EXHIBIT 10.15
SHARE SUBSCRIPTION AGREEMENT
SHARE SUBSCRIPTION AGREEMENT dated as of July 22, 1998 (this
"AGREEMENT") among each of the entities listed on the signature pages hereof
under the caption "Purchasers" (collectively, the "PURCHASERS"), TA I Limited, a
limited liability company organized under the laws of England and Wales ("NEWCO
1") and XX XX Limited, a limited liability company organized under the laws of
England and Wales ("NEWCO 2" and, together with Newco 1, the "NEWCOS").
RECITALS:
All the issued and outstanding ordinary shares, par value
(pound)1.00 per share, of Newco 1 are currently owned by one or more entities
(the "KKR PARTNERSHIPS") organized by an affiliate of Kohlberg Kravis Xxxxxxx &
Co. Newco 1 owns all the issued and outstanding ordinary shares, par value
(pound)1.00 per share, of Newco 2. Newco 2 beneficially owns all of the issued
and outstanding ordinary shares, par value (pound)1.00 per share, of TA III plc,
a public limited company organized under the laws of England and Wales ("NEWCO
3"). Newco 3 beneficially owns all of the issued and outstanding ordinary
shares, par value (pound)1.00 per share, of Trinity Acquisition plc, a publIC
limited liability company organized under the laws of England and Wales
("BIDCO"), which proposes to make an offer (the "OFFER") for all of the issued
and outstanding ordinary shares of Xxxxxx Xxxxxxx Group plc, a public limited
liability company organized under the laws of England and Wales ("WCG").
In connection with the Offer, Newco 1 desires to issue ordinary
shares, par value (pound)0.10 per share ("NEWCO 1 ORDINARY SHARES"), and Newco 2
desires to issue preferred shares, redemption value $25.00 per share ("NEWCO 2
PREFERRED SHARES"), in each case, to the Purchasers upon the terms and subject
to the conditions hereinafter set forth.
The Purchasers have conditioned subscription of the Newco 1 Ordinary
Shares and the Newco 2 Preferred Shares to be subscribed for by them hereunder
on Newco 1 and Newco 2 making certain representations and warranties to them
hereunder and, in order to induce the Purchasers to subscribe such shares and in
connection with the transactions contemplated to occur on the Closing Date (as
defined below), including the Offer, each of Newco 1 and Newco 2 is willing to
make and hereby makes such representations and warranties.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE
SECTION 1.1 PURCHASE AND SALE. Upon the terms and subject to the
conditions of this Agreement, Newco 1 agrees to issue to each Purchaser or its
Affiliate , and each Purchaser agrees to subscribe, or to procure the
subscription by an Affiliate of, the number of Newco 1 Ordinary Shares (the
"Subscription Ordinary Shares"), and Newco 2 agrees to issue to each Purchaser
or its Affiliate, and each Purchaser agrees to subscribe, or to procure the
subscription
by an Affiliate of, the number of Newco 2 Preferred Shares (the "Subscription
Preferred Shares" and, together with the Subscription Ordinary Shares, the
"Subscription Shares") set forth opposite its name on Schedule I hereto,
provided, however, that if additional investors acceptable to Purchasers who
have agreed to subscribe for 60% of the Preferred Shares and to the KKR
Partnership are invited to subscribe and agree to subscribe for Ordinary Shares
and Preferred Shares on the same terms and conditions as those agreed by the
Purchasers, then the amount of Ordinary Shares and Preferred Shares subscribed
by the Purchasers pursuant hereto shall be reduced in accordance with the
provisions of Section 10.11 of the Shareholder Rights Agreement (as defined in
Section 2.2). The subscription price for the Subscription Ordinary Shares is
(pound)2 per share (the "Per Ordinary Share Subscription Price"), and the
subscription price for the Subscription Preferred Shares is the sterling
equivalent of $25 per share (using the exchange rate of $1.6430 per (pound)1.00)
(the "Per Preferred Share Subscription Price"). The aggregate subscription price
for all of the Subscription Ordinary Shares is (pound)38,666,666 (the "Aggregate
Ordinary Share Subscription Price"), and the aggregate subscription price for
all of the Subscription Preferred Shares is (pound)154,666,666 (the "Aggregate
Preferred Share Subscription Price").
