SECURITIES PURCHASE AGREEMENT dated as of October 15, 2009 among PARTNERRE LTD., PARTNERRE HOLDINGS II SWITZERLAND GMBH (as purchaser), and THE SELLER NAMED HEREIN (as seller) relating to the purchase and sale of Common Shares of PARIS RE HOLDINGS LIMITED
Exhibit
2.1
EXECUTION
COPY
dated as
of
October
15, 2009
among
PARTNERRE
HOLDINGS II SWITZERLAND GMBH
(as
purchaser),
and
THE
SELLER NAMED HEREIN
(as
seller)
relating
to the purchase and sale
of
Common
Shares
of
PARIS
RE HOLDINGS LIMITED
TABLE
OF CONTENTS
PAGE
ARTICLE
1
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|||
DEFINITION
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Section
1.01.
|
Definitions
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2
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|
Section
1.02.
|
Other
Definitional and Interpretative Provisions
|
4
|
|
ARTICLE
2
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|||
PURCHASE AND SALE
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|||
Section
2.01.
|
Purchase
and Sale
|
4
|
|
Section
2.02.
|
Closing
|
5
|
|
Section
2.03.
|
No
Fractional Shares
|
6
|
|
Section
2.04.
|
Adjustments
|
6
|
|
Section
2.05.
|
Withholding
Rights
|
7
|
|
Section
2.06.
|
Legends
|
7
|
|
ARTICLE
3
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|||
REPRESENTATIONS AND WARRANTIES OF SELLER
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|||
Section
3.01.
|
Existence
and Power
|
7
|
|
Section
3.02.
|
Authorization
|
8
|
|
Section
3.03.
|
Governmental
Authorization
|
8
|
|
Section
3.04.
|
Noncontravention
|
8
|
|
Section
3.05.
|
Ownership
of Company Shares
|
9
|
|
Section
3.06.
|
Investment
Purpose; Inspections; No Other Representations
|
9
|
|
Section
3.07.
|
Finders’
Fees
|
10
|
|
ARTICLE
4
|
|||
REPRESENTATIONS AND WARRANTIES OF PARENT
|
|||
Section
4.01.
|
Existence
and Power
|
11
|
|
Section
4.02.
|
Authorization
|
11
|
|
Section
4.03.
|
Governmental
Authorization
|
11
|
|
Section
4.04.
|
Noncontravention
|
11
|
|
Section
4.05.
|
Purchase
for Investment; Inspections; No Other Representations
|
12
|
|
Section
4.06.
|
Finders’
Fees
|
13
|
|
Section
4.07.
|
Valid
Issuance
|
13
|
i
ARTICLE
5
REGISTRATION OF SHARES
Section
5.01.
|
Registration
Rights
|
13
|
ARTICLE
6
|
||
COVENANTS OF SELLER
|
||
Section
6.01.
|
No
Transfers
|
14
|
ARTICLE
7
|
||
COVENANTS OF PARENT AND PURCHASER
|
||
Section
7.01.
|
Obligations
of Purchaser
|
14
|
Section
7.02.
|
NYSE
Listing
|
14
|
ARTICLE
8
|
||
ADDITIONAL AGREEMENTS
|
||
Section
8.01.
|
Reasonable
Best Efforts; Further Assurances
|
14
|
Section
8.02.
|
Certain
Filings
|
14
|
Section
8.03.
|
Documentation
and Information
|
15
|
Section
8.04.
|
Public
Announcements
|
15
|
ARTICLE
9
|
||
CONDITIONS TO CLOSING
|
||
Section
9.01.
|
Conditions
to Obligations of Parent, Purchaser and Seller
|
15
|
Section
9.02.
|
Conditions
to Obligations of Parent and Purchaser
|
16
|
Section
9.03.
|
Conditions
to Obligation of Seller
|
16
|
ARTICLE
10
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||
SURVIVAL
|
||
Section
10.01.
|
Survival
|
17
|
ARTICLE
11
|
||
TERMINATION
|
||
Section
11.01.
|
Grounds
for Termination
|
17
|
Section
11.02.
|
Effect
of Termination
|
18
|
ii
ARTICLE
12
MISCELLANEOUS
Section
12.01.
|
Notices
|
18
|
Section
12.02.
|
Amendments
and Waivers
|
19
|
Section
12.03.
|
Expenses
|
20
|
Section
12.04.
|
Binding
Effect; Benefit; Assignment
|
20
|
Section
12.05.
|
Governing
Law
|
20
|
Section
12.06.
|
Jurisdiction
|
20
|
Section
12.07.
|
WAIVER
OF JURY TRIAL
|
21
|
Section
12.08.
|
Counterparts;
Effectiveness
|
21
|
Section
12.09.
|
Entire
Agreement
|
21
|
Section
12.10.
|
Severability
|
21
|
Section
12.11.
|
Specific
Performance
|
21
|
EXHIBIT
A Registration
Rights
iii
SECURITIES
PURCHASE AGREEMENT (this “Agreement”) dated as of
October 15, 2009 among:
(i)
PartnerRe Ltd., a Bermuda exempted company (“Parent”) and PartnerRe
Holdings II Switzerland GmbH, a wholly-owned subsidiary of Parent (“Purchaser”), on the one hand;
and
(ii) each
owner of Company Shares (as defined below) that has executed and delivered to
Parent and Purchaser a signature page hereto that has been accepted and agreed
to by Parent and Purchaser as provided herein (each, “Seller”), on the other hand
(it being expressly understood that this Agreement shall not constitute an
agreement between Seller and any other seller of Company Shares and that Seller
shall solely be a party to this Agreement with Parent to the same extent as
though Parent and Seller were the sole signatories to this
Agreement).
W
I T N E S S E T H:
WHEREAS,
Parent intends to, through Purchaser, acquire 100% of PARIS RE Holdings Limited,
a Swiss corporation (the “Company”);
WHEREAS,
prior to the date hereof, Purchaser has, through a series of transactions,
acquired (the “Prior
Purchases”) Company Shares totaling at least 83% of the outstanding
Company Shares;
WHEREAS,
pursuant to the Transaction Agreement dated as of July 4, 2009 (as amended, the
“Transaction Agreement”)
among Parent, Purchaser and the Company, Parent has agreed, upon the terms and
subject to the conditions set forth in the Transaction Agreement, to acquire the
remaining outstanding Company Shares not owned by Purchaser and its Affiliates
by means of a merger (the “Merger”) of the Company with
and into Purchaser; and
WHEREAS,
prior to the consummation of the Merger, Purchaser desires to purchase (the
“Purchase”) all of the
Company Shares owned by Seller as specified on Seller’s signature page hereto,
and Seller, as the owner of such Company Shares, desires to sell such Company
Shares to Purchaser, upon the terms and subject to the conditions of this
Agreement;
WHEREAS,
the parties hereto intend, to the extent permitted by Applicable Law, for the
Merger, together with the Purchase and the Prior Purchases, to qualify as a
“reorganization” within the meaning of Section 368(a) of the United States
Internal Revenue Code of 1986, as amended.
1
The
parties hereto agree as follows:
ARTICLE
1
Definitions
Section
1.01. Definitions. (a)
The following terms, as used herein, have the following meanings:
“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling, controlled
by, or under common control with such Person; provided that none of Parent
or any of its Affiliates (other than the Company and its Subsidiaries) shall be
considered an Affiliate of the Company or any of its Subsidiaries.
“AMF” means the Autorité des
Marchés Financiers.
