FORM OF INVESTOR AGREEMENT dated as of among PARTNERRE LTD. and THE SHAREHOLDERS NAMED HEREIN
Exhibit 2.3
EXECUTION
COPY
FORM
OF
dated
as of
[●]
among
and
THE
SHAREHOLDERS NAMED HEREIN
TABLE
OF CONTENTS
PAGE
ARTICLE
1
DEFINITIONS
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Section
1.01. Definitions
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1
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Section
1.02. Other
Definitional and Interpretative Provisions
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5
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ARTICLE
2
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REPRESENTATIONS AND WARRANTIES
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Section
2.01. Representations
and Warranties of the Company
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6
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Section
2.02. Representations
and Warranties of the Shareholders
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7
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ARTICLE
3
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RESTRICTIONS ON TRANSFER
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Section
3.01. General
Restrictions on Transfer
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7
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Section
3.02. Legends
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8
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Section
3.03. Specific Transfer
Restrictions
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9
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Section
3.04. Application of
Agreement to Additional Company Securities
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11
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Section
3.05. Rule
144 Reporting
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12
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ARTICLE
4
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STANDSTILL, VOTE NEUTRALIZATION
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Section
4.01. Standstill
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12
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Section
4.02. Vote
Neutralization.
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15
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ARTICLE
5
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CERTAIN COVENANTS AND AGREEMENTS
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Section
5.01. Quarterly
Meetings
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15
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Section
5.02. Confidentiality
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17
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Section
5.03. Ownership
Information
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18
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Section
5.04. No
Waiver
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18
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Section
5.05. Investor Agreement
Controlling.
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18
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ARTICLE
6
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TERMINATION
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Section
6.01. Termination
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18
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ARTICLE
7
MISCELLANEOUS
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Section
7.01. Notices
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20
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Section
7.02. Amendments and
Waivers
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20
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Section
7.03. Successors and
Assigns
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21
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Section
7.04. Several
Obligations
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21
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Section
7.05. Counterparts; Effectiveness;
Third Party Beneficiaries
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21
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Section
7.06. Governing
Law
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21
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Section
7.07. Jurisdiction
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21
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Section
7.08. Waiver
of Jury Trial
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22
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Section
7.09. No
Partnership Intended for Tax Purposes
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22
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Section
7.10. Entire
Agreement
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22
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Section
7.11. Severability
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22
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Section
7.12. Specific
Enforcement
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22
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EXHIBITS
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Exhibit
A
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Initial
Common Share Ownership
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Exhibit
B
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Joinder
Agreement
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Exhibit
C
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Quarterly
Meeting Information
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Exhibit
D
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Competing
Entities
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Exhibit
E
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Form
of Voting Proxy
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SCHEDULES
Schedule
A List of Shareholders
ii
AGREEMENT
dated as of [●] among PartnerRe Ltd., a Bermuda exempted company (the “Company”), and the Persons
named on Schedule
A hereto (collectively with their Permitted Transferees that become a
party to this Agreement in accordance with Article 3, the “Shareholders” and,
individually, a “Shareholder”).
W
I T N E S S E T H :
WHEREAS,
pursuant to the Securities Purchase Agreement dated as of July 4, 2009 by and
among the Company, the Shareholders, PARIS RE Holdings Limited, and the other
shareholders named therein (the “Securities Purchase Agreement”), each Shareholder
acquired the number of the Common Shares (as defined below) set forth
opposite such Shareholder’s name on Exhibit A hereto;
and
WHEREAS,
the parties hereto desire to enter into this Agreement to establish certain
arrangements with respect to the Common Shares and other securities of the
Company beneficially owned by the Shareholders and their Affiliates following
the date hereof as well as restrictions on certain activities in respect of the
Common Shares and such other securities.
NOW,
THEREFORE, in consideration of the covenants and agreements contained herein,
the parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
Section
1.01. Definitions. (a)
As used herein, the following terms have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by or under common control with such Person; provided that no
securityholder of the Company shall be deemed an Affiliate of the Company or any of
its Subsidiaries or any other securityholder solely by reason of any investment
in the Company or such securityholder’s beneficial ownership of Company
Securities; provided,
further, that each investment fund or similar fund managed, sponsored or
advised by any Shareholder or any Affiliate of such Shareholder shall constitute
an Affiliate of such Shareholder [(except that New Mountain Vantage, L.P. and
New Mountain Guardian, L.P. shall not be
deemed to
be Affiliates of any Shareholder or any of their respective Affiliates)],1 but,
notwithstanding anything contrary above, such Shareholder’s Portfolio Companies
shall not be deemed to be Affiliates of such Shareholder or any of its
Affiliates. For the purpose of this definition, the term “control” (including, with
correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as used
with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Applicable Law” means, with
respect to any Person, any supranational, foreign, federal, state or local law
(statutory, common or otherwise), constitution, treaty, convention, ordinance,
code, rule, regulation, order, permit, injunction, judgment, decree, ruling or
other similar requirement enacted, adopted, promulgated, made mandatory or
applied by a Governmental Authority that is binding upon or applicable to such
Person, as amended unless expressly specified otherwise.
