EX-99.5 4 d508051dex995.htm EX-99.5 EXECUTION VERSION JOINT BIDDING AGREEMENT
Exhibit 99.5
EXECUTION VERSION
This JOINT BIDDING AGREEMENT (this “Agreement”), dated as of January 9, 2018, is made and entered by and among (i) Trident Pine Acquisition LP (“SPC”) and (ii) Xxxxx X. Xxxxxxx (“BZ”), Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxxxx (each, including BZ, a “Stockholder” and, collectively, the “Stockholders”). Each of the foregoing parties is hereinafter referred to individually as a “Party” and, collectively, as the “Parties.”
WHEREAS, SPC and the Stockholders are engaged in discussions regarding the potential acquisition of AmTrust Financial Services, Inc., a Delaware corporation (“AmTrust”) pursuant to which AmTrust would be acquired by a new entity formed by the Parties (“Newco”), such that AmTrust would become a wholly-owned subsidiary of Newco;
2. | Equity Investment. The Parties agree that, prior to execution of a definitive purchase agreement with AmTrust regarding a Transaction, they shall jointly form Newco as a Delaware corporation (or such other entity in any jurisdiction as may be mutually agreed |
by the Parties) and such other subsidiaries of Newco as they Parties reasonably deem necessary or advisable, and negotiate in good faith mutually agreed upon terms and conditions of a stockholders agreement governing their joint ownership of such entity (the “Stockholders Agreement”) and the capitalization of Newco. Each of the Parties will have at all times during the pendency of this Agreement sufficient financial resources, and at the closing of a Transaction will have sufficient cash resources, to pay the amounts contemplated to be funded to Newco by such Party at the closing of a Transaction. Each Party acknowledges and agrees that the other Parties would not have entered into this Agreement if the above representation by such Party were not true and correct in all respects. |
4. | Confidentiality; Public Statements. |
(a) | Each of SPC and the Stockholders acknowledges that it has had or may have access to certain information provided by or on behalf of the other Party concerning or relating to the Bid and the Transaction which is either confidential or proprietary in nature (collectively, the “Confidential Information”). Each Party agrees that it shall, and shall cause its directors, officers, employees, affiliates and representatives to, maintain the confidentiality of the Confidential Information and refrain from disclosing any Confidential Information to any third person or entity, except (i) as required by law, regulation or legal or regulatory process, (ii) its directors, officers, employees, affiliates, representatives and third-party advisors who need to know such Confidential Information in connection with advising such Party with respect to the Bid or the Transaction, (iii) as disclosed in |
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the ordinary course to partners in funds affiliated with SPC and related co-investors (provided that such partners and co-investors shall be subject to this Section 4 to the same extent as SPC and SPC shall be responsible for any breaches of this Section 4 by such partners and co-investors), (iv) as authorized by writing by BZ (in the case of disclosure by SPC) or by SPC (in the case of disclosure by any of the Stockholders) or (v) in any proceeding arising from a dispute between the Parties alleging a breach of the terms of this Agreement. In the event that a Party receives a request to disclose all or any part of the Confidential Information from a court or governmental or regulatory authority or agency or is obligated to disclose any portion of the Confidential Information as described in clause (i) of the preceding sentence, it shall, to the extent permitted by law, (x) notify as promptly as possible the other Party of the existence, terms and circumstances surrounding such obligation; (y) consult with the other Party on the advisability of taking legally available steps to resist or defend against such obligation or to protect the confidentiality of such Confidential Information following such disclosure; and (z) if disclosure of such Confidential Information shall be required, furnish only that portion of the Confidential Information that such Party is requested or legally compelled to disclose. For purposes of this Agreement, “Confidential Information” shall not include information that is or becomes available to the public generally (including if disclosed by AmTrust), other than as a result of disclosure by a Party or its directors, officers, employees, affiliates or representatives in breach of the terms of this Agreement. |
(b) | Neither Party shall issue any press release or otherwise make any public statement (including, in the case of any of the Stockholders, any amendment to any of the Stockholders’ Statement on Schedule 13D filed in respect of AmTrust) with respect to an actual or potential Bid or Transaction involving the other Party without the prior consent of BZ (in the case of SPC) and SPC (in the case of any of the Stockholders) unless such press release or public statement is (i) required by law, regulation or legal or regulatory process or (ii) in the case of BZ, in the ordinary course of business in his capacity as Chief Executive Officer of AmTrust. In the event that a Party becomes obligated to issue a press release or otherwise make a public statement as described in clause (i) of the preceding sentence, it shall, to the extent permitted by law, (x) notify as promptly as possible BZ (in the case of SPC) or SPC (in the case of any of the Stockholders) of the existence, terms and circumstances surrounding such obligation; (y) to the extent time permits, consult with BZ (in the case of SPC) or SPC (in the case of any of the Stockholders) on the content of such press release or other public statement; and (z) if requested to do so, include the name of any of the Stockholders (in the case of SPC) or SPC (in the case of any of the Stockholders) in such press release or other public statement only if legally compelled to do so. |
5. |
