PURCHASE AGREEMENT among CANADA PENSION PLAN INVESTMENT BOARD, CPPIB EPSILON ONTARIO LIMITED PARTNERSHIP and ENSTAR GROUP LIMITED November 7, 2023 PURCHASE AGREEMENT
Exhibit 99.1
among
CANADA PENSION PLAN INVESTMENT BOARD,
CPPIB EPSILON ONTARIO LIMITED PARTNERSHIP
and
ENSTAR GROUP LIMITED
November 7, 2023
This Purchase Agreement (this “Agreement”) is dated as of November 7, 2023 by and among Canada Pension Plan Investment Board, a Canadian federal Crown corporation (“CPPIB”), CPPIB Epsilon Ontario Limited Partnership, an Ontario limited partnership (“CPPIB LP,” and together with CPPIB, the “CPPIB Parties”), and Enstar Group Limited, a Bermuda exempted company (“Enstar”).
RECITALS
WHEREAS, CPPIB is the record and beneficial owner of 1,501,211 voting ordinary shares, par value $1.00 per share, of Enstar (“CPPIB Shares”);
WHEREAS, CPPIB LP is the record and beneficial owner of 741,735 voting ordinary shares, par value $1.00 per share, of Enstar (“CPPIB LP Shares,” and, together with the CPPIB Subject Shares (as defined below), the “Shares”);
WHEREAS, CPPIB desires to sell to Enstar, and Enstar desires to acquire from CPPIB, 50,000 of the CPPIB Shares (the “CPPIB Subject Shares”), as more specifically provided herein (such sale and acquisition, the “CPPIB Transaction”); and
WHEREAS, CPPIB LP desires to sell to Enstar, and Enstar desires to acquire from CPPIB LP, all of the CPPIB LP Shares, as more specifically provided herein (such sale and acquisition, the “CPPIB LP Transaction,” and together with the CPPIB Transaction, the “Transaction”).
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
“Applicable Law” means, with respect to any Person, all provisions of Law that apply to such Person and such Person’s activities, assets and property.
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in Toronto, Canada, New York, New York or Xxxxxxxx, Bermuda are authorized or required by Applicable Law to close.
“Closing Date” means the date on which the Closing (as defined below) occurs.
“Governmental Authority” means any international, supranational or national government, any state, provincial, local or other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission, court, tribunal or arbitrator, or any self-regulatory organization.
“Law” means any treaty, code, statute, law (including common law), rule, regulation, convention, ordinance, order, regulatory policy statement or similar guidance, binding directive or decree of any Governmental Authority.
“Liens” means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right, restriction or limitation of any kind, whether arising by agreement, operation of Law or otherwise, except for any lien, charge, security interest, encumbrance, right of first refusal, preemptive right, restriction or limitation pursuant to any Applicable Law or the organizational documents of Enstar.
“Permit” means any consent, franchise, license, approval, authorization, registration, certificate, certification or permit issued or granted by any Governmental Authority.
“Person” means any individual, partnership, firm, corporation, association, trust, unincorporated organization, joint venture, limited liability company, limited partnership or other entity.
ARTICLE II
(a) On the Closing Date, Enstar shall deliver or cause to be delivered to:
(i) CPPIB the CPPIB Closing Payment by wire transfer of immediately available funds to an account or accounts designated by CPPIB on Schedule 2 (the “CPPIB Closing Payment Account”);
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(ii) CPPIB a certificate signed by a duly authorized officer of Enstar certifying that the conditions set forth in Sections 2.4(b)(i) and (ii) have been satisfied;
(iii) CPPIB LP the CPPIB LP Closing Payment by wire transfer of immediately available funds to an account or accounts designated by CPPIB LP on Schedule 2 (the “CPPIB LP Closing Payment Account”); and
(iv) CPPIB LP a certificate signed by a duly authorized officer of Enstar certifying that the conditions set forth in Sections 2.4(c)(i) and (ii) have been satisfied.
(b) On the Closing Date promptly after receipt of the CPPIB Closing Payment into the CPPIB Closing Payment Account, CPPIB shall deliver or cause to be delivered to Enstar the following:
(i) duly executed share transfer forms in favor of Enstar for the transfer of all of the CPPIB Subject Shares in the form attached as Exhibit A hereto and any certificates representing such Shares or, if any of such Shares are not certificated and are held in street name by a broker for CPPIB, CPPIB shall cause its broker to deliver such Shares to American Stock Transfer & Trust Company as Enstar’s transfer agent, through the facilities of the Depository Trust Company’s DWAC system; and
(ii) a certificate signed by a duly authorized officer of CPPIB certifying that the conditions set forth in Sections 2.4(a)(i) and (ii) have been satisfied with respect to CPPIB.