“beneficial ownership” of any
security by any Person means “beneficial ownership” of such security as
determined pursuant to Rule 13d-3 under the 1934 Act, including all securities
as to which such Person has the right or obligation (contingent or otherwise) to
acquire, without regard to the 60-day period set forth in such rule; provided, however, that (i)
no Shareholder shall be deemed to beneficially own any Company Securities held
by any other Person that constitutes a “Shareholder” under any other Investor
Agreement solely by virtue of the provisions of this Agreement, any other
Investor Agreement or the Securities Purchase Agreement or the matters
contemplated hereby and thereby and (ii) no Shareholder shall be deemed to
beneficially own any Company Securities held by a Portfolio Company. The terms
“beneficially owned” and
“beneficial owner” shall
have correlative meanings. Beneficial ownership of any security by any Person
shall include for purposes of this Agreement, any security (or any economic
participation or interest therein) of which any other Person or any of such
other Person’s Affiliates shall have acquired beneficial ownership, or the right
or obligation to acquire beneficial ownership of any security (or any economic
participation or interest therein), in connection with, as a result of, in
anticipation of, or in order to hedge or offset the risk of, any contractual or
financial agreement, arrangement or understanding (including any swap, option,
put, call, straddle or other derivative, whether or not settlable in kind or in
cash) with such Person or any of such Person’s Affiliates.
“Board” means the board of
directors of the Company.
1 Bracketed language to be inserted into
New Mountain Investor Agreement.
2
“Common Shares” means the
common shares, par value $1.00 per share, of the Company and any shares into
which such Common Shares may thereafter be converted or changed.
“Company Securities” means
Voting Securities, and any securities convertible into or exercisable or
exchangeable for Voting Securities (whether or not currently so convertible,
exercisable or exchangeable or only upon the passage of time, the occurrence of
certain events or otherwise).
“Competing Entity” means each
of the Persons set forth on Exhibit D hereto,
together with their respective Subsidiaries, which the Company determines in
good faith to be organizations competitive with its business; provided that not more than
once in any 12-month period, the Company may amend Exhibit D upon
written notice thereof to each Shareholder; provided, however, that at no time may
the Company add any Person to Exhibit D that had more than $100 million
in reinsurance premiums written in any 12-month period prior to the date the
version of Exhibit
D then in effect first became effective; and provided further that at no
time may more than 52 Persons (together with their Subsidiaries) be
Competing Entities.
“Governmental Authority” means
any transnational, domestic or foreign federal, state or local, governmental,
regulatory or administrative (including social security) authority, department,
court, agency or official, including any political subdivision
thereof.
“Group” shall have the meaning
assigned to it in Section 13(d)(3) of the 1934 Act.
“Investment” means, with
respect to any investment fund or similar fund, any “investment” (or similar
term describing the results of the deployment of capital) as defined in the
governing document of such investment fund or similar fund.
“Investor Agreement” means each
Investor Agreement entered into by the Company and one or more parties to the
Securities Purchase Agreement in connection with the consummation of the
transactions contemplated by the Securities Purchase Agreement.
“knowledge” means, with respect
to any Person, the actual knowledge, after reasonable inquiry, of such Person’s
and its Affiliates’ Chief Executive Officer, Chief Financial Officer, General
Counsel or senior investment professional who is a member of the investment team
with primary responsibility for any Investment made in the Company by such
Person or Affiliate. It is agreed that the actual knowledge of such individuals
excludes any knowledge which may be implied, imputed or construed from or on the
basis of the knowledge of any
3
other
Person, including, without limitation, professional advisers or any other
employee of such Person or any of its Affiliates.
“1933 Act” means the Securities
Act of 1933.
“1934 Act” means the Securities
Exchange Act of 1934.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a Governmental Authority.
“Portfolio Company” means, with
respect to any Shareholder, any Person in which such Shareholder or any
investment fund or similar fund managed, sponsored or advised (directly or
indirectly) by such Shareholder or any of its Affiliates owns an
Investment.
“Registration Rights Agreement”
means each of the Registration Rights Agreements dated as of the date hereof
among the Company, the shareholders party thereto and the other parties
thereto.
“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 consummation
of the Offer (as such term is defined in the Transaction Agreement) and (B) May
31, 2010.
“Subsidiary” means, with
respect to any Person, any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at any time directly
or indirectly owned by such Person.
“Third Party” means, with
respect to any Person, any Person that is not an Affiliate or Portfolio Company
of such Person.
“Total Voting Power” means, at
any time, the total number of votes then entitled to be cast by the holders of
the outstanding Voting Securities at such time.
“Transaction Agreement” means
the Transaction Agreement dated as of July 4, 2009 among the Company and PARIS
RE Holdings Limited.
“Transfer” means, with respect
to any Company Securities, (i) when used as a verb, to sell, assign, dispose of,
exchange, pledge, encumber, hypothecate or otherwise transfer (whether by
operation of law, a distribution in kind or otherwise and whether with or
without consideration) such Company Securities or any economic participation or
interest therein, whether directly or indirectly, or agree or commit to do any
of the foregoing and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange, pledge, encumbrance,
4
hypothecation
or other transfer (whether by operation of law, a distribution in kind or
otherwise and whether with or without consideration) of such Company Securities
or any participation or interest therein or any agreement or commitment to do
any of the foregoing. For purposes of this Agreement, the term Transfer shall
include the sale, assignment, disposition, exchange, pledge, encumbrance,
hypothecation or other transfer (whether by operation of law, a distribution in
kind or otherwise and whether with or without consideration) of an Affiliate of
any Shareholder or such Shareholder’s interest in an Affiliate that beneficially
owns Company Securities unless such Shareholder retains beneficial ownership of
such Company Securities following such transaction.
“Voting Securities” means, at
any time, shares of any class of capital stock or other securities of the
Company, including the Common Shares, which are then entitled to vote generally
in the election of directors and not solely upon the occurrence and during the
continuation of certain specified events.