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any material portion of the AmTrust and its subsidiaries’ assets or (b) any potential source of financing for a Transaction other than (i) a potential source that has been mutually approved by SPC and BZ or (ii) a potential source of financing for a Party’s own investment so long as that Party has provided advance written notice to the other Parties of the identify of such potential source of financing. The Stockholders agree to promptly notify SPC in writing if they receive any significant communication from a third party regarding the Bid, the Transaction or any transaction contemplated by clause (a) above. |
7. | Termination. |
(a) |
(i) | Each of SPC and the Stockholders may terminate this Agreement upon three (3) days’ prior written notice in the event that SPC breaches (in respect of a termination by the Stockholders) or the Stockholders (in respect of a termination by SPC) breach this Agreement and such breach is not cured by the breaching Party within ten (10) days written notice of such breach from the terminating Party to the breaching Party; |
(ii) | The Parties may terminate this Agreement by a written agreement executed by all of the Parties; |
(iii) | Each of SPC and the Stockholders may terminate this Agreement upon one (1) days’ prior written notice in the event that SPC (in respect of a termination by the Stockholders) or the Stockholders (in respect of a termination by SPC) communicate to the other Party that it no longer intends on proceeding with a Bid or Transaction; and |
(iv) | This Agreement shall terminate automatically upon the earlier of (A) consummation of a Transaction or (B) three (3) months after the date hereof. |
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(b) | If this Agreement is terminated pursuant to this Section 7, subject to the following proviso, such termination shall be without liability or continuing obligation of either Party to the other Party or Parties; provided, however, that (i) the provisions of Section 3 shall survive and apply in accordance with its terms, (ii) the provisions of Section 4 shall survive such termination for a period of twelve (12) months, (iii) the provisions of Section 5 shall (A) survive a termination by SPC pursuant to Section 7(a)(i) for a period of twelve (12) months following termination, (B) terminate upon termination of this Agreement by the Stockholders pursuant to Section 7(a)(i) and (C) otherwise terminate upon the termination of this Agreement (provided, that if within twelve (12) months following any termination of this Agreement contemplated by this clause (C) any person acquires, commences a tender offer for, or enters into an agreement to acquire, in each case with the agreement, consent or approval of the Stockholders or the board of directors of AmTrust, (1) twenty percent (20%) or more of the outstanding common stock of AmTrust or (2) all or substantially all of the assets of AmTrust (including the equity securities of AmTrust’s subsidiaries), then the Stockholders shall, on a joint and several basis, pay to SPC, contingent upon, and within fifteen (15) business days of the consummation of such transaction (whether or not within such twelve (12) month period), an amount determined by BZ in good faith, which amount shall not be less than $10,000,000 and shall not be greater than $30,000,000) and (iv) Sections 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17 shall survive the termination of this Agreement, and all other rights and obligations of the parties under this Agreement shall terminate upon the termination of this Agreement. |
if to any Stockholder, to it at:
c/o AmTrust Financial Services, Inc.
00 Xxxxxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Email: xxxxx.xxxxxxx@xxxxxxxxxxxx.xxx
Attention: Xxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 0-000-000-0000
Email: xxxxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxx X. Fieldston
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Email: xxxxxxxx@xxxxxxxxx.xxx
Attention: Xxxx X. Xxxxxxx
if to SPC, to:
Trident Pine Acquisition LP
c/o Stone Point GP Ltd.
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxx.xxx
Attention: Xxxxx Xxxxxxx
with copies (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Email: xxxx.xxxxx@xxxxxxx.xxx
Attention: Xxxx X. Xxxxx
Email: xxx.xxxxxxx@xxxxxxx.xxx
Attention: Xxx X. Xxxxxxx
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13. | Governing Law; Submission to Jurisdiction. |
(a) | This Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relating to this Agreement or the negotiation, execution or performance of this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without respect to its applicable principles of conflicts of laws that might require the application of the laws of another jurisdiction. |
(b) | Each of the Parties hereby irrevocably and unconditionally (i) submits, for itself and its property, to the exclusive jurisdiction and venue of the Delaware Court of Chancery, or, if such court does not have jurisdiction, the federal courts of the United States located in the State of Delaware (“Courts”) in any action arising out of or relating to this Agreement, including the negotiation, execution or performance of this Agreement and agrees that all claims in respect of any such Action shall be heard and determined in the Courts, (ii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any action arising out of or relating to this Agreement or the negotiation, execution or performance of this Agreement in the Courts, including any objection based on its place of incorporation or domicile, (iii) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action in any such court and (iv) agrees that a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the Parties consents and agrees that service of process, summons, notice or document for any action permitted hereunder may be delivered by registered mail addressed to it at the applicable address set forth in Section 8 or in any other manner permitted by applicable law. |
14. |
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COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. |
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TRIDENT PINE ACQUISITION LP | ||
by | Stone Point GP Ltd., its general partner | |
by | /s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx | ||
Title: Secretary; Vice President |
[Signature Page to Joint Bidding Agreement]
/s/ Xxxxx X. Xxxxxxx |
Xxxxx X. Xxxxxxx |
/s/ Xxxxxx Xxxxxxxxx |
Xxxxxx Xxxxxxxxx |
/s/ Xxxx Xxxxxxxxx |
Xxxx Xxxxxxxxx |
[Signature Page to Joint Bidding Agreement]