EXHIBIT 2.1
Dated 28 March 2003
THE TOA REINSURANCE COMPANY, LIMITED
- AND -
HILLCOT HOLDINGS LIMITED
- AND -
CASTLEWOOD HOLDINGS LIMITED
- AND -
SHINSEI BANK, LIMITED
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AGREEMENT
- relating to -
THE SALE AND PURCHASE OF
THE ENTIRE ISSUED SHARE CAPITAL OF
THE TOA-RE INSURANCE COMPANY (U.K.) LIMITED
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LOVELLS
TOKDMW/22351
H0012/00119
CONTENTS
CLAUSE PAGE
1. INTERPRETATION 1
2. SALE AND PURCHASE OF SHARES 5
3. CONDITIONS 6
4. CONSIDERATION 7
5. PRE-COMPLETION MATTERS 7
6. COMPLETION 11
7. WARRANTIES 14
8. TOA'S REPUTATION 18
9. POST-COMPLETION MATTERS 20
10. CONFIDENTIALITY AND ANNOUNCEMENTS 21
11. XXXXXXXXX 00
00. PROVISION OF FINANCIAL INFORMATION 24
13. INTEREST 24
14. COSTS 24
15. PARTIES BOUND BY CONTRACT 24
16. CONTINUING OBLIGATIONS AND ASSIGNMENT 25
17. NOTICES AND PROCESS AGENTS 25
18. SEVERABILITY 27
19. ENTIRE AGREEMENT AND VARIATION 27
20. GENERAL PROVISIONS 28
21. RIGHTS OF THIRD PARTIES 28
22. GOVERNING LAW AND JURISDICTION 28
SCHEDULE 1 30
THE SHARES
SCHEDULE 2 31
THE COMPANY
SCHEDULE 3 32
THE SUBSIDIARY UNDERTAKINGS
SCHEDULE 4 34
LOGO
SCHEDULE 5 35
CONDITIONS PRECEDENT
SCHEDULE 6 37
PENSION DEED
SCHEDULE 7 43
SELLER'S CONFIDENTIAL INFORMATION
SCHEDULE 8 45
EMPLOYEES
SCHEDULE 9 46
GROUP MEMBERS' TITLE DEEDS AND PROPERTY DOCUMENTS
SCHEDULE 10 47
TAX COVENANT
SCHEDULE 11 60
THE SELLER'S GROUP: GUARANTEES, INDEMNITIES AND SIMILAR OBLIGATIONS
SCHEDULE 12 61
SHINSEI LETTER AGREEMENT
SCHEDULE 13 65
LIST OF DUE DILIGENCE DOCUMENTS
SCHEDULE 14 67
COMMUTATION AGREEMENT
AGREED FORM DOCUMENTS:
Agreed Announcements
Form of resignation of directors/secretary
Power of Attorney in relation to the Shares
Compromise Agreements
Commutation Agreement
Shinsei Letter Agreement
Pension Deed
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made on March 28, 2003
BETWEEN:
(1) THE TOA REINSURANCE COMPANY, LIMITED, a company incorporated under the
laws of Japan and having its principal place of business at 0,
Xxxxx-Xxxxxxxxx 0-xxxxx, Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx (the
"SELLER");
(2) HILLCOT HOLDINGS LIMITED a company incorporated under the laws of
Bermuda and having its principal place of business at Windsor Place, 00
Xxxxx Xxxxxx, Xxxxxxxx, XX00, Xxxxxxx (xxx "PURCHASER");
(3) CASTLEWOOD HOLDINGS LIMITED, a company incorporated under the laws of
Bermuda and having its principal place of business at 00 Xxxxx Xxxxxx,
Xxxxxxxx, XX00, Xxxxxxx ("CASTLEWOOD"); and
(4) SHINSEI BANK, LIMITED, a company incorporated under the laws of Japan
and having its principal place of business at 0-0 Xxxxxxxxxxxxx
0-xxxxx, Xxxxxxx-xx, Xxxxx, 000-000, Xxxxx ("SHINSEI") (collectively
referred to with Castlewood as the "GUARANTORS").
RECITALS:
(A) The Toa-Re Insurance Company (U.K.) Limited (the "COMPANY") is a
company registered in England and Wales under number 1457317. Details
of the Company are set out in Schedule 2. Details of the Subsidiary
Undertakings of the Company are set out in Schedule 3.
(B) The Seller is the registered holder and beneficial owner of all the
Shares (as defined below).
(C) The Seller has agreed to sell and the Purchaser has agreed to purchase
all the Shares on and subject to the terms of this Agreement.
(D) In consideration of the Seller entering into this Agreement at the
request of the Guarantors, the Guarantors have agreed to guarantee the
obligations of the Purchaser under this Agreement.
IT IS AGREED:
1. INTERPRETATION
1.1 In this Agreement (including its Recitals and Schedules):
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"ACCOUNTS" means the audited consolidated balance sheet and profit and
loss account of the Group as at and for the financial year ended on the
Accounts Date including the auditors' and the directors' reports
annexed thereto;
"ACCOUNTS DATE" means 31 December 2001;
"AGREED ANNOUNCEMENTS" means the announcements in the agreed terms to
be made by the parties following signature of this Agreement;
"BUSINESS DAY" means any day (except any Saturday or Sunday) on which
banks in the City of London are open for business;
"COMMUTATION AGREEMENT" means the agreement in the agreed terms in the
form set out in Schedule 14 proposed to be entered into between the
Company (1) and the Seller (2);
"COMPANY" has the meaning given in Recital (A);
"COMPANIES ACT" means the Companies Xxx 0000 (as amended by the
Companies Act 1989);
"COMPLETION" means completion of the sale and purchase of the Shares
pursuant to this Agreement in accordance with its terms;
"COMPLETION DATE" means the date which is the tenth Business Day (or
such other date as the Seller and the Purchaser may agree in writing)
following the date on which the Conditions Precedent set out in clause
3.1 are duly satisfied or, in the case of the Condition Precedent in
sub-clause 3.1(c), waived in accordance with clause 3.4;
"COMPLETION WARRANTIES" means the Warranties in clause 7.1 and the
Warranties in clauses 7.2(c), (d), (e), (f) and (h);
"COMPROMISE AGREEMENTS" means the compromise agreements in the agreed
terms proposed to be entered into between the relevant Group Member and
the employees of each Group Member whose details are set out in
Schedule 8;
"CONDITIONS PRECEDENT" means the conditions set out in clause 3.1;
"CONSIDERATION" has the meaning given in clause 4;
"DISCLOSURE LETTER" means the letter of the same date as this Agreement
from the Seller to the Purchaser referred to in clause 7.4(b);
"ENCUMBRANCE" means any charge, debenture, mortgage, pledge, lien,
assignment, hypothecation, security interest, title retention or other
security agreement;
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"FSA" means the Financial Services Authority of the United Kingdom or
any predecessor or successor to all or any of its regulatory functions
as applicable to the Group;
"FSMA" means the Financial Services and Markets Xxx 0000 and all
orders, regulations and statutory instruments made or issued
thereunder;
"GROUP" means the Company and the Subsidiary Undertakings and "GROUP
MEMBER" shall be construed accordingly;
"GBP", "POUNDS" OR "(POUND)" are references to the lawful currency
of the United Kingdom;
"IBNR" means incurred but not reported;
"ILU" means the International Underwriting Association (formerly the
Institute of London Underwriters);
"ILU GUARANTEE" means the guarantee provided to the Institute of London
Underwriters by the Seller on 27 November 1987;
"PENSION DEED" means the deed in the agreed terms in the form set out
in Schedule 6 proposed to be entered into between the Company (1), Toa
Re Underwriting Management Limited (2), Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx
and Xxxxxx Xxxx (3) and the Seller (4).