SECTION 1.2 CLOSING. The closings (the "Closings") of the
subscription and sale of the Subscription Shares hereunder shall take place at
the offices of Xxxxxxxx Chance, 000 Xxxxxxxxxx, Xxxxxx XX0X 0XX on each of the
dates on which the closings of the Contribution and Share Subscription Agreement
dated the date hereof (the "Contribution and Share Subscription Agreement")
among Newco 1, Newco 2, Newco 3, Bidco and the KKR Partnerships named therein in
the agreed form occur (the "Closing Dates"), which dates shall be notified by
Bidco to the Purchasers at least five Business Days in advance thereof (any such
notice, a "Closing Notice"). Each Closing Notice shall set forth for each
Purchaser (i) the aggregate amount due on such date for the subscription (x) of
Ordinary Shares and (y) Preferred Shares, and (ii) the number of Ordinary Shares
and Preferred Shares to be delivered on such date. The aggregate amount due for
all Purchasers on a Closing Date will be calculated by reference to the amount
due on the same date by the KKR Partnership on the basis that for every
(pound)46.0465 due from the KKR Partnership, (pound)53.9535 will be due from the
Purchasers as a whole (the "Investment Ratio"), provided, however, that to the
extent the KKR Partnership or any of its Affiliates has directly or indirectly
financed the purchase of WCG ordinary shares prior to the closing of the Offer
to Purchase, then the Purchasers shall be required to invest an amount up to the
amount that would be required so that the ratio of the aggregate investment by
the KKR Partnership and its Affiliates in such WCG ordinary shares to the
aggregate investment by the Purchasers pursuant hereto equals the Investment
Ratio. Of the aggregate amount due from the Purchasers on a Closing Date, the
amount due from a given Purchaser will be pro rata to such Purchaser's
commitment as set forth in Schedule I, and will be divided between Ordinary
Shares and Preferred Shares in the same ratio as the Aggregate Ordinary Share
Subscription Price bears to the Aggregate Preferred Share Subscription Price. At
each Closing, (a) each Purchaser, shall deliver or cause to be delivered to
Newco 1, in immediately available funds, the amount indicated in the relevant
Closing Notice, by intrabank transfer to an account designated by Newco 1 in
such Closing Notice, and deliver or cause to be delivered to Newco 2, in
immediately available funds, the amount indicated in the relevant Closing Notice
by intrabank transfer to an account designated by Newco 2 in such Closing
Notice, and (b) Newco 1 shall deliver to the person or persons designated by
each of the Purchasers, certificates for each Purchaser's Subscription Ordinary
Shares in the amount set forth in the relevant Closing Notice, and Newco 2 shall
deliver to the person or persons designated by each of the Purchasers,
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certificates for each Purchaser's Subscription Preferred Shares in the amount
set forth in the relevant Closing Notice, in each case, duly registered in the
names of the Person or Persons designated by each of the Purchasers, each such
designation to be notified to Newco 1 and Newco 2 at least two Business Days in
advance of the applicable Closing Date.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF NEWCOS
Each Newco jointly and severally represents and warrants:
SECTION 2.1 CORPORATE EXISTENCE AND POWER; NEWLY FORMED CORPORATION.
Such Newco, Newco 3 and Bidco are limited liability companies duly organized
under the laws of England and Wales and are validly existing. Such Newco, Newco
3 and Bidco were incorporated solely for the purpose of effectuating the Offer
(including the transactions contemplated by this Agreement) and have not
conducted any business or entered into any agreements or commitments except with
respect to the foregoing.
SECTION 2.2 AUTHORIZATION. (a) The execution, delivery and
performance by such Newco of this Agreement, the Shareholder Rights Agreement,
dated as of July 22, 1998, among the Newcos, the KKR Partnership named therein
and the Purchasers (the "Shareholder Rights Agreement"; unless otherwise defined
herein, terms defined in the Shareholder Rights Agreement are used herein as
defined therein), and the Registration Rights Agreement, dated as of July 22,
1998, between the Newcos and the Purchasers (the "Registration Rights
Agreement"), and the transactions contemplated hereby and by each of the
foregoing are within such Newco's corporate powers and have been duly authorized
by all necessary corporate action on the part of such Newco.
(b) This Agreement, the Shareholder Rights Agreement and the
Registration Rights Agreement have each been duly executed and delivered by such
Newco. This Agreement, the Shareholder Rights Agreement and the Registration
Rights Agreement each constitute a valid and binding agreement of such Newco,
enforceable against it in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement or creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies and (iii) with respect to
provisions relating to indemnification and contribution, as limited by
considerations of public policy.
