EXHIBIT 99.2
Dated 29 October 2004
ZURICH INSURANCE COMPANY
XXXXXX HOLDING SARL
KENMARE HOLDINGS LIMITED
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AGREEMENT
for the sale and purchase of the issued share
capital of Turegum Insurance Company
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[FRESHFIELDS BRUCKHAUS XXXXXXXX LOGO]
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION..............................................................1
2. SALE AND PURCHASE...........................................................................1
3. CONSIDERATION...............................................................................2
4. COMPLETION..................................................................................2
5. EMPLOYEES...................................................................................4
6. PRE-SALE REORGANISATION.....................................................................4
7. WARRANTIES..................................................................................5
8. LIMITATIONS ON CLAIMS.......................................................................6
9. PURCHASER WARRANTIES........................................................................7
10. COMMUTATION OF INTRA-GROUP REINSURANCES.....