"PENSION SCHEME" means the Toa Re Underwriting Management Limited
Retirement Benefits Scheme;
"PURCHASER'S GROUP" means the Purchaser, the parent undertaking and
subsidiary undertakings of the Purchaser and the subsidiary
undertakings of any such parent undertaking;
"PURCHASER'S SOLICITORS" means Xxxxx & Co of Xxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxx XX0 0XX (Xxx AH/0208346);
"SELLER'S CONFIDENTIAL INFORMATION" means the information confidential
to the Seller set out in Schedule 7;
"SELLER'S GROUP" means the Seller, the parent undertaking and
subsidiary undertakings of the Seller and the subsidiary undertakings
of any such parent undertaking;
"SELLER'S SOLICITORS" means Lovells of Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxx XX0X 0XX;
"SHARES" means the shares in the capital of the Company described in
Schedule 1 (being the entire issued share capital of the Company);
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"SHINSEI LETTER AGREEMENT" means the letter agreement in the agreed
terms in the form set out in Schedule 12 proposed to be entered into
between Shinsei (1) and the Seller (2);
"SUBSIDIARY UNDERTAKINGS" means the subsidiary undertakings of the
Company set out in Schedule 3;
"TAX" has the meaning ascribed to it in Schedule 10 and "TAXATION"
shall be construed accordingly;
"TAX COVENANT" means the tax covenant set out in Schedule 10;
"TRANSACTION DOCUMENTS AND INFORMATION" means all documentation and
information (in whatever form) supplied directly or indirectly by or on
behalf of the Seller or any Group Member to the Purchaser, Shinsei or
Castlewood or to any person related to the Purchaser, Shinsei or
Castlewood in relation to the transaction contemplated by this
Agreement or pursuant to the terms hereof;
"US DOLLAR" OR "US$" are references to the lawful currency of the
United States of America;
"WARRANTIES" means the statements contained or referred to in clause 7
and "Warranties" means any of them; and
"WARRANTY CLAIM" has the meaning given in clause 7.6(a).
1.2 In this Agreement, unless the context otherwise requires:
(a) references to this Agreement or any other document include
this Agreement or such other document as varied, modified or
supplemented in any manner from time to time;
(b) references to recitals, clauses and schedules and subdivisions
of them are references to the recitals and clauses of, and
schedules to, this Agreement and subdivisions of them
respectively;
(c) references to any party shall, where relevant, be deemed to be
references to or to include, as appropriate, their respective
permitted successors, assigns or transferees;
(d) references to any enactment include references to such
enactment as re-enacted, amended or extended on or before the
date of this Agreement and any subordinate legislation made
under it on or before the date of this Agreement;
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(e) references to a "PERSON" include any individual, company,
corporation, firm, partnership, joint venture, association,
organisation, institution, trust or agency, whether or not
having a separate legal personality;
(f) the words "COMPANY", "SUBSIDIARY", "SUBSIDIARY UNDERTAKING"
and "PARENT UNDERTAKING" have the meanings given to them by
the Companies Xxx 0000;
(g) references to the one gender include all genders, and
references to the singular include the plural and vice versa;
(h) reference to a "MONTH" shall be construed as reference to a
calendar month;
(i) reference to a "DAY" shall be construed as reference to a
calendar day;
(j) reference to a "YEAR" shall be construed as reference to a
calendar year; and
(k) headings are inserted for convenience only and shall be
ignored in construing this Agreement.
1.3 The Recitals and Schedules to this Agreement form part of it.
1.4 Any reference to the hour of a day by which something must have been
done, performed or delivered shall be a reference to London time,
unless expressly provided otherwise.
1.5 Any reference in this Agreement to a document being "IN THE AGREED
TERMS" is to a document in the terms agreed between the parties and for
identification purposes only signed or initialled by them or on their
behalf on or before the date of this Agreement.
2. SALE AND PURCHASE OF SHARES
2.1 On and subject to the terms of this Agreement, the Seller shall sell
with full title guarantee the Shares and the Purchaser shall purchase
the Shares on and with effect from Completion, in each case free from
all Encumbrances and together with all rights which are now, or at any
time hereafter may become, attached to them (including without
limitation the right to receive all dividends and distributions
declared, made or paid on or after the date of signing of this
Agreement).
2.2 The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the sale to it of all the Shares is completed
simultaneously and, if such sale is not completed on the Completion
Date, then the Purchaser shall be entitled to rescind this Agreement
without liability of any kind on its part, but without prejudice to its
rights in respect of any pre-existing breach of the terms hereof,
including any breach giving rise to such right to rescind.
2.3 The Seller hereby waives any rights which may have been conferred on it
under the Articles of Association of the Company or otherwise or in any
other way to have any of the
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Shares offered to it for purchase at any time on or before the transfer
of the Shares pursuant to the provisions of this Agreement.
3. CONDITIONS
3.1 Completion is conditional upon satisfaction of the following Conditions
Precedent:
(a) the Purchaser having received a notice of approval from the
FSA of all persons who will acquire control of the Company on
Completion in accordance with section 184 of FSMA in terms
reasonably satisfactory to the Purchaser, Castlewood and
Shinsei or, in the absence of such notification, the period
during which the FSA may serve a notice of objection pursuant
to section 183 of FSMA in relation to the Purchaser and such
other relevant persons having elapsed without the FSA having
served any notice of objection on the Purchaser. For the
avoidance of doubt, matters which are not reasonable to the
Purchaser, Castlewood and Shinsei include, but are not limited
to, the FSA:
(i) imposing, or giving notice that it intends to impose,
any material restriction or material requirement on,
or on the business of, the Company; and/or
(ii) requiring additional capital to be contributed to the
Company by the Purchaser;
(b) the FSA not having withdrawn or given notice that it intends
to withdraw the permission required for the carrying on of
regulated activities by the Company; and
(c) confirmation from the Seller and the Purchaser (as
appropriate) that each of the conditions and documents set out
in Schedule 5 have in fact been fulfilled and provided to its
satisfaction.
3.2 The Purchaser and the Seller (as appropriate) shall use all reasonable
endeavours to ensure that the Conditions Precedent specified in clause
3.1 are satisfied as soon as practicable and in any event not later
than 6.00 pm on 31 March 2003 (or such later date as the Seller and the
Purchaser may agree in writing).
3.3 The undertaking to use all reasonable endeavours pursuant to clause 3.2
shall include an obligation to take all necessary steps to satisfy
concerns or objections which may be raised by the FSA in relation to
matters that are subject to the Conditions Precedent.
3.4 The Seller or the Purchaser (as appropriate) may waive the Conditions
Precedent specified in sub-clause 3.1(c) at any time on or before 6.00
pm on 31 March 2003 (or such later date as the Seller and the Purchaser
may agree in writing).
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3.5 If the Conditions Precedent specified in clause 3.1 have not been
satisfied or duly waived in the case of the Conditions Precedent
specified in sub-clause 3.1 (c) by the Seller or the Purchaser (as
appropriate) by 6.00 pm on 31 March 2003 (or such later date as may
have been agreed by the Seller and the Purchaser in writing) then:
(a) the Purchaser shall cause all Transaction Documents and
Information to be returned to the Seller by no later than 14
days following such date and pending such return each of the
Purchaser, Castlewood and Shinsei hereby undertakes not to
disclose or divulge the Transaction Documents and Information
to any third party, to maintain it in strict confidence and
not to use any of the Transaction Documents and Information
for any purpose whatsoever;
(b) this Agreement shall terminate and have no further effect
(subject only to this clause, clauses 10 (Confidentiality), 11
(Guarantee), 13 (Interest), 14 (Costs) and 22 (Governing law)
which shall continue in force); and
(c) subject to any liability which may arise from any breach of
the obligations contained in this clause 3, the parties shall
be released from all liabilities and obligations hereunder.
