EXHIBIT 99(d)
EXECUTION COPY
SUBSCRIPTION AGREEMENT dated as of October 23, 2002, between
each of the entities named in Schedule I hereto (each, a
"PURCHASER" and, together, the "PURCHASERS") and WHITE MOUNTAINS
INSURANCE GROUP, LTD., a company existing under the laws of
Bermuda ("WTM").
WHEREAS WTM desires to sell to each Purchaser, and each Purchaser
desires to purchase from WTM, common shares of WTM, par value $1.00 per share
(the "SECURITIES") upon the terms and subject to the conditions set forth in
this agreement (the "AGREEMENT"); and
WHEREAS pursuant to this Agreement and subject to and conditioned upon
the terms and provisions hereof, the parties desire to set forth certain rights
and obligations of the Purchasers with respect to the Securities acquired by the
Purchasers pursuant hereto, and WTM and each of the Purchasers wish to make
various additional agreements, all as expressly set forth below.
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"CLOSING" shall have the meaning given to such term in Article IV.
"CLOSING DATE" shall have the meaning given to such term in
Article IV.
"EXCLUDED LIENS" means Liens imposed by or arising from this
Agreement.
"LIENS" means liens, security interests, claims, pledges and
encumbrances of any kind.
"MATERIAL ADVERSE EFFECT" with respect to any person means a material
adverse effect on (a) the business, financial condition or results of operations
of such person and its subsidiaries, taken as a whole, or (b) the ability of
such person to perform its obligations under this Agreement.
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"REGISTRATION RIGHTS AGREEMENT" means a registration rights agreement
between WTM and the Purchasers dated as of the Closing Date and in the form of
Exhibit A hereto.
"SECURITIES ACT" means the Securities Act of 1933.
ARTICLE II
PURCHASE AND SALE
On the Closing Date, and upon the terms and subject to the conditions
herein set forth, WTM agrees to issue and sell to each Purchaser, free and clear
of all Liens other than any Excluded Liens, and each Purchaser hereby agrees to
purchase and accept from WTM, the number of shares of Securities set forth
opposite each Purchaser's name in Schedule I hereto (with respect to each
Purchaser, its "ALLOCATED SECURITIES"). Subject to the terms and conditions of
this Agreement and in reliance upon the representations, warranties and
agreements of each Purchaser hereunder, WTM shall deliver to each Purchaser on
the Closing Date (against payment of the Purchase Price provided for in Article
III) certificates representing the Allocated Securities registered in the name
of each Purchaser or a designated affiliate thereof.
ARTICLE III
PURCHASE PRICE
On the Closing Date, each Purchaser shall pay to WTM the amount set
forth opposite such Purchaser's name in Schedule I hereto (with respect to such
Purchaser, the "PURCHASE PRICE") for the purchase of its Allocated Securities.
The Purchase Price shall be paid in immediately available funds by wire transfer
to a bank account designated by WTM.
ARTICLE IV
THE CLOSING
SECTION 4.01. CLOSING DATE. Upon the terms and subject to the
conditions herein set forth, the purchase and sale provided for herein (the
"CLOSING") will take place
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(a) at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000, at 10:00 a.m., New York City time, on the next business day after
approval is received from the New York Stock Exchange with respect to the
listing of the Common Shares (subject to official notice of issuance) or (b) at
such other time, date and place as shall be fixed by agreement among the parties
hereto. The date and time of Closing are herein referred to as the "CLOSING
DATE".
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WTM
WTM represents and warrants to each Purchaser as follows:
SECTION 5.01. AUTHORITY OF SELLER. WTM has been duly formed and is
validly existing under the laws of Bermuda. The issuance, sale and delivery by
WTM of the Securities has been duly authorized by WTM. Upon issuance and
delivery as contemplated by Article II of this Agreement and upon payment
therefor as contemplated by Article III of this Agreement, the Securities will
have been duly authorized, validly issued, fully paid and nonassessable. This
Agreement has been duly and validly executed and delivered by WTM and is the
legal, valid and binding obligation of WTM enforceable against WTM in all
material respects in accordance with its terms. No action, consent or approval
by, or filing with, any Federal, state, municipal, foreign or other court or
governmental or administrative body or agency, or any other regulatory or
self-regulatory body (a "GOVERNMENTAL AUTHORITY"), by reason of authority over
the affairs of WTM, is required to be made by WTM in connection with the
execution and delivery by WTM of this Agreement or the consummation by WTM of
the transactions contemplated hereby, other than (a) those which may be required
solely by reason of any Purchaser's (as opposed to any other third party's)
participation in the transaction contemplated hereby, (b) approval from the New
York Stock Exchange of the listing of the Securities, subject to official notice
of issuance and (c) such other consents, approvals and filings, the failure of
which to obtain would not have a Material Adverse Effect on WTM.
