery of this Note
have been duly authorized and this Note is the valid and legally binding
obligation of Maker, enforceable in accordance with its terms.
All
notices in respect of this Note shall be given in the same manner and to the
same addresses as provided for notices under the Securities Purchase Agreement
dated as of July 4, 2009 (the “Securities Purchase
Agreement”) among PartnerRe Ltd., PARIS RE Holdings Limited,
Lender and other sellers named therein.
This Note
and all rights hereunder may not be transferred or assigned at any time in whole
or in part, except to any Affiliate (as such term is defined in the Securities
Purchase Agreement) of Lender.
In the
event (i) the Maker shall fail to make payment when due of any principal of or
interest on the Note; or (ii) the Maker shall become insolvent (however such
insolvency may be evidenced) or proceedings are instituted by or against the
Maker under the United States Bankruptcy Code or under any bankruptcy,
reorganization or insolvency law or other law for the relief of debtors and, in
the case of any such proceeding instituted other than by the Maker, Maker shall
admit the material allegations thereof or such proceeding shall not have been
dismissed or stayed within sixty (60) days after commencement thereof, such
event shall constitute an event of default under this Note and this Note shall
become immediately due and payable at the option of the Lender by written notice
to Maker; provided that
in the event of an event of default described in clause (ii) above, the
principal amount of this Note, together with accrued interest thereon, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Maker.
If
default is made in the payment of this Note, Maker agrees to pay to the holder
all costs of collection, including but not limited to court costs and reasonable
attorney’s fees. These
remedies are not intended to be exclusive of any other right or remedy available
hereunder or at law or in equity.
Maker
hereby waives presentment and demand for payment, protest, notice of protest and
non-payment, notice of dishonor or any other notice not expressly provided for
herein, and agrees that Maker’s liability in respect of this Note shall not be
affected by any extension in the time of payment hereof.
The Maker
and each holder by acceptance of this Note agrees that this Note shall be
governed by and construed in accordance with the law of the State of New York,
without regard to the conflicts of law rules of such state. The Maker
and each holder by acceptance of this Note agrees that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with or relating to, this Note shall be brought in the
United States District Court for the Southern District of New York or any New
York State court sitting in New York City, and each of such persons hereby
irrevocably consents to the exclusive 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 brought in any such court has been brought in an inconvenient
forum. The Maker and each holder by acceptance of this Note agrees
that process in any such suit, action or proceeding may be served on the Maker
and any such holder anywhere in the world, whether within or without the
jurisdiction of any such court. THE MAKER AND EACH HOLDER BY
ACCEPTANCE OF THIS NOTE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
NOTE.
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By:
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Name:
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Title:
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