4. CONSIDERATION
The total consideration payable by the Purchaser to the Seller for the
Shares shall be the sum of (pound)29,000,000 ("CONSIDERATION") which
shall be paid in cash on Completion.
5. PRE-COMPLETION MATTERS
5.1 Pending Completion, the Seller shall procure that:
(a) the Purchaser will be kept promptly informed of all material
matters relating to the businesses of each Group Member;
(b) subject to the obligations of confidence contained herein, the
Purchaser and its representatives will be afforded access on
prior reasonable notice during normal business hours to
representatives of the Group Members and to the books and
records held or maintained by each Group Member;
(c) the usual financial processing is carried out for each Group
Member and that the quarterly management accounts for each
Group Member are produced;
(d) subject to the obligations of confidence contained herein, all
claim notifications received by each Group Member are provided
to and reviewed by Castlewood (whether these relate to paid
claims, reserves or precautionary advices), such provision and
review to take place at meetings to be held between the Seller
and
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Castlewood in the United Kingdom at mutually convenient times
and not less than once a fortnight;
(e) each Group Member will not acknowledge to ceding companies or
brokers the acceptance of claims without having given
Castlewood the opportunity to review the claims and having
given reasonable consideration to Castlewood's comments
(timely received), although the parties acknowledge and agree
that the decision whether or not to acknowledge to ceding
companies or brokers the acceptance of claims rests solely
with the relevant Group Member;
(f) save as required by any relevant competent authority or law,
each Group Member will withhold from settling claims to ceding
companies or brokers unless such claims were acknowledged as
payable prior to the date of this Agreement (and in such case,
provide to Castlewood notice of any proposed payments to
cedants or refunds to reinsurers, such notices to be given at
meetings to be held between the Seller and Castlewood in the
United Kingdom at mutually convenient times and not less than
once a fortnight and to be subject to the obligations of
confidence contained herein) or were reviewed with Castlewood
and Castlewood's comments were given reasonable consideration;
(g) save as required by any relevant competent authority or law,
no Group Member will make any commutation offers or enter into
commutation agreements without the prior agreement of
Castlewood, such agreement not to be unreasonably withheld or
delayed;
(h) no Group Member will agree to any new letters of credit, or
increases in existing ones, without prior agreement of
Castlewood, such agreement not to be unreasonably withheld or
delayed; and
(i) if not already given, that each Group Member participating in
the Pension Scheme gives notice of termination of its
liability to contribute to the Pension Scheme (without
prejudice to their obligations, if any, under the deed
referred to at clause 6.7).
The provisions of clauses 5.1 (d), (e) and (f) shall not apply to
individual claims of (pound)25,000 or less (or the US dollar equivalent
using an exchange rate of 1.5).
5.2 All information and documentation provided or disclosed to and reviewed
by Castlewood pursuant to clause 5.1 is provided to Castlewood for
information purposes only and Castlewood undertakes to keep such
information and documentation in strict confidence and not disclose or
divulge it to any third party (other than a member of the Purchaser's
Group) without the prior written consent of the Seller and not to use
such information or
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documentation or allow it to be used for any purpose other than as
contemplated by this Agreement.
5.3 Without prejudice to the provisions of clause 5.1, the Seller shall
procure that none of the following matters will occur or be undertaken
without the prior written consent of the Purchaser (such consent not to
be unreasonably withheld or delayed):
(a) the modification of any of the rights attached to any shares
in any Group Member or the creation or issue of any shares or
the grant or agreement to grant any option over any shares or
uncalled capital of any Group Member;
(b) the admission of any person (howsoever occurring) as a member
of any Group Member or the transfer or approval of the
transfer of any Shares other than as contemplated herein;
(c) the declaration, payment or other making by any Group Member
of any dividend other than as contemplated herein;
(d) the passing of any resolution by the members of any Group
Member;
(e) the acquisition by any Group Member of any other company
(other than in the ordinary course of investment activities)
or the participation by any Group Member in any partnership or
joint venture;
(f) the reduction of the share capital of any Group Member, the
redemption or purchase of any of the Shares or any other
reorganisation of the share capital of any Group Member;
(g) the sale or disposal of any business of any Group Member;
(h) the borrowing of any money or the acceptance of any financial
facility by any Group Member (other than under existing
overdraft or borrowing facilities); or
(i) the creation of any Encumbrance over any Group Member's assets
or the giving of any guarantee or undertaking by a Group
Member in respect of a third party;
(j) the provision of any credit or the making of any loan or
advance by any Group Member to or for the benefit of any
person or the provision of any financial assistance (as
defined in section 152 of the Companies Act) to any person in
contravention of section 151 of the Companies Act;
(k) the incurring of any expenditure or liability by any Group
Member, in either case, of a capital nature exceeding (pound)
25,000;
(l) the commencement, settlement or abandonment by any Group
Member of any litigation or admission of any liability
involving an amount in excess of (pound)25,000;
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(m) the entry into or variation of the terms of any insurances of
the Company;
(n) the entry into, variation or amendment of the terms of any
service agreement, contract of employment, consultancy
agreement or arrangement by any Group Member with any person
other than as contemplated herein;
(o) the adoption of or change to any bonus scheme by any Group
Member for the benefit of any director, officer or employee or
payment or award of any bonus under any scheme;
(p) any changes to the terms of the Compromise Agreements (other
than to adjust the amounts payable to the employees to reflect
a Completion Date other than 31 March 2003);
(q) except as contemplated by this Agreement or as currently
provided or made (or the renewal of such current provision),
the provision of any credit or the making of any loan or
advance by any Group Member to or for the benefit of any of
the directors, officers or employees;
(r) the entry into, amendment of the terms of, or termination
(other than for cause or in accordance with its terms or in
contemplation of or as required by this Agreement) of any
contract to which any Group Member is a party having a value
or involving expenditure in excess of (pound)25,000; or
(s) the depletion of the net assets of the Group Members, save in
the ordinary course of business.
5.4 Nothing in clauses 5.1 or 5.3 shall prevent or prohibit any Group
Member from:
(a) carrying out any acts that are required to be done to comply
with directions from any applicable governmental or regulatory
authority;
(b) paying to any director, officer or employee salary owing to
that director, officer or employee by any Group Member as set
out in Schedule 8 together with reimbursement of expenses
properly incurred and owing to any director, officer or
employee;
(c) paying amounts due to any professional advisers of any Group
Member, estimates of which are contained in the Disclosure
Letter;
(d) winding up the Pension Scheme or any arrangements of a Group
Member with any director, officer, employee or professional
adviser as contemplated by this Agreement;
(e) entering into and paying amounts under the Compromise
Agreements; or
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(f) awarding and paying bonuses to employees not exceeding
(pound)40,000 in aggregate, any such payments to be notified
in writing by the Group Members to the Purchaser at least five
Business Days prior to payment.
5.5 The Seller shall promptly notify the Purchaser in writing if it becomes
aware of any matter, event or circumstances on or before Completion
which constitutes a material breach of the requirements set out in
clauses 5.1 and 5.3.
