EXHIBIT 99.10
STOCK OFFERING AGREEMENT
THIS STOCK OFFERING AGREEMENT, dated as of March 7, 2010 (this
"Agreement"), is by and among American Home Assurance Company, Inc., a New York
insurance corporation ("AHA"), Transatlantic Holdings, Inc., a Delaware
corporation (the "Company") and Xxxxxxx, Xxxxx & Co., Xxxxx Fargo Securities,
LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as representatives
(the "Representatives"), of the several underwriters named in Schedule I(a)
(collectively, the "Underwriters") of the Underwriting Agreement (defined
below).
WHEREAS, AHA is the record and beneficial owner of 9,192,662 shares of
common stock, par value $1.00 per share, of the Company (the "Common Stock");
WHEREAS, AHA is an indirect, wholly-owned subsidiary of American
International Group, Inc., a Delaware Corporation ("AIG");
WHEREAS, the Underwriters intend to purchase, and AHA intends to sell to
the Underwriters, not less than 8.1 million shares of Common Stock (the
"Offering Shares") pursuant to a firm commitment underwriting agreement
substantially in the form set forth in Annex A hereto (the "Underwriting
Agreement");
WHEREAS, the Company has filed with the Securities Exchange Commission (the
"Commission") an automatic shelf registration statement as defined under Rule
405 under the Securities Act of 1933, as amended (the "Securities Act"), on Form
S-3 (No. 333-155811), including the related prospectus (such prospectus, and any
prospectus used in connection with the offering of the Offering Shares, the
"Prospectus"), which registration statement (as amended, at any given time, the
"Registration Statement") became effective upon filing under Rule 462(e) of the
Securities Act, for the registration under the Securities Act of the Offering
Shares, and the Company intends to file with the Commission pursuant to Rule
430B and Rule 424(b) under the Securities Act a supplement or supplements to the
Prospectus and the plan of distribution thereof;
WHEREAS, the Underwriters intend to offer the Offering Shares for sale in a
public offering (the "Offering") pursuant to the terms and conditions set forth
in the Prospectus;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and covenants contained in this Agreement and other valuable
consideration, the receipt of which hereby is acknowledged, the Company, AHA and
the Underwriters hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.01. Purchase and Sale.
(a) Upon the terms and subject to the conditions set forth herein and in
reliance on the representations, warranties and covenants contained herein, and
subject to the execution and delivery of the Underwriting Agreement by the
respective parties thereto, the Underwriters agree to sell and deliver to the
Company (in proportion to their respective underwriting committements, as set
forth in the Underwriting Agreement), and the Company agrees to purchase and
accept from the Underwriters in the Offering, 2,000,000 shares of Common Stock
(the "Repurchase Shares"), for a purchase price per share equal to the Public
Offering Price (defined below).
(b) "Public Offering Price" shall mean the initial public offering price
per share of the Offering Shares in the Offering.
(c) Simultaneously with the First Time of Delivery (as defined in the
Underwriting Agreement), AHA will make a payment to the Company, or the Company
will make a payment to AHA (either such payment, the "True-Up Payment"), as
follows: if the Repurchase Price is less than the Public
Offering Price, AHA will pay the True-Up Payment to the Company, and if the
Repurchase Price is greater than the Public Offering Price, the Company will pay
the True-Up Payment to AHA (the party that is obligated hereunder to make the
True-Up Payment, the "Paying Party" and the one of AHA and the Company that is
not the Paying Party, the "Receiving Party"), in either case in an amount equal
to (i) the Repurchase Shares multiplied by (ii) the difference between the
Public Offering Price and the Repurchase Price. The True-Up Payment shall be
made by wire transfer in immediately available funds to an account designated by
the Receiving Party
(d) "Repurchase Price" shall mean (i) if the Closing Price is greater than
the Underwritten Price, an amount equal to the sum of (1) the Underwritten Price
and (2) twenty-five percent (25%) of the amount by which the Closing Price
exceeds the Underwritten Price and (ii) if the Closing Price is equal to or less
than the Underwritten Price, an amount equal to the Closing Price. "Closing
Price" shall mean the last reported sales price per share for the Common Stock
reported by the New York Stock Exchange on the trading day on which the parties
enter into the Underwriting Agreement (or, if the Underwriting Agreement is
entered into prior to the commencement of trading on a trading day, "Closing
Price" shall mean the last reported sales price per share for the Common Stock
reported by the New York Stock Exchange on prior trading day). "Underwritten
Price" shall mean the purchase price per share (net of any underwriting
discounts and commissions) at which AHA agrees to sell the Offering Shares to
the Underwriters pursuant to the Underwriting Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF AHA
AHA represents and warrants to the Company and to each of the Underwriters
as follows:
Section 2.01. Organization and Good Standing. AHA is an insurance
corporation duly organized, validly existing and in good standing under the laws
of the State of New York. AHA has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
Section 2.02. Authorization. The execution and delivery by AHA of this
Agreement and the performance of its obligations hereunder have been duly
authorized by and all necessary corporate or other action on the part of AHA and
no further consent or authorization is required of AHA's board of directors or
AIG to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by AHA and
constitutes the valid, legal and binding obligation of AHA, enforceable against
AHA in accordance with its terms, assuming the due execution and delivery by the
Company and by each of the Underwriters, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
rehabilitation, liquidation and other similar laws relating to or affecting
creditors' rights generally and (ii) general equitable principles (whether
considered in a proceeding in equity or at law).
