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STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of June 21, 1999 (the
"Agreement") by and between Trenwick Group Inc., a Delaware corporation
("Trenwick"), and Chartwell Re Corporation, a Delaware corporation ("Chartwell"
or the "Issuer").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Trenwick and Chartwell are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), which provides,
among other things, upon the terms and subject to the conditions thereof, for
the merger of Chartwell with and into Trenwick, with Trenwick as the surviving
corporation (the "Merger"); and
WHEREAS, as a condition to Trenwick's willingness to enter
into the Merger Agreement, Trenwick has requested that Chartwell agree, and
Chartwell has so agreed, to grant to Trenwick an option to purchase up to
1,918,729 shares of common stock, par value $.01 per share, of Chartwell
("Chartwell Common Stock") in accordance with the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, to induce Trenwick to enter into the Merger
Agreement, and in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements set forth herein and in the Merger
Agreement, the parties hereto agree as follows:
1. Grant of Option. Subject to the terms and conditions set
forth herein, Chartwell hereby grants to Trenwick an irrevocable option (the
"Chartwell Option") to purchase up to 1,918,729 (as adjusted as set forth
herein) shares (the "Option Shares") of Chartwell Common Stock (such number of
Option Shares representing 19.9% of the number of shares of Chartwell Common
Stock issued and outstanding on the date hereof) in the manner set forth below
at a price (the "Exercise Price") of $23.82 per Option Share (which price per
share is equal to the product of the Conversion Number (as defined in the Merger
Agreement) and the closing price per share of Trenwick common stock, par value
$.01 per share, on the Nasdaq Stock Market National Market on the date hereof),
payable in cash in accordance with Section 4 hereof. Notwithstanding the
foregoing, in no event shall the number of Option Shares for which the Chartwell
Option is exercisable exceed 19.9% of the number of issued and outstanding
shares of Chartwell Common Stock. Capitalized terms used herein but not defined
herein shall have the meanings set forth in the Merger Agreement.
2. Exercise of Option. The Chartwell Option may be exercised
by Trenwick, in whole or in part, at any time or from time to time after the
Merger Agreement becomes terminable by Trenwick under circumstances which would
or could entitle Trenwick to receive the Termination Fee pursuant to Section
5.14(b) of the Merger Agreement (a "Trigger Event") (regardless of whether the
Merger Agreement is actually terminated or whether there occurs a closing
involving Chartwell); provided, that a Trigger Event shall not occur in the
circumstances contemplated by Section 5.14(b)(z) of the Merger Agreement unless
and until a Termination Fee shall be payable pursuant to Section 5.14(b)(z) of
the Merger Agreement. In the event Trenwick wishes to exercise the Chartwell
Option, Trenwick shall deliver to Chartwell a written notice (an
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"Exercise Notice") specifying the total number of Option Shares it wishes to
purchase. Each closing of a purchase of Option Shares (an "Option Closing")
shall occur, but subject to the satisfaction or waiver of the conditions set
forth in Section 3 hereof, at a place, on a date and at a time designated by
Trenwick in an Exercise Notice delivered at least two business days prior to the
date of the Option Closing. The Chartwell Option shall terminate upon the
earlier of: (i) the Effective Time; (ii) the termination of the Merger Agreement
other than under circumstances which also constitute a Trigger Event; or (iii)
the 180th day following a Trigger Event (or if, at the expiration of such 180
day period the Chartwell Option cannot be exercised by reason of any applicable
judgment, decree, order, law or regulation, 10 business days after such
impediment to exercise shall have been removed or shall have become final and
not subject to appeal, but in no event under this clause (iii) later than the
365th day following such Trigger Event). Notwithstanding the foregoing, the
Chartwell Option may not be exercised if Trenwick is in material breach of any
of its representations or warranties, or in material breach of any of its
covenants or agreements, contained in this Agreement or in the Merger Agreement.
Upon the giving by Trenwick to Chartwell of the Exercise Notice and the tender
of the applicable aggregate Exercise Price, but subject to the satisfaction or
waiver of the conditions set forth in Section 3 hereof, Trenwick shall be deemed
to be the holder of record of the Option Shares issuable upon such exercise,
notwithstanding that the stock transfer books of Chartwell shall then be closed
or that certificates representing such Option Shares shall not then be actually
delivered to Trenwick.