5.6 Without prejudice to any other rights or remedies available to the
Purchaser, if the Purchaser receives a notice from the Seller under
clause 5.5 or if there is a material breach by any of the Group Members
of the requirements set out in clauses 5.1 and 5.3, the Purchaser shall
have the right to terminate this Agreement by notice in writing to the
Seller prior to Completion in which case:
(a) this Agreement shall terminate and have no further effect
(subject only to this clause, clauses 10 (Confidentiality), 11
(Guarantee), 13 (Interest), 14 (Costs) and 22 (Governing Law)
which shall continue in force)); and
(b) subject to any liability which may arise under this clause,
the parties shall be released from all liabilities and
obligations hereunder.
5.7 On or before Completion, the Seller shall procure that all loans due to
each Group Member from, and all loans due from each Group Member to,
the Seller and members of the Seller's Group (other than the Group
Members) shall be repaid in full.
6. COMPLETION
6.1 Subject to the due satisfaction (or waiver, if applicable) of the
Conditions Precedent and the provisions of this clause, Completion
shall take place at the offices of the Seller's Solicitors on the
Completion Date or at such other place and/or on such other date as may
be agreed between the parties in writing in accordance with the terms
of this Agreement.
6.2 On Completion the Seller shall cause to be delivered to the Purchaser:
(a) duly executed transfers of all the Shares in favour of the
Purchaser (or as it may direct) together with the share
certificates relating to such Shares, which the parties agree
shall be delivered in Tokyo to Shinsei, on behalf of the
Purchaser;
(b) the Common Seal, Certificate of Incorporation and Certificates
of Incorporation on Change of Name of each Group Member (other
than a company seal for Toa Re Management Services Limited and
the Certificate of Incorporation of the Company);
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(c) written resignations (with effect from the end of the relevant
board meeting referred to in clause 6.3) of the following,
each resigning from their respective offices with each Group
Member, executed as deeds in the agreed terms in each case
acknowledging that he has no outstanding claim against the
relevant Group Member whether for loss of office or otherwise
(excluding any claim in respect of accrued rights arising out
of his membership of the Pension Scheme, any claim for
personal injury of which he is currently unaware and any claim
under directors' and officers' insurance policies): Xxxxxx
Xxxxxx, Tamihiko Xxxxxxxx, Xxxxxxxx Ohtani, Xxxxxxx Xxxxxxxx,
Yukio Takanuki and Xxxxx Xxxxxxxx as directors of each Group
Member; Xxxxxx Xxxxxxxxxx as Director of the Company and Toa
Re Underwriting Management Limited, Xxx Xxxx as director of
Toa Re Management Services Limited, Xxxxxx Xxxxxx as secretary
of the Company and Xxxxx Xxxxxxxx as Secretary of Toa Re
Underwriting Management Limited and of Toa Re Management
Services Limited;
(d) any waiver, consent or other document, if any, which the
Seller determines to be necessary to give the Purchaser full
legal and beneficial ownership of the Shares;
(e) irrevocable powers of attorney in the agreed terms executed by
the Seller in favour of the Purchaser appointing the Purchaser
to be its lawful attorney in respect of the Shares;
(f) copies of statements for all bank accounts of each Group
Member (except those held in relation to ILU business handled
by a sub-agent) made up to a date not more than five Business
Days prior to Completion and cash books for each Group Member
showing cash transactions since such date;
(g) a copy of the most recent quarterly management statements for
each Group Member;
(h) a duly executed release of all mortgages, charges and
debentures granted or entered into by each Group Member (if
any) together with the relative declarations of satisfaction
(Forms 403a) sworn by a director of each Group Member (other
than in respect of the registered charge granted by the
Company details of which are set out in Schedule 2);
(i) all credit, debit or other payments cards belonging to or in
the name of a Group Member and in the possession of the
Seller, if any;
(j) those Compromise Agreements which have been signed by
employees of the Group Members;
(k) the title deeds and property documents relating to the Group
Member's properties as listed in Schedule 9;
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(l) a letter from the auditors of each Group Member acknowledging
that they have no outstanding claims against any Group Member
other than in respect of their fees for their audit of the
accounts for the financial year ended 31 December 2002;
(m) a letter in the agreed terms from the Seller to the Company in
respect of the commutation of business assumed by the Company
through Toa Re Underwriting Management Limited;
(n) all mobile phones, fax machines, lap top computers or other
computer or telecommunications equipment (including all
computer disks containing information relating to any Group
Member) belonging to or in the name of a Group Member and in
the possession of the Seller;
(o) all financial and accounting books and records and Statutory
Books relating to each Group Member; and
(p) all current cheque books, paying in books and unused cheques
of each Group Member.
The items referred to in clauses 6.2(n), (o) and (p) shall be delivered
by the Seller to the Purchaser at the registered office of the Group
Members.
6.3 On Completion the Seller shall procure that a board meeting of each
Group Member is duly convened and held at which the following matters
will be dealt with:
(a) the approval of the transfers of the Shares referred to in
clause 6.2(a) for registration (subject only to the transfers
being stamped at the cost of the Purchaser);
(b) the appointment of such persons as may be notified to the
Seller in writing by the Purchaser as directors and secretary
of the Group Members (within the maximum number, if any,
permitted under their respective Articles of Association);
(c) the revocation of all existing instructions to the Group's
bankers, investment manager and custodian bank, bank mandate
forms and authorities and their replacement with alternative
instructions, bank mandate forms and authorities in such form
as the Purchaser may require;
(d) the execution of the deed referred to in clause 6.8 relating
to the Pension Scheme;
(e) the execution of the Commutation Agreement;
(f) the tabling of the resignations referred to in clauses 6.2(c);
and
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(g) the change of the registered office of each Group Member to Xx
Xxxx'x Xxxxx, Xxxxxxx Xxxx, Xxxxxx.
6.4 On Completion the Seller shall procure that a written resolution of the
members of each Group Member is passed to change their names to Hillcot
Re Company Limited, Hillcot Underwriting Management Limited and Hillcot
Management Services Limited respectively.
6.5 On Completion the obligations of the Tax Covenant shall take effect.
6.6 On Completion the parties to the Shinsei Letter Agreement shall execute
and deliver the Shinsei Letter Agreement in the form set out in
Schedule 12.
6.7 On Completion the Seller, Toa Re Underwriting Management Limited and
the Trustees (as defined in Schedule 6) shall procure the appointment
to the Pension Scheme of an additional trustee nominated by the
Purchaser, such trustee to be Xxx Xxxxxx in the first instance.
6.8 On Completion the parties to the Pension Deed shall execute and deliver
the Pension Deed in the form set out in Schedule 6.
6.9 On Completion the parties to the Commutation Agreement shall execute
and deliver the Commutation Agreement in the form set out in Schedule
14.
6.10 On Completion, following compliance by the Seller with the provisions
of clauses 6.2, 6.3 and 6.4 and compliance with the provisions of
clauses 6.6, 6.7, 6.8 and 6.9, the Purchaser shall pay the sum
of (pound)29,000,000 into the account of the Seller's Solicitors in
satisfaction of the Consideration payable to the Seller pursuant to
clause 4.
6.11 The Seller's Solicitors are hereby authorised by the Seller to receive
all amounts expressed to be payable to them pursuant to any provision
of this Agreement and the receipt by the Seller's Solicitors of such
amounts shall be an absolute discharge to the Purchaser who shall not
be concerned to see to the application of any such amount thereafter.
6.12 No later than two Business Days following Completion, the Purchaser
shall file at Companies House the written resolutions referred to in
clause 6.4.