Section 2.03. No Conflicts; Consents.
(a) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or
result in a breach or violation of: (i) the organizational documents of
AHA, (ii) any provision of law applicable to AHA or (iii) the terms of any
material agreement to which AHA is a party or by which AHA is bound; except
in the case of (i)-(iii) above, as will not, individually or in the
aggregate, have a material adverse effect on AHA's ability to consummate
the transactions contemplated herein.
(b) No consent, approval or authorization of or filing with any
governmental authority or other third party is required to be obtained or
made by AHA in connection with the execution and delivery of this Agreement
and the performance by AHA of its obligations hereunder; except as will not
have a material adverse effect on AHA's ability to consummate the
transactions contemplated herein.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to AHA and to each of the Underwriters
as follows:
Section 3.01. Organization and Good Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Company has all the requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
Section 3.02. Authorization. The execution and delivery by the Company of
this Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate or other action on the part of the Company
and no further consent or authorization is required of the Company's board of
directors or its stockholders to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Company and constitutes the valid, legal and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
assuming the due execution and delivery by AHA and by each of the Underwriters,
subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and (ii) general equitable principles (whether
considered in a proceeding in equity or at law).
Section 3.03. No Conflicts; Consents.
(a) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or
result in a breach or violation of: (i) the organizational documents of the
Company, (ii) any provision of law applicable to the Company or (iii) the
terms of any material agreement to which the Company is a party or by which
the Company is bound; except, in the case of (i)-(iii) above, as will not,
individually or in the aggregate, have a material adverse effect on the
Company's ability to consummate the transactions contemplated herein.
(b) No consent, approval or authorization of or filing with any
governmental authority or other third party is required to be obtained or
made by the Company in connection with the execution and delivery of this
Agreement, and the performance by the Company of its obligations hereunder;
except as will not have a material adverse effect on the Company's ability
to consummate the transactions contemplated herein.
Section 3.04. Solvency. Immediately before and after and giving effect to
the sale and purchase of the Repurchase Shares, (i) the assets of the Company,
at a fair valuation, will exceed its debts, including contingent and
unliquidated debts; (ii) the present fair saleable value of the assets of the
Company will exceed the amount required to pay its liability on its debts,
including contingent and unliquidated debts, as those debts become absolute and
matured, (iii) the Company will have adequate capital with which to conduct its
present and anticipated businesses; and (iv) the Company does not intend to
incur or believe or reasonably believe that it will incur debt beyond its
ability to pay as those debts become due. The Company has sufficient surplus (as
defined in the Delaware General Corporation Law) or net profits in 2008 and/or
2009 to pay for the Repurchase Shares.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligations of the Company. The obligation of
the Company to effect the transactions contemplated hereby shall be subject to
the fulfillment, on or prior to the First Time of Delivery, of each of the
following conditions (any or all of which may be waived by the Company in whole
or part to the extent permitted by applicable law):
(a) the representations and warranties of AHA set forth in Article II
hereof shall be true and correct in all material respects (other than those
representations and warranties that are qualified as to
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materiality or material adverse effect which shall be true and correct in
all respects) on and as of the First Time of Delivery with the same force
and effect as if such representations and warranties had been made on and
as of the First Time of Delivery;
(b) AHA shall have performed in all material respects all obligations
required to be performed by it at or prior to the First Time of Delivery;
(c) no temporary restraining order, preliminary or permanent
injunction or other judgment, decision or order issued by any governmental
authority of competent jurisdiction shall be in effect preventing the
consummation of the transactions contemplated hereby; and
(d) all filings and consents required to have been made with or
obtained from governmental entities in connection with the transactions
contemplated hereby shall have been made or obtained and be in full force
and effect.