(b) Each
of the following terms is defined in the Section set forth opposite such
term:
|
Term
|
Section
|
|
Company
|
Preamble
|
|
Confidentiality
Agreement
|
4.01
|
|
e-mail
|
7.01
|
|
Excess
Voting Percentage
|
4.02
|
|
Opt-In
Period
|
6.01
|
|
Permitted
Transferee
|
3.03
|
|
Quarterly
Meeting Information
|
5.02
|
|
Restricted
Person
|
5.01
|
|
Securities
Purchase Agreement
|
Recitals
|
|
VCOC
Parent
|
5.01
|
|
Voting
Limitation Percentage
|
4.02
|
Section
1.02. Other Definitional and
Interpretative Provisions. 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,
Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this
Agreement unless otherwise specified. All Exhibits and 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
Exhibit or 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 “including” are used in
5
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 statute shall be deemed to refer to such statute as
amended from time to time and to any rules or regulations promulgated
thereunder. 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; provided that with respect to
any agreement or contract listed on any schedules hereto, all such amendments,
modifications or supplements must also be listed in the appropriate schedule.
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. References to “law”,
“laws” or to a particular statute or law shall be deemed also to include any and
all Applicable Law.
ARTICLE
2
REPRESENTATIONS AND WARRANTIES
Section
2.01. Representations and
Warranties of the Company. The Company hereby represents and warrants to
the Shareholders that:
(a) The
Company is duly organized and validly existing under the laws of its
jurisdiction of organization and has all organizational powers required to carry
on its business as now conducted and as contemplated by this
Agreement.
(b) The
execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby are within
the Company’s organizational powers and have been duly authorized by all
necessary action on the part of the Company.
(c) This
Agreement constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other laws affecting creditors’ rights generally and general principles of
equity).
(d) The
execution, delivery and performance of this Agreement and the consummation by
the Company of the transactions contemplated hereby (i) do not require any
consent or approval of, registration or filing with, or other action by, any
Governmental Authority, except such as have been obtained and are in full force
and effect, (ii) will not violate any Applicable Law or the memorandum of
association or bye-laws or other similar organizational documents of
the
6
Company
or any order of any Governmental Authority by which the Company or any of its
Subsidiaries is bound, and (iii) will not violate or result in a default under
any material agreement, judgment, injunction, order, decree or other instrument
binding upon the Company.
Section
2.02. Representations and
Warranties of the Shareholders. Each Shareholder severally as to itself
but not jointly with the other Shareholders represents and warrants to the
Company that:
(a) Such
Shareholder is duly organized and validly existing under the laws of its
jurisdiction of organization and has all organizational powers required to carry
on its business as now conducted and as contemplated by this
Agreement.
(b) The
execution, delivery and performance by such Shareholder of this Agreement and
the consummation by such Shareholder of the transactions contemplated hereby are
within such Shareholder’s organizational powers and have been duly authorized by
all necessary action on the part of such Shareholder.
(c) This
Agreement constitutes a valid and binding agreement of such Shareholder
enforceable against such Shareholder in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws affecting creditors’ rights generally and general
principles of equity).
(d) The
execution, delivery and performance of this Agreement and the consummation by
such Shareholder of the transactions contemplated hereby (i) do not require any
consent or approval of, registration or filing with, or other action by, any
Governmental Authority, except such as have been obtained and are in full force
and effect, (ii) will not violate any Applicable Law or the certificate of
incorporation or bylaws or other similar organizational documents of such
Shareholder or any order of any Governmental Authority by which such Shareholder
or any of its Affiliates is bound, and (iii) will not violate or result in a
default under any material agreement, judgment, injunction, order, decree or
other instrument binding upon such Shareholder.
(e) As of the
date hereof, except for the Common Shares set forth on Exhibit A, neither
such Shareholder nor any of its Affiliates beneficially owns any Company
Securities.
ARTICLE
3
RESTRICTIONS ON TRANSFER
Section
3.01. General Restrictions on
Transfer. (a) Each Shareholder agrees that it shall not Transfer any
Company Securities over which it or any of
7
its
Affiliates has beneficial ownership (or solicit any offers in respect of any
Transfer of any Company Securities), except in compliance with the 1933 Act, any
other applicable non-U.S. or state securities or “blue sky” laws, and the terms
and conditions of this Agreement.
(b) Any
attempt to Transfer any Company Securities not in compliance with this Agreement
shall be null and void, and the Company shall not, and shall cause any transfer
agent not to, give any effect in the Company’s share records to such attempted
Transfer.
Section
3.02. Legends. (a) Each
certificate or book entry representing Company Securities beneficially owned by
any Shareholder or its Affiliates as of the date hereof shall bear a legend in
substantially the following form:
THE
SECURITIES REPRESENTED BY THIS [CERTIFICATE][BOOK ENTRY] HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR ANY NON-U.S. OR
STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH. THE SECURITIES REPRESENTED BY THIS
[CERTIFICATE][BOOK ENTRY] ARE SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH
IN AN INVESTOR AGREEMENT DATED AS OF JULY 4, 2009 AMONG PARTNERRE LTD. AND THE
OTHER PARTIES THERETO, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
PARTNERRE LTD. OR ANY SUCCESSOR THERETO.
(b) Upon any
acquisition by any Shareholder or any of its Affiliates of beneficial ownership
of any Company Securities after the date hereof, such Shareholder shall, or
shall cause the owner of such Company Securities to, (i) if such Company
Securities are in certificated form, submit the certificate(s) representing such
Company Securities to the Company so that the second sentence of the legend
required by this Section 3.02(a) may be placed thereon (if not already endorsed
thereon) or (ii) if such Company Securities are in book entry form, notify the
Company so that the second sentence of the legend required by this Section
3.02(a) may be noted in the book entry representing such Company
Securities.
(c) The
Company shall use best efforts to replace as soon as possible the certificates
or book entries representing Company Securities with certificates or book
entries not bearing the legend required by the first sentence of Section 3.02(a)
if the Company receives such representations from the Shareholder as reasonably
requested by the Company to enable it to provide an opinion of
8
counsel
(which may be in-house counsel), in reliance on such representations, that such
legends are no longer required for purposes of applicable securities
law.