3. Conditions to Closing. The obligation of Chartwell to issue
the Option Shares to Trenwick hereunder is subject to the conditions, which
(other than the conditions described in clauses (i), (iii) and (iv) below) may
be waived by Chartwell in its sole discretion, that (i) all waiting periods, if
any, under the HSR Act, applicable to the issuance of the Option Shares
hereunder shall have expired or have been terminated; (ii) the Option Shares
shall have been approved for listing on the NYSE upon official notice of
issuance; (iii) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any federal, state or local
administrative agency or commission or other federal, state or local
Governmental Entity, if any, required in connection with the issuance of the
Option Shares hereunder shall have been obtained or made, as the case may be
including, without limitation, by Trenwick; and (iv) no preliminary or permanent
injunction or other order or decree by any court of competent jurisdiction, law
or regulation prohibiting or otherwise restraining such issuance shall be in
effect.
4. Payment and Delivery of Certificates.
(a) At any Option Closing, Trenwick shall pay to Chartwell the
aggregate purchase price (equal to the Exercise Price multiplied by the number
of Option Shares to be purchased at such Option Closing) for the shares of
Chartwell Common Stock purchased pursuant to the exercise of the Chartwell
Option in immediately available funds by wire transfer to a bank account
designated in writing by Chartwell; provided, however, that failure or refusal
of Chartwell to designate such account shall not preclude Trenwick from
exercising the Chartwell Option.
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(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 4(a), Chartwell will deliver
to Trenwick a certificate or certificates representing the number of Option
Shares to be purchased by Trenwick at such Option Closing, which Option Shares
will be free and clear of all liens, claims, charges and encumbrances of any
kind whatsoever and if the option is exercised in part only, Chartwell shall
deliver a new option evidencing the rights of Trenwick thereof to purchase the
balance of the shares purchasable hereunder and (ii) Trenwick will deliver to
Chartwell a copy of this Agreement and a letter agreeing that Trenwick will not
offer to sell or otherwise dispose of such shares in violation of applicable law
or the provisions of this Agreement. If at the time of issuance of Option Shares
pursuant to an exercise of the option hereunder, Chartwell shall not have
redeemed the Chartwell Rights, or shall have issued any similar securities, then
each Option Share issued pursuant to such exercise will also represent such a
corresponding Chartwell Right or new rights with terms substantially the same as
and at least as favorable to Trenwick as are provided in the Chartwell Rights
Agreement or similar agreement then in effect. Chartwell shall pay all expenses,
and any and all United States federal, state and local taxes and other charges
that may be payable in connection with the preparation, issue and delivery of
stock certificates under this Section 4 in the name of Trenwick or its designee.
5. Representations and Warranties of Chartwell. Chartwell
hereby represents and warrants to Trenwick that (a) Chartwell is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to enter into this
Agreement, (b) the execution and delivery of this Agreement by Chartwell and the
consummation by Chartwell of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Chartwell and no
other corporate proceedings on the part of Chartwell are necessary to authorize
this Agreement or any of the transactions contemplated hereby, (c) this
Agreement has been duly executed and delivered by Chartwell, constitutes a valid
and binding obligation of Chartwell and, assuming this Agreement constitutes a
valid and binding obligation of Trenwick, is enforceable against Chartwell in
accordance with its terms, (d) Chartwell has taken all necessary corporate
action to authorize and reserve for issuance and to permit it to issue, upon
exercise of the Chartwell Option, and at all times from the date hereof through
the expiration of the Chartwell Option will have reserved, 1,918,729 authorized
and unissued Option Shares, such amount being subject to adjustment as provided
in Section 9, all of which, upon their issuance and delivery in accordance with
the terms of this Agreement, will be validly issued, fully paid and
nonassessable, (e) upon delivery of the Option Shares to Trenwick upon the
exercise of the Chartwell Option, Trenwick will acquire the Option Shares free
and clear of all claims, liens, charges, encumbrances and security interests of
any nature whatsoever, and (f) none of Chartwell, any of its affiliates or
anyone acting on its or their behalf has issued, sold or offered any security of
Chartwell to any person under circumstances that would cause the issuance and
sale of the Option Shares, as contemplated by this Agreement, to be subject to
the registration requirements of the Securities Act as in effect on the date
hereof and, assuming the representations of Trenwick contained in Section 6(d)
are true and correct and based on Trenwick's commitment in its letter referred
to in Section 4 hereof, the issuance, sale and delivery of the Option Shares
hereunder would be exempt from the registration and prospectus delivery
requirements of the Securities Act, as in effect on the date hereof (and
Chartwell shall not take any action which would cause the
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issuance, sale and delivery of the Option Shares hereunder not to be exempt from
such requirements).