(c) On the Closing Date promptly after receipt of the CPPIB LP Closing Payment into the CPPIB LP Closing Payment Account, CPPIB LP shall deliver or cause to be delivered to Enstar the following:
(i) duly executed share transfer forms in favor of Enstar for the transfer of all of the CPPIB LP Shares in the form attached as Exhibit A hereto and any certificates representing such Shares or, if any of such Shares are not certificated and are held in street name by a broker for CPPIB LP, CPPIB LP shall cause its broker to deliver such Shares to American Stock Transfer & Trust Company as Enstar’s transfer agent, through the facilities of the Depository Trust Company’s DWAC system; and
(ii) a certificate signed by a duly authorized officer of CPPIB LP certifying that the conditions set forth in Sections 2.4(a)(i) and (ii) have been satisfied with respect to CPPIB LP.
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(a) The obligations of Enstar hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the representations and warranties of CPPIB and CPPIB LP contained herein (except (A) to the extent expressly made as of an earlier date, in which case only as of such date, and (B) for the representations and warranties in Section 3.2(c) and Section 3.3(c), which must be accurate in all respects on the Closing Date);
(ii) all obligations, covenants and agreements of CPPIB and CPPIB LP under this Agreement required to be performed at or prior to the Closing Date shall have been performed in all material respects;
(iii) the delivery by (A) CPPIB of the items set forth in Section 2.3(b) and (B) CPPIB LP of the items set forth in Section 2.3(c); and
(iv) the filing of appropriate pre-closing notices of the Transaction to the applicable regulators in the jurisdictions set forth on Exhibit B hereto and none of such regulators shall have asserted a right to review and/or approve the Transaction.
(b) The obligations of CPPIB hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the representations and warranties of Enstar contained herein (except to the extent expressly made as of an earlier date, in which case only as of such date);
(ii) all obligations, covenants and agreements of Enstar under this Agreement required to be performed at or prior to the Closing Date shall have been performed in all material respects;
(iii) the delivery by Enstar of the items required to be delivered to CPPIB set forth in Section 2.3(a); and
(iv) the filing of appropriate pre-closing notices of the CPPIB Transaction to the applicable regulators in the jurisdictions set forth on Exhibit B hereto and none of such regulators shall have asserted a right to review and/or approve the CPPIB Transaction.
(c) The obligations of CPPIB LP hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects on the Closing Date of the representations and warranties of Enstar contained herein (except to the extent expressly made as of an earlier date, in which case only as of such date);
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(ii) all obligations, covenants and agreements of Enstar under this Agreement required to be performed at or prior to the Closing Date shall have been performed in all material respects;
(iii) the delivery by Enstar of the items required to be delivered to CPPIB LP set forth in Section 2.3(a); and
(iv) the filing of appropriate pre-closing notices of the CPPIB LP Transaction to the applicable regulators in the jurisdictions set forth on Exhibit B hereto and none of such regulators shall have asserted a right to review and/or approve the CPPIB LP Transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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(f) Brokers. There is no broker, finder or other party that is entitled to receive from Enstar any brokerage or finder’s fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(g) Reliance. Enstar acknowledges that the CPPIB Parties are relying on the representations, warranties, agreements and acknowledgments of Enstar set forth in this Agreement in engaging in the Transaction, and would not engage in the Transaction in the absence of such representations, warranties, agreements and acknowledgements.
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(i) CPPIB acknowledges that (i) it has taken full responsibility for determining the scope of its investigations of Enstar and its subsidiaries and for the manner in which such investigations have been conducted, and has, as of the date hereof, examined Enstar and its subsidiaries to the full satisfaction of CPPIB; and (ii) the purchase price for the CPPIB Subject Shares represents a negotiated price between sophisticated parties.
(ii) CPPIB further acknowledges that as the issuer of the CPPIB Shares, Enstar has access to (and may be or is in possession of) information about Enstar and the value of the CPPIB Shares (which may include material, non-public information) that may be or is material and superior to the information available to CPPIB and that CPPIB does not have access to such information. CPPIB acknowledges and agrees that, except for the representations, warranties, covenants and agreements expressly set forth in this Agreement (subject to the terms and conditions hereof), Enstar will not have any liability arising from the transactions contemplated by this Agreement, including any liability under any securities or other Laws, rules and regulations, and CPPIB expressly waives and releases Enstar and its directors, officers and affiliates from any and all such liabilities, other than in the case of fraud under Applicable Law.