SECTION 5.02. NO CONFLICTS; NO VIOLATIONS. None of the execution,
delivery or performance of this Agreement by WTM will (a) result in any
violation of or be in conflict
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with or constitute a default under any term of the constitutive documents of
WTM, (b) result in any material breach of any terms or provisions of, or
constitute a material default under, any material contract, agreement or
instrument to which WTM is a party or by which WTM or its property is bound or
(c) violate any judgment, order, decree, statute, law, rule or regulation
applicable to WTM except for in the case of the foregoing clauses (b) and (c),
any violation, conflict, breach or default which would not have a Material
Adverse Effect on WTM.
SECTION 5.03. BROKERS. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of WTM.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER
Each Purchaser, severally and not jointly, represents and warrants to
WTM as follows:
SECTION 6.01. AUTHORITY OF PURCHASER. Purchaser has been duly formed
and is validly existing under the laws of the state or jurisdiction of its
incorporation or formation. Purchaser has full right, power and authority to
consummate the transactions contemplated herein. This Agreement has been duly
and validly executed and delivered by Purchaser and is the legal, valid and
binding obligation of Purchaser enforceable against Purchaser in all material
respects in accordance with its terms. No action, consent or approval by, or
filing with, any Governmental Authority, by reason of authority over the affairs
of Purchaser, is required to be made or obtained by Purchaser in connection with
the execution and delivery by Purchaser of this Agreement or the consummation by
Purchaser of the transactions contemplated hereby other than such consents,
approvals and filings, the failure of which to obtain would not have a Material
Adverse Effect on Purchaser. Each Purchaser is an "institutional investor" for
purposes of Section 802.64 of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, and is eligible for the exemption of such Section 802.64.
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SECTION 6.02. NO CONFLICTS; NO VIOLATIONS. None of the execution,
delivery or performance of this Agreement by Purchaser will (a) result in any
violation of or be in conflict with or constitute a default under any term of
constitutive documents of Purchaser, (b) result in any material breach of any
terms or provisions of, or constitute a material default under, any material
contract, agreement or instrument to which Purchaser is a party or by which
Purchaser or its property is bound or (c) violate any judgment, order, decree,
statute, law, rule or regulation applicable to Purchaser, except for in the case
of the foregoing clauses (b) and (c), any violation, conflict, breach or default
which would not have a Material Adverse Effect on Purchaser.
SECTION 6.03. INVESTMENT INTENTION; NO RESALES. Purchaser is acquiring
the Securities hereunder for investment, solely for its own account and not with
a view to, or for resale in connection with, the distribution thereof. Purchaser
will not resell, transfer, assign or distribute the Securities except in
compliance with this Agreement, the Registration Rights Agreement and the
registration requirements of the Securities Act and applicable state securities
laws or pursuant to an available exemption therefrom.
SECTION 6.04. ACCREDITED INVESTOR; ABILITY TO BEAR RISK; EVALUATION OF
RISKS. Purchaser is an "ACCREDITED INVESTOR" (as such term is defined in Rule
501 of Regulation D promulgated under the Securities Act). The financial
situation of Purchaser is such that it can afford to bear the economic risk of
holding the Securities. Purchaser can afford to suffer the complete loss of its
investment in the Securities. The knowledge and experience of Purchaser in
financial and business matters is such that it, together with its advisors, is
capable of evaluating the risks of the investment in the Securities. Purchaser
acknowledges that no representations, express or implied, are being made with
respect to WTM, the Securities, or otherwise, other than those expressly set
forth herein.
SECTION 6.05. SECURITIES UNREGISTERED. Purchaser has been advised by
WTM that (a) the offer and sale of the Securities have not been registered under
the Securities Act and (b) the offering and sale of the Securities is intended
to be exempt from registration under the Securities Act pursuant to Section 4(2)
of the Securities Act.