6. Representations and Warranties of Trenwick. Trenwick
represents and warrants to Chartwell that (a) Trenwick is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder, (b) the execution and delivery of
this Agreement by Trenwick and the consummation by Trenwick of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Trenwick and no other corporate proceedings on the part of
Trenwick are necessary to authorize this Agreement or any of the transactions
contemplated hereby, (c) this Agreement has been duly executed and delivered by
Trenwick and constitutes a valid and binding obligation of Trenwick, and,
assuming this Agreement constitutes a valid and binding obligation of Chartwell,
is enforceable against Trenwick in accordance with its terms, and (d) any Option
Shares acquired upon exercise of the Chartwell Option will be acquired for
Trenwick's own account, for investment purposes only and will not be, and the
Chartwell Option is not being, acquired by Trenwick with a view to the public
distribution thereof in violation of any applicable provision of the Securities
Act.
7. Restrictions on Transfer.
(a) Restrictions on Transfer. Prior to the first anniversary
of the date on which Trenwick purchases any Option Shares hereunder (the
"Expiration Date"), Trenwick shall not, directly or indirectly, by operation of
law or otherwise, sell, assign, pledge, or otherwise dispose of or transfer any
Option Shares acquired by Trenwick pursuant to this Agreement ("Restricted
Shares") beneficially owned by it, other than in accordance with Section 7(b) or
Section 8. Subsequent to the Expiration Date, Trenwick shall not, directly or
indirectly, by operation of law or otherwise, sell, assign, pledge or otherwise
dispose of or transfer any Restricted Shares beneficially owned by it to any
purchaser, assignee, pledgee or other transferee who would, immediately after
such sale, assignment, pledge, disposition or transfer, beneficially own more
than 4.9% of the then outstanding voting power of the issuer of the Restricted
Shares, except in accordance with Section 7(b) or Section 8 and other than in
market transactions at prevailing prices.
(b) Permitted Sales. Following the termination of the Merger
Agreement, Trenwick shall be permitted to sell or transfer any Restricted Shares
beneficially owned by it if such sale is made pursuant to a tender or exchange
offer or merger that has been approved or recommended, or otherwise determined
to be fair to and in the best interests of the shareholders of Chartwell, by a
majority of the members of the Board of Directors of Chartwell (which majority
shall include a majority of directors who were directors prior to the
announcement of such tender or exchange offer or merger).
8. Registration Rights. Following the termination of the
Merger Agreement, but not later than the second anniversary of the last date
that Trenwick acquired Option Shares under this Agreement, Trenwick (a
"Designated Holder") may by written notice (the "Registration Notice") to
Chartwell (the "Registrant") request the Registrant to register under the
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Securities Act all or any part of the Restricted Shares beneficially owned by
the Designated Holder (the "Registrable Securities") pursuant to a bona fide
firm commitment underwritten public offering in which the Designated Holder and
the underwriters shall effect as wide a distribution of such Registrable
Securities as is reasonably practicable and shall use their commercially
reasonable efforts to prevent any person (including any Group (as used in Rule
13d-5 under the Exchange Act)) and its affiliates from purchasing through such
offering Restricted Shares representing more than 1% of the outstanding shares
of common stock of the Registrant on a fully diluted basis (a "Permitted
Offering"). The Registration Notice shall include a certificate executed by the
Designated Holder and its proposed managing underwriter, which underwriter shall
be an investment banking firm of nationally recognized standing (the "Manager"),
stating that (i) they have a good faith intention to commence promptly a
Permitted Offering and (ii) the Manager in good faith believes that, based on
the then prevailing market conditions, it will be able to sell the Registrable
Securities at a per share price equal to at least 80% of the then Fair Market
Value (as defined below) of such shares. The Registrant (and/or any person
designated by the Registrant) shall thereupon have the option exercisable by
written notice delivered to the Designated Holder within 10 business days after
the receipt of the Registration Notice, irrevocably to agree to purchase all or
any part of the Registrable Securities proposed to be so sold for cash at a
price (the "Option Price") equal to the product of (i) the number of Registrable
Securities to be so purchased by the Registrant and (ii) the then Fair Market
Value of such shares. Any such purchase of Registrable Securities by the
Registrant (or its designee) hereunder shall take place at a closing to be held
at the principal executive offices of the Registrant or at the offices of its
counsel at any reasonable date and time designated by the Registrant and/or such
designee in such notice within 20 business days after delivery of such notice.