“Applicable Law” means, with
respect to any Person, any supranational, foreign, federal, state or local law
(statutory, common or otherwise), constitution, treaty, convention, ordinance,
code, rule, regulation, order, permit, injunction, judgment, decree, ruling or
other similar requirement enacted, adopted, promulgated, made mandatory or
applied by a Governmental Authority that is binding upon or applicable to such
Person, as amended unless expressly specified otherwise.
“Business Day” means a day,
other than Saturday, Sunday or other day on which commercial banks in New York,
Paris or Zurich are authorized or required by Applicable Law to
close.
“CHF” means Swiss Francs, being the lawful currency
of Switzerland.
“Closing Date” means the date
of the Closing.
“Company Shares” means the
common bearer shares, CHF 4.51 par value per share of the
Company.
“General Rules of the AMF”
means the Règlement général de
l'Autorité des marchés financiers and any instruction, regulation or
recommendation enacted, adopted, promulgated or applied by the AMF.
“Governmental Authority” means
any transnational, domestic or foreign federal, state or local, governmental,
regulatory or administrative (including social security) authority, department,
court, agency or official, including any political subdivision
thereof.
2
“Lien” means, with respect to
any property or asset, any mortgage, lien, pledge, charge, security interest,
encumbrance or other adverse claim of any kind in respect of such property or
asset. For purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any property or asset that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
property or asset.
“Material Adverse Effect” shall
have the meaning given to such term in the Transaction Agreement as such
agreement is in effect as of the execution date thereof.
“Merger” shall have the meaning
given to such term in the Transaction Agreement as such agreement is in effect
as of the execution date thereof.
“1933 Act” means the Securities
Act of 1933, as amended.
“1934 Act” means the Securities
Exchange Act of 1934, as amended.
“Parent Shares” means Parent’s
common shares, par value US$1.00 per share.
“Person” means an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof.
“Share Capital Repayment” shall
have the meaning given to such term in the Transaction Agreement as such
agreement is in effect as of the execution date thereof.
“Subsidiary” means, with
respect to any Person, any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at any time directly
or indirectly owned by such Person.
(b) Each
of the following terms is defined in the Section set forth opposite such
term:
Term
|
Section
|
|
Agreement
|
Preamble
|
|
Closing
|
2.02
|
|
Company
|
Preamble
|
|
e-mail
|
12.01
|
|
Parent
|
Preamble
|
|
Per
Share Consideration
|
2.01
|
3
Term
|
Section
|
|
Prior
Purchases
|
Preamble
|
|
Purchase
|
Preamble
|
|
Purchaser
|
Preamble
|
|
Representatives
|
3.06
|
|
Seller
|
Preamble
|
|
Transaction
Agreement
|
Preamble
|
Section
1.02. Other Definitional and
Interpretative Provisions. The words “hereof”, “herein” and “hereunder”
and words of like import used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement. The captions
herein are included for convenience of reference only and shall be ignored in
the construction or interpretation hereof. References to Articles, Sections and
Exhibits are to Articles, Sections and Exhibits of this Agreement unless
otherwise specified. All Exhibits annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit but not otherwise defined
therein, shall have the meaning as defined in this Agreement. Any singular term
in this Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or “including” are used in
this Agreement, they shall be deemed to be followed by the words “without
limitation”, whether or not they are in fact followed by those words or words of
like import. “Writing”, “written” and comparable terms refer to printing, typing
and other means of reproducing words (including electronic media) in a visible
form. References to any statute shall be deemed to refer to such statute as
amended from time to time and to any rules or regulations promulgated
thereunder. References to any agreement or contract are to that agreement or
contract as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof. References to any Person include the
successors and permitted assigns of that Person. References from or through any
date mean, unless otherwise specified, from and including or through and
including, respectively. References to “law”, “laws” or to a particular statute
or law shall be deemed also to include any and all Applicable Law.
ARTICLE
2
PURCHASE AND SALE
Section
2.01. Purchase and
Sale. (a) Upon the terms and subject to the conditions of this
Agreement, Seller agrees to sell to Purchaser, and Parent agrees to cause
Purchaser to purchase from Seller, the number of Company Shares specified on
Seller’s signature page hereto at the Closing. The purchase price for each
Company Share is equal to (i) 0.300 Parent Shares, as adjusted, if applicable,
pursuant to Section 2.01(b) (the “Per Share Consideration”),
plus (ii), solely to
4
the
extent the Share Capital Repayment has not been paid prior to the Closing
pursuant to Section 9.03(d) of the Transaction Agreement, an amount of cash
denominated in CHF equal to CHF 4.17. The aggregate number of Parent Shares to
be issued to Seller in respect of the Company Shares owned by Seller and the
aggregate amount of cash (in CHF), if any, that may be paid to Seller are set
forth opposite the headings “Parent Shares To Be Issued” and “Aggregate Cash
Consideration”, respectively, on Seller’s signature page hereto. The Per Share
Consideration and any aggregate cash consideration, if any, shall be paid as
provided in Section 2.02.
(b) If
Parent shall declare a cash dividend or other cash distribution on the Parent
Shares with a record date on or after October 2, 2009 and prior to the Closing,
then the Per Share Consideration shall be adjusted upwards by an amount equal to
(a) the U.S. dollar amount of such dividend or distribution paid by Parent with
respect to a Parent Share times (b) the Per Share
Consideration (after giving effect to any prior adjustment) divided by (c) the average
closing price of the Parent Shares on the New York Stock Exchange for the five
trading days immediately prior to the record date with respect to such cash
dividend or other cash distribution. To the extent that any adjustment is made
to the Per Share Consideration pursuant to this Section 2.01(b), the amount
listed opposite “Parent Shares To Be Issued” on Seller’s signature page hereto
shall be adjusted accordingly to give effect to such adjustment.
Section
2.02. Closing. The
closing of the purchase and sale of the Company Shares hereunder (the “Closing”) shall take place at
the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx on the fifth Business Day following the date Seller’s signature page
hereto is accepted and agreed to by Parent and Purchaser, or at such other time
or place as the parties may agree. At the Closing:
(a) Purchaser
shall deliver to Seller certificates evidencing the aggregate number of Parent
Shares set forth opposite “Parent Shares To Be Issued” on Seller’s signature
page hereto, in definitive form and registered in the name of
Seller;
(b) Seller
shall cause its share account or accounts (compte titres) where Seller’s
Company Shares are held to be debited by the number of Company Shares set forth
opposite “Company Shares Owned” on Seller’s signature page hereto and credit the
share account of Purchaser with such number of Company Shares; and
(c) Solely to
the extent the Share Capital Repayment is not paid prior to the Closing pursuant
to Section 9.03(d) of the Transaction Agreement, Purchaser shall deliver to
Seller by wire transfer of immediately available funds an
amount
5
of cash
denominated in CHF equal to the amount set forth opposite “Aggregate Cash
Consideration” on Seller’s signature page hereto to the account specified on
Seller’s signature page hereto.
Section
2.03. No Fractional
Shares. No fractional Parent Shares shall be issued in the Purchase. All
fractional Parent Shares that a holder of Company Shares would otherwise be
entitled to receive as a result of the Purchase shall be aggregated and if a
fractional share results from such aggregation, the number of Parent Shares to
be issued shall be rounded to the nearest whole Parent Share (with 0.50 being
rounded upward).