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(f) Brokers. There is no broker, finder or other party that is entitled to receive from CPPIB LP any brokerage or finder’s fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(i) CPPIB LP acknowledges that (i) it has taken full responsibility for determining the scope of its investigations of Enstar and its subsidiaries and for the manner in which such investigations have been conducted, and has, as of the date hereof, examined Enstar and its subsidiaries to the full satisfaction of CPPIB LP; and (ii) the purchase price for the CPPIB LP Shares represents a negotiated price between sophisticated parties.
(ii) CPPIB LP further acknowledges that as the issuer of the CPPIB LP Shares, Enstar has access to (and may be or is in possession of) information about Enstar and the value of the CPPIB LP Shares (which may include material, non-public information) that may be or is material and superior to the information available to CPPIB LP and that CPPIB LP does not have access to such information. CPPIB LP acknowledges and agrees that, except for the representations, warranties, covenants and agreements expressly set forth in this Agreement (subject to the terms and conditions hereof), Enstar will not have any liability arising from the transactions contemplated by this Agreement, including any liability under any securities or other Laws, rules and regulations, and CPPIB LP expressly waives and releases Enstar and its directors, officers and affiliates from any and all such liabilities, other than in the case of fraud under Applicable Law.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
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ARTICLE V
ARTICLE VI
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6.2 No Other Representations. Except for the representations and warranties expressly contained in this Agreement, none of the parties hereto has made or makes any other express or implied representation or warranty with respect to the Transaction contemplated hereby. Each party acknowledges and agrees that (a) in making its decision to enter into this Agreement and to consummate the Transaction contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of the other parties hereto set forth in this Agreement, and (b) the other parties hereto have not made any representation or warranty with respect to the Transaction contemplated hereby, except as expressly set forth in this Agreement.
6.3 Notices. All notices and other communications provided for hereunder shall be made in writing by hand-delivery, facsimile, e-mail or air courier guaranteeing overnight delivery:
if to Enstar, to:
Enstar Group Limited
Windsor Place, 3rd Floor, 00 Xxxxx Xxxxxx
Xxxxxxxx XX 11
Bermuda
Attention: Xxxx Xxxxxxx
Email: xxxx.xxxxxxx@xxxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxx Lovells US LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Philadelphia, PA 19103-6996
United States
Attention: Xxxxxx X. Xxxxxx
Email: xxx.xxxxxx@xxxxxxxxxxxx.xxx
if to CPPIB, to:
Canada Pension Plan Investment Board
Xxx Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Toronto, ON M5C 2W5
Canada
Attention: Xxxx Xxxxxxx, Managing Director, Active Equities North America
Email: xxxxxxxx@xxxxx.xxx
with a copy (which shall not constitute notice) to:
Debevoise & Xxxxxxxx LLP
00 Xxxxxx Xxxxxxxxx
New York, NY 10001
United States
Attention: Xxxxx X. Xxxxxxx
Email: xxxxxxxxx@xxxxxxxxx.xxx
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if to CPPIB LP, to:
CPPIB Epsilon Ontario Limited Partnership
c/o CPPIB Epsilon Ontario Trust
Xxx Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Toronto, ON M5C 2W5
Canada
Attention: Xxxx Xxxxxxx, Managing Director, Active Equities North America
Email: xxxxxxxx@xxxxx.xxx
with a copy (which shall not constitute notice) to:
Debevoise & Xxxxxxxx LLP
00 Xxxxxx Xxxxxxxxx
New York, NY 10001
United States
Attention: Xxxxx X. Xxxxxxx
Email: xxxxxxxxx@xxxxxxxxx.xxx
6.4 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by Enstar and the CPPIB Parties or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
6.5 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. All references in this Agreement to Sections, Schedules or Exhibits, unless otherwise expressed or indicated, are to the Sections, Schedules or Exhibits of or to this Agreement.
6.6 Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder is binding upon and inures to the benefit of any parties other than the parties hereto and their respective successors and permitted assigns, and there are no third-party beneficiaries of this Agreement. No party will assign this Agreement (or any portion hereof, or any rights or obligations hereunder) without the prior written consent of the other parties hereto.
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6.7 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the Island of Bermuda, without regard to the principles of conflicts of law thereof that would require the application of the Laws of any other jurisdiction. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the courts sitting in the Island of Bermuda. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court or that such suit, action or proceeding is an improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under Section 6.3 of this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by Law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
6.8 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other parties, it being understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile or email transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or email signature page were an original thereof.
6.9 Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
6.10 Further Assurances. Each party shall execute and deliver such additional instruments, documents and other writings as may be reasonably requested by any other party, before or after the Closing, in order to confirm and carry out and to effectuate fully the intent and purposes of this Agreement.
