VOTING AGREEMENT
Exhibit
2.2
EXECUTION
COPY
AGREEMENT,
dated as of October 21, 2009 among PartnerRe Ltd., a Bermuda exempted company
(“Parent”), and the
individual set forth on the signature page hereto (“Shareholder”).
WHEREAS,
Parent intends to, through a wholly-owned subsidiary of Parent (“Purchaser”), acquire 100% of
PARIS RE Holdings Limited, a Swiss corporation (the “Company”);
WHEREAS,
prior to the date hereof, Purchaser has, through a series of transactions,
acquired Company Shares totaling at least 83% of the outstanding Company
Shares;
WHEREAS,
pursuant to the Transaction Agreement dated as of July 4, 2009 (as amended, the
“Transaction Agreement”)
among Parent, Purchaser and the Company, Parent has agreed, upon the terms and
subject to the conditions set forth in the Transaction Agreement, to acquire the
remaining outstanding Company Shares not owned by Purchaser and its Affiliates
by means of a merger (the “Merger”) of the Company with
and into Purchaser; and
WHEREAS,
as of the date hereof, Shareholder is an owner of common bearer shares,
CHF 4.51 par value per share of the Company, including (the Company’s
common bearer shares are hereinafter referred to as the “Company Shares”); and
WHEREAS,
in order to help ensure that the Merger Confirmation Date will occur and the
Requisite Merger Approval will be obtained (in each case, as defined in the
Transaction Agreement), Shareholder has agreed to enter into this
Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
1
Grant
of Proxy; Voting Agreement
Section
1.01 . Voting
Agreement. (a) Shareholder hereby agrees that at any meeting
(whether annual, extraordinary or special and whether or not an adjourned or
postponed) of the holders of Company Shares, however called, or in connection
with any written consent of the holders of Company Shares,
Shareholder
shall vote (or cause to be voted) or deliver a consent (or cause a consent to be
delivered) with respect to the Company Shares owned by Shareholder and set forth
on Schedule 1.01
hereto under the column entitled “Covered Company Shares” (such Company Shares,
Shareholder’s Covered Company
Shares”) to the fullest extent that such Covered 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;
(ii) without
limitation of the preceding clause (i), in favor of any proposal to adjourn or
postpone any meeting of the shareholders of the Company at which the matters
described in the preceding clause (i) are submitted for the consideration and
vote of the shareholders of the Company to a later date if there are not
sufficient votes for approval of such matters on the date on which the meeting
is held; and
(iii) 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) Shareholder
agrees to cause Shareholder’s Covered Company Shares to be counted as present
for purposes of any quorum requirement at any duly called meeting of the holders
of Company Shares (or any adjournment or postponement thereof).
(c) For the
avoidance of doubt, Shareholder agrees that for so long as this Agreement is in
effect the obligations of Shareholder contained in this Article
1 shall not be affected by any Adverse Company Recommendation Change (as
defined in the Transaction Agreement).
Section
1.02 . Irrevocable
Proxy. Shareholder hereby revokes (or causes to be revoked)
any and all previous proxies if granted with respect to Shareholder’s Covered
Company Shares. Upon request in writing by Parent, Shareholder hereby
agrees to grant a proxy appointing Parent as Shareholder’s attorney-in-fact and
proxy, with full power of substitution, for and in Shareholder’s name, to vote,
express consent or dissent, or otherwise to utilize such voting power in the
manner contemplated by Section 1.01(a). The proxy to be granted by Shareholder
upon request in writing by Parent shall automatically be revoked upon
termination of this Agreement.
2
ARTICLE
2
Representations
and Warranties of Shareholder
Shareholder
represents and warrants to Parent that:
Section
2.01 . Authorization.
Shareholder has full legal capacity, right and authority to execute and deliver
this Agreement and to perform Shareholder’s obligations
hereunder. This Agreement constitutes a valid and binding Agreement
of Shareholder (subject to applicable bankruptcy, insolvency, fraudulent
transfer, moratorium and other laws affecting creditors’ rights generally and
general principles of equity).