Section
2.04. Adjustments. If,
during the period between the date of this Agreement and the
Closing,
(i) any
change in the outstanding capital shares of the Company or Parent shall occur,
including by reason of any reclassification, recapitalization, share split or
combination, exchange or readjustment of shares, or any share dividend thereon
with a record date during such period, but excluding any change that results
from (A) any exercise of options or other equity awards to purchase Company
Shares or Parent Shares, as applicable, granted under the Company’s or Parent’s
share option or compensation plans or arrangements, and any issuance of options,
other equity awards or shares pursuant to any such plans or arrangements subject
to and in accordance with the terms of the Transaction Agreement, (B) any
exercise or conversion of any Company Securities (as defined in the Transaction
Agreement) (including Company Warrants) or Parent Securities (as defined in the
Transaction Agreement) convertible into, or exchangeable for, Company Shares or
Parent Shares, as applicable, that are outstanding as of the date hereof, (C)
any bona fide issuance
of Company Securities or Parent Securities subject to and in accordance with the
terms of the Transaction Agreement in which Parent or the Company receives fair
value for such shares (as determined in good faith by the board of directors of
Parent or the Company, as applicable), (D) the
issuance of Parent Shares in the Purchase or any similar transaction or (E) any
other action effected with the prior written consent of Parent, in the case of
the Company, or the Company, in the case of Parent, or
(ii) Parent or
the Company shall declare, subject to and in accordance with the terms of the
Transaction Agreement, a cash dividend with a record date during such period
other than (A) quarterly cash dividends paid by Parent consistent with past
practice and having customary record and payment dates and (B) the Share Capital
Repayment,
6
the Per
Share Consideration and any other amounts payable pursuant to this Agreement
shall be appropriately adjusted to provide to the holders of Company Shares the
same economic effect as contemplated by this Agreement prior to such
event.
Section
2.05. Withholding
Rights. Notwithstanding any provision contained herein to the contrary,
either of Purchaser or Parent shall be entitled to deduct and withhold from the
consideration otherwise payable to any Person pursuant to this Article 2 such
amounts as it is required to deduct and withhold with respect to the making of
such payment under any provision of applicable tax law. If Purchaser or Parent,
as the case may be, so withholds amounts, such amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the Company
Shares in respect of which Purchaser or Parent, as the case may be, made such
deduction and withholding.
Section
2.06. Legends. (a)
Any certificate representing Parent Shares issued to Seller hereunder shall bear
a legend in substantially the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED, OR ANY NON-U.S. OR STATE SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE THEREWITH.
(b)
Parent shall use best efforts to replace as soon as possible any certificates
representing Parent Shares with, at Parent’s option, certificates or book
entries not bearing the legend required by Section 2.06(a) if Parent receives
such representations from the Seller as reasonably requested by Parent to enable
it to provide an opinion of counsel (which may be in-house counsel), in reliance
on such representations, that such legends are no longer required for purposes
of applicable securities law.
ARTICLE
3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
represents and warrants to Parent as of the date Seller’s signature page hereto
is accepted and agreed to by Parent and Purchaser and as of the Closing
that:
Section
3.01. Existence and
Power. Seller, if it is not an individual, is duly organized, validly
existing and (where applicable) in good standing under the laws of
its jurisdiction of organization and has all organizational powers and all
7
governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted, except for those licenses, authorizations,
permits, consents and approvals the absence of which would not, individually or
in the aggregate, adversely affect Seller’s ability to consummate the
transactions contemplated by this Agreement to be consummated by
it.
Section
3.02. Authorization. If
Seller is not an individual, the execution, delivery and performance by Seller
of this Agreement and the consummation by Seller of the transactions
contemplated hereby are within Seller’s powers and have been duly authorized by
all necessary action on the part of Seller. If Seller is an individual, he or
she has full legal capacity, right and authority to execute and deliver this
Agreement and to perform his or her obligations hereunder. This Agreement
constitutes a valid and binding agreement of Seller enforceable against Seller
in accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting
creditors’ rights generally and general principles of equity).
Section
3.03. Governmental
Authorization. The execution, delivery and performance by Seller of this
Agreement and the consummation by Seller of the transactions contemplated hereby
require no action by or in respect of, or filing with or notifications to, any
Governmental Authority, other than (i) notifications required to be made to the
Company or the AMF due to crossing certain ownership thresholds and (ii)
compliance with any applicable requirements of the 1933 Act, the 1934 Act, the
General Rules of the AMF and the Euronext Paris non-harmonized market rules, and
any other federal, state or non-U.S. securities laws, with only such exceptions
that, individually or in the aggregate, would not reasonably be expected to
adversely affect Seller’s ability to consummate the transactions contemplated by
this Agreement to be consummated by Seller.
Section
3.04. Noncontravention.
The execution, delivery and performance by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby do not and will
not (i) if Seller is not an individual, contravene, conflict with, or result in
any violation or breach of any provision of the certificate of incorporation or
bylaws or other similar organizational documents of Seller, (ii) assuming
compliance with the matters referred to in Section 3.,3 contravene, conflict
with, or result in a violation or breach of any provision of any Applicable Law,
(iii) assuming compliance with the matters referred to in Section 3.03, require
any consent or other action by any Person under, constitute a default, or an
event that, with or without notice or lapse of time or both, would constitute a
default, under, or cause or permit the termination, cancellation, acceleration
or other change of any right or obligation or the loss of any benefit to which
Seller or any of its Affiliates is entitled under, any provision of any
agreement or other instrument binding upon Seller or any of its Affiliates,
or any
license, franchise, permit, certificate, approval or other
8
similar
authorization affecting, or relating in any way to, the assets or business of
Seller or any of its Affiliates or (iv) result in the creation or imposition of
any Lien on any asset of Seller or any of its Affiliates, with only such
exceptions, in the case of each of clauses (ii) through (iv), that, individually
or in the aggregate, would not reasonably be expected to adversely affect
Seller’s ability to consummate the transactions contemplated by this Agreement
to be consummated by Seller.
Section
3.05. Ownership of Company
Shares. Seller is the owner of the Company Shares set forth opposite
“Company Shares Owned” on Seller’s signature page hereto, free and clear of any
Lien and any other limitation or restriction (including any restriction on the
right to vote, sell or otherwise dispose of the Company Shares), and will
transfer and deliver to Purchaser at the Closing valid title to such Company
Shares free and clear of any Lien and any such limitation or
restriction.
Section
3.06. Investment Purpose;
Inspections; No Other Representations. (a) The
Parent Shares to be acquired by Seller pursuant to this Agreement are
being acquired for Seller’s own account for investment and without a view to the
public distribution of such Parent Shares or any interest therein. Seller
acknowledges that the Parent Shares being acquired pursuant to this Agreement
have not been registered under the 1933 Act or under the securities laws of any
state or non-U.S. jurisdiction and may not be sold or transferred without
compliance with applicable federal, state or non-U.S. securities laws, pursuant
to registration or exemption therefrom.
(b) Seller
has sufficient knowledge and experience in financial and business matters so as
to be capable of evaluating the merits and risks of its investment in the Parent
Shares and Seller is capable of bearing the economic risks of such
investment.