SECTION 2.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by such Newco of this Agreement, the Shareholder Rights Agreement
and the Registration Rights Agreement, and the making of the Offer by Bidco
require no order, license, consent, authorization or approval of, or exemption
by, or action by or in respect of, or notice to, or filing or registration with,
any governmental body, agency or official except such as have been obtained or
except where the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or make any filing
or registration would not, in the aggregate, reasonably be expected materially
to adversely affect the ability of such Newco to perform its obligations
hereunder or thereunder.
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SECTION 2.4 NONCONTRAVENTION. The execution, delivery and
performance by such Newco of this Agreement, the Shareholder Rights Agreement
and the Registration Rights Agreement, and the making of the Offer by Bidco do
not and will not (i) violate the memorandum and articles of association of such
Newco, Newco 3 or Bidco, (ii) violate any law, rule, regulation, judgment,
injunction, order or decree applicable to or binding upon such Newco, Newco 3 or
Bidco, (iii) require any consent or other action by any person under, constitute
a default under (with due notice or lapse of time or both), or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
such Newco, Newco 3 or Bidco or to a loss of any benefit to which such Newco,
Newco 3 or Bidco is entitled under any provision of any agreement or other
instrument binding upon such Newco, Newco 3 or Bidco or any of its assets or
properties or (iv) result in the creation or imposition of any material
mortgage, lien, pledge, charge, security interest or encumbrance (each, a
"Lien") on any property or asset of such Xxxxx, Xxxxx 0 or Bidco.
SECTION 2.5 CAPITALIZATION. (a) As of the date hereof, the
authorized capital of Newco 1 consists of 100 ordinary shares of (pound)1.00
each and no other securities. Immediately prior to the first Closing, the
authorized capital of Newco 1 will comprise at least a sufficient number of
Newco 1 Ordinary Shares so as to satisfy the subscriptions hereunder and under
the Contribution and Share Subscription Agreement, dated as of the date hereof
(the "Contribution Agreement"), among the KKR Partnerships, the Newcos and the
other parties named therein.
(b) As of the date hereof, the authorized capital of Newco 2
consists of 100 ordinary shares of (pound)1.00 each. Immediately prior to the
first Closing, the authorized capital of Newco 2 will comprise at least a
sufficient number of Newco 2 Preferred Shares so as to satisfy the subscriptions
hereunder.
(c) The structure chart attached hereto as Schedule II summarizes
the corporate structure of the KKR Partnership's ownership of Newco 1 and its
subsidiaries.
(d) Except as set forth in this Section 2.5 and the Contribution
Agreement, there are, and immediately after the Closing there will be, no issued
(i) ordinary shares or voting securities of such Newco, (ii) securities of such
Newco convertible into or exchangeable for ordinary shares or voting securities
of such Newco, (iii) options or other rights to acquire from such Newco, or
other obligation of such Newco to issue, any ordinary shares, voting securities
or securities convertible into or exchangeable for ordinary shares or voting
securities of such Newco (except for rights and options to acquire Newco 1
Ordinary Shares granted to certain officers and employees of WCG and its
subsidiaries) or (iv) obligation of such Newco to repurchase or otherwise
acquire or retire any ordinary shares or any convertible securities, rights or
options of the type described in clause (i), (ii), or (iii) (except as permitted
by the terms of the Newco 2 Preferred Shares, the terms of the Shareholder
Rights Agreement and the terms of the agreements to be entered into with certain
officers and employees of WCG or its subsidiaries relating to Newco 1 Ordinary
Shares and options).
SECTION 2.6 VALID ISSUANCE OF SECURITIES. The Subscription Shares
which are being issued by such Newco to the Purchasers hereunder will be duly
and validly authorized and, when issued in accordance with the terms hereof for
the consideration expressed herein, will be fully paid and nonassessable.
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SECTION 2.7 NO BROKERS FEES. Except for the financial advisors
retained in connection with the Offer, such Newco has not retained, and is not
subject to the valid claim of, any finder, broker, consultant or financial
advisor in connection with this Agreement or the transactions contemplated
hereby who might be entitled to a fee or commission from the Purchasers in
connection with this Agreement or the transactions contemplated hereby.
