EXHIBIT 99(c)
EXECUTION COPY
AMENDMENT NO. 1 dated as of October 15, 2000 (this "Amendment"), to the
Stock Purchase Agreement, dated as of September 24, 2000 (the "Purchase
Agreement"), among CGU International Holdings Luxembourg S.A., a Luxembourg
corporation ("CGUIHL"), CGU Holdings LLC, a Delaware limited liability company
("CGULLC"), CGNU plc, a company incorporated under the laws of England and Wales
("CGNU"), White Mountains Insurance Group, Ltd., a company existing under the
laws of Bermuda ("Buyer"), TACK Holding Corp., a Delaware corporation
("Holdco"), and TACK Acquisition Corp., a Delaware corporation ("Newco").
WHEREAS, the parties hereto are parties to the Purchase Agreement; and
WHEREAS, the parties desire to amend the Purchase Agreement as provided
herein.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties agree as follows:
1. Section 3.2(j) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(j) COMMITMENTS. CGNU and Sellers have been provided by (i) Newco a
true, correct and complete copy of the financing commitments to Newco described
in Section 3.2(j) of the Disclosure Schedule (the "Newco Financing") and (ii)
Buyer a true, correct and complete copy of the financing commitments to Buyer
described in Section 3.2(j) of the Disclosure Schedule (the "Buyer Financing"
and, together with the Newco Financing, the "Financings"). The Financings,
together with available cash of Newco, Holdco and Buyer, available cash of the
Company (after giving effect to the Preclosing Transactions, the Restructuring
Transactions and the payment of $371 million of dividends to the Company during
the period from January 1, 2000 to the earlier of (x) December 31, 2000 and (y)
the Closing Date and assuming the representation made by CGNU and Sellers in the
last two sentences of Section 3.1(b) is true) and the Holdco Note, are
sufficient, subject to the satisfaction of the conditions of the Financings, to
provide the funds required by Newco to pay the Purchase Price hereunder, to
repay in full the outstanding principal and interest on the Term Note and to pay
all fees and expenses required to be paid by Newco, Holdco or Buyer in
connection with the transactions contemplated by this Agreement. The
consummation of the Financings will not require Shareholder Approval."
2. Section 4.16(a)(i) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(a)(i) Buyer, Holdco and Newco each shall use its best efforts to
complete the Financings in accordance with the terms thereof. Notwithstanding
the foregoing, Buyer, Holdco and Newco shall not be restricted in any manner by
the foregoing provision from obtaining commitments for financing in addition to
the Financings. In the event that Buyer, Holdco and Newco are unable to complete
the Financings (including as a result of any shortfall in cash at the Company),
Buyer, Holdco and Newco shall use their reasonable best efforts to obtain and
complete alternative financing for the transactions contemplated hereby,
including changing the mix, type or structure of the Financings and the receipt
of additional funds from existing or new sources."
3. Section 4.16(a)(ii) of the Purchase Agreement is hereby amended by
replacing the phrase "$378 million" with the phrase "$371 million".
4. Section 4.16(b) of the Purchase Agreement is hereby amended by
replacing the words "Buyer Financing" with the words "financing provided for in
the Berkshire Commitment as described in Section 3.2(j) of the Disclosure
Schedule".
5. Section 4.1(a)(iv) of the Purchase Agreement is hereby amended by
deleting the words "except as set forth on Section 4.1 of the Disclosure
Schedule," and replacing them with the words "except as previously disclosed in
writing to Buyer,".
6. Section 1.1 of the Purchase Agreement is hereby amended by removing
the references to "Additional Financing" and "Holdco Financing" from the list of
other defined terms and by adding to such list, immediately before the reference
to "Buyer", a reference to "Berkshire Commitment", which shall cross-refer to
Section 3.2(j) of the Disclosure Schedule.
7. Section 3.2(j) of the Disclosure Schedule is hereby amended and
restated in its entirety to read as set forth in Annex A hereto.
8. Section 3.2(c) of the Purchase Agreement is hereby amended by
inserting the words "or purchase" after the words "and any shares of Buyer
Common Stock issued upon settlement" in the fourth sentence.
9. Section 8.1(a) of the Purchase Agreement is hereby amended by
amending the final sentence thereof to read as follows:
"CGNU and Sellers may satisfy any indemnification obligation under this
Agreement, at their option, by (x) payment in cash or (y) if the Holdco Notes
are still outstanding, waiver of part or all of the principal or interest
payable to Sellers under the Holdco Notes in an amount equal to such
indemnification obligation, or, if the Holdco Notes have been settled in whole
or in part by delivery of, or purchased in whole or in part with, equity
securities of Buyer, by delivery to the Indemnified Party of some or all of such
equity securities, valued for this purpose at the values assigned them for
purposes of such settlement or purchase (subject to appropriate adjustment for
any stock splits or other events described in the antidilution provisions
relating to the Holdco Notes occurring after such settlement or purchase)."
10. Section 8.1(b) of the Purchase Agreement is hereby amended by
inserting the words "or in connection with the purchase" after the words
"received by Sellers in satisfaction" in clause (i)(x) of the first sentence.
11. Section 4.1 of the Disclosure Schedule is hereby amended and
restated in its entirety to read as set forth in Annex B hereto.
12. Exhibit G to the Purchase Agreement is hereby amended and restated
in its entirety to read as set forth in Annex C hereto.