(c) Seller
has been given the opportunity to ask questions of and receive answers from
Parent concerning Parent, the Parent Shares and other related matters. Seller
further represents and warrants to Parent and Purchaser that it has been
furnished with all information it deems necessary or desirable to evaluate the
merits and risks of the acquisition of the Parent Shares and that Parent has
made available to Seller or its agents all documents and information relating to
an investment in the Parent Shares requested by or on behalf of Seller. In
evaluating the suitability of an investment in the Parent Shares, Seller has not
relied upon any other representations or other information (other than as
contemplated by the preceding sentences) whether oral or written made by or on
behalf of Parent. Without limiting the generality of the foregoing, Seller
acknowledges that none of Parent, Purchaser or any of their respective
Affiliates makes any representation or warranty with respect to (i) any
projections, estimates or budgets delivered to or
9
made
available to Seller of future revenues, future results of operations (or any
component thereof), future cash flows or future financial condition (or any
component thereof) of Parent or its Subsidiaries or the future business and
operations of Parent or its Subsidiaries or (ii) any other information or
documents made available to Seller or its counsel, accountants or advisors with
respect to Parent or its Subsidiaries or their respective businesses or
operations, except as expressly set forth in this Agreement or in the case of
fraud or intentional misrepresentation.
(d) Except as
otherwise indicated on Seller’s signature page hereto, Seller is an “Accredited
Investor” as such term is defined in Regulation D under the 1933
Act.
(e) Seller
acknowledges and agrees that Parent has furnished Seller prior to the execution
and delivery by Seller of its signature page hereto with the information
required by Rule 502(b)(2)(ii) under the 1933 Act and Seller has reviewed and
understands such information.
(f) Except
for the representations and warranties of Seller contained in this Agreement,
Seller makes no other representation or warranty in connection with, arising out
of or relating to the transactions contemplated by this Agreement, express or
implied, and Seller hereby disclaims, and Parent and Purchaser may not rely on,
any such other representation or warranty, notwithstanding the delivery or
disclosure to Parent, Purchaser or any of their respective Affiliates or any
other Person of any documentation or other information by Seller or any of its
officers, directors, employees, investment bankers, attorneys, accountants,
consultants or other agents or advisors (“Representatives”) or any other
Person with respect to any of such matters, in each case except in the case of
fraud or intentional misrepresentation.
Section
3.07. Finders’ Fees.
There is no investment banker, broker, finder, attorney, tax advisor, actuarial
advisor, accountant or other intermediary or advisor that has been retained by
or is authorized to act on behalf of Seller who might be entitled to any fee or
commission from the Company or any of its Subsidiaries in connection with the
transactions contemplated by this Agreement.
ARTICLE
4
REPRESENTATIONS AND WARRANTIES OF PARENT
Except as
disclosed in any Parent SEC Document (as defined in the Transaction Agreement)
filed after December 31, 2008 and before the date of this Agreement, Parent
represents and warrants to Seller as of the date Seller’s
10
signature
page hereto is accepted and agreed to by Parent and Purchaser and as of the
Closing that:
Section
4.01. Existence and
Power. Each of Parent and Purchaser is duly organized, validly existing
and (where applicable) in good standing under the laws of its jurisdiction of
organization and has all organizational powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted, except for those licenses, authorizations, permits,
consents and approvals the absence of which would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect on Parent.
Parent is duly qualified to do business as a foreign stock corporation in each
jurisdiction where such qualification is necessary, except for those
jurisdictions where failure to be so qualified would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on
Parent.
Section
4.02. Authorization.
The execution, delivery and performance by Parent and Purchaser of this
Agreement and the consummation by Parent and Purchaser of the transactions
contemplated by this Agreement are within the organizational powers of Parent
and Purchaser and have been duly authorized by all necessary action on the part
of Parent and Purchaser. This Agreement constitutes a valid and binding
agreement of Parent and Purchaser enforceable against Parent and Purchaser in
accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting
creditors’ rights generally and general principles of equity).
Section
4.03. Governmental
Authorization. The execution, delivery and performance by Parent and
Purchaser of this Agreement and the consummation by Parent and Purchaser of the
transactions contemplated hereby require no action by or in respect of, or
filing with or notifications to, any Governmental Authority, other than (i)
notifications required to be made to the Company or the AMF due to crossing
certain ownership thresholds and (ii) compliance with any applicable
requirements of the 1933 Act, the 1934 Act, the General Rules of the AMF and the
Euronext Paris non-harmonized market rules, and any other federal, state or
non-U.S. securities laws, except, in each case, for any actions or filings the
absence of which would not reasonably be expected to (A) impair the ability of
Parent and Purchaser to timely consummate the transactions contemplated by this
Agreement or (B) be material to Parent and its Subsidiaries, taken as a
whole.
Section
4.04. Noncontravention.
The execution, delivery and performance by Parent and Purchaser of this
Agreement and the consummation by Parent and Purchaser of the transactions
contemplated hereby do not and will not (i) contravene, conflict with, or result
in any violation or breach of any provision of the certificate of incorporation
or bylaws or other similar organizational documents of Parent or Purchaser, (ii)
assuming compliance with
11
the
matters referred to in Section 4.03, contravene, conflict with, or result in a
violation or breach of any provision of any Applicable Law, (iii) assuming
compliance with the matters referred to in Section 4.03, require any consent or
other action by any Person under, constitute a default, or an event that, with
or without notice or lapse of time or both, would constitute a default, under,
or cause or permit the termination, cancellation, acceleration or other change
of any right or obligation or the loss of any benefit to which Parent or any of
its Subsidiaries is entitled under any provision of any agreement or other
instrument binding upon Parent or any of its Subsidiaries or any license,
franchise, permit, certificate, approval or other similar authorization
affecting, or relating in any way to, the assets or business of Parent and its
Subsidiaries or (iv) result in the creation or imposition of any Lien on any
asset of Parent or any of its Subsidiaries, with only such exceptions, in the
case of each of clauses (ii) through (iv), as would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on
Parent.
Section
4.05. Purchase for Investment;
Inspections; No Other Representations. (a)
Purchaser is purchasing the Company Shares for investment for its own
account and not with a view to, or for sale in connection with, any distribution
thereof. Purchaser (either alone or together with its advisors) has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in the Company Shares and
is capable of bearing the economic risks of such investment. Purchaser
acknowledges that the Company Shares being acquired pursuant to this Agreement
have not been registered under the 1933 Act or under the securities laws of any
state or non-U.S. jurisdiction and may not be sold or transferred without
compliance with applicable federal, state or non-U.S. securities laws, pursuant
to registration or exemption therefrom.
(b)
Parent has been given the opportunity to ask questions of and receive answers
from Seller and the Company concerning Seller, the Company, the Company Shares
and other related matters. Parent further represents and warrants to Seller it
has been furnished with all information it deems necessary or desirable to
evaluate the merits and risks of the acquisition of the Company Shares and that
Seller and the Company have made available to Parent or its agents all documents
and information relating to an investment in the Company Shares requested by or
on behalf of Parent. In evaluating the suitability of an investment in the
Company Shares, Parent has not relied upon any other representations or other
information (other than as contemplated by the preceding sentences) whether oral
or written made by or on behalf of Seller. Without limiting the generality of
the foregoing, Parent acknowledges that none of Seller or any of its Affiliates
makes any representation or warranty with respect to (i) any projections,
estimates or budgets delivered to or made available to Parent of future
revenues, future results of operations (or any component thereof), future
12
cash
flows or future financial condition (or any component thereof) of the
Company
or its Subsidiaries or the future business and operations of the Company or its
Subsidiaries or (ii) any other information or documents made available to Parent
or its counsel, accountants or advisors with respect to the Company Shares, the
Company or its Subsidiaries or their respective businesses or operations, except
as expressly set forth in this Agreement or in the case of fraud or intentional
misrepresentation.