(d) If
any Company Securities cease to be subject to any and all restrictions on
Transfer set forth in this Agreement (including upon the termination of this
Agreement with respect to the Shareholders) or if a Transfer permitted hereunder
is made and Transferee is not subject to this Agreement, the Company, upon the
written request of the holder thereof, shall use best efforts to replace as soon
as possible the certificates or book entries representing such Company
Securities with certificates or book entries not bearing the legend required by
the second sentence of Section 3.02(a).
Section
3.03. Specific Transfer
Restrictions. (a) Prior to the Restriction Termination Date, no
Shareholder shall Transfer any Company Securities which it or any of its
Affiliates beneficially owns, except:
(i) Transfers
of Company Securities to one or more of its Affiliates or Portfolio Companies
(each, a “Permitted
Transferee”) so long as such Permitted Transferee (other than a Permitted
Transferee already party to this Agreement) shall have prior to such Transfer
executed and delivered to the Company a written joinder agreement in the form of
Exhibit B
hereto agreeing to be bound by the terms of this Agreement;
(ii) if at the
time of such Transfer all applicable conditions of Rule 144 under the 1933 Act
are satisfied with respect to a Transfer of such Company Securities, Transfers
of Company Securities by a Shareholder that is an investment fund or similar
fund to such Shareholder’s limited partners, partners or other investors
pursuant to a distribution that is made pro rata to such limited partners or
other investors in accordance with the respective partnership and/or other
governing documents of such Shareholder (including taking into account
provisions relating to fees and carried interest) without the payment of any
additional consideration therefor by any such limited partner, partner or other
investor; provided that
in no event shall the Company Securities Transferred to any limited partner or
other investor (together, to the extent known (without any obligation of inquiry
or investigation), with such limited partner’s or other investor’s Affiliates)
pursuant to this clause (ii) (whether in one or a series of distributions)
represent in the aggregate 1% or more of the Total Voting Power outstanding at
such time (excluding from the applicability of this proviso the general partner
of such investment fund or similar fund or any other Affiliate of such
Shareholder); provided,
further, that as a condition precedent to any Transfer to the general
partner of such investment fund or similar fund or any other Affiliate of such
Shareholder pursuant to this clause (ii), the
general
partner or such other Affiliate shall have executed and delivered to the Company
a written joinder agreement in accordance with clause (i) above (but only to the
extent that this Agreement would not terminate with respect to such Shareholder
immediately following such distribution-in- kind pursuant to Section 6.01(b),
without regard to the three-month period set forth in such Section); provided, however, that no
such joinder agreement shall be required in connection with such distribution,
from either the general partner of such investment fund or any investor in such
general partner, if, in each case, such general partner reasonably promptly
distributes to its investors all Company Securities received by it in a pro rata
distribution.
(b)
Following the Restriction Termination Date, no Shareholder shall Transfer any
Company Securities which it or any of its Affiliates beneficially owns to any
Third Party who, to the knowledge of such Shareholder, (w) is a Competing
Entity, (x) after consummation of such Transfer would have (together with its
Affiliates) beneficial ownership of Voting Securities representing in the
aggregate 5% or more of the Total Voting Power, (y) is a “Shareholder” under any
other Investor Agreement (which agreement is then in full force and effect) or
is an Affiliate of such Person or (z) has filed a Statement on Schedule 13D with
respect to any Voting Securities indicating as of its last filing that such
Person and its Affiliates beneficially own (or is a member of a Group that
beneficially owns) at least 5% of the Total Voting Power; provided that the foregoing
restrictions in this Section 3.03(b) shall not be applicable to:
(i) Transfers
of Company Securities to a broker-dealer in a block sale (including any sale
pursuant to the Registration Rights Agreement) so long as such broker-dealer has
been instructed not to Transfer such Company Securities to any Person (including
a mutual fund) who (A) has filed a Statement on Schedule 13D with respect to any
Voting Securities indicating as of the last filing thereof, as it may be
amended, that such Person and its Affiliates beneficially own (or is a member of
a Group that beneficially owns) at least 5% of the Total Voting Power or
(B) would
acquire in such sale (together, to the extent known (without any obligation of
inquiry or investigation) with its Affiliates) beneficial ownership of Company
Securities with a Market Value (as defined in the Transaction Agreement) greater
than or equal to 4.5% of the Company’s market capitalization at the time of such
sale;
(ii) Transfers
to a mutual fund which, to Shareholder’s knowledge, typically makes investments
in Persons in the ordinary course of its business for investment purposes only
and not with the purpose or effect of changing or influencing the control of
such Person and that, to such Shareholder’s knowledge, has not filed in the past
three years a Statement on Schedule 13D with respect to any Voting
Securities;
10
(iii) Transfers
structured as regular sales made over the New York Stock Exchange or such
European Union stock exchange on which the Common Shares are approved for
issuance in accordance with the transactions contemplated by the Securities
Purchase Agreement and the Transaction Agreement;
(iv) subject
to Section 4.01(a)(i), Transfers to a Person constituting a “Shareholder” under
any other Investor Agreement (which agreement is then in full force and effect)
or any of such Person’s Permitted Transferees so long as such Person’s Permitted
Transferee (other than a Permitted Transferee already party to such other
Investor Agreement) shall have prior to such Transfer executed and delivered to
the Company a written joinder agreement to such other Investor Agreement
agreeing to be bound by the terms of such other Investor Agreement;
(v) Transfers
pursuant to any tender offer, exchange offer, share exchange, merger,
consolidation or amalgamation pursuant to which Voting Securities would be
acquired or received by the Company or any other Person; provided that the Board has
approved such transaction or proposed transaction and recommended it to the
shareholders of the Company (and has not withdrawn such recommendation);
and
(vi) Transfers
described in clause (i) or (ii) of Section 3.03(a).