Any payment for the shares to be purchased shall be made by delivery at the time
of such closing of the Option Price in immediately available funds. As used
herein, the "Fair Market Value" of any share shall be the average of the daily
closing sales price for such share on the NYSE during the 10 NYSE trading days
prior to the fifth NYSE trading day preceding the date such Fair Market Value is
to be determined.
If the Registrant does not elect to exercise its option
pursuant to this Section 8 with respect to all Registrable Securities, it shall
use its commercially reasonable efforts to effect, as promptly as practicable,
the registration under the Securities Act of the unpurchased Registrable
Securities proposed to be so sold; provided, however, that (i) Trenwick shall
not be entitled to more than an aggregate of two effective registration
statements hereunder and (ii) the Registrant will not be required to file any
such registration statement during any period of time (not to exceed 90 days
after such request in the case of clauses (A), (B) or (C) below) when (A) the
Registrant is in possession of material non-public information which it
reasonably believes would be detrimental to be disclosed at such time and, in
the opinion of counsel to the Registrant, such information would have to be
disclosed if a registration statement were filed at that time; (B) the
Registrant is required under the Securities Act to include audited financial
statements for any period in such registration statement and such financial
statements are not yet available for inclusion in such registration statement;
or (C) the Registrant determines, in its reasonable judgment, that such
registration would interfere with any financing, acquisition or other material
transaction involving the Registrant or any of its affiliates. The Registrant
shall use its reasonable best efforts to cause any Registrable Securities
registered pursuant to this Section 8 to be qualified for sale under the
securities or blue sky laws of such jurisdictions as the
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Designated Holder may reasonably request and shall continue such registration or
qualification in effect in such jurisdiction; provided, however, that the
Registrant shall not be required to qualify to do business in, or consent to
general service of process in, any jurisdiction by reason of this provision.
The registration rights set forth in this Section 8 are
subject to the condition that the Designated Holder shall provide the Registrant
with such information with respect to such holder's Registrable Securities, the
plans for the distribution thereof, and such other information with respect to
such holder as, in the reasonable judgment of counsel for the Registrant, is
necessary to enable the Registrant to include in such registration statement all
material facts required to be disclosed with respect to a registration
thereunder.
A registration effected under this Section 8 shall be effected
at the Registrant's expense, except for underwriting discounts and commissions
and the fees and the expenses of counsel to the Designated Holder, and the
Registrant shall provide to the underwriters such documentation (including
certificates, opinions of counsel and "comfort" letters from auditors) as are
customary in connection with underwritten public offerings as such underwriters
may reasonably require. In connection with any such registration, the parties
agree (i) to indemnify each other and the underwriters in the customary manner
(provided that the Designated Holder shall only be required to indemnify other
parties to such underwriting agreement for information relating to such
Designated Holder and supplied by it for inclusion in such registration
statement), (ii) to enter into an underwriting agreement in form and substance
customary for transactions of such type with the Manager and the other
underwriters participating in such offering and (iii) to take all further
actions which shall be reasonably necessary to effect such registration and sale
(including, if the Manager deems it necessary, participating in road show
presentations).
The Registrant shall be entitled to include (at its expense)
additional shares of its common stock in a registration effected pursuant to
this Section 8 only if and to the extent the Manager determines that such
inclusion will not adversely affect the prospects for success of such offering.