SECTION 2.8 CONTRIBUTION AGREEMENT. The Contribution Agreement has
been entered into by each of the parties thereto and will not be amended in a
manner that adversely affects the rights of the Purchasers without the consent
of Purchasers who have agreed to subscribe for at least 60% of the Preferred
Shares.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF PURCHASERS
Each Purchaser, severally and not jointly as to any other Purchaser,
represents and warrants:
SECTION 3.1 EXISTENCE AND POWER. Such Purchaser is a corporation,
limited partnership or limited liability company, as the case may be, duly
organized, validly existing and in good standing, as applicable, under the laws
of its jurisdiction of organization.
SECTION 3.2 AUTHORIZATION. The execution, delivery and performance
by such Purchaser of this Agreement, the Shareholder Rights Agreement and the
Registration Rights Agreement and the transactions contemplated hereby and by
each of the foregoing are within its corporate, partnership or limited liability
company powers, as the case may be, and have been duly authorized by all
necessary action on the part of such Purchaser. This Agreement, the Shareholder
Rights Agreement and the Registration Rights Agreement have each been duly
executed and delivered by such Purchaser. This Agreement, the Shareholder Rights
Agreement and the Registration Rights Agreement each constitute a valid and
binding agreement of such Purchaser, enforceable against such Purchaser in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies and (iii) with respect to provisions relating to
indemnification and contribution, as limited by considerations of public policy.
SECTION 3.3 GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by such Purchaser of this Agreement, the Shareholder Rights
Agreement and the Registration Rights Agreement require no order, license,
consent, authorization or approval of, or exemption by, or action by or in
respect of, or notice to, or filing or registration with, any governmental body,
agency or official except such as have been obtained or except where the failure
to obtain any such order, license, consent, authorization, approval or exemption
or give any such notice or make any filing or registration would not, in the
aggregate, reasonably be expected to adversely affect the ability of such
Purchaser to perform its obligations hereunder or thereunder.
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SECTION 3.4 NONCONTRAVENTION. The execution, delivery and
performance by such Purchaser of this Agreement, the Shareholder Rights
Agreement and the Registration Rights do not and will not (i) violate, if such
Purchaser is a corporation, the certificate of incorporation or bylaws of such
Purchaser, if such Purchaser is a limited partnership, the certificate of
limited partnership or agreement of limited partnership of such Purchaser, or,
if such Purchaser is a limited liability company, the certificate of formation
or limited liability company agreement of such Purchaser, or, in any case, any
similar organizational or constitutive document, (ii) violate any law, rule,
regulation, judgment, injunction, order or decree applicable to or binding upon
such Purchaser, (iii) require any consent or other action by any person under,
constitute a default under (with due notice or lapse of time or both), or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of such Purchaser or to a loss of any benefit to which such Purchaser
is entitled under any provision of any agreement or other instrument binding
upon such Purchaser or any of its assets or properties or (iv) result in the
creation or imposition of any material Lien on any property or asset of such
Purchaser.
SECTION 3.5 PURCHASE FOR INVESTMENT. Such Purchaser is purchasing
its Subscription Shares for investment for its own account and not with a view
to, or for sale in connection with, any distribution thereof.
SECTION 3.6 PRIVATE PLACEMENT. (a) Such Purchaser's financial
situation is such that such Purchaser can afford to bear the economic risk of
holding its Subscription Shares for an indefinite period of time, and such
Purchaser can afford to suffer the complete loss of the investment in its
Subscription Shares.
(b) Such Purchaser's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and risks
of the investment in its Subscription Shares, or such Purchaser has been advised
by a representative possessing such knowledge and experience.
(c) Such Purchaser understands that the Subscription Shares acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there will substantial restrictions
on the transferability of the Subscription Shares as set forth in the
Shareholder Rights Agreement and that for an indefinite period following the
date hereof there will be no public market for the Subscription Shares and that,
accordingly, it may not be possible for such Purchaser to sell the Subscription
Shares in case of emergency or otherwise.
(d) Such Purchaser and its representatives, including, to the extent
it deems appropriate, its professional, financial, tax and other advisors, have
reviewed all documents provided to them in connection with the investment in the
Subscription Shares, and such Purchaser understands and is aware of the risks
related to such investment.
(e) Such Purchaser and its representatives have been given the
opportunity to examine documents and to ask questions of, and to receive answers
from Newco 1, Newco 2 and the KKR Partnership and/or their respective
representatives concerning the terms and conditions of the acquisition of the
Subscription Shares and related matters and to obtain such additional
information which such Purchaser or its representatives deem necessary.