7. WARRANTIES
7.1 The Seller hereby warrants to the Purchaser that:
(a) it is the registered holder and beneficial owner of the
Shares;
(b) the Shares comprise the whole of the issued share capital of
the Company;
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(c) the Shares are free from Encumbrances and there is no
agreement, arrangement or obligation to create or give an
Encumbrance in relation to any of the Shares;
(d) the Seller is entitled to sell and transfer the Shares to the
Purchaser on the terms of this agreement free from all
Encumbrances;
(e) the Seller has full power and authority to enter into and
perform this Agreement and this Agreement constitutes and the
other documents executed by the Seller which are to be
delivered at Completion will, when executed, constitute
binding obligations on the Seller enforceable in accordance
with its terms;
(f) the execution and delivery of, and the performance by the
Seller of its obligations under, and the consummation of the
transaction as contemplated by this Agreement and the other
documents to be executed by the Seller at Completion, will
not:
(i) result in a material breach of any provision of the
memorandum or articles of incorporation or other
constitutional documents of the Seller; or
(ii) result in a material breach of, or constitute a
material default under, any agreement or instrument
to which the Seller or the Company is a party or by
which the Seller or the Company is bound; or
(iii) result in a breach of order, judgement or decree of
any court or governmental agency to which the Seller
is a party or by which the Seller is bound; or
(iv) require the consent of the Seller's shareholders or
of any other persons; or
(v) require any notifications or filings, consents,
approvals or applications to be made or obtained in
connection with the execution of this Agreement or
the consummation of the transaction as contemplated
in it (other than, in each case as required by:-
(1) the Securities and Exchange Law of Japan,
including filing an extraordinary securities
report with the government agency;
(2) a post completion report filed under the
Foreign Trade and Foreign Exchange Law of
Japan; and
(3) a post transaction report filed under the
Insurance Business Law of Japan);
(g) no order has been made or petition presented or resolution
passed for the winding-up or administration of the Seller, no
distress, execution or other process
- 16 -
has been levied on any of the assets of the Seller, the Seller
has not stopped payment of its debts as they fall due, no
liquidator, provisional liquidator, receiver or administrative
receiver of the Seller has been appointed, and, to the best of
the Seller's knowledge, no event has occurred in any
jurisdiction which is analogous to any of the foregoing;
(h) the Seller is a corporation duly organised, validly existing
and in good standing under its jurisdiction of incorporation
and has full corporate power and authority to conduct all the
activities being conducted by it;
(i) the Seller is in a position to fulfil all of its obligations
hereunder in respect of the completion of the sale and
purchase of the Shares contemplated hereby; and
(j) the Seller has taken all action necessary to enter into,
deliver and perform this Agreement and the documents to be
delivered by the Seller at Completion and to sell and transfer
all the Shares to the Purchaser on the terms of this Agreement
without the consent of any third party.
7.2 The Seller further warrants to the Purchaser that:
(a) there have been no material changes to the assets and
liabilities of each Group Member since the most recent
quarterly management accounts of that Group Member, other than
any changes in the claims reserves of any Group Member;
(b) it has notified the Purchaser in the Disclosure Letter of all
claims in excess of (pound)25,000 (or the US dollar equivalent
using an exchange rate of 1.5) under any reinsurance
agreements to which any Group Member is a party which have
been received by any Group Member in the period from and
including 1 January 2003 to the date of this Agreement;
(c) the information contained in Schedules 1 to 3 and Schedule 8
of this Agreement is true, complete and accurate;
(d) unless otherwise stated therein, the Accounts:
(i) have been prepared in accordance with all applicable
legislation and in accordance with accounting
standards, principles and practices generally
accepted in the United Kingdom at the date of this
Agreement;
(ii) have been prepared on a basis consistent with those
applied in preparing the audited accounts for the
three previous financial periods; and
(iii) gave a true and fair view of the financial position
of the Group at the Accounts Date and its profit or
loss for the financial year ended on the Accounts
Date;
- 17 -
(e) the management accounts of each Group Member for the period
ended 31 December 2002 have been prepared with due care and
attention (but not audited or prepared on a statutory basis)
and show a reasonably accurate view of the results of each
Group member for the period in respect of which they have been
prepared;
(f) to the best of the Seller's knowledge, information and belief
(after due and careful enquiry) as a result of the
transactions contemplated by this Agreement, no change of
control provisions contained in any material agreement or
material instrument to which any Group Member is a party, will
take effect;
(g) no written notices have been received from any employee or
former employee of any Group Member making any claims against
any Group Member which remain outstanding;
(h) there are no reinsurance or retrocession contracts whatsoever
(including treaties and facultative contracts) whether known
or unknown between the Seller and any Group Member other than
those to be commuted by the Commutation Agreement and the
business assumed by the Company through Toa Re Underwriting
Management Limited.
7.3 The Warranties shall be deemed to be given at the date of this
Agreement and the Completion Warranties shall be deemed to be repeated
(mutatis mutandis) at Completion with reference to the facts then
existing (save that references to any fact, circumstance, matter or
thing existing, occurring or having occurred at, on or before the date
of this Agreement, shall be construed as references to at, on or before
Completion), provided that without prejudice to the provisions of
clause 5 (Pre-Completion Matters), no right to damages or compensation
or otherwise in respect of a breach of any Completion Warranty shall
arise because only of one or more of the following:
(a) the occurrence after the date of this Agreement of an event,
fact, matter, circumstance or thing constituting a breach of a
Completion Warranty when repeated at Completion if such event,
fact, matter, circumstance or thing could not reasonably have
been avoided or prevented by action taken by the Seller at its
cost after the date of this Agreement and before Completion;
or
(b) any act or thing done or omitted to be done at any time after
the date of this Agreement at the written request of the
Purchaser, or with the written approval of the Purchaser, the
Purchaser having been informed of all relevant matters prior
to giving such approval.
7.4 The Seller shall be under no liability in respect of a breach of any of
the Warranties to the extent that the matter giving rise to such breach
has been fully and fairly disclosed:
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(a) in this Agreement; or
(b) by the Disclosure Letter.
7.5 The Seller shall have no liability in respect of any breach of any of
the Warranties unless the Purchaser has served on the Seller a written
notice on or before the third anniversary of the Completion Date,
giving such details of the claim as the Purchaser then has including
the Purchaser's then best estimate of the amount of the Seller's
liability in respect thereof.
7.6 In the absence of wilful concealment or substantiated fraud by the
Seller, the following limitations shall apply to a Warranty Claim (as
defined below) and, where appropriate, the Tax Covenant (but shall not
apply to a breach of the Warranties in clause 7.1):
(a) the Seller shall not be liable in respect of a breach of any
of the Warranties in clause 7.2 (a "WARRANTY CLAIM") or a
claim under the Tax Covenant:-
(i) where the liability of the Seller in respect of that
claim would (but for this sub-clause) have been less
than (pound)29,000 (aggregating for this purpose
separate claims relating to the same subject matter);
or
(ii) unless and until and only to the extent that the
liability in respect of that claim (not being a claim
for which liability is excluded under clause
7.6(a)(i) above) when aggregated with the liability
of the Seller in respect of all other claims exceeds
(pound)290,000 (in which case the Seller shall be
liable for the whole of the claim or claims and not
just the excess); and
(b) the total amount of the Seller's liability in respect of all
Warranty Claims and claims under the Tax Covenant shall be
limited to and in no event exceed (pound)29,000,000.
7.7 The Seller's liabilities to the Purchaser in respect of Tax (as that
term is defined in the Tax Covenant) are restricted to those in the Tax
Covenant.