13. Except as expressly amended hereby, the Purchase Agreement remains
in full force and effect in accordance with its terms.
14. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.
15. This Amendment may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
CGNU PLC
By_______________________________
Name:
Title:
CGU INTERNATIONAL HOLDINGS
LUXEMBOURG S.A.
By_______________________________
Name:
Title:
CGU HOLDINGS LLC
By_______________________________
Name:
Title:
WHITE MOUNTAINS INSURANCE
GROUP, LTD.
By_______________________________
Name:
Title:
TACK HOLDINGS CORP.
By_______________________________
Name:
Title:
TACK ACQUISITION CORP.
By_______________________________
Name:
Title:
ANNEX A
Section 3.2(j) COMMITMENTS
The Financings
NEWCO FINANCING
- $1.0 billion of senior credit facilities to be provided
pursuant to the commitment letter dated September 24, 2000
among Buyer, Xxxxxx Brothers Inc. and Xxxxxx Commercial Paper
Inc. previously provided to CGNU and Sellers, as amended by
the letter agreement dated October 15, 2000 between such
parties previously provided to CGNU and Sellers.
- $300 million face amount of preferred stock of Newco to be
purchased for $225 million by Berkshire Hathaway Inc. on the
terms in the commitment letter dated October __, 2000 from
Berkshire Hathaway Inc. to Buyer previously provided to CGNU
and Sellers (the "Berkshire Commitment").
BUYER FINANCING
- An aggregate of $402.5 million of convertible preference
shares of Buyer to be purchased by the investors party to the
subscription agreement dated as of October 6, 2000 between
such investors and Buyer previously provided to CGNU and
Sellers.
- Warrants issued by Buyer to be purchased by Berkshire Hathaway
Inc. for a purchase price of $75 million on the terms in the
Berkshire Commitment.
ANNEX B
SECTION 4.1: CERTAIN TRANSACTIONS PRIOR TO THE CLOSING
With respect to Section 4.1(a)(ii), on August 29, 2000 the Board of Directors of
National Farmers Union Standard Insurance Company ("NFU Standard") declared a
dividend on its common stock, $1.00 par value per share, of 1,200,000 shares of
NFU Standard common stock, distributable on September 28, 2000 to the holder of
NFU Standard common stock.
ANNEX C
EXHIBIT G
Term Sheet for Holdco Notes
Issuer: Holdco (TACK Holding Corp.)
Holders: Sellers, pro rata to their pre-closing equity interest in
the Company
Security: Subordinated Note
Subordination: Subordinated to senior debt of Holdco
Principal Amount: $210 million
Maturity: Six months from Closing Date
Interest Rate: 400 basis points over the rate from time to time in effect
under the Xxxxxx Senior Bank Loan, payable upon maturity
Settlement: Principal and interest to be settled at maturity in cash.
However, Buyer (White Mountains Insurance Group, Ltd.) shall
have the option (unless an event of default shall have
occurred and be continuing , and subject to "Vote" below) to
purchase the Holdco Notes at maturity for a purchase price
equal to the principal amount thereof plus accrued interest,
such purchase price to be paid by delivery of shares of
common stock of Buyer. Such settlement shall only be
permitted if such common stock shall be validly issued,
fully paid and nonassessable, and free and clear of all
liens. If purchased for shares of Buyer common stock, such
common stock shall be valued for such purpose at $174 1/2
per share.
In no event, however, will Sellers receive an amount of
common stock of Buyer that would require Sellers or any
parent to file a request for approval of acquisition of
control with any U.S. insurance regulator; to the extent
such limit would be exceeded, the purchase option may not be
exercised for the applicable portion of the Holdco Notes and
the remaining amount must be settled in cash. However,
Sellers will use their commercially reasonable efforts to
file and seek approval of disclaimers of control; if all
necessary disclaimers are approved, the full amount may be
purchased for common stock.
Stockholder
Protections: If purchased for Buyer common stock as described above,
Sellers shall not be entitled to any governance rights.
However, Sellers will be entitled to 3 demand and (subject
to normal cutbacks) unlimited piggyback registration rights
under a customary registration rights agreement to be
entered into in such event between Buyer and Sellers, the
form of which will be an exhibit to an option agreement
reflecting the Buyer purchase option to be entered into
concurrently with issuance of the Holdco Notes. Buyer will
pay the registration expenses in connection with any such
demand and piggybank rights other than any underwriting
discounts and commissions. Such registration rights may be
exercised at any time after settlement.
Vote: Purchase of the Holdco Notes for Buyer common stock would
require approval of the shareholders of Buyer under the NYSE
rules. Shareholder approval of issuance of Buyer common
stock upon purchase of the Holdco Notes will not be a
condition precedent to Closing under the Agreement.
Anti-Dilution: Customary anti-dilution protection.
Events of Default: Failure to pay when due; bankruptcy events;
cross-acceleration to other debt.
Other: Holdco Notes are freely transferable (subject to applicable
law). If sold to an unaffiliated Equity Investor (as defined
below), the common stock purchase option set forth under
"Settlement" shall be revised to be for Buyer common stock
at a price equal to the conversion price then prevailing for
conversion by other Equity Investors of the Buyer
Convertible Preferred Stock referred to below into Buyer
common stock, with governance and registration rights as
applicable to such other Equity Investors upon such
conversion. "Equity Investors" shall mean the purchasers of
Buyer Convertible Preferred Stock under the Buyer Financing.