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(f) Such Purchaser is an "ACCREDITED INVESTOR" as such term is
defined in Regulation D under the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
SECTION 3.7 ACCURACY OF INFORMATION. The information provided by
such Purchaser relating to it and its shareholdings and dealings in the ordinary
shares of WCG as required by The City Code on Takeovers and Mergers for the
purpose of preparation of the documents issued in connection with the Offer is
true and accurate in all material respects.
SECTION 3.8 NO BROKERS FEES. Such Purchaser has not retained, and,
to its knowledge, is not subject to the valid claim of, any finder, broker,
consultant or financial advisor in connection with this Agreement or the
transactions contemplated hereby who might be entitled to a fee or commission
from either Newco or the KKR Partnership in connection with this Agreement or
the transactions contemplated hereby.
ARTICLE 4
CONDITIONS TO CLOSING
SECTION 4.1 CONDITIONS TO OBLIGATIONS OF PURCHASERS AND NEWCOS. The
obligations of the Purchasers and the Newcos to consummate the transactions
contemplated hereby are subject to the Offer becoming or being declared
unconditional in all respects not later than the 120th day after the posting of
the Offer such that the KKR Partnership is unconditionally obligated to make its
capital contribution to Newco 1 to provide a portion of the funds needed to
purchase all of the issued and to be issued ordinary shares of WCG pursuant to
the Offer.
ARTICLE 5
COVENANTS OF THE PARTIES
SECTION 5.1 FURTHER ASSURANCES. Each Newco and Purchaser agrees
that, from time to time, it will execute and deliver such further instruments of
conveyance and transfer and take such other actions as may be necessary to carry
out the purposes and intents of this Agreement.
SECTION 5.2 ARTICLES OF ASSOCIATION. Newco 1 and Newco 2 will adopt
Articles of Association in substantially the form of the articles of association
attached hereto as Schedule III prior to the first Closing and all subscriptions
pursuant to this Agreement and the Contribution Agreement will be made on the
terms of such articles.
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ARTICLE 6
TERMINATION
SECTION 6.1 GROUNDS FOR TERMINATION. This Agreement may be
terminated by any Purchaser with respect to its rights and obligations hereunder
at any time prior to the Closing:
(a) if the Offer (as originally made or as extended) ceases to be
capable of becoming or being declared unconditional in all respects; or
(b) the Offer is not made within seven days of the date of this
Agreement on substantially the terms in all material respects of the draft
Press Announcement attached hereto as Annex A or if the price per ordinary
share of WCG at which the Offer is made is increased.
SECTION 6.2 EFFECT OF TERMINATION. If this Agreement is terminated
as permitted by Section 6.1, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, member, director,
officer, employee, agent, consultant or representative of such party) to any of
the other parties to this Agreement, and this Agreement shall be of no further
force or effect. Notwithstanding the foregoing, the provisions of Sections 7.3
and 7.5 shall survive any termination hereof pursuant to Section 6.1.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by cable, by telecopy, by telegram, by telex or
registered or certified mail (postage prepaid, return receipt requested) as
follows (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 7.1):
if to a KKR Partnership, to:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: 00-000-000-0000
if to Newco 1 or Newco 2, to:
x/x Xxxxxxxx Xxxxxx Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
00 Xxxxxxxxxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: 00-000-000-0000
if to any of the Purchasers:
Royal & Sun Alliance Insurance Group plc
0 Xxxxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Telecopy: 00-000-000-0000
-and-
Guardian Royal Exchange plc
Xxxxx Xxxxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Telecopy: 00-000-000-0000
-and-
The Chubb Corporation
00 Xxxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
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-and-
The Hartford Financial Services Group, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
-and-
The Travelers Indemnity Company
Xxx Xxxxx Xxxxxx
00 XX Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
with a copy to:
Ashurst Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxx X. Wippell
Telecopy: 00-000-000-0000
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy: 000-000-0000
SECTION 7.2 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 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 law.
SECTION 7.3 EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense,
except that if the Closing shall occur, Newco 1 and Newco 2, jointly and
severally, agree to reimburse the Purchasers for all documented out-of-pocket
expenses incurred by them, including, without limitation, the
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reasonable fees and expenses of one U.K. counsel and one U.S. counsel for all of
the Purchasers, up to, but not in excess of, $350,000 in the aggregate for all
such expenses.