(c)
Except for the representations and warranties of Parent contained in this
Agreement, Parent makes no other representation or warranty in connection with,
arising out of or relating to the transactions contemplated by this Agreement,
express or implied, and Parent hereby disclaims, and Seller may not rely on, any
such other representation or warranty, notwithstanding the delivery or
disclosure to Seller or any of its Affiliates or any other Person of any
documentation or other information by Parent or any of its Representatives or
any other Person with respect to any of such matters, in each case except in the
case of fraud or intentional misrepresentation.
Section
4.06. Finders’ Fees.
There is no investment banker, broker, finder or other intermediary that has
been retained by or is authorized to act on behalf of Parent or Purchaser who
might be entitled to any fee or commission from the Company or any of its
Subsidiaries in connection with the transactions contemplated by this
Agreement.
Section
4.07. Valid Issuance.
The Parent Shares to be issued to Seller, when delivered against payment
therefor as provided in this Agreement, will have been duly authorized, issued
and delivered, fully paid and non-assessable and free and clear of any Lien, and
will not be issued in violation of any preemptive rights or have any restriction
on the right to vote, sell or otherwise dispose of such Parent Shares except as
otherwise set forth in this Agreement.
ARTICLE
5
REGISTRATION OF SHARES
Section
5.01. Registration
Rights. At the Closing, Parent shall grant Seller registration rights as
set forth in Exhibit
A hereto with respect to the Parent Shares Seller receives pursuant to
this Agreement and any other Registrable Securities (as defined in Exhibit A) owned by
Seller, and such Exhibit A is
incorporated herein by reference.
13
ARTICLE
6
COVENANTS OF SELLER
Seller
agrees that:
Section
6.01. No Transfers.
Seller shall not enter into an agreement with any Third Party (as defined in the
Transaction Agreement) for the purchase and sale of the Company Shares that
Seller has agreed to sell to Purchaser hereunder or otherwise sell or transfer
any such Company Shares or any interest therein to a Third
Party.
ARTICLE
7
COVENANTS OF PARENT AND PURCHASER
Section
7.01. Obligations of
Purchaser. Parent shall cause Purchaser to perform its obligations under
this Agreement and to consummate the transactions contemplated hereby on the
terms and conditions set forth in this Agreement.
Section
7.02. NYSE Listing.
Parent shall use its reasonable best efforts to cause the Parent Shares to be
issued in the Purchase to be approved for listing on the New York Stock
Exchange, subject to official notice of issuance, prior to the
Closing.
ARTICLE
8
ADDITIONAL AGREEMENTS
Parent,
Purchaser and Seller agree that:
Section
8.01. Reasonable Best Efforts;
Further Assurances. Subject to the terms and conditions of this Agreement
and the limitations and exceptions set forth in Section 9.01 of the Transaction
Agreement, each of Parent, Purchaser and Seller, shall use its reasonable best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary or desirable under Applicable Laws to consummate the
transactions contemplated by this Agreement.
Section
8.02. Certain Filings.
Parent, Purchaser and Seller shall cooperate with one another (i) in determining
whether any action by or in respect of, or filing with or notification to, any
Governmental Authority is required in connection with the consummation of the
transactions contemplated by this Agreement and (ii) in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or
waivers.
14
Section
8.03. Documentation and
Information. Seller (i) consents to and authorizes the publication and
disclosure by Parent of Seller’s identity and holding of Company Shares, the
nature of Seller’s commitments, arrangements and understandings under this
Agreement (including, for the avoidance of doubt, the disclosure of this
Agreement) and any other information, in each case, that Parent reasonably
determines is required to be disclosed by Applicable Law in any press release,
any Current Report on Form 8-K, any disclosure document in connection with the
Merger or the listing of the Parent Shares on Euronext Paris or any filings with
or notices to Governmental Authorities in connection with the Merger or any
transactions contemplated by this Agreement or the Transaction Agreement and
(ii) agrees promptly to give to Parent any information it may reasonably require
for the preparation of any such disclosure documents. Seller agrees to promptly
notify Parent of any required corrections with respect to any information
supplied by Seller specifically for use in any such disclosure document, if and
to the extent that any such information shall have become false or misleading in
any material respect.
Section
8.04. Public
Announcements. Seller shall consult with Parent before issuing any press
release, having any communication with the press (whether or not for
attribution) or making any other public statement, or scheduling any press
conference or conference call with investors or analysts, with respect to this
Agreement or the transactions contemplated hereby and, except in respect of any
public statement or press release as may be required by Applicable Law or any
listing agreement with or rule of any national securities exchange or
association, shall not issue any such press release or make any such other
public statement or schedule any such press conference or conference call
without the consent of Parent; provided, however, that if
disclosure is required by Applicable Law, Seller shall, to the extent reasonably
possible, provide Parent with prompt notice of such requirement prior to making
any disclosure so that Parent may seek an appropriate protective order; provided further, that, in
the case of any investment fund or similar investment vehicle, the foregoing
shall not prohibit any disclosure by Seller to the limited partners of or
investors in Seller to the extent consistent with, and limited to, the type of
information customarily provided by Seller to limited partners or investors in
the ordinary course of reporting on its performance and then only to the extent
such limited partners or investors are subject to customary undertakings of
confidentiality.
ARTICLE
9
CONDITIONS TO CLOSING
Section
9.01. Conditions to
Obligations of Parent, Purchaser and Seller. The
obligations of Parent, Purchaser and Seller to consummate the Closing
are
15
subject
to the Parent Shares to be issued to Seller hereunder being approved for listing
on the New York Stock Exchange, subject to official notice of
issuance.
Section
9.02. Conditions to
Obligations of Parent and Purchaser. The obligations of Parent and
Purchaser to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) Seller
shall have performed in all material respects all of its obligations hereunder
required to be performed by it on or prior to the Closing;
(b) the
representations and warranties of Seller contained in Sections 3.01, 3.02, 3.05
and 3.06 of this Agreement shall be true in all material respects at and as of
the Closing Date as if made at and as of such date (other than such
representations and warranties that by their terms address matters only as of
another specified time, which shall be true in all material respects only as of
such time); and
(c) the other
representations and warranties of Seller contained in this Agreement
(disregarding all materiality qualifications contained therein) shall be true at
and as of the Closing Date as if made at and as of such time (other than
representations and warranties that by their terms address matters only as of
another specified time, which shall be true only as of such time), with, solely
in the case of this clause (c), only such exceptions as have not had and would
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Seller’s ability to consummate the transactions contemplated
by this Agreement to be consummated by it.
Section
9.03. Conditions to Obligation
of Seller. The obligation of Seller to consummate the Closing is subject
to the satisfaction of the following further conditions:
(a) Parent
and Purchaser shall have performed in all material respects all of their
obligations under this Agreement required to be performed by it at or prior to
the Closing;
(b) (i) the
representations and warranties of Parent contained in Sections 4.01, 4.02, 4.05
and 4.07 of this Agreement shall be true in all material respects at and as of
the Closing Date as if made at and as of such date (other than such
representations and warranties that by their terms address matters only as of
another specified time, which shall be true in all material respects only as of
such time); and
(c) the other
representations and warranties of Parent contained in this Agreement
(disregarding all materiality and Material Adverse Effect qualifications
contained therein) shall be true at and as of the Closing Date as if
16
made at
and as of such date (other than representations and warranties that by
their
terms address matters only as of another specified time, which shall be true
only as of such time), with, solely in the case of this clause (c), only such
exceptions as have not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on
Parent.
