EX-10
2
ex10.htm
EXHIBIT 10
Exhibit
10
FIRST
AMENDMENT TO TRANSACTION AGREEMENT
This
FIRST AMENDMENT (this “Amendment”),
entered into as of April 20, 2006, is made by the parties hereto to that
certain
Transaction Agreement, dated as of November 18, 2005 (the “
Transaction
Agreement”),
by and between General Electric Company, a New York corporation (“GE”)
and Swiss Reinsurance Company (“Acquiror”),
a corporation organized and existing under the laws of Switzerland.
W
I T N E S S E T H:
WHEREAS,
the parties hereto, constituting each of the parties to the
Transaction
Agreement, desire to amend the
Transaction Agreement in the manner set forth
herein, as permitted by Section 11.10 of the
Transaction Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties, intending legally to be bound,
agree as follows:
1. Amendment
to Section 2.1(b)(i) of the
Transaction Agreement.
Section
2.1(b)(i)
of the
Transaction Agreement is hereby amended by deleting from clause (x)
thereof the words “an election by Acquiror or GE to increase or decrease the
Stock Percentage pursuant to Section 3.2(b)” and inserting in their place the
words “an Election by Acquiror to increase the Stock Amount pursuant to Section
3.2(c).”
2. Amendment
to Section 3.2 of the
Transaction Agreement.
Section
3.2
of the
Transaction Agreement is hereby amended by deleting such Section
3.2
in its entirety and inserting in lieu thereof the following new Section
3.2:
“3.2
Payment of Purchase Price
(a) The
Purchase Price for purposes of the Initial Closing and the Final Closing
shall
be the Purchase Price as calculated in the Estimated Adjustment
Statement.
(b) Subject
to Section
3.2(c),
a portion of the Purchase Price (the “Stock
Amount”)
shall be paid by delivery of New Acquiror Shares in a total aggregate amount
of
$2.4 billion. $500 million of the Purchase Price not constituting the Stock
Amount shall be paid by delivery of the Acquiror Convertible Instruments.
The
balance of the Purchase Price shall be paid in cash, subject to Section
3.2(d).
(c) Notwithstanding
Section
3.2(b),
if there is a severe catastrophic event that causes the Acquiror to withdraw
or
materially reduce its contemplated offering of Shareholder New Acquiror Shares,
Acquiror may in its sole discretion elect to increase the Stock Amount
transferable to the relevant Equity Sellers (the “Election”)
so that the total Stock Amount does not exceed 45% of the Purchase Price;
provided
that
(1)
(i) in
the event there is an offering of Shareholder New Acquiror Shares as part
of the
Acquiror Financing, Acquiror may make the Election upon written notice to
GE no
later than the same day that the offer price of such Shareholder New Acquiror
Shares is determined; or
(ii) in
the event the contemplated offering of Shareholder New Acquiror Shares is
withdrawn for the reasons described in the first sentence of this Section
3.2(c), Acquiror may make the Election upon written notice to GE no later
than
the date the contemplated offering is withdrawn.
(d) An
amount of the cash portion of the Purchase Price equal to the lesser of (A)
$750
million or (B) the difference between (x) the aggregate amount of the proceeds
of the redemption of the Class C Stock minus
(y) the principal aggregate amount of Notes actually delivered by Acquiror
pursuant to Section
7.18(b),
shall be payable, at Acquiror’s option, in Notes.
(e) Notwithstanding
Sections
3.2(b) and (c),
in the event the Purchase Price as adjusted by the most recent Estimated
Adjustment Statement exceeds the Base Purchase Price and as a result thereof
the
number of New Acquiror Shares to be issued to the Equity Sellers increases,
GE
and Acquiror shall agree on an Adjusted Allocation Schedule setting out the
relevant Equity Seller, the Purchased Equity to be contributed in kind and
the
revised value of such Purchased Equity.
(f) Notwithstanding
Sections
3.2(b) and (c),
the number of New Acquiror Shares to be issued to the Equity Sellers shall
not
exceed the maximum number of shares which can be issued from the authorized
capital created for this purpose. Any written notice provided pursuant to
Sections 3.2(b) and (c) shall include the number of New Acquiror Shares to
be
issued to the Equity Sellers and identify the Purchased Equity to be used
as a
contribution in kind and the value allocated to it pursuant to the Adjusted
Allocation Schedule.
(g) At
the Initial Closing, the Equity Buyers and the Asset Buyers, as the case
may be
shall deliver to each of the Equity Sellers and the Asset Sellers, as the
case
may be, a portion of the cash component of the Purchase Price consistent
with
the amounts set forth in the Adjusted Allocation Schedule.