9. Adjustment upon Changes in Capitalization. Without
limitation to any restriction on Chartwell contained in this Agreement or in the
Merger Agreement, in the event of any change in Chartwell Common Stock by reason
of stock dividends, split-ups, mergers, recapitalizations, subdivisions,
conversions, combinations, exchange of shares or the like, the type and number
of shares or securities subject to the Chartwell Option, and the Exercise Price
per Option Share provided in Section 1, shall be adjusted appropriately to
restore to Trenwick its rights hereunder, including the right to purchase from
the Chartwell (or its successors) shares of Chartwell Common Stock representing
19.9% of the outstanding Chartwell Common Stock for the aggregate Exercise Price
calculated as of the date of this Agreement as provided in Section 1.
10. Restrictive Legends. Each certificate representing shares
of Chartwell Common Stock issued to Trenwick at a Closing will have typed or
printed thereon a restrictive legend in substantially the following form:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION
AGREEMENT, DATED AS OF JUNE 21, 1999, A COPY OF WHICH MAY BE OBTAINED
FROM THE ISSUER UPON REQUEST.
It is understood and agreed that: (i) the reference to the
resale restrictions of the Securities Act in the above legend shall be removed
by delivery of substitute certificate(s) without such reference if such Option
Shares have been registered pursuant to the Securities Act, such Option Shares
have been sold in reliance on and in accordance with Rule 144 under the
Securities Act or Trenwick has delivered to Chartwell a copy of a letter from
the staff of the Securities and Exchange Commission, or an opinion of counsel,
in form and substance satisfactory to Chartwell and its counsel, to the effect
that such legend is not required for purposes of the Securities Act; (ii) the
reference to restrictions pursuant to this Agreement in the above legend shall
be removed by delivery of substitute certificate(s) without such reference if
the Option Shares evidenced by certificate(s) containing such reference have
been sold or transferred in compliance with the provisions of this Agreement and
under circumstances that do not require the retention of such reference; and
(iii) the legend shall be removed in its entirety if the conditions in the
preceding clauses (i) and (ii) are both satisfied. In addition, such
certificate(s) shall bear any other legend as may be required by law.
Certificates representing shares sold in a registered public offering pursuant
to Section 8 shall not be required to bear the legend set forth in this Section
10.
11. Profit Limitation.
(a) Notwithstanding any other provision of this Agreement or
the Merger Agreement, in no event shall Trenwick's Total Profit (as hereinafter
defined) exceed $9.0 million (such amount, the "Profit Limit") and, if it would
otherwise exceed such amount, Trenwick, at its sole election, shall, within five
business days, either (i) deliver to the Issuer for cancellation Option Shares
(valued, for purposes of this Section 11, at their Fair Market Value on the date
of such delivery), (ii) pay cash to the Issuer or refund in cash any Termination
Fee previously paid to Trenwick or reduce or waive the amount of any Termination
Fee payable to Trenwick pursuant to Section 5.14(b) of the Merger Agreement, or
(iii) undertake any combination thereof, so that Trenwick's Total Profit shall
not exceed the Profit Limit after taking into account the foregoing actions. As
used herein, "Total Profit" means the aggregate amount (before taxes) of (i) the
amount of Termination Fee received by Trenwick pursuant to Section 5.14(b) of
the Merger Agreement and any fee received by Trenwick pursuant to Section
5.14(c) of the Merger Agreement and (ii) (x) the net cash amounts received by
Trenwick pursuant to the sale of Option Shares (or any other securities into
which such Option Shares are converted or exchanged) to any unaffiliated party,
less (y) Trenwick's purchase price for such Option Shares.
(b) Notwithstanding any other provision of this Agreement or
the Merger Agreement, the Chartwell Option may not be exercised for a number of
Option Shares that
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would, as of the date of the Exercise Notice, result in a Notional Total Profit
(as hereinafter defined) of more than the Profit Limit and, if exercise of the
Chartwell Option otherwise would exceed the Profit Limit, Trenwick, at its
discretion, may increase the Exercise Price for that number of Option Shares set
forth in the Exercise Notice so that the Notional Total Profit shall not exceed
the Profit Limit; provided, that nothing in this sentence shall restrict any
exercise of the Chartwell Option permitted hereby on any subsequent date at the
Exercise Price set forth in Section 1 hereof. As used herein, the term "Notional
Total Profit" with respect to any number of Option Shares as to which Trenwick
may propose to exercise the Chartwell Option shall be the Total Profit
determined as of the date of the Exercise Notice assuming that the Chartwell
Option were exercised on such date for such number of Option Shares and assuming
that such Option Shares, together with all other shares of Chartwell Common
Stock held by Trenwick and its subsidiaries as of such date, were sold for cash
at the closing market price for the Chartwell Common Stock on the NYSE Composite
Tape at the close of business on the preceding trading day (less customary
brokerage commissions).