8. TOA'S REPUTATION
8.1 The Purchaser undertakes that at no time after Completion will any
Group Member or any other company in the Purchaser's Group or any
person which is managed or controlled by any company in the Purchaser's
Group include in its registered name or any trading name the word "TOA"
or any name which in the reasonable opinion of the Seller is capable of
being confused with the word "TOA" and that no such company or person
will use the logo set out in Schedule 4 or any other logo which in the
reasonable opinion of the Seller is capable of being confused therewith
save that nothing in this clause shall restrict the Purchaser or any
other company in the Purchaser's Group or any Group Member from
referring to the word "TOA" in returns to the FSA after Completion, in
the statutory
- 19 -
accounts of any Group Member after Completion and in order to deal with
the administration of any insurance business written before the
Completion Date (subject to such guidelines as may be agreed between
the parties from time to time) and in all cases, such reference to the
word "TOA" to be limited to describing that company's former name.
8.2 With effect from Completion, the Purchaser shall use its reasonable
endeavours to procure that none of the following events or
circumstances shall occur on or before the third anniversary of
Completion:
(a) a petition being presented (and not dismissed within 60 days),
an order made or a resolution passed for the winding-up of the
Company; or
(b) a petition being presented (and not dismissed within 60 days)
for the appointment of an administrator in relation to the
Company; or
(c) the Company commencing negotiations with all or any class of
its creditors with a view to the general readjustment or
rescheduling of all or any class of its indebtedness; or
(d) the Company making a proposal for a voluntary arrangement
under Part I of the Insolvency Xxx 0000, entering into a
composition or other arrangement for the benefit of its
creditors generally or any class of creditors
unless a registered insolvency practitioner shall have advised the
directors of the Company from time to time in writing that the Company
is required to be wound up by reason of having become insolvent.
8.3 Notwithstanding the provisions of clause 8.2, the Purchaser shall not
be required at any time following Completion to procure that additional
funds are made available to any Group Member to prevent their
involuntary insolvency including but not limited to:
(a) an encumbrancer taking possession or a receiver or an
administrator or similar official being appointed of the whole
or any part of the assets or undertaking of the Company (save
where such official is discharged within 30 days); or
(b) the Company ceasing or suspending generally the payment of its
debts or being unable to pay its debts or being deemed unable
to pay its debts within the meaning of section 123 of the
Insolvency Xxx 0000.
8.4 Save as required by law or by the requirements of any recognised stock
exchange or regulatory body, for a period of three years from
Completion no person other than the Purchaser shall have, either
directly or through its ownership or control of any other person:
- 20 -
(a) legal or beneficial ownership of any shares in the Company or
the option to acquire such ownership; or
(b) other than in the ordinary course of business, any interest in
any shares in the Company by virtue of any pledge, mortgage,
charge or other instrument or the option to acquire such an
interest; or
(c) voting or other rights in respect of any shares in the
Company, the option to acquire such rights or the entitlement
to control the exercise of such rights; or
(d) any other entitlement to exercise significant influence over
the management of the Company
save that the Purchaser shall not be in breach of this clause if any
person who is a member of the Purchaser's Group has such ownership or
control.
8.5 The Seller and the Purchaser acknowledge and agree that damages would
not be an adequate remedy for any breach of the provisions of clauses
8.1, 8.2 and 8.4 and therefore agree that the Seller shall be entitled
to specific performance and any other forms of equitable or interim
remedies to enforce the obligations of the Purchaser under clauses 8.1,
8.2 and 8.4.
9. POST-COMPLETION MATTERS
9.1 As soon as practicable following Completion, the Seller shall procure
the release of the Group Members from any guarantees, indemnities or
similar obligations given or undertaken by any of them to secure or
support the obligations of the Seller or members of the Seller's Group.
Pending such release, the Seller shall indemnify each of the Purchaser
and each Group Member against any liabilities, losses, claims or
expenses suffered by them as a consequence of any claim under any such
guarantee, indemnity or similar obligation.
9.2 As soon as practicable following Completion, the Purchaser shall
procure the release of members of the Seller's Group from the
guarantees, indemnities or similar obligations listed in Schedule 11
given or undertaken by any of them to secure or support the obligations
of any of the Group Members. Pending such release, the Purchaser shall
indemnify the Seller and members of the Seller's Group against any
liabilities, losses, claims or expenses suffered by them as a
consequence of any claim under any such guarantee, indemnity or similar
obligation.
9.3 As soon as practicable following Completion, the Seller will deliver to
the Purchaser pro forma Forms P11D correctly completed as at the
Completion Date in respect of each relevant employee of the Group
Members, such forms to be drawn up in accordance with all relevant
Inland Revenue requirements. To the extent that any liability to tax in
respect
- 21 -
of expenses or benefits in kind which is not dealt with in such Forms
P11D accrues to any employee of the Group Members, the Purchaser
undertakes to discharge such liabilities to tax in accordance with the
provisions of clause 9.4.
9.4 The Purchaser shall, and shall, where relevant, procure that each Group
Member shall, as soon as reasonably practical, enter into a PAYE
settlement agreement with the Inland Revenue in respect of the tax year
ending 5 April 2003 under section 206A of the Income and Corporation
Taxes Act 1988 to pay the taxation liabilities of the employees of the
Company and employees of Group Members arising from taxation of the
following benefits in kind:
(a) staff Annual Christmas function and associated expenses;
(b) staff entertainment; and
(c) overseas travel and personal incidental expenses; and
any other benefit in kind which is not taken into account in the pro
forma Forms P11D to be completed by the Seller in accordance with
clause 9.3 or discharged by the Purchaser pursuant to clauses 9.4(a),
9.4(b) or 9.4(c).
9.5 The Purchaser shall use its best endeavours to procure the release of
the Seller from the ILU Guarantee. Pending such release the Purchaser
will keep the Seller fully and regularly informed as to the progress in
securing the release of the ILU Guarantee including, without
limitation, providing a written quarterly report setting out:-
(a) the progress of discussions with the ILU;
(b) details of matters discussed at any meeting with the ILU in
the preceding quarter; and
(c) details of commutations entered into by the Group Members in
the preceding quarter.
10. CONFIDENTIALITY AND ANNOUNCEMENTS
10.1 For the purpose of assuring the full benefit of the goodwill of each
Group Member and in consideration of the Purchaser agreeing to buy the
Shares on the terms of this Agreement, the Seller agrees with the
Purchaser and its successors in title as a separate and independent
agreement that it will not at any time hereafter use or divulge (other
than in accordance with clauses 10.2 and 10.3) any confidential
information in relation to the affairs or businesses of any Group
Member.
10.2 Other than the Agreed Announcements, no announcement or statement about
this Agreement or the subject matter of, or any matter referred to in,
this Agreement shall be
- 22 -
made or issued before, on or after Completion by or on behalf of any of
the parties hereto without the prior written approval of the other
parties (such approval not to be unreasonably withheld or delayed)
PROVIDED THAT nothing shall restrict the Seller from making such
disclosures to directors of the Group Members as may be reasonably
necessary for the performance by such directors of their duties.
10.3 Nothing in this clause 10 shall restrict a party (even in the absence
of agreement by the other parties) from making any statement or
providing information which may be required by law or by the
requirements of any recognised stock exchange, Tax authority or
regulatory body, but then only to the extent so required. Where
practical, the requirement to make such announcement or statement and
the content of such announcement or statement shall be disclosed to the
other parties to this Agreement before such announcement or statement
is made by the disclosing party and where possible agreement reached,
or where prior disclosure and agreement is not possible, the disclosing
party shall notify the other parties of the announcement or statement
and the reason for having made the announcement or statement
immediately after having made such announcement or statement.