Section
2.02 . Non-Contravention. The
execution, delivery and performance by Shareholder of this Agreement and the
consummation of the transactions contemplated hereby do not and will not (i)
violate any Applicable Law (as defined in the Transaction Agreement), (ii)
require any consent or other action by any Person under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration or
to a loss of any benefit to which Shareholder is entitled under any provision of
any agreement or other instrument binding on Shareholder or (iii) result in the
imposition of any Lien (as defined in the Transaction Agreement) on any Covered
Company Shares.
Section
2.03 . Ownership of Company
Shares. Shareholder is the owner of Shareholder’s Covered
Company Shares, free and clear of any limitation or restriction on Shareholder’s
right to vote any such Covered Company Shares. None of Shareholder’s
Covered Company Shares is subject to any voting trust or other agreement or
arrangement with respect to the voting of the Covered Company
Shares. Shareholder has, and at all times during the term of this
Agreement will have, with respect to Shareholder’s Covered Company Shares, the
sole power, directly or indirectly, to vote Shareholder’s Covered Company
Shares, and at all times during the term of this Agreement will have, the
complete and exclusive power to, directly or indirectly, issue (or cause the
issuance of) instructions with respect to the matters set forth in Article 1 and
agree to all matters set forth in this Agreement.
Section
2.04 . Finder’s
Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from the Company in respect of
this Agreement based upon any arrangement or agreement made by or on behalf of
Shareholder except for (i) reasonable costs and expenses incurred by
Shareholder’s counsels in connection with this Agreement and (ii) additional
and/or increased fees and/or commissions for the benefit of Credit Suisse
resulting from entering into this Agreement for purposes of determining the fees
and commissions, if any, that Credit Suisse may be owed in connection with the
transactions contemplated by the Transaction Agreement and the Securities
Purchase Agreement (as defined in the Transaction Agreement).
3
Section
2.05 . Opportunity to Review;
Reliance. Shareholder has had the opportunity to review this
Agreement and the Transaction Agreement with counsel of Shareholder’s own
choosing.
ARTICLE
3
Representations
and Warranties of Parent
Parent
represents and warrants to Shareholder:
Section
3.01 . Corporation
Authorization. The execution, delivery and performance by
Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby are within the corporate powers of Parent and have been duly
authorized by all necessary corporate action. This Agreement
constitutes a valid and binding agreement of Parent (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws affecting creditors’ rights generally and general principles of
equity).
ARTICLE
4
Covenants
of Shareholder
Shareholder
hereby covenants and agrees that:
Section
4.01 . No Transfers; No
Proxies. Shareholder agrees that it shall not (a) enter into
any contract, option or other arrangement or understanding with any Third Party
(as defined in the Transaction Agreement) for the direct or indirect purchase
and sale of any of Shareholder’s Covered Company Shares or otherwise, directly
or indirectly, sell, assign, transfer, encumber or otherwise dispose of any of
Shareholder’s Covered Company Shares or any interest therein to a Third Party,
or (b) except pursuant to the terms of this Agreement, grant any proxies or
enter into any voting trust or other agreement or arrangement with respect to
the voting of any Company Shares, except if the Merger is not legally effective
by January 31, 2010 in which case this Section 4.01 shall be deemed to be
terminated as per that date,
ARTICLE
5
Miscellaneous
Section
5.01 . Notices. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission and electronic mail (“e-mail”) transmission, so long
as a receipt of such e-mail is requested and received) and shall be
given,
4
if to
Parent or Purchaser, to:
Wellesley
House
90 Xxxxx
Bay Road
Pembroke
HM
11
Bermuda
Attention:
Xxxxxx Xxxxxxxxx
Facsimile
No.: (000) 000-0000
E-mail:
xxxxxx.xxxxxxxxx@xxxxxxxxx.xxx
with a
copy to:
Xxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile
No.: (000) 000-0000
E-mail:
xxxxxxx.xxxxx@xxxxxxxxx.xxx
if to
Shareholder, to Shareholder and Shareholder’s counsel at their respective
addresses, facsimile numbers or e-mail addresses set forth on the applicable
signature page hereof, or to such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the other parties
hereto. All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof if received
prior to 5:00 p.m. on a business day in the place of
receipt. Otherwise, any such notice, request or communication shall
be deemed not to have been received until the next succeeding business day in
the place of receipt.