SECTION 7.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and lawful assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto, provided, further,
that any Affiliate of a Purchaser that subscribes for Newco 1 Ordinary Shares or
Newco 2 Preferred Shares pursuant to Section 1.1 shall be deemed a "Purchaser"
for purposes of this Agreement.
SECTION 7.5 GOVERNING LAW; SUBMISSION TO JURISDICTION; APPOINTMENT
OF AGENT FOR SERVICE; WAIVER. (a) This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the principles of conflict of laws thereof. The parties to this
Agreement hereby agree to submit to the jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof in any action or
proceeding arising out of or relating to this Agreement. The parties hereto
irrevocably and unconditionally waive trial by jury in any legal action or
proceeding in relation to this Agreement and for any counterclaim therein.
(b) Each of Xxxxxxxxx 0, Xxxxxxxxx 0, Xxxxxxxxx 3, Newco 1 and Newco
2 to the fullest extent permitted by applicable law, irrevocably and fully
waives the defense of an inconvenient forum to the maintenance of such legal
action or proceeding and will hereby irrevocably designate and appoint within
ten Business Days of the date hereof CT Corporation (the "AUTHORIZED AGENT"), as
its authorized agent upon whom process may be served in any such suit or
proceedings. Each such Purchaser and Newco represents that it has notified the
Authorized Agent of such designation and appointment and that the Authorized
Agent has accepted the same in writing. Each such Purchaser and Newco hereby
irrevocably authorizes and directs its Authorized Agent to accept such service.
Each such Purchaser and Newco further agrees that service of process upon its
Authorized Agent and written notice of said service to such Purchaser or Newco,
as the case may be, mailed by first class mail or delivered to its Authorized
Agent shall be deemed in every respect effective service of process upon such
Purchaser in any such suit or proceeding. Nothing herein shall affect the right
of any person to serve process in any other manner permitted by law. Each such
Purchaser and Newco agrees that a final action in any such suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner. Notwithstanding the foregoing, any
action against any such Purchaser or Newco, as the case may be, arising out of
or based on this Agreement or the transactions contemplated hereby may also be
instituted in any competent court in the United Kingdom, and each such Purchaser
and Newco expressly accepts the jurisdiction of any such court in any such
action.
(c) Each such Purchaser and Newco hereby irrevocably waives, to the
extent permitted by law, any immunity to jurisdiction to which it may otherwise
be entitled (including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Agreement or the transactions
contemplated thereby.
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SECTION 7.6 COUNTERPARTS; 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 the other party hereto. No
provision of this Agreement shall confer upon any person other than the parties
hereto any rights or remedies hereunder.
SECTION 7.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject mater of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
SECTION 7.8 CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 7.9 SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be deemed to be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforced in accordance with its terms to the maximum extent permitted by law.
SECTION 7.10 INTERPRETATION. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
12
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.
TA I LIMITED
By: /s/ Xxxxx Xxxxxxx
--------------------
Name:
Title:
XX XX LIMITED
By: /s/ Xxxxx Xxxxxxx
--------------------
Name:
Title:
PURCHASERS:
ROYAL & SUN ALLIANCE INSURANCE GROUP PLC
By: /s/ Xxxx Xxxxxxx
--------------------
Title:
GUARDIAN ROYAL EXCHANGE PLC
By: /s/ Xxxxxxxx Xxxxxx
--------------------
Title: Executive Director-Investments
THE CHUBB CORPORATION
By: /s/ Xxxxxx X. XxXxxxx, Xx.
---------------------------
Title: Senior Vice President
13
THE HARTFORD FINANCIAL SERVICES GROUP,
INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
THE TRAVELERS INDEMNITY COMPANY
By: /s/ Xxxxx X. Fornsworth
---------------------------
Title: Second Vice President
14
SCHEDULE I
Newco 1 Aggregate Preferred Newco 2
Ordinary Share Subscription Preferred
Name of Purchaser Shares Price Shares
----------------- ------ ----- ------
Royal & Sun Alliance 4,000,000 (pound)32,000,000 2,103,040
Insurance Group Inc
Guardian Royal Exchange plc 4,000,000 (pound)32,000,000 2,103,040
The Chubb Corporation 4,000,000 (pound)32,000,000 2,103,040
The Travelers Indemnity 4,000,000 (pound)32,000,000 2,103,040
Company
The Hartford Financial 3,333,333 (pound)26,666,666 1,752,533
Services Group, Inc.
----------- ------------------ -----------
Total 19,333,333 (pound)154,666,666 10,164,693