10.4 The Purchaser shall, and shall procure that each Group Member shall,
return to the Seller within two months of the Completion Date all of
the Seller's Confidential Information held by or on behalf of the Group
on or prior to the Completion Date and pending such return hereby
undertakes for itself and each Group Member not to disclose or divulge
the Seller's Confidential Information to any third party, to maintain
it in strict confidence and not to use any of the Seller's Confidential
Information for any purpose whatsoever.
10.5 The parties to this Agreement acknowledge that in relation to a breach
of their obligations to each of the other parties under clauses 10.1,
10.2 and 10.4, that damages may not be an adequate remedy and that
accordingly, where a party is in breach of any of those clauses, the
other parties shall be entitled to an order for specific performance or
any other form of equitable relief or interim remedies to enforce the
obligations contained in clauses 10.1, 10.2 and 10.4.
11. GUARANTEE
11.1 In consideration of the Seller entering into this Agreement at the
request of the Guarantors, the Guarantors hereby irrevocably and
unconditionally jointly and severally and as primary obligors,
guarantee to the Seller the due and punctual payment on demand of the
Consideration payable by the Purchaser to the Seller pursuant to clause
4.
11.2 The guarantee contained in this clause is a continuing guarantee and
shall remain in force until the Consideration payable by the Purchaser
pursuant to clause 4 has been fully paid. It is independent of every
other security which the Seller may at any time hold for the payment
obligations of the Purchaser under this Agreement.
- 23 -
11.3 The obligations of the Guarantors shall not be affected by any act,
omission, matter or thing which, but for this provision, might operate
to release or otherwise exonerate the Guarantors from their obligations
or affect such obligations, including without limitation, and whether
or not known to the Guarantors:
(a) any variation of this Agreement or any time, indulgence,
waiver or consent at any time given to the Purchaser or any
other person;
(b) any compromise or release of, or abstention from obtaining,
perfecting or enforcing any security or other right or remedy
whatsoever from or against, the Purchaser or any other person;
(c) any legal limitation, disability, incapacity or other
circumstance relating to the Purchaser or any other person; or
(d) any irregularity, unenforceability or invalidity of any
obligations of the Purchaser under this Agreement, or the
dissolution, amalgamation, reconstruction or insolvency of the
Purchaser.
11.4 This Guarantee may be enforced by the Seller without the Seller first
taking any steps or proceedings against the Purchaser.
11.5 The Guarantors agree that until the Consideration payable by the
Purchaser to the Seller pursuant to clause 4 has been paid, they shall
not exercise any rights which they might have by reason of the
performance of their obligations under this guarantee:
(a) to be indemnified by the Purchaser; and/or
(b) to claim any contribution from any other guarantor of the
Purchaser's obligations under this Agreement; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Seller under
this Agreement or any other security taken by the Seller
pursuant to, or in connection with, this Agreement.
11.6 All payments to be made by the Guarantors shall be made in full without
set-off or counterclaim and free and clear of and without any deduction
whatsoever except to the extent required by law. If any such deduction
is required by law, the Guarantors shall be obliged to pay to the
Seller such amount as will ensure that, after such deduction has been
made, the Sellers shall have received a sum equal to the amount that
the Seller would otherwise have received in the absence of any such
deduction, as reduced by any tax credit to which the Seller may be
entitled on account of such deduction.
11.7 Any settlement or discharge between the Guarantor and the Seller shall
be conditional upon no security or payment to the Seller by the
Purchaser or the Guarantors, or any
- 24 -
other person on behalf of either of them, being avoided or reduced
pursuant to any laws applicable to insolvency. If any security or
payment is so avoided or reduced, the Seller shall be entitled to
recover the value or amount of the security or payment from the
Guarantors as if the settlement or discharge had not occurred.
11.8 No person other than the Seller or its assignee permitted under clause
16.2 shall have any right to enforce the guarantee contained in this
clause 11.
12. PROVISION OF FINANCIAL INFORMATION
The Seller shall procure that each Group Member shall, as soon as is
reasonably practicable in all the circumstances, respond to reasonable
queries provided to the Seller prior to Completion in respect of the
financial statements and details about the Group for the financial year
ending 31 December 2002. After Completion, the Purchaser shall procure
that each Group Member shall, as soon as is reasonably practicable in
all the circumstances, make available to the Seller any additional
financial details that are reasonably necessary for the Seller to
complete its consolidated accounts for the financial year ending 31
December 2002.
13. INTEREST
If any amount required to be paid under this Agreement is not paid when
it is due, such amount shall bear interest at the rate of one per cent
per annum over the base lending rate of Barclays Bank PLC from time to
time, calculated on a daily basis for the period from the relevant due
date for payment up to and including the date of actual payment, after
as well as before any judgement.
14. COSTS
Each party shall pay its own costs and expenses in relation to the
negotiation, preparation, and implementation of this Agreement (and the
documents referred to herein), including the fees and disbursements of
their respective legal, accountancy, actuarial and other advisers, and
the Company shall not pay any of such costs and expenses save for any
costs to be paid by the Company as set out in or pursuant to this
Agreement.
15. PARTIES BOUND BY CONTRACT
The parties to this Agreement agree that they shall comply with the
terms and conditions of this Agreement and all other documents entered
into pursuant to or in relation to this Agreement and the parties
further agree to undertake to ensure that their respective subsidiaries
and affiliates shall, as appropriate, comply with the terms of this
Agreement.
- 25 -
16. CONTINUING OBLIGATIONS AND ASSIGNMENT
16.1 Each of the obligations, warranties, representations and undertakings
accepted or given by the Seller, the Purchaser or the Guarantors under
this Agreement or any document referred to herein shall continue in
full force and effect notwithstanding Completion taking place and shall
be binding on the respective successors of the Seller, the Purchaser or
the Guarantors.
16.2 No party shall assign its rights and obligations under this Agreement
(including the benefit of the Warranties in clause 7) without the prior
written consent of the other parties.
17. NOTICES AND PROCESS AGENTS
17.1 Any notice or other communication to be given under this Agreement
shall be in writing, shall be deemed to have been duly served on, given
to or made in relation to a party if it is left at the authorised
address of that party, posted by pre-paid airmail/first
class/registered post addressed to that party at such address or sent
by facsimile transmission to the authorised facsimile number set out
below and shall be deemed to have been served as follows:
(a) if personally delivered, at the time of delivery; or
(b) if posted to an inland address in the United Kingdom, be
deemed to have been received on the second Business Day after
the date of posting and if posted to an overseas address, be
deemed to have been received on the fifth Business Day after
the date of posting;
(c) if sent by facsimile transmission be deemed to have been
received upon receipt by the sender of a facsimile
transmission report (or other appropriate evidence) that the
facsimile has been transmitted to the addressee;
PROVIDED THAT where such delivery or transmission occurs after 6 pm on
a Business Day or on a day which is not a Business Day, service shall
be deemed to occur at 9 am on the next following Business Day.
17.2 For the purposes of this clause the authorised address of each party
shall be the address set out at the beginning of this Agreement or such
other address as that party may notify to the others in writing from
time to time in accordance with the requirements of this clause.
- 26 -
17.3 For the purposes of this clause, the authorised facsimile numbers for
each party and the individuals to whom notices shall be addressed shall
be as follows:-
INDIVIDUAL TO WHOM
PARTY FAX NUMBER NOTICE TO BE ADDRESSED
The Seller: 00 813 3253 5298 Xxxxxxxxx Xxxxxxxx
The Purchaser: 00 441 296 0895 Xxxxxx Xxxxxxxxx
Castlewood Holdings Limited 00 441 296 0895 Xxxxxx Xxxxxxxxx
Shinsei Bank, Limited 00 813 3595 6057 Xxx Xxxx
or such other facsimile number as a party may notify in writing to the
other parties from time to time in accordance with the requirements of
this clause.