Section
5.02 . Other Definitional and
Interpretative Provisions. (a) Unless specified otherwise, in
this Agreement the obligations of any party consisting of more than one
person are joint and
several. The words “hereof”, “herein” and “hereunder” and words of
like import used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The captions
herein are included for convenience of reference only and shall be ignored in
the construction or interpretation hereof. References to Articles,
Sections and Schedules are to Articles, Sections and Schedules of this Agreement
unless otherwise specified. All Schedules annexed hereto or referred
to herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Any capitalized terms used in any Schedule but
not otherwise defined therein, shall have the meaning as defined in this
Agreement. Any singular term in this Agreement shall be deemed to
include the plural, and any plural term the singular. Whenever the
words “include”, “includes” or
5
“including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation”, whether or not they are in fact followed by those words or
words of like import. “Writing”, “written” and comparable terms refer
to printing, typing and other means of reproducing words (including electronic
media) in a visible form. References to any agreement or contract are
to that agreement or contract as amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof. References to
any Person include the successors and permitted assigns of that
Person. References from or through any date mean, unless otherwise
specified, from and including or through and including,
respectively.
Section
5.03 . Further
Assurances. Parent and Shareholder will each execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use its reasonable best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations, to consummate and make
effective the transactions contemplated by this Agreement.
Section
5.04 . Amendments;
Termination. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by each party to this Agreement or in the case of a
waiver, by the party against whom the waiver is to be effective. This
Agreement shall terminate upon the earlier of: (a) termination of the
Transaction Agreement in accordance with its terms and (b) January 31, 2010 if
the Merger is not legally effective by such date.
Section
5.05 . Documentation and
Information. Shareholder (i) consents to and authorizes the
publication and disclosure by Parent of Shareholder’s identity and holding of
Company Shares, the nature of Shareholder’s commitments, arrangements and
understandings under this Agreement (including, for the avoidance of doubt, the
disclosure of this Agreement) and any other information, in each case, that
Parent reasonably determines is required to be disclosed by Applicable Law (as
defined in the Transaction Agreement) in any press release, any Current Report
on Form 8-K, any disclosure document in connection with the Merger or the
listing of the Parent Shares (as defined in the Transaction Agreement) on
Euronext Paris or any filings with or notices to Governmental Authorities (as
defined in the Transaction Agreement) in connection with the Merger or any
transactions contemplated by this Agreement or the Transaction Agreement and
(ii) agrees promptly to give to Parent any information it may reasonably require
for the preparation of any such documents. Shareholder agrees to
promptly notify Parent of any required corrections with respect to any
information supplied by Shareholder specifically for use in any such document,
if and to the extent that any such information shall have become false or
misleading in any material respect.
6
Section
5.06 . 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; provided that the reasonable
costs and expenses incurred by Shareholder’s counsels in connection with this
Agreement shall be paid by the Company.
Section
5.07 . Shareholder
Capacity. Shareholder signs solely in its capacity as the
owner of Company Shares and nothing in this Agreement shall limit or affect any
actions any individual in his or her capacity as an officer or director of the
Company. This Section
5.07 shall survive any termination of this Agreement.
Section
5.08 . Successors and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto.
Section
5.09 . Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws Switzerland.
Section
5.10 . Jurisdiction. Subject
to Section
5.13, 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 Commercial Court of the Canton of Zurich,
Switzerland.
Section
5.11 . Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto. Until and unless
each party has received a counterpart hereof signed by the other party hereto,
this Agreement shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).
Section
5.12 . Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority (as defined in
the Transaction Agreement) to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall
7
negotiate
in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
Section
5.13 . Specific
Performance. The parties hereto agree that irreparable damage
would occur if any provision of this Agreement were not performed in accordance
with the specific terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof in a court of
competent jurisdiction or other Governmental Authority (as defined in the
Transaction Agreement), in addition to any other remedy to which they are
entitled at law or in equity.
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blank]
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed as of the day and year first
above written.
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By:
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Name:
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Title:
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[Name
of Shareholder]
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Address for
notices:
[ADD
NOTICE ADDRESS]
with a copy to:
[ADD
NOTICE ADDRESS]
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Schedule
1.01
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Shareholder
Name
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Covered
Company Shares
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