Section 4.02. Conditions to Obligations of AHA. The obligation of AHA to
effect the transactions contemplated hereby shall be subject to the fulfillment,
on or prior to the First Time of Delivery, of each of the following conditions
(any or all of which may be waived by AHA in whole or part to the extent
permitted by applicable law):
(a) the representations and warranties of the Company set forth in
Article III hereof shall be true and correct in all material respects
(other than those representations and warranties that are qualified as to
materiality or material adverse effect which shall be true and correct in
all respects) on and as of the First Time of Delivery with the same force
and effect as if such representations and warranties had been made on and
as of the First Time of Delivery;
(b) the Company shall have performed in all material respects all
obligations required to be performed by it at or prior to First Time of
Delivery;
(c) no temporary restraining order, preliminary or permanent
injunction or other judgment, decision or order issued by any governmental
authority of competent jurisdiction shall be in effect preventing the
consummation of the transactions contemplated hereby; and
(d) all filings and consents required to have been made with or
obtained from governmental entities in connection with the transactions
contemplated hereby shall have been made or obtained and be in full force
and effect.
ARTICLE V
EXPENSES
Section 5.01. Expenses. AHA and the Company shall pay its own expenses and
costs, including, without limitation, their own counsel fees and transfer taxes,
in connection with this Agreement and the transactions contemplated hereby. The
expenses and costs of the Underwriters shall be paid in accordance with Section
6 of the Underwriting Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Termination.
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(a) This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the First Time of Delivery:
(i) By the mutual written consent of the parties;
(ii) By any party if there shall be a material breach by any
other party of its representations, warranties, covenants or agreements
contained in this Agreement; or
(iii) By any party, if there shall have been issued, by a court
of competent jurisdiction, a permanent or final order, decree or injunction
prohibiting or restraining the consummation of the transactions contemplated
hereby.
(b) This agreement will automatically terminate if the parties do not
enter into the Underwriting Agreement at or prior to 11:59 p.m. on March
11, 2010.
(c) This Agreement will automatically terminate if the Underwriting
Agreement is terminated pursuant to Section 9 thereof.
Section 6.02. Integration; Amendments; Waiver. This Agreement (and, if and
when executed by the parties, the Underwriting Agreement) constitutes the entire
agreement, and supersedes all prior agreements and understandings, whether oral
or written, between the parties hereto with respect to the subject matter
hereof. Any term of this Agreement may be amended or modified only by the
written agreement of the parties. No term or condition of this Agreement may be
waived, except by a writing executed by the party against whom enforcement of
any such waiver is being sought. No waiver by any party hereto of any term or
condition of this Agreement, in any one or more instances, shall operate as a
waiver of such term or condition at any other time.
Section 6.03. Successors and Assigns. All of the terms and provisions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
Section 6.04. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (i) when delivered
personally by hand (with written confirmation of receipt), (ii) when sent by
facsimile (with written confirmation of transmission) or (iii) one business day
following the day sent by overnight courier (with written confirmation of
receipt), in each case at the following addresses and facsimile numbers (or to
such other address or facsimile number as a party may have specified by notice
given to the other party pursuant to this provision):
If to the Company, to:
Transatlantic Holdings, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: General Counsel
Facsimile: 000-000-0000
Telephone: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: 000-000-0000
Telephone: 000-000-0000
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If to AHA, to:
American Home Assurance Company
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: General Counsel
Facsimile: 000-000-0000
with copies to:
American International Group, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: 212-425-2175
and
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxx X. Xxxxxxxx Xx., Esq.
Facsimile: 000-000-0000
Telephone: 000-000-0000
If to the Underwriters, to:
Xxxxxxx, Xxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
Facsimile: 000-000-0000
and
Xxxxx Fargo Securities, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Syndicate Department
Facsimile: 000-000-0000
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
with a copy to:
Xxxxx & XxXxxxx LLP,
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Facsimile: 000-000-0000
Telephone: 000-000-0000
Section 6.05. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. This Agreement and all transactions contemplated by this Agreement and
all claims and defenses arising out of or relating to any such transaction or
agreement or the formation, breach, termination or validity of any such
agreement, shall in all respects
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be governed by, and construed in accordance with, the laws of the State of
Delaware without giving effect to any conflicts of law principles of such state
that would apply to the laws of another jurisdiction.