17.4 The Purchaser shall maintain an agent for service of the process in
England for the period of seven years from the Completion Date. Such
agent shall be Xxxxx & Co (ref AH/0208346). Any writ, judgement or
other notice of legal process shall be sufficiently served on the
Purchaser if delivered to such agent at its address for the time being.
The Purchaser undertakes not to revoke the authority of such agent and
if for any reason such agent ceases to be able to act as such or no
longer has an address in England, the Purchaser irrevocably agrees to
promptly appoint another agent (with an address for service within the
jurisdiction of the English courts) and to forthwith notify the other
parties thereof.
17.5 Castlewood shall maintain an agent for service of the process in
England for the period of seven years from the Completion Date. Such
agent shall be Xxxxx & Co (ref AH/0208346). Any writ, judgement or
other notice of legal process shall be sufficiently served on
Castlewood if delivered to such agent at its address for the time
being. Castlewood undertakes not to revoke the authority of such agent
and if for any reason such agent ceases to be able to act as such or no
longer has an address in England, Castlewood irrevocably agrees to
promptly appoint another agent (with an address for service within the
jurisdiction of the English courts) and to forthwith notify the other
parties thereof.
17.6 Shinsei shall maintain an agent for service of the process in England
for the period of seven years from the Completion Date. Such agent
shall be Xxxxx & Co (ref AH/0208346). Any writ, judgement or other
notice of legal process shall be sufficiently served on Shinsei if
delivered to such agent at its address for the time being. Shinsei
undertakes not to revoke the authority of such agent and if for any
reason such agent ceases to be able to act as such or no longer has an
address in England, Shinsei irrevocably agrees to promptly appoint
another agent (with an address for service within the jurisdiction of
the English courts) and to forthwith notify the other parties thereof.
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17.7 The Seller shall maintain an agent for service of the process in
England for the period of seven years from the Completion Date. Such
agent shall be Sisec Limited whose registered office is at 00 Xxxxxxx
Xxxxxxx, Xxxxxx XX0X 0XX. Any writ, judgement or other notice of legal
process shall be sufficiently served on the Seller if delivered to such
agent at its address for the time being. The Seller undertakes not to
revoke the authority of such agent and if for any reason such agent
ceases to be able to act as such or no longer has an address in
England, the Seller irrevocably agrees to promptly appoint another
agent (with an address for service within the jurisdiction of the
English courts) and to forthwith notify the other parties thereof.
18. SEVERABILITY
If any provision of this Agreement (or of any document referred to
herein) is held to be illegal, invalid or unenforceable in whole or in
part in any relevant jurisdiction the legality, validity and
enforceability of the remaining provisions of this Agreement (or such
document) shall not in any way be affected or impaired thereby.
19. ENTIRE AGREEMENT AND VARIATION
19.1 This Agreement (together with any documents referred to herein)
contains the entire agreement and understanding of the parties and
supersedes all prior agreements, understandings or arrangements (both
oral and written) relating to the subject matter of this Agreement,
including without limitation, the Mutual Confidentiality Agreement
between the Seller, Shinsei and Castlewood (EU) Limited dated 12 April
2001, the Letter of Intent between the Seller, Shinsei and Castlewood
dated 1 October 2002, and the Final Offer Letter entered into by the
Seller, Shinsei and Castlewood dated 28 November 2002.
19.2 Each of the parties acknowledges and agrees that:
(a) it does not enter into this Agreement and the documents
referred to herein on the basis of and does not rely, and has
not relied, upon any statement or representation (whether
negligent or innocent) or warranty or other provision (in any
case whether oral, written, express or implied) made, given or
agreed to by any person (whether a party to this Agreement or
not) except those expressly set out or referred to in this
Agreement, the documents referred to herein and those
documents listed in Schedule 13 and the only remedy or
remedies available in respect of any misrepresentation or
untrue statement made to it shall be a claim for breach of
contract under this Agreement; and
(b) this clause 19.2 shall not apply to any statement,
representation or warranty made fraudulently or to any
provision of this Agreement which was induced by, or otherwise
entered into as a result of, fraud, for which the remedies
shall be all those available under the law governing this
Agreement.
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19.3 No variation, supplement, deletion or replacement of or from this
Agreement or from any of the documents referred to herein or any of
their respective terms shall be effective unless made in writing and
signed by or on behalf of each relevant party.
20. GENERAL PROVISIONS
20.1 Any waiver of a breach of any of the terms of this Agreement or of any
default hereunder shall not be deemed to be a waiver of any subsequent
breach or default and shall in no way affect the other terms of this
Agreement.
20.2 No failure to exercise and no delay on the part of any party in
exercising any right, remedy, power or privilege of that party under
this Agreement and no course of dealing between the parties shall be
construed or operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights and remedies provided by this
Agreement are cumulative and are not exclusive of any rights or
remedies provided by law.
20.3 This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be an original, but all of
which when taken together shall constitute a single document.
20.4 The Seller shall use reasonable endeavours (as far as it is able) at
the Purchaser's cost to do, or procure to be done, all further acts and
things and execute, or procure the execution of, any other documents
which the Purchaser may from time to time reasonably require for the
purpose of giving the Purchaser the full benefit of the provisions of
this Agreement.
21. RIGHTS OF THIRD PARTIES
No person other than a party to this Agreement may enforce any
provision of this Agreement by virtue of the Contracts (Rights of Third
Parties) Xxx 0000.
22. GOVERNING LAW AND JURISDICTION
22.1 This Agreement (together with all documents to be entered into pursuant
to it which are not expressed to be governed by another law) shall be
governed by, construed and take effect in accordance with English law.
22.2 The courts of England shall have exclusive jurisdiction to settle any
claim, dispute or matter of difference which may arise out of or in
connection with this Agreement (including without limitation claims for
set-off or counterclaim) or the legal relationships established by this
Agreement.
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22.3 Each of the parties hereto agrees that in the event of any action
between any of the parties hereto being commenced in respect of this
Agreement or any matters arising under it, the process by which it is
commenced (where consistent with the applicable court rules) may be
served on them in accordance with clause 17.
EXECUTED by the parties or their duly authorised representatives on the day and
year first above written.
[SCHEDULES OMITTED]
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Signed by XXXXXX XXXXXXXXXX ) /s/ Xxxxxx Xxxxxxxxxx
For and on behalf of )
THE TOA REINSURANCE COMPANY LIMITED )
in the presence of: XXXXXXXXX XXXXXXXX ) /s/ Xxxxxxxxx Xxxxxxxx
Signed by XXXXXX XXXXXXXXX ) /s/ Xxxxxx Xxxxxxxxx
For and on behalf of )
HILLCOT HOLDINGS LIMITED )
in the presence of: XXX XXXXXXX ) /s/ Xxx Xxxxxxx
Signed by XXXX X'XXXX ) /s/ Xxxx X'Xxxx
For and on behalf of )
CASTLEWOOD HOLDINGS LIMITED )
In the presence of: XXXXXX XXXXXXXXX ) /s/ Xxxxxx Xxxxxxxxx
Signed by XXXXXXXX XXXX ) /s/ Xxxxxxxx Xxxx
For and on behalf of )
SHINSEI BANK LIMITED )
in the presence of: XXXXXX XXXXXXXX ) /s/ Xxxxxx Xxxxxxxx