(c) Each
Shareholder shall give the Company written notice as soon as practicable of any
transactions in Company Securities in reliance on this Section 3.3 to the
extent known (without any obligation of inquiry or investigation), including the
name of the transferee (other than in connection with any Transfer pursuant to
Section 3.03(a)(ii)) and the class and number of Company Securities
Transferred.
Section
3.04. Application of Agreement
to Additional Company Securities. If any
Shareholder or any of its Affiliates acquires beneficial ownership of any
additional Company Securities following the date hereof, such Company Securities
shall be subject to the restrictions and commitments contained in this Agreement
applicable to Company Securities as fully as if such Company Securities were
beneficially owned by such Person or any of its Affiliates as of the date
hereof, and to the extent the owner of such Company Securities is not already a
party to this Agreement, such Shareholder shall cause such Person to execute and
deliver to the Company a written joinder agreement in the form of Exhibit B hereto
immediately following such acquisition and such Person shall be deemed to be a
“Permitted Transferee” of such Shareholder for all purposes hereof.
11
Section
3.05. Rule 144
Reporting. For a period of one year after the date hereof, the Company
agrees to use its best efforts to:
(a) make and
keep current public information available, within the meaning of Rule 144 (or
any similar or analogous rule) promulgated under the 1933 Act at all
times;
(b) file with
the SEC, in a timely manner, all reports and other documents required of the
Company under the 1933 Act and 1934; and
(c) furnish
to any Shareholder forthwith upon request (i) a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 under the 1933
Act, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and (iii) such other reports and documents as
such Shareholder may reasonably request to enable such Shareholder to Transfer
Company Securities without registration under the 1933 Act within the limitation
of the exemptions provided by Rule 144 under the 1933 Act.
ARTICLE
4
STANDSTILL, VOTE NEUTRALIZATION
Section
4.01. Standstill. (a)
Each Shareholder agrees that for so long as this Agreement remains in effect
with respect to such Shareholder, it will not, and will cause its Affiliates
(and any Person acting on behalf of or in concert with such Shareholder or any
of its Affiliates) not to, directly or indirectly, without the Company’s prior
written consent:
(i)
acquire, agree to acquire, propose, seek or offer to acquire, or knowingly
facilitate the acquisition or ownership of (whether by purchase, through the
acquisition of control of another Person, through the use of a derivative
instrument or voting agreement or otherwise) any Company Securities if, after
such acquisition, such Shareholder, together with its Affiliates and controlled
Portfolio Companies (excluding any thereof that are primarily engaged in asset
management or other investment business in the normal course of their business),
would beneficially own Voting Securities representing in the aggregate more than
9.9% of the Total Voting Power (it being understood for the avoidance of doubt
that the foregoing shall not be applicable to any stock split, reverse stock
split, stock dividend, reorganization, recapitalization, reclassification,
combination, exchange of shares or other similar transaction);
12
(ii) make any
public announcement of or submit to the Company or the Board a proposal or
offer, seek to effect or knowingly facilitate (including by providing or
assisting in any way in obtaining financing for, guaranteeing any financing for,
or acting as a joint or co- bidder with any Third Party or any of its Portfolio
Companies in connection with) any merger, amalgamation, share exchange, tender
offer, recapitalization, restructuring or other extraordinary transaction
involving the Company or any of its Subsidiaries, any acquisition of a material
portion of the Company’s consolidated assets or any transaction that would
result in any Person or Group beneficially owning (together with its or their
Affiliates) Voting Securities representing more than 9.9% of the Total Voting
Power; provided that
this clause (ii) shall not restrict any Shareholder or any of its Affiliates
from assisting in obtaining financing for or guaranteeing any financing for any
such transaction so long as such transaction has (x) previously been approved by
the Board and (y) continues to be supported by the Board, except, if such
transaction ceases to be supported by the Board, for any actions taken pursuant
to binding commitments entered into prior to the Board’s withdrawal of support
for such transaction;
(iii) take any
action that would have a reasonable possibility of requiring the Company under
Applicable Law or the rules of any exchange on which any Company Securities is
then listed or traded to make a public announcement regarding the possibility of
any of the transactions described in clause (ii) above;
(iv) make, or
in any way participate or engage in, any solicitation of proxies to vote, or
seek to advise or influence any Third Party or any of its Portfolio Companies
with respect to the voting of, any Voting Securities;
(v) make any
proposal, or knowingly facilitate or knowingly encourage any Third Party or any
of its Portfolio Companies, to seek representation on the Board or otherwise
seek to control the management or the policies of the Company or any of its
Subsidiaries;
(vi) form,
join or in any way participate in a Group (including a Group comprised of
Persons constituting “Shareholders” for purposes of any other Investor Agreement
other than any Group comprised solely of the Shareholders and their Affiliates)
with respect to any Voting Securities or otherwise act in concert or assist any
Third Party or any of its Portfolio Companies for purposes of taking any action
prohibited by this Section 4.01; it being acknowledged by the Company that the
Shareholders and the Persons constituting “Shareholders” for purposes of any
other Investor Agreement shall not be deemed to be a Group with respect to any
Voting
13
Securities
solely by virtue of the provisions of this Agreement, any other Investor
Agreement or the Securities Purchase Agreement or the matters contemplated
hereby and thereby;
(vii) advise,
knowingly facilitate or knowingly encourage or enter into any discussions,
negotiations, agreements or arrangements with any Third Party or any of its
Portfolio Companies in connection with the foregoing; or
(viii) disclose
any intention, indication of interest or proposal or plan or arrangement
prohibited by, or inconsistent with, the foregoing.