ARTICLE
10
SURVIVAL
Section
10.01. Survival. None
of the representations and warranties of the parties hereto contained in this
Agreement or in any certificate or other writing delivered pursuant hereto or in
connection herewith shall survive the Closing (other than the representations
and warranties contained in 0, which shall survive the Closing). None of the
covenants and agreements of the parties hereto contained in this Agreement shall
survive the Closing, except for this Section 10.01, Sections 2.06, 5.01 and 8.03
and Article 12, which shall survive the Closing.
ARTICLE
11
TERMINATION
Section
11.01. Grounds for
Termination. This Agreement may be terminated at any time prior to the
Closing:
(a) by mutual
written agreement of Seller and Parent;
(b) by either
Seller or Parent if there shall be any Applicable Law that makes consummation of
the transactions contemplated by this Agreement illegal or otherwise prohibited
or if consummation of the transactions contemplated hereby would violate any
nonappealable final order, decree or judgment of any Governmental Authority
having competent jurisdiction; provided that the right to
terminate this Agreement pursuant to thisSection 11.01(b) shall not be available
to any party whose failure to comply in any material respect with any provision
of this Agreement has been the direct cause of, or resulted directly in, such
action;
(c) by Parent
if there shall have been a breach by Seller of any of the covenants or
agreements or any of the representations or warranties set forth in this
Agreement on the part of Seller, which breach would, individually or in the
aggregate, result in, if occurring or continuing on the Closing, the failure of
the conditions set forth in Section 9.02 and which breach has not been cured
within 30 days following written notice thereof to Seller or, by its nature,
cannot be cured within such time period; provided that, at the time of
the delivery of such
17
notice,
Parent or Purchaser shall not be in material breach of its or their obligations
under this Agreement; or
(d) by
Seller if there shall have been a breach by Parent or Purchaser of any of the
covenants or agreements or any of the representations or warranties set forth in
this Agreement on the part of Parent or Purchaser, which breach would,
individually or in the aggregate, result in, if occurring or continuing on the
Closing, the failure of the conditions set forth in Section 9.03 and which
breach has not been cured within 30 days following written notice thereof to
Parent or, by its nature, cannot be cured within such time period; provided that, at the time of
the delivery of such notice, Seller shall not be in material breach of its
obligations under this Agreement.
The party
desiring to terminate this Agreement other than pursuant to Section 11.01(a)
shall give written notice of such termination to the other
party(ies).
Section
11.02. Effect of
Termination. In the event of termination of this Agreement by either
Parent or Seller as provided in Section 11.01, this Agreement shall forthwith
become void and of no effect, and there shall be no liability or obligation on
the part of Parent, Purchaser, Seller or their respective officers, directors,
employees, agents, consultants or representatives under or arising from this
Agreement, except with respect to thisSection 11.02 (Effect of
Termination) and Article 12 (Miscellaneous), which shall survive such
termination, except that no party shall be relieved or released from any
liabilities or damages arising out of its (i) intentional failure to fulfill a
condition to the performance of the obligations of the other party or (ii)
intentional failure to perform a covenant hereof. For the avoidance of doubt,
the inaccuracy of any representation or warranty herein in and of itself shall
not give rise to any liability.
ARTICLE
12
MISCELLANEOUS
Section
12.01. Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission and electronic mail (“e-mail”) transmission, so long
as a receipt of such e-mail is requested and received) and shall be
given,
18
if to
Parent or Purchaser, to:
Wellesley
House
90 Xxxxx
Bay Road
Pembroke
HM
11
Bermuda
Attention:
Xxxxxx Xxxxxxxxx
Facsimile
No.: (000) 000-0000
E-mail:
xxxxxx.xxxxxxxxx@xxxxxxxxx.xxx
with a
copy to:
Xxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile
No.: (000) 000-0000
E-mail:
xxxxxxx.xxxxx@xxxxxxxxx.xxx
if to
Seller, to Seller and its counsel at their respective addresses, facsimile
numbers or e-mail addresses set forth on the applicable signature page hereof,
and to such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a business
day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.
Section
12.02. Amendments and
Waivers. (a) As between Parent and Purchaser, on the one hand, and
Seller, on the other hand, any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by Parent and Seller, to this Agreement, or, in the
case of a waiver, by each party, against whom the waiver is to be
effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
Applicable Law.
19
Section
12.03. Expenses. Except
as otherwise provided herein, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense (and in
no event shall costs or expenses of Seller be paid or reimbursed by the
Company); provided that
Seller shall bear any securities transfer or stamp tax duty, if any, payable in
connection with the transactions contemplated under this Agreement with respect
to Seller.
Section
12.04. Binding Effect;
Benefit; Assignment. (a) The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. No provision of this Agreement is intended to
confer any rights, benefits, remedies, obligations or liabilities hereunder upon
any Person other than the parties hereto and their respective successors and
assigns.
(b) No
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of each other party hereto,
except that each party may transfer or assign its rights and obligations under
this Agreement, in whole or from time to time in part, to one or more of its
Affiliates at any time, and, after the Closing Date, to any Person; provided that no such
transfer or assignment shall relieve such party of its obligations hereunder or
enlarge, alter or change any obligation of any other party hereto or due to such
party.
Section
12.05. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflicts of law rules of such
state.
Section
12.06. Jurisdiction.
The parties hereto agree that any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall be brought in the
United States District Court for the Southern District of New York, so long as
such court shall have subject matter jurisdiction over such suit, action or
proceeding, and that any cause of action arising out of this Agreement shall be
deemed to have arisen from a transaction of business in the State of New York,
and each of the parties hereby irrevocably consents to the jurisdiction of such
court (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in such court or that any such suit,
action or proceeding brought in such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of such court.
Without limiting the foregoing, each party agrees that service of process on
such party as provided in Section 12.01 shall be deemed effective
20
service
of process
on such party. The parties agree that a final judgment in any such suit, action
or proceeding shall be conclusive and may be enforced in other jurisdictions in
any manner provided by Applicable Law.
Section
12.07. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
12.08. Counterparts;
Effectiveness. This Agreement shall become effective when Seller signs
the signature page hereto and Parent and Purchaser accept and agree to such
signature page. Until and unless Parent and Purchaser accept and agree to
Seller’s signed signature page hereto by returning a signed copy thereof to
Seller, this Agreement shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).
Section
12.09. Entire
Agreement. This Agreement is the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
Section
12.10. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other Governmental Authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
Section
12.11. Specific
Performance. The parties hereto agree that irreparable damage would occur
if any provision of this Agreement were not performed in accordance with the
specific terms hereof and that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement or to enforce specifically the
performance of the terms and provisions hereof in the United States District
Court for the Southern District of New York, in addition to any other remedy to
which they are entitled at law or in equity.
21
SELLER
SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT DATED
AS
OF OCTOBER 15, 2009 (the “Agreement”)
By
executing this signature page, the undersigned acknowledges having read and
understood the Agreement and agrees to be bound by the Agreement upon the
acceptance and agreement hereof by PartnerRe Ltd. and PartnerRe Holdings II
Switzerland GmbH.