(h) At
the Final Closing, Acquiror shall:
(i)
deliver or cause to be delivered by the relevant Equity Buyer to the relevant
Equity Seller a portion of the cash component of the Purchase Price and the
Acquiror Convertible Instruments, having an aggregate value equal to the
amount
set forth in the Adjusted Allocation Schedule; and
(ii) deliver
or cause to be delivered by the relevant Equity Buyer to the relevant Equity
Seller a number of New Acquiror Shares having an aggregate value equal to,
and
allocated in a manner consistent with, the amounts set forth in the Adjusted
Allocation Schedule (as modified pursuant to Section
3.2(e)).
The number of New Acquiror Shares to be delivered at the Final Closing, subject
to adjustment as a result of a reduction of the number of New Acquiror Shares
to
be issued pursuant to Section
3.3,
(2)
shall
equal (x) the Stock Amount, divided by (y) the Stock Price, and shall be
rounded
up to the next whole share.”
3. Amendment
to Section 3.3(d) of the Transaction Agreement.
Section
3.3(d)
of the Transaction Agreement is hereby amended by deleting such Section
3.3(d) in
its entirety and inserting in lieu thereof the following new Section
3.3(d):“In
the event that Acquiror increases the Stock Amount pursuant to Section 3.2(c)
the above provisions shall apply mutatis
mutandis.”
4. Amendment
to Section 4.4(a)(i)(A)
of the Transaction Agreement. Section
4.4(a)(i)(A)
of the Transaction Agreement is hereby amended by deleting the reference
to
“Section
3.2(c)”
therein and inserting in its place a reference to “Section
3.2(g)”.
5. Amendment
to Section 4.4(b)(i)
of the Transaction Agreement. Section
4.4(b)(i)
of the Transaction Agreement is hereby amended by deleting the reference
to
“Section
3.2(d)”
therein and inserting in its place a reference to “Section
3.2(h)”.
6. Definitions.
All initially capitalized terms used herein and not otherwise defined in
this
Amendment shall have the meanings set forth in the Transaction
Agreement.
7. Headings.
The headings of the sections of this Amendment are inserted as a matter of
convenience and for reference purposes only and in no respect define, limit
or
describe the scope of this Amendment or the intent of any section.
8. No
Other Amendments.
Except as expressly amended or modified hereby, the terms and conditions
of the
Transaction Agreement shall continue in full force and effect. Each reference
to
“hereof’, “hereunder”, “herein” and “hereby” and each similar reference
contained in the Transaction Agreement shall refer to the Transaction Agreement
as amended hereby.
9. Incorporation
of General Provisions.
This Amendment shall be subject to the general provisions contained in Article
XI of the Transaction Agreement, which are hereby incorporated by reference
herein, mutatis
mutandis.
10. Authorization.
Each party hereto represents and warrants to the other parties hereto that
such
party has the proper authorization from its board of directors or comparable
governing body to enter into this amendment to the Transaction
Agreement.
11. Counterparts.
This Amendment may be executed in one or more counterparts and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute
one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Amendment by facsimile shall be as effective as delivery of a manually
executed counterpart of the Amendment.
(3)
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective authorized officers, on the date first written
above.
| |
SWISS
REINSURANCE COMPANY
|
| | | |
| | | |
| |
By:
|
/s/
Xxxxxxx
Xxxxxxx
|
| | |
Name:
Xxxxxxx
Xxxxxxx
|
| | |
Title:
Chief Executive Officer
|
| | | |
| |
By:
|
/s/
Xxx
Xxxxxxxxx
|
| | |
Name:
Xxx Xxxxxxxxx
|
| | |
Title:
Chief Financial Officer
|
| | | |
| | | |
| |
GENERAL
ELECTRIC COMPANY
|
| | | |
| | | |
| |
By:
|
/s/
Xxxxxx X. X’Xxxxx, Xx.
|
| | |
Name:
Xxxxxx X. X’Xxxxx, Xx.
|
| | |
Title:
VP - GE Insurance Solutions Corp.
|
(4)
SECOND
AMENDMENT TO TRANSACTION AGREEMENT
This
SECOND AMENDMENT (this “Amendment”),
entered into as of April 20, 2006, is made by the parties hereto to that
certain
Transaction Agreement, dated as of November 18, 2005 (the “Transaction
Agreement”),
by and between General Electric Company, a New York corporation (“GE”)
and Swiss Reinsurance Company (“Acquiror”),
a corporation organized and existing under the laws of Switzerland.
W
I T N E S S E T H:
WHEREAS,
the parties hereto, constituting each of the parties to the Transaction
Agreement, desire to amend the Transaction Agreement in the manner set forth
herein, as permitted by Section 11.10 of the Transaction Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties, intending legally to be bound,
agree as follows:
12. Amendment
to Section 7.18(b) of the Transaction Agreement.