(b) Each
Shareholder further agrees that for so long as this Agreement remains in effect
with respect to such Shareholder, it will not, and will cause its Affiliates
(and any Person acting on behalf of or in concert with such Shareholder or any
of its Affiliates) not to, without the written consent of the Board, request the
Company or any of its Representatives (as defined in the Confidentiality
Agreement), directly or indirectly, to amend, waive or otherwise modify any
provision of this Section 4.01 (including this Section 4.01(b)). If at any time
any Shareholder or any of its Affiliates is approached by any Person requesting
such Shareholder or such Affiliate to instigate, encourage, join, act in concert
with or assist any Person in taking any action prohibited by this Section 4.01,
such Shareholder shall, unless prohibited by such Shareholder’s confidentiality
obligations to any Third Party that such Shareholder reasonably believes, in
good faith, to be applicable, promptly inform the Company of the fact of such
approach.
(c) The
restrictions set forth in this Section 4.01 will not apply to any Shareholder or
to any of its Affiliates if a Third Party acquires beneficial ownership of
Voting Securities representing 50% or more of the Total Voting Power in a
transaction approved or recommended by the Board or where the control of the
Company following such acquisition is no longer being contested or in
dispute.
(d) The terms
of this Section 4.01 supersede and replace the terms of Section 23 of the
Confidentiality Agreement dated as of April 15, 2009 (the “Confidentiality Agreement”)
among PARIS RE Holdings Limited, the Company and the other parties thereto in
their entirety and, from and after the date hereof, such Section 23 shall be of
no further force and effect.
(e) It is
acknowledged and agreed that a Portfolio Company shall not be deemed to be
acting on behalf of or in concert with a Shareholder or an Affiliate of a
Shareholder solely by reason of an employee or other nominee of a Shareholder or
an Affiliate of a Shareholder serving as a director or employee of a Portfolio
Company.
14
Section
4.02. Vote
Neutralization. Each Shareholder agrees that if at any time any action is
to be taken by the Company’s shareholders (at a shareholders meeting, by written
consent in lieu thereof or otherwise) such Shareholder, together with its
controlled Portfolio Companies (excluding any thereof that are primarily engaged
in asset management or other investment businesses in the normal course of their
businesses) and Affiliates, beneficially owns Voting Securities (disregarding
all Voting Securities subject to options, warrants, rights or convertible
securities that are not themselves Voting Securities) representing a percentage
of the Total Voting Power at such time in excess of such Shareholder’s Voting
Limitation Percentage (such excess percentage, or, if less, the percentage of
Total Voting Power at such time represented by Voting Securities beneficially
owned by such Shareholder and its Affiliates, such Shareholder’s “Excess Voting Percentage”),
then such Shareholder shall, in such Shareholder’s discretion, either (a) vote,
or cause to be voted, Voting Securities representing such Excess Voting
Percentage in accordance with the recommendation of the Board on such action or
(b) vote or abstain, or cause to be voted or abstained, Voting Securities
representing such Excess Voting Percentage in proportion to the votes and
abstentions, as applicable, cast or made in connection with such action with
respect to all Voting Securities other than those beneficially owned by any
Person constituting a “Shareholder” under any Investor Agreement (including this
Agreement) and its Affiliates. For purposes of this Section 4.02, “Voting Limitation Percentage”
means, with respect to the Shareholders at any time, the percentage obtained by
dividing (i) the total number of votes that may be cast by all Common Shares set
forth opposite the Shareholders’ names on Exhibit A hereto (as
such Common Shares are appropriately adjusted to reflect the effect of any stock
split, reverse stock split, stock dividend, reorganization, recapitalization,
reclassification, combination, exchange of shares or other similar transaction
occurring after the date hereof) by (ii) the total number of votes that may be
cast with respect to all Voting Securities outstanding as of such time. Upon the
written request of the Company, each Shareholder will execute and deliver, or
cause to be executed and delivered, to the Company a proxy in the form attached
hereto as Exhibit
E hereto in order to give effect to this Section 4.02.
ARTICLE
5
CERTAIN COVENANTS AND AGREEMENTS
Section
5.01. Quarterly
Meetings. (a) On a quarterly basis, the Company shall hold a single
meeting with employees of the Shareholders or, if requested by a Shareholder
which is a controlled Subsidiary of an entity intended to qualify as a “venture
capital operating company” as defined in the U.S. Department of Labor
regulations at 29 C.F.R. Section 2510.3-101 (a “VCOC Parent”), the VCOC Parent
of such Shareholder (which VCOC Parent shall, as a pre-condition to
being
15
afforded
any rights or information hereunder, execute and deliver to the Company a
written joinder agreement in the form of Exhibit B hereto and
shall be deemed to be a “Shareholder” for all purposes of this Agreement), at
which the Company will use its reasonable best efforts to cause the Company’s
Chief Financial Officer to be present in person or, if the Company’s Chief
Financial Officer cannot be present in person, telephonically or by video
conference (and if the Company’s Chief Financial Officer cannot be present by
any means, to cause his or her deputy to be present); provided that, in all cases,
at least one member of the Company’s Executive Committee (which may be the
Company’s Chief Financial Officer to the extent the person holding such position
is then a member of the Company’s Executive Committee) shall be present in
person at such quarterly meeting. Other members of the Company’s Executive
Committee may be present in person, telephonically or by video conference. Each
quarterly meeting shall be held at a mutually agreed location, following the
Company’s regularly scheduled quarterly Board meeting, or such other time and
place as the parties may mutually agree. The Company shall give each Shareholder
notice of the date and time of each quarterly meeting simultaneously with
notifying the members of the Company’s Board of the related quarterly board
meeting. At each quarterly meeting, the parties shall discuss the operations of
the Company generally and the categories of information identified on Exhibit C hereto
specifically; and the Company shall consider in good faith the recommendations
of the Shareholder made by its designated representative in connection with the
matters discussed, recognizing that the ultimate discretion with respect to all
such matters shall be retained by the Company. Each Shareholder shall have the
right, in its sole discretion, to participate in any quarterly meeting in person
or by telephone or video conference; provided that under no
circumstance shall any Shareholder permit any of its Restricted Persons to
attend, or otherwise participate in, any quarterly meeting. A Shareholder shall
have the right at any time to discontinue (permanently or temporarily) its
participation in such quarterly meetings. For purposes of this Agreement, a
“Restricted Person”
means, with respect to any Shareholder, any Representative (as defined in the
Confidentiality Agreement) of such Shareholder or any of its Affiliates who is
(i) a member of the board of directors or similar governing body of any
Competing Entity or (ii) is a member of the investment team with primary
responsibility for any Investment made in any Competing Entity by such
Shareholder or any investment fund or similar fund managed, sponsored or advised
(directly or indirectly) by such Shareholder or any of its
Affiliates.