Name
of Seller:
|
||
Company
Owned Shares:
|
||
Parent
Shares To Be Issued:
|
||
Aggregate
Cash Consideration (in
|
||
CHF):
|
||
Accredited
investor :
|
o
Yes o
No
|
|
Address
for notice:
|
with a copy
to:
|
|
Address:
|
Address:
|
|
Attention:
|
Attention:
|
|
Facsimile
No:
|
Facsimile
No:
|
|
Email:
|
Email:
|
|
Wire
instructions:
|
Account
Name:
|
|
Account#:
|
||
Bank
Name:
|
||
ABA
Number:
|
||
Other
/ contact:
|
||
[SELLER] | ||||
By: | ||||
|
By:
|
|||
Name: | ||||
Title: | ||||
Accepted
and agreed to by:
PARTNERRE LTD. | |||
By:
|
|||
Name: | |||
Title: | |||
PARTNERRE
HOLDINGS II
SWITZERLAND
GMBH
|
|||
By: | |||
Name: | |||
Title: | |||
By:
|
|||
Name: | |||
Title: | |||
EXHIBIT
A
REGISTRATION
RIGHTS
ARTICLE
1
DEFINITIONS
“affiliate” means, with respect
to any person, any person directly or indirectly controlling, controlled by or
under common control with, such other person. For purposes of this definition,
“control” when used with
respect to any person, means the possession, directly or indirectly, of the
power to cause the direction of management and/or policies of such person,
whether through the ownership of voting securities, by contract or
otherwise.
“Business Day” means a day,
other than Saturday, Sunday or other day on which commercial banks in New York
are authorized or required by applicable law to close.
“Closing” shall have the
meaning set forth in the Securities Purchase Agreement.
“Commission” means the
Securities and Exchange Commission.
“Company” shall have the
meaning set forth in the Securities Purchase Agreement.
“Company Shares” means the
common bearer shares, CHF 4.51 par value per share of the Company.
“e-mail” shall have the meaning
set forth in Section 3.01.
“Losses” shall have the meaning
set forth in Section 2.05(a).
“Parent” shall have the meaning
set forth in the Securities Purchase Agreement.
“Parent Common Shares” means
the common bearer shares, $1.00 par value per shares, of Parent.
“Parent Indemnified Person”
shall have the meaning set forth in Section 2.05(b).
“Person” or “person” means an individual,
corporation, association, partnership (as such term is used in Section 13(d)(3)
of the Exchange Act),
limited
liability company, limited or general partnership, joint venture, association,
joint stock company, trust, unincorporated organization, government or any
agency or political subdivisions thereof or any group (within the meaning of
Section 13(d)(3) of the Exchange Act) comprised of two or more of the
foregoing.
“Purchase” shall have the
meaning set forth in the Securities Purchase Agreement.
“Purchaser” shall have the
meaning given to such term in the Securities Purchase Agreement.
“Prospectus” means the
prospectus included in any Shelf Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such Shelf
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such
prospectus.
“Registrable Securities” means
the Parent Common Shares owned by Seller and any securities owned by Seller
which may be issued or distributed in respect thereof by way of stock dividend
or stock split or other distribution, recapitalization or reclassification. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities upon the earlier of (i) the date such securities have
been sold or otherwise transferred by the holders thereof pursuant to an
effective Shelf Registration Statement, (ii) the date such securities are no
longer outstanding or (iii) the date such securities have become freely
tradeable pursuant to Rule 144, which is expected to be six (6) months after the
Closing (the “Shelf
Registration Period Expiration”).
“Registration Date” shall have
the meaning set forth in Section 2.01(a).
“Securities Purchase Agreement”
means the Securities Purchase Agreement dated as of October 15, 2009 among
Parent, Purchaser and Seller to which this Exhibit A is
attached.
“Seller” shall have the meaning
set forth in the Securities Purchase Agreement.
“Seller Indemnified Person”
shall have the meaning set forth in Section 2.05(a).
“Shelf Registration Period”
shall have the meaning set forth in Section 2.01(a).
“Shelf Resale” shall have the
meaning set forth in Section 2.01(b).
“Shelf Resale Notice” shall
have the meaning set forth in Section 2.01(b).
“Shelf Registration Statement”
shall have the meaning set forth in Section 2.01(a).
“Transaction Agreement” has the
meaning given to such term in the Securities Purchase Agreement.
ARTICLE
2
DEMAND
REGISTRATION
Section
2.01. Shelf
Registration. (a) No later than October 27, 2009 (the “Registration Date”), Parent
will have an effective shelf registration statement in place that shall permit
resales by Seller of Registrable Securities as set forth in this Exhibit A and include
a Prospectus that shall contain the name and address of Seller and all of the
Registrable Securities owned by Seller. The term “Shelf Registration Statement”
as used herein means an existing shelf registration statement and any
post-effective amendment thereto or a new shelf registration statement. Parent
shall use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective (including by filing any necessary post-effective
amendments to such Shelf Registration Statement or a new Shelf Registration
Statement) throughout the period from the Registration Date through and
including the Shelf Registration Period Expiration (the “Shelf Registration Period”).
(b) Shelf Resales. If, at any
time following the Registration Date, Seller desires to sell
all or any portion of its Registrable Securities under the Shelf Registration
Statement (any such sale, a “Shelf Resale”), Seller shall
notify (such notice, the “Shelf
Resale Notice”) Parent of such intent at least one business day prior to
such proposed sale; provided that no Shelf Resale shall be permitted during any
Suspension Period and no Shelf Resale Notice that would result in a Shelf Resale
during any Suspension Period shall be permitted to be given. If, after sending
the Shelf Resale Notice, Seller decides not to proceed with such Shelf Resale,
Seller shall promptly withdraw such notice by giving written notice to
Parent.
(c) Suspension of Shelf Registration
Statement. Notwithstanding anything to the
contrary contained in this Exhibit A, Parent
shall be entitled to suspend the use of the Shelf Registration Statement or, if
a Shelf Resale Notice has been given by Seller, postpone such Shelf Resale, by
notice to Seller for one or more periods (each, a “Suspension Period”) not to
exceed 30 days in the
aggregate.
Seller shall keep confidential any communications received by it from Parent
regarding the suspension of the use of the Shelf Registration Statement. If,
after the expiration of the Suspension Period, Seller desires to proceed with a
Shelf Resale, Seller shall send a new Shelf Resale Notice to Parent in
accordance with Section 2.01(b).
Section
2.02. No Underwritten
Offerings. A Shelf Resale shall only be effected as a non-underwritten
“broker’s transaction” or non-underwritten block trade on the New York Stock
Exchange.
Section
2.03. Registration
Procedures. (a) Parent
Obligations. Subject to the provisions of Section 2.01, when Parent is
required to have an effective shelf registration statement in place that shall
permit resales by Seller of Registrable Securities, Parent shall:
(i) prepare
and file with the Commission such amendments, post-effective amendments and
supplements to each Shelf Registration Statement and the Prospectus used in
connection therewith as reasonably requested by Seller as necessary to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such Shelf Resale, and cause the related Prospectus to be
supplemented by any prospectus supplement or issuer free writing prospectus as
reasonably requested by Seller as necessary to comply with the provisions of the
Securities Act with respect to the disposition of the securities covered by such
Shelf Resale;
(ii) (A)
notify in writing Seller, at any time when a Prospectus would be required to be
delivered under the Securities Act relating to a sale of Registrable Securities,
upon discovery that the Prospectus included in such Shelf Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) upon such discovery and at
the request of Seller (but subject to Parent’s right to declare a Suspension
Period), prepare and file a supplement or amendment to the related Prospectus or
any document incorporated or deemed to be incorporated therein by reference or
an issuer free writing prospectus related thereto, and furnish to Seller an
electronic copy of such Prospectus or document as may be necessary so that such
Prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading;
(iii) use its
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration
Statement,
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction
at the reasonably earliest practical date (but subject to Parent’s right to
declare a Suspension Period);
(iv) otherwise
use reasonable best efforts to comply with all applicable rules and regulations
of the Commission and any applicable national securities exchange, and make
available to its shareholders as soon as reasonably practicable, an earnings
statement of Parent covering the period of at least 12 months, beginning with
the first day of Parent’s first full quarter after the Registration Date, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(v) cooperate
with Seller to facilitate the timely preparation of, at Parent’s option,
certificates or book entries (which shall not bear any restrictive legends)
representing Registrable Securities sold under any Shelf Registration Statement,
and enable such Registrable Securities to be in such denominations and
registered in such names as Seller may request;
(vi) deliver
to Seller, without charge, an electronic copy of the Prospectus or Prospectuses
(including each form of Prospectus and any issuer free writing prospectus
related to any such Prospectuses) as Seller may reasonably request in connection
with the distribution of the Registrable Securities; and Parent, subject to
Section 2.03(b)(iii), hereby consents to the use of such Prospectus by Seller in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus; and
(vii) provide
and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by such Shelf Registration Statement from and after a date
not later than the effective date of such Shelf Registration
Statement.