12. Binding Effect; No Assignment; No Third Party
Beneficiaries. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Neither this Agreement nor the rights or the obligations of either party hereto
are assignable, except by operation of law, or with the written consent of the
other party. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective permitted assigns any rights or remedies of any nature whatsoever by
reason of this Agreement. Any Restricted Shares sold by a party in compliance
with the provisions of Section 8 shall, upon consummation of such sale, be free
of the restrictions imposed with respect to such shares by this Agreement,
unless and until such party shall repurchase or otherwise become the beneficial
owner of such shares, and any transferee of such shares shall not be entitled to
the registration rights of such party.
13. Specific Performance. The parties recognize and agree that
if for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
the Agreement, neither party will allege, and each party hereby waives the
defense, that there is adequate remedy at law.
14. Entire Agreement. This Agreement, the Merger Agreement
(including any exhibits and schedules thereto) and the Confidentiality Agreement
constitute the entire agreement, and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement.
15. Further Assurances. Each party will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary in order to consummate the transactions contemplated hereby.
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16. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which shall remain in full force and
effect. In the event any court or other competent authority holds any provisions
of this Agreement to be null, void or unenforceable, the parties hereto shall
negotiate in good faith the execution and delivery of an amendment to this
Agreement in order, as nearly as possible, to effectuate, to the extent
permitted by law, the intent of the parties hereto with respect to such
provision and the economic effects thereof. If for any reason any such court or
regulatory agency determines that Trenwick is not permitted to acquire the full
number of shares of Chartwell Common Stock provided in Section 1 hereof (as the
same may be adjusted), it is the express intention of Chartwell to allow
Trenwick to acquire such lesser number of shares as may be permissible, without
any amendment or modification hereof. Each party agrees that, should any court
or other competent authority hold any provision of this Agreement or part hereof
to be null, void or unenforceable, or order any party to take any action
inconsistent herewith, or not take any action required herein, the other party
shall not be entitled to specific performance of such provision or part hereof
or to any other remedy, including but not limited to money damages, for breach
hereof or of any other provision of this Agreement or part hereof as the result
of such holding or order.
17. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if (i) delivered, personally, or (ii) sent by overnight courier service
(providing proof of delivery), or (iii) telecopied (which is confirmed), or (iv)
five days after being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Trenwick:
▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and
Chief Financial Officer
Trenwick Group Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & Mc Kenzie
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Chartwell, to:
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President
Chartwell Re Corporation
Four Stamford Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
18. Governing Law; Choice of Forum. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Delaware
without regard to the conflicts of law principles thereof. Each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any federal
court located in the State of Delaware or any Delaware state court in the event
any dispute arises out of this Agreement or any of the transactions contemplated
by this Agreement, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other than a
federal court sitting in the state of Delaware or a Delaware state court.
19. Interpretation. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but both of
which, taken together, shall constitute one and the same instrument.
21. Expenses. Except as otherwise expressly provided herein or
in the Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
22. Amendment. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
23. Extension; Waiver. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for performance,
will be valid only if set forth
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in an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise will not constitute a waiver of such rights.
24. Loss or Mutilation. Upon receipt by Chartwell of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Chartwell will execute and deliver to Trenwick a new
Agreement of like tenor and date. Any such new Agreement executed and delivered
will constitute an additional contractual obligation on the part of Chartwell,
whether or not the Agreement so lost, stolen, destroyed, or mutilated shall at
any time be enforceable by anyone.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
TRENWICK GROUP INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Chairman,
President and
Chief Executive Officer
CHARTWELL RE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and
Chief Executive Officer
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