(b) If
any Shareholder or any of its employees participates in any quarterly meeting,
such Shareholder and each other Person participating in such quarterly meeting
or receiving or otherwise having access to any Quarterly Meeting Information in
respect of such quarterly meeting, shall be considered to be a “designated
insider” and shall be subject to the Company’s normal trading policy and
“blackout” periods applicable to designated insiders; provided that in
16
applying
such trading policy to such Person, the Company shall only take into
consideration whether such Person has “material nonpublic information” as
defined in such policy, and shall otherwise apply such policy consistently to
each Shareholder; and provided, further that the
Company shall respond promptly (and in any event within one Business Day) to a
request by such Shareholder for pre- clearance under such policy. Such
Shareholder and such other Person shall continue to be considered a “designated
insider” (and therefore subject to the Company’s trading policy and “blackout”
periods), notwithstanding such Shareholder’s subsequent decision to discontinue
its participation, or failure to participate, at future quarterly meetings or
the termination of this Agreement with respect to such Shareholder, until such
time that the Company files its first periodic report with the Securities and
Exchange Commission following the last participation by such Shareholder or any
of its employees at any such quarterly meeting or such later time as the Company
deems appropriate (provided such later blackout period is applicable to
designated insiders of the Company generally); provided that if any Person
who participates in any quarterly meeting (or receives or otherwise has access
to any Quarterly Meeting Information) ceases to be employed by, and otherwise
ceases to perform professional services for or on behalf of, such Shareholder
and its Affiliates, such Person shall cease to be a “designated insider”
following the filing by the Company of its next periodic report with the
Securities and Exchange Commission or such later time as the Company deems
appropriate (provided such later blackout period is applicable to designated
insiders of the Company generally).
Section
5.02. Confidentiality.
Subject to Section 4.01(c), the parties hereto agree that notwithstanding
anything in the Confidentiality Agreement to the contrary (including Section 35
thereto):
(a) the
Confidentiality Agreement shall remain in effect with respect to the parties
hereto, and each Shareholder shall be, and shall cause its Affiliates and each
of its Permitted Transferees that become a party to this Agreement in accordance
with Article 3 to be, bound by the Confidentiality Agreement, until the
expiration of the two-year period following the termination of this Agreement
with respect to all Shareholders; provided that the provisions
of Section 24 (Non- Solicitation and No-Hire of Employees) of the
Confidentiality Agreement shall terminate in accordance with its
terms;
(b) any
information disclosed, made available or otherwise furnished to any Shareholder,
any of its Affiliates or any of their Representatives (as defined in the
Confidentiality Agreement) by or on behalf of the Company or any of its
Subsidiaries in connection with or otherwise relating to any quarterly meeting
contemplated by Section 5.01 (including any information provided in advance of
such meeting or as a follow-up to such meeting) shall be subject to the
Confidentiality Agreement and shall, subject to the exceptions set forth in
Section 1(b)(ii) thereto, constitute “Confidential Information” for purposes
thereof (such
17
information
constituting Confidential Information, “Quarterly Meeting Information”);
and
(c) under
no circumstance shall any Shareholder, any of its Affiliates or any of their
Representatives disclose any Quarterly Meeting Information to, or allow access
to any Quarterly Meeting Information by, any of such Shareholder’s Restricted
Persons.
Section
5.03. Ownership
Information. Each Shareholder shall provide to the Company such
information as the Company may reasonably request concerning such Shareholder’s
beneficial ownership of Company Securities as of the requested time, together
with the names of the direct owners of such Company Securities.
Section
5.04. No Waiver. No
provision of this Agreement shall be deemed to modify or waive, or shall
constitute a waiver or modification of, the applicability of any provisions of
the Company’s Bye-Laws to any Shareholder or its Affiliates.
Section
5.05. Investor Agreement
Controlling. Any and all provisions of the Registration Rights Agreement
shall be subject to the terms and conditions of this Agreement in all respects,
and shall be construed and applied having regard to, and in accordance with, the
rights, requirements and limitations set forth herein. In the event of any
inconsistency between the terms or conditions of this Agreement and the terms
and conditions of the Registration Rights Agreement, the terms and conditions of
this Agreement shall control.
ARTICLE
6
TERMINATION
Section
6.01. Termination. (a)
This Agreement shall terminate in its entirety (except as provided in any of
Section 6.01(b), 6.01(c) or 6.01(d)) with respect to all parties hereto upon the
date that is three months after all Persons constituting “Shareholders” under
any Investor Agreement (including this Agreement) (regardless of whether any
such Investor Agreement has terminated pursuant to the provision thereof
corresponding to Section 6.01(b) hereof), together with their Affiliates and
Portfolio Companies, collectively beneficially own Voting Securities
representing less than 10% of the aggregate Total Voting Power (continuously for
such three-month period). The Company shall notify the Shareholders in writing
of the date on which such Persons ceased to have such beneficial ownership
promptly after acquiring knowledge thereof.