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SECTION 6.06. BROKERS. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of any Purchaser.
ARTICLE VII
CONDITIONS
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS. The
obligations of each Purchaser to perform under this Agreement are subject to the
satisfaction or waiver by such Purchaser of each of the following conditions:
(a) the delivery to the Purchaser by WTM of its Allocated Securities and a duly
executed Registration Rights Agreement, (b) the absence on the Closing Date of
any injunction or other order, or statute, rule or regulation, of any
Governmental Authority prohibiting the consummation of the sale and purchase of
the Securities hereunder, (c) approval from the New York Stock Exchange of the
listing of the Securities, subject to official notice of issuance and (d) the
representations and warranties of WTM in Article V of this Agreement shall be
true and correct in all material respects as of the Closing Date.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF WTM. The obligations of WTM
to perform under this Agreement are subject to the satisfaction or waiver by WTM
of each of the following conditions: (a) the execution and delivery to WTM by
each Purchaser of the Registration Rights Agreement, (b) the absence on the
Closing Date of any injunction or other order, or statute, rule or regulation,
of any Governmental Authority preventing or the prohibiting the consummation of
the sale and purchase of the Securities hereunder, (c) approval from the New
York Stock Exchange of the listing of the Securities, subject to official notice
of issuance and (d) the representations and warranties of each Purchaser in
Article VI of this Agreement shall be true and correct in all material respects
as of the Closing Date.
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ARTICLE VIII
AGREEMENT
SECTION 8.01. REGISTRATION RIGHTS AGREEMENT. WTM and each of the
Purchasers hereby agree to duly execute and deliver on the Closing Date the
Registration Rights Agreement.
SECTION 8.02. BEST EFFORTS; FURTHER ACTIONS. Each of WTM and the
Purchasers will use its best efforts to take or cause to be taken all action and
to do or cause to be done all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the Closing
Date, any further action is necessary or desirable to carry out the purposes of
this Agreement or to vest each Purchaser with full title to the Securities, the
proper officers, directors, partners or duly authorized representatives of each
party to this Agreement shall take all such necessary action.
SECTION 8.03. CONSENTS. Each of WTM and the Purchasers will cooperate
with each other, and use its best efforts, in filing any necessary applications,
reports or other documents with, giving any notices to, and seeking any consents
from, all regulatory bodies and all governmental agencies and authorities and
all third parties (including, without limitation, any other equityholders) as
may be necessary or desirable in connection with the consummation of the
transactions contemplated by this Agreement.
SECTION 8.04. PUBLIC ANNOUNCEMENTS. Each of WTM, the Purchasers, and
their respective affiliates, will consult with each other before issuing, and
provide each other the opportunity to review and comment upon, any press release
or other public statement with respect to the sale and purchase of the
Securities and the transactions contemplated by this Agreement and shall not
issue any press release, disclose the name of any Purchaser or make any such
public statement without the advance approval of the other parties following
such consultation (such approval not to be unreasonably withheld or delayed),
except as may be required by applicable law, court process or by the
requirements of any securities exchange.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENT AND WAIVER. This Agreement may not be amended
or supplemented except by an instrument in writing signed by each of the
Purchasers and WTM. Any term or provision of this Agreement may be waived, but
only in writing by the party which is entitled to the benefit thereof. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any preceding or succeeding breach
and no failure by either party to exercise any right or privilege hereunder
shall be deemed a waiver of such party's rights or privileges hereunder or shall
be deemed a waiver of such party's rights to exercise the same at any subsequent
time or times hereunder.
SECTION 9.02. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one instrument. It shall not be necessary for each
party to sign each counterpart so long as every party has signed at least one
counterpart.
SECTION 9.03. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered
personally or sent by registered or certified mail (return receipt requested),
postage prepaid, or by telecopy to the parties to this Agreement at the
following addresses or at such other address for a party as shall be specified
by like notice:
If to WTM, at:
White Mountains Insurance Group, Ltd.
00 Xxxxx Xxxxxx
Xxxxx Xxxxx Xxxxxxxx, XX 00000
Attention: Corporate Secretary
Telecopy: (000) 000-0000
with a copy to:
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Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Purchasers, at the appropriate address specified on its
signature page.