Section
7.18(b)
of the Transaction Agreement is hereby amended to add the following language
after the last sentence thereof:
“In
the event Acquiror delivers Notes to GE (including pursuant to Section 3.2(d)),
in order to facilitate the resale by GE of the Notes, it agrees that such
Notes
will be issued under Acquiror’s EMTN programme (the “Programme”)
and will be eligible for resale under Rule 144A of the Securities Act of
1933,
and that, in the event GE elects to resell any of the Notes in the United
States
(a “144A
Sale”),
(i) until the later of the end of the Initial Sale Period and the occurrence
of
an Update Event (as defined below), (A) an initial purchaser retained by
GE to
effect the resale (the “Investment
Bank”)
will be entitled to conduct due diligence consistent with the due diligence
conducted by the Dealers under the Programme at the time of the last annual
renewal of the Programme, including having an opportunity to ask questions
of
management, to obtain a 10b-5 disclosure letter from Acquiror’s U.S. securities
counsel and to obtain a SAS 76 comfort letter from Acquiror’s independent public
accounting firm (collectively, “10b-5
Comfort”),
and (B) GE shall be entitled to receive and distribute in connection with
the
144A Sale copies of the then existing Offering Memorandum for the Programme
(the
“Offering
Memorandum”),
together with a pricing supplement containing the information (if any) that
Acquiror would then otherwise include in pricing supplement for a direct
issuance by it of Notes under the Programme (a “Supplement”)
and (ii) thereafter, GE shall be entitled to receive and distribute in
connection with the 144A Sale copies of the Offering Memorandum and Supplement,
but neither it nor the Investment Bank shall be entitled to 10b-5 Comfort.
Notwithstanding the foregoing, in the event the Acquiror is subject to
restrictions under applicable law, rules or regulations from selling securities
for its own account or if it voluntarily ceases to sell securities by reason
of
the occurrence of a material event or development the occurrence or impact
of
which has not been publicly disclosed (collectively a
(1)
“Blackout”),
its obligations under the foregoing sentence shall be suspended during the
period of the Blackout; provided that any such determination as to the existence
of a Blackout will be undertaken in good faith and such period will, in the
case
of a voluntary Blackout be as short as possible under the circumstances.
For
purposes of this Section
7.18,
an Update Event shall mean the occurrence of an event or development (excluding
the closing of the Acquisition, but including, without limitation, the release
of interim financial statements and other material events or developments)
that
would necessitate an amendment, supplement or other modification to the Offering
Memorandum to conform to disclosure standards for Rule 144A offerings generally.
For purposes of this Section
7.18,
the Initial Sale Period shall mean the period of 30 days from the Final Closing
Date, provided
that if there is a Blackout such period shall be extended by fifteen
days.”
13. Amendment
to Exhibit M to Transaction Agreement.
Exhibit
M
to the Transaction Agreement is hereby amended by deleting therefrom the
following language: “Initial Lock-up: Galaxy shall hold Notes for at least 60
days from Settlement Date.” The parties agree that this deletion shall apply to
each of the form of Notes due 2007, 2008 and 2009.
14. Definitions.
All initially capitalized terms used herein and not otherwise defined in
this
Amendment shall have the meanings set forth in the Transaction
Agreement.
15. Headings.
The headings of the sections of this Amendment are inserted as a matter of
convenience and for reference purposes only and in no respect define, limit
or
describe the scope of this Amendment or the intent of any section.
16. No
Other Amendments.
Except as expressly amended or modified hereby, the terms and conditions
of the
Transaction Agreement shall continue in full force and effect. Each reference
to
“hereof’, “hereunder”, “herein” and “hereby” and each similar reference
contained in the Transaction Agreement shall refer to the Transaction Agreement
as amended hereby.
17. Incorporation
of General Provisions.
This Amendment shall be subject to the general provisions contained in Article
XI of the Transaction Agreement, which are hereby incorporated by reference
herein, mutatis
mutandis.
18. Authorization.
Each party hereto represents and warrants to the other parties hereto that
such
party has the proper authorization from its board of directors or comparable
governing body to enter into this amendment to the Transaction
Agreement.
19. Counterparts.
This Amendment may be executed in one or more counterparts and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute
one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Amendment by facsimile shall be as effective as delivery of a manually
executed counterpart of the Amendment.
(2)
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective authorized officers, on the date first written
above.
| |
SWISS
REINSURANCE COMPANY
|
| | | |
| | | |
| |
By:
|
/s/
Xxxxxxx
Xxxxxxx
|
| | |
Name:
Xxxxxxx
Xxxxxxx
|
| | |
Title:
Chief Executive Officer
|
| | | |
| |
By:
|
/s/
Xxx
Xxxxxxxxx
|
| | |
Name:
Xxx Xxxxxxxxx
|
| | |
Title:
Chief Financial Officer
|
| | | |
| | | |
| |
GENERAL
ELECTRIC COMPANY
|
| | | |
| | | |
| |
By:
|
/s/
Xxxxxx X. X’Xxxxx, Xx.
|
| | |
Name:
Xxxxxx X. X’Xxxxx, Xx.
|
| | |
Title:
VP - GE Insurance Solutions Corp.
|
(3)