(b) This
Agreement shall terminate (except as provided in Section 6.01(d)) with respect
to the Shareholders individually, and the Shareholders shall
18
cease to
constitute Shareholders hereunder, upon the date that is three months after such
Shareholders, together with their Affiliates, collectively beneficially own
Voting Securities representing a percentage of the Total Voting Power that is
less than 50% of such Shareholders’ Voting Limitation Percentage (continuously
for such three-month period).
(c) Notwithstanding
Section 6.01(a), within 30 days of receipt of the notice contemplated by the
last sentence of Section 6.01(a), if the Shareholders collectively beneficially
own Voting Securities representing a percentage of the Total Voting Power that
is at least equal to 50% of such Shareholders’ Voting Limitation Percentage, the
Shareholders shall have the right to elect, by delivering written notice thereof
to the Company, to continue in effect this Agreement in its entirety until the
earliest to occur of (i) Xxxxx 00, 0000, (xx) such time as this Agreement
terminates pursuant to Section 6.01(b) and (iii) 90 days following the date the
Shareholders notify the Company in writing that they desire to terminate this
Agreement (the period that this Agreement remains in effect from the time that
this Agreement would otherwise have terminated pursuant to Section 6.01(a), the
“Opt-In Period”); provided that (A) upon the
exercise of such continuation right, this Agreement shall continue in effect
with respect to, and shall continue to apply to, all Shareholders party to this
Agreement to the same extent as though this Agreement had not terminated
pursuant to this Section 6.01(a) and (B) if the Opt-In Period shall extend
beyond one year, the Company shall have the right to exclude all risk management
presentations and annual reserve reviews from the information made available to
the Shareholders pursuant to Section 5.01 during the remainder of the Opt-In
Period following such one-year period.2
(d) No
termination of this Agreement with respect to any party will relieve such party
from any liability for the failure of such party to perform a covenant hereof or
the breach by such party of any representation or warranty or agreement
contained herein. The provisions of (i) this Section 6.01 and Sections 3.02(c),
3.02(d), Section 5.01(b) and 5.02 and Article 7 shall survive the termination of
this Agreement indefinitely with respect to any party and (ii) Section 5.03
shall survive the termination of this Agreement until the requirements of
Section 6.01(a) are satisfied.
ARTICLE
7
MISCELLANEOUS
2 Section 6.01(c) will only be included
in the Investor Agreement for Stone Point, Xxxxxxx & Xxxxxxxx, Vestar Capital
and Crestview.
19
Section
7.01. 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,
if to the
Company to:
Wellesley
Xxxxx
00 Xxxxx
Xxx Xxxx
Xxxxxxxx
XX
00
Xxxxxxx
Xxxxxxxxx:
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 any
Shareholder, to it and its counsel at their addresses, facsimile numbers or
e-mail addresses set forth in Exhibit A hereto, 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.
Any Person that becomes a Shareholder shall provide its address and fax number
to the Company.
Section
7.02. Amendments and
Waivers. (a) 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.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of
20
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 Applicable
Law.
Section
7.03. Successors and
Assigns. (a) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and permitted assigns.
(b) Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by any party hereto pursuant to any
Transfer of Company Securities or otherwise.
(c) Nothing
in this Agreement, expressed or implied, is intended to confer on any Person
other than the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section
7.04. Several
Obligations. The agreements and covenants of each Shareholder hereunder
are several and not joint.
Section
7.05. Counterparts;
Effectiveness; Third Party Beneficiaries. 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 all of the other parties hereto. Until and unless
each party has received a counterpart hereof signed by the other parties 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). No provision of this Agreement is intended to confer
any rights, benefits, remedies, obligations, or liabilities hereunder upon any
Person other than the parties hereto and their respective successors and
assigns.
Section
7.06. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed
therein.
Section
7.07. Jurisdiction. 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 any New York
State court sitting in New York City, so long as one of 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
21
York, and
each of the parties hereby irrevocably consents to the jurisdiction of such
court (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 such court or that any such suit,
action or proceeding brought in such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of such court.
Without limiting the foregoing, each party agrees that service of process on
such party as provided in Section 7.01 shall be deemed effective service of
process on such party.
Section
7.08. Waiver of Jury
Trial. EACH OF THE PARTIES HERETO HEREBY 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.
Section
7.09. No Partnership Intended
for Tax Purposes. The parties hereto expressly disclaim any intention to
form a partnership for tax purposes pursuant to this Agreement and acknowledge
and agree that nothing in this Agreement shall be deemed to cause the parties
hereto to be treated as partners to one another or to any third party under the
tax laws of any jurisdiction.
Section
7.10. Entire Agreement.
This Agreement, the Securities Purchase Agreement, the Registration Rights
Agreement and the Confidentiality Agreement constitute the entire agreement
among the parties with respect to the subject matter of this Agreement and
supersede all prior agreements and understandings, both oral and written, among
the parties hereto with respect to the subject matter of this
Agreement.
Section
7.11. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority 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
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
7.12. Specific
Enforcement. The parties hereto agree that irreparable damage would occur
if any provision of this Agreement were not
22
performed
in accordance with the 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 the United
States District Court for the Southern District of New York or any New York
State court sitting in New York City, in addition to any other remedy to which
they are entitled at law or in equity.
[The
remainder of this page has been intentionally left blank; the next page is the
signature page.]
23
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