6.11 No Survival. The representations and warranties of the parties contained in this Agreement and in any certificate or instrument delivered pursuant to this Agreement shall survive the Closing for a period of one year from the date hereof, except that the representations and warranties in Sections 3.2(c) and (g) and Sections 3.3(c) and (g) shall survive indefinitely.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
ENSTAR GROUP LIMITED | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: Xxxx Xxxxxxx | ||
Title: President | ||
CANADA PENSION PLAN INVESTMENT BOARD | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: Xxxx Xxxxxxx | ||
Title: Managing Director, AE North America, Active Equities | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: Xxxxx Xxxxxx | ||
Title: Senior Managing Director & Global Head of Active Equities and Investment Science | ||
CPPIB EPSILON ONTARIO LIMITED PARTNERSHIP | ||
By: CPPIB Epsilon Ontario Trust, its general partner | ||
By: | /s/ Xxxx Xxxxxxx (Xxxx) XxxXxxxxx | |
Name: Xxxx Xxxxxxx (Xxxx) XxxXxxxxx | ||
Title: Trustee | ||
By: | /s/ Xxxx Xxxxxx | |
Name: Xxxx Xxxxxx | ||
Title: Trustee |
[Signature Page to Purchase Agreement}
SCHEDULE 1
Shares | Closing Payment | |
Canada Pension Plan Investment Board | 50,000 Voting Ordinary Shares | $11,359,145
(as the CPPIB Closing Payment) |
CPPIB Epsilon Ontario Limited Partnership | 741,735 Voting Ordinary Shares | $168,509,512
(as the CPPIB LP Closing Payment) |
SCHEDULE 2
Wire Instructions | ||
CPPIB Closing | Bank Name: | State Street Bank & Trust Company |
Payment Account | Bank Address: BIC: |
Boston, USA XXXXXX00XXX |
ABA: Account Name: Account Number: Beneficiary Address: Reference: |
011000028 Canada Pension Plan Investment Board 00508499 x Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X 0X0 NT6P | |
CPPIB LP Closing Payment Account | Bank Name: Bank Address: BIC: ABA: Account Name: Account Number: Beneficiary Address: |
State Street Bank & Trust Company Boston, USA XXXXXX00XXX 000000000 CPPIB Epsilon Ontario Limited Partnership 00000000 x Xxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0X 0X0 |
Reference: | CPE1 |
Exhibit A
Forms of Stock Power
Transfer of a Share or Shares
Enstar Group Limited
(the "Company" )
FOR VALUE RECEIVED
We, Canada Pension Plan Investment Board (the "Transferor"), hereby sell, assign and transfer unto the Company, as "Transferee," of Windsor Place, 3rd Floor, 00 Xxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx, 50,000 voting ordinary shares of the Company.
DATED this day of _______________, 2023
Signed by: In the presence of:
CANADA PENSION PLAN INVESTMENT BOARD |
Transferor | Witness | |||
Name: | ||||
Title: | ||||
Transferee | Witness | |||
Name: | ||||
Title: |
Transfer of a Share or Shares
Enstar Group Limited
(the "Company")
FOR VALUE RECEIVED
We, CPPIB Epsilon Ontario Limited Partnership (the "Transferor"), hereby sell, assign and transfer unto the Company, as "Transferee," of Windsor Place, 3rd Floor, 00 Xxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx, 741,735 voting ordinary shares of the Company.
DATED this day of ________________, 2023
Signed by: In the presence of:
CPPIB EPSILON ONTARIO LIMITED PARTNERSHIP |
By: CPPIB Epsilon Ontario Trust, its General Partner |
Transferor | Witness | |||
Name: Xxxx Xxxxxxx (Xxxx) XxxXxxxxx | ||||
Title: Trustee | ||||
Transferor | Witness | |||
Name: Xxxx Xxxxxx | ||||
Title: Trustee | ||||
Transferee | Witness |
Exhibit B
Notices to Applicable Regulators for Closing
Filings by Enstar
Pre-Closing Notices:
Bermuda Monetary Authority
Prudential Regulation Authority (UK)
Financial Conduct Authority (UK)
Lloyd’s of London
Financial Market Authority (Liechtenstein)
National Bank of Belgium
Post-Closing Notices:
Bermuda Monetary Authority
Lloyd’s of London
Filings by CPPIB and CPPIB LP
Pre-Closing Notices:
Prudential Regulation Authority (UK)
National Bank of Belgium
Post-Closing Notices:
Lloyd’s of London