(b) Seller
Obligations. Seller agrees:
(viii) on or
prior to the Registration Date, Seller shall provide to Parent (A) a completed
selling shareholder questionnaire (the form of which will be provided by Parent)
containing such information from Seller that Parent may reasonably requests in
order to proceed with a Shelf Resale including Seller and (B) an undertaking to
update such questionnaire during the Shelf Registration Period promptly upon the
occurrence of any change that results in such questionnaire containing an untrue
statement or an omission to state a material fact;
(ix) to
provide to Parent any information, documents and instruments from Seller that
Parent reasonably requests in connection with the Prospectus or a related
supplement;
(x) upon
receipt of any notice from Parent of the occurrence of any event of the kind
described in Section 2.03(a)(ii)(A) or any notice of a Suspension Period, to
forthwith (i) discontinue any Shelf Resale until (A) Seller’s receipt of an
electronic copy of the supplemented or amended Prospectus contemplated by
Section 2.03(a)(ii) or (B) such supplemented or amended Prospectus or any
document incorporated or deemed to be incorporated therein by reference or an
issuer free writing prospectus related thereto, has been filed with the
Commission or notice that such Suspension Period has terminated, and (ii) if so
directed by Parent, deliver to Parent, at Parent’s expense, all copies, other
than permanent file copies, then in Seller’s possession of the Prospectus
covering Registrable Securities at the time of receipt of such notice;
and
(xi) that
Seller shall not use any free writing prospectus (as defined in Rule 405 under
the Securities Act) in connection with the sale of Registrable Securities
without the prior written consent of Parent.
Section
2.04. Registration
Expenses. Parent shall pay all out of pocket expenses incurred by Parent
in compliance of its obligations under this Exhibit A, including
the registration and filing fees in connection with the filing of the Shelf
Registration Statement, if any, and any related Prospectus and supplement
thereto. Seller shall pay all out of pocket expenses incurred by Seller in
connection with any Shelf Resale under this Exhibit A, including
all (a) fees and expenses of counsel to Seller and (b) all brokerage fees and
commissions in connection with the sale of Seller’s Registrable
Securities.
Section
2.05. Indemnification.
(a) By Parent. Parent
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
(i) Seller and, as applicable, its affiliates, officers, directors, employees,
representatives and agents (collectively, the “Seller Indemnified Persons”)
and (ii) each person who controls (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) any such Seller Indemnified
Person, in each case, from and against all losses, claims, actions, judgments,
damages, liabilities, costs and expenses, including reasonable expenses of
investigation and reasonable attorneys’ fees and expenses (collectively, “Losses”) caused by, arising
out of, resulting from, based on or relating to (A) any untrue statement or
alleged untrue statement of a material fact contained in any Shelf Registration
Statement, Prospectus or preliminary Prospectus or any amendment or supplement
thereto, or any documents incorporated therein by reference, or (B) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary
to make
the statements therein not misleading, in each case, except insofar as the same
are caused by any information furnished in writing to Parent by any Seller
Indemnified Persons expressly for inclusion therein.
(b) By the Seller. In connection
with any Shelf Registration Statement in which Seller is participating, Seller
will furnish to Parent in writing information regarding Seller’s ownership of
Registrable Securities and its intended method of distribution thereof and, to
the fullest extent permitted by law, shall indemnify and hold harmless (i)
Parent and its affiliates, directors, officers, employees, representatives and
agents (collectively, the “Parent Indemnified Persons”)
and (ii) each person who controls (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) any such Parent Indemnified
Person, in each case, from and against all Losses caused by, arising out of,
resulting from, based on or relating to (A) any untrue statement or alleged
untrue statement of material fact contained in any Shelf Registration Statement,
Prospectus or preliminary Prospectus or any amendment or supplement thereto, or
any documents incorporated therein by reference, or (B) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case, only to
the extent that the same are caused by any information furnished in writing by
any Seller Indemnified Person expressly for inclusion therein. Notwithstanding
the foregoing, Seller shall not be liable to Parent for amounts in excess of the
amount received by Seller in the offering or sale giving rise to such
liability.
(c) Notice. Any person entitled
to indemnification hereunder shall give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification; provided, however, that the failure to give such notice shall
not release the indemnifying party from its obligation, except to the extent
that the indemnifying party has been materially prejudiced by such failure to
provide such notice on a timely basis.
(d) Defense of Actions. In any
case in which any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein, and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not (so long as it shall continue to have
the right to defend, contest, litigate and settle the matter in question in
accordance with this paragraph) be liable to such indemnified party hereunder
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation, supervision and monitoring (unless (i) such indemnified party
reasonably objects to such
assumption
on the grounds that there may be defenses available to it that are different
from or in addition to the defenses available to such indemnifying party or (ii)
the indemnifying party shall have failed within a reasonable period of time to
assume such defense and the indemnified party is or is reasonably likely to be
prejudiced by such delay). In either event the indemnified party shall be
reimbursed by the indemnifying party for the reasonable fees and expenses
incurred in connection with retaining separate legal counsel; provided that, the
indemnifying party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys for all the indemnified parties. An indemnifying party shall
not be liable for any settlement of an action or claim effected without its
consent. No matter shall be settled by an indemnifying party without the consent
of the indemnified party, which consent shall not be unreasonably
withheld.
(e) Survival. The
indemnification provided for under this Exhibit A shall remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified person and will survive the transfer of the Registrable Securities
and the termination of this Agreement.
(f) Contribution. If recovery is
not available or insufficient to hold harmless an indemnified
party in respect of any Losses under the foregoing indemnification provisions
for any reason or reasons other than as specified therein, any person who would
otherwise be entitled to indemnification by the terms thereof shall nevertheless
be entitled to contribution with respect to any Losses with respect to which
such person would be entitled to such indemnification but for such reason or
reasons. In determining the amount of contribution to which the respective
persons are entitled, there shall be considered the persons’ relative fault,
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission and other equitable considerations appropriate under the
circumstances. It is hereby agreed that it would not necessarily be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not found guilty of such fraudulent misrepresentation.
Notwithstanding the foregoing, Seller shall not be required to make a
contribution in excess of the amount received by Seller in the offering or sale
giving rise to such liability.
Section
2.06. Termination of
Registration Rights. This Article II (other than Sections 2.04 and 2.05)
will terminate on the date on which all Parent
Common
Shares owned by Seller subject to this Exhibit A cease to be
Registrable Securities.
Section
2.07. No Transfer Of
Registration Rights. None of the rights of Seller under this Exhibit A shall be
assignable to any Person.