All such notices and communications shall be deemed to have been received on the
date of delivery, on the date that the telecopy is confirmed as having been
received or on the third business day in New York after the mailing thereof, as
the case may be.
SECTION 9.04. ASSIGNMENT. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by any party to this Agreement without the prior written consent of
the other parties, and any attempt to assign any right, remedy, obligation or
liability arising hereunder without such consent shall be void.
SECTION 9.05. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, written and oral.
SECTION 9.06. BINDING EFFECT; PARTIES IN INTEREST. This Agreement
shall be binding upon and inure to the benefit of the parties to this Agreement
and their respective successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 9.07. EXPENSES, INDEMNIFICATION. (a) Whether or not the
purchase and sale of the Securities is consummated, each party hereto shall pay
its own fees and expenses incident to preparing for, entering into and carrying
out this Agreement and the consummation of the transactions contemplated hereby.
(b) A party in breach of this Agreement shall, on demand, indemnify
and hold harmless the other parties for and against all reasonable out-of-pocket
expenses, including legal fees, incurred by such other parties by reason of the
enforcement and protection of its rights under this
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Agreement. The payment of such expenses is in addition to any other relief to
which such other party may be entitled.
SECTION 9.08. APPLICABLE LAW AND JURISDICTION; SERVICE OF PROCESS;
WAIVER OF JURY TRIAL. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to any
applicable principles of conflict of laws to the extent that the application of
the laws of another jurisdiction would be required thereby. Any and all suits,
legal actions or proceedings against any party hereto arising out of this
Agreement shall be brought in the United States Federal court sitting in the
Southern District of New York, or, if such court shall not have jurisdiction, in
the Supreme Court of the State of New York sitting in the County of New York,
and each party hereby submits to and accepts the exclusive jurisdiction of such
courts for the purpose of such suits, legal action or proceedings. Each party
hereto hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any such suit, legal action or proceeding in any
such court and hereby further waives any claim that any suit, legal action or
proceeding brought in any such court has been brought in an inconvenient forum.
The parties hereto agree that service of process in connection with any suit,
legal action or proceeding brought hereunder or in connection herewith may be
made by any means of service of process permitted by law.
(b) Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any litigation
arising out of or relating to this Agreement. Each party (i) certifies that no
representative, agent or attorney of another party has presented, expressly or
otherwise, that such other party would not, in the event of litigation, seek to
enforce the foregoing waiver and (ii) acknowledges that it has been induced to
enter into this Agreement by, among other things, the mutual waivers and
certifications set forth in this Section 9.08.
SECTION 9.09. ARTICLE AND SECTION HEADINGS. The article, section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
SECTION 9.10. TERMINATION. This Agreement may be terminated at any
time prior to the Closing by the mutual consent of each of the Purchasers and
WTM.
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SECTION 9.11. SPECIFIC ENFORCEMENT. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto will waive
the defense in any action for specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof without the necessity of
proving actual damage or securing or posting any bond or providing prior notice.
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IN WITNESS WHEREOF, each party hereto has executed this Agreement as
of the day and year first above written.
WHITE MOUNTAINS INSURANCE
GROUP, LTD.,
by
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Corporate
Secretary
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HIGHFIELDS CAPITAL I LP
By: HIGHFIELDS ASSOCIATES LLC, its General
Partner
by:
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Managing Member
HIGHFIELDS CAPITAL II LP
By: HIGHFIELDS ASSOCIATES LLC, its General
Partner
by:
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Managing Member
HIGHFIELDS CAPITAL LTD.
By: HIGHFIELDS CAPITAL MANAGEMENT LP, its
Investment Manager
by:
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Member of Highfields
GP LLC, General Partner of the
Investment Manager
Address for notices pursuant to Section 9.03
of this Agreement:
Highfields Capital Management LP
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
SCHEDULE I
NUMBER OF PURCHASE
NAMES COMMON SHARES PRICE
----- ------------- ------------
HIGHFIELDS CAPITAL I LP.............. 7,700 $ 2,271,500
HIGHFIELDS CAPITAL II LP............. 16,510 $ 4,870,450
HIGHFIELDS CAPITAL LTD............... 60,535 $ 17,857,825
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Total: 84,745 $ 24,999,775
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