(a) Each of the parties irrevocably and unconditionally:
(i) submits for itself and its property to the exclusive jurisdiction
of the Delaware Court of Chancery, or if the Delaware Court of Chancery
lacks jurisdiction of the subject matter, the United States District Court
for the District of Delaware, or if both the Delaware Court of Chancery and
the United States District Court for the District of Delaware lack
jurisdiction of the subject matter, any court of competent jurisdiction
sitting in the State of Delaware, in any action directly or indirectly
arising out of or relating to this Agreement, the transactions contemplated
by this Agreement, or the formation, breach, termination or validity of
this Agreement; and agrees that all claims in respect of any such action
shall be heard and determined solely in such court;
(ii) consents that any such action may and shall be brought in such
court and waives any objection that it may now or hereafter have to the
venue or jurisdiction of any such action in such court or that such court
is an inconvenient forum for the action and agrees not to assert, plead or
claim the same;
(iii) agrees that the final judgment of such court shall be
enforceable in any court having jurisdiction over the relevant party or any
of its assets;
(iv) irrevocably waives any right to remove any such action from the
Delaware Court of Chancery to any federal court;
(v) agrees that service of process in any such action may be effected
by mailing a copy of such process by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such party at its
address as provided in Section 6.04; and
(vi) agrees that nothing in this Agreement shall affect the right to
effect service of process in any other manner permitted by the applicable
rules of procedure.
(b) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE FORMATION,
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT. EACH OF THE PARTIES CERTIFIES
AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH OF
THE PARTIES UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(III) EACH OF THE PARTIES MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OF THE
PARTIES HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS OF THIS SECTION 6.05. EACH OF THE PARTIES
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
Section 6.06. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstances shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
including the remainder of the provision held invalid, or the application of
such provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
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Section 6.07. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
Section 6.08. Headings. All section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
inference shall be derived therefrom.
Section 6.09. Remedies. The parties shall be entitled to enforce their
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages would not be an adequate remedy for any breach of the provisions of this
Agreement and that the parties, in their sole discretion, may apply to any court
of law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
Section 6.10. Public Announcements. The parties agree that any press
release regarding this Agreement or the transactions contemplated hereby shall
be mutually acceptable.
Section 6.11. Confidentiality.
(a) From and after date hereof, the Company and AHA shall not, and
shall cause their respective affiliates and representatives having access to
information of the other party that is either oral or in writing and that is
confidential or proprietary ("Confidential Information") not to, disclose to any
other person, including any natural person, general or limited partnership,
corporation, limited liability company, limited liability partnership, firm,
association or organization or other legal entity (each a "Person") or use,
except for purposes of this Agreement or any other agreement between the
parties, any Confidential Information of the other party; provided, however,
that the Company and AHA may disclose Confidential Information of the other
parties to the extent permitted by applicable law: (i) to its representatives on
a need-to-know basis in connection with the performance of such party's
obligations or the enforcement of such party's rights under this Agreement or
any other agreement between the parties, provided that such representatives are
informed of the confidential nature of such information and made aware of the
provisions of this Section 6.11; (ii) to the extent reasonably necessary in
connection with any claim, action, suit, arbitration or proceeding by or before
any governmental authority or arbitral body or in any dispute with respect to
this Agreement or any other agreement between the parties; (iii) to the extent
such information is required to be disclosed by applicable law, governmental
order or governmental authority (including in any report, statement, testimony
or other submission to a governmental authority) or in response to any summons,
subpoena or other legal process or formal or informal investigative demand
issued to the receiving party in the course of any litigation, arbitration,
mediation, investigation or administrative proceeding; or (iv) to the extent any
such information is or becomes generally available to the public other than, as
a result of disclosure by such other party or its affiliates or representatives;
and provided further, however, to the extent that AHA retains an investment
interest in the Company, (A) AHA may disclose Confidential Information related
to the Company to AHA's representatives who need to know such information for
the purpose of evaluating, monitoring or taking any other action with respect to
AHA's investment in the Company and (B) AHA may use the Company's Confidential
Information (and may share such information with its affiliates) in connection
with evaluating, monitoring or taking any other action with respect to AHA's
investment in the Company (it being understood that AHA shall not contravene
applicable laws with respect to xxxxxxx xxxxxxx), provided, that in the cases of
clause (A) above, such representatives are informed of the confidential nature
of such information and made aware of the provisions of this Section 6.11.
(b) In the event that a party becomes required (based on advice of
counsel) by deposition, interrogatory, request for documents subpoena, civil
investigative demand or similar judicial or administrative process or in
connection with a report, statement, testimony or other submission to be made to
any governmental authority to disclose any Confidential Information of the other
party, such disclosing party shall provide the other parties, to the extent
reasonably practicable, with prior written notice of such requirement, and, to
the extent reasonably practicable, cooperate with the other parties (at such
other parties' expense) to obtain a protective order or similar remedy to cause
such Confidential Information not to be disclosed; provided, however, that AHA
is not required to provide such prior written notice with respect to any
disclosure to the Federal Reserve Bank of New York ("FRBNY"). In the event that
such protective order or other similar remedy is not obtained, the disclosing
party shall furnish only that portion of the Confidential Information that it
reasonably believes is required to be
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disclosed and shall exercise its commercially reasonable efforts (at such other
party's expense) to obtain assurance that confidential treatment will be
accorded such Confidential Information.
(c) Notwithstanding anything to the contrary contained herein, the
parties hereto acknowledge and agree that (x) AHA and its affiliates may,
without notifying the other parties hereto or any other Person, share any
information relating to or obtained from the other parties with (i) the FRBNY or
the U.S. Department of the Treasury and their respective representatives, (ii)
the AIG Credit Facility Trust established by the FRBNY for the sole benefit of
the United States Treasury pursuant to the AIG Credit Facility Trust Agreement
made on January 16, 2009 by and among the FRBNY and Xxxx X. Xxxxxxxxx, Xxxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxxx., (iii) any insurance regulatory authority or
(iv) the U.S. Internal Revenue Service ("IRS") or any other tax authority, in
each case as AHA deems necessary or advisable in its good faith judgment and (y)
the Company may, without notifying the other parties hereto or any other Person,
share any information relating to or obtained from the other parties hereto or
their affiliates with (i) any insurance regulatory authority or (ii) the IRS or
any other tax authority, in each case as such party deems necessary or advisable
in its good faith judgment.
(d) To the fullest extent permitted by applicable law, the provisions
of Section 6.11 shall not restrict or limit the use of or disclosure by any
party or its affiliates, of any customer, policy or beneficiary information
(including such information relating to a party or any of its respective
affiliates, as the case may be) if such information was in the possession or
control of such disclosing party, prior to the First Time of Delivery. For the
avoidance of doubt, the foregoing shall apply regardless of whether such
information (i) was also possessed or controlled by the non-disclosing parties
or any of their respective affiliates, as the case may be, on or prior to First
Time of Delivery and/or (ii) was originated by any other Person.
(e) Notwithstanding the foregoing, the provisions of this Section 6.11
shall not prohibit any party from disclosing the existence of this Agreement and
the material terms hereof in any filings made by either party with the
Securities and Exchange Commission.
(f) Each party agrees that irreparable damage could occur if this
Section 6.11 was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that, without the necessity of
posting bond or other undertaking, each party or its affiliates (and their
successors or assigns) shall be entitled to proceed against the other parties or
their affiliates (and their successors or assigns) in law and/or in equity for
such damages or other relief as a court may deem appropriate and shall be
entitled to seek a temporary restraining order and/or preliminary and final
injunctive or other equitable relief, including specific performance, to prevent
breaches of this Section 6.11 and, in addition to any other remedy to which they
are entitled at law or in equity, to enforce specifically the terms and
provisions of this Section 6.11. In the event that any action is brought in
equity to enforce the provisions of this Section 6.11, no party will allege, and
each party hereby waives the defense or counterclaim, that there is an adequate
remedy at law.
Section 6.12. Survival. All representations, warranties and covenants shall
survive the First Time of Delivery.
Section 6.13. Effect of Termination. A termination of this Agreement as
provided in Section 6.01 shall not release any party hereto from liability for a
breach of this Agreement.
Section 6.14. No Advisory of Fiduciary Relationship. AHA and the Company
acknowledge that (i) the purchase and sale of the Repurchase Shares pursuant to
this Agreement is an arm's-length commercial transaction between the Company and
AHA, on the one hand, and the Underwriters, on the other hand, (ii) in
connection with any offering contemplated by this Agreement and the process
leading to any such transaction each Representative is and has been acting
solely as a principal and is not the agent or fiduciary of the Company or AHA,
or their respective stockholders, creditors, employees or any other party, (iii)
no Representative has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company or AHA with respect to any such offering
contemplated hereby or the process leading thereto (irrespective of whether such
Representative has advised or is currently advising the Company or AHA on other
matters) and no Representative has any obligation to the Company or AHA with
respect to the offering contemplated hereby except the obligations expressly set
forth in this Agreement and the Underwriting Agreement, (iv) the Underwriters
and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company or AHA, and (v) the
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Underwriters have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and each of the Company and AHA
have consulted their own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above by their respective officers
thereunto duly authorized.
TRANSATLANTIC HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President and General
Counsel
AMERICAN HOME ASSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Representative
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Sachs & Co.
------------------------------------
Xxxxxxx, Xxxxx & Co.
XXXXX FARGO SECURITIES, LLC
By: /s/ Jasan Hatener
------------------------------------
Name: Jasan Hatener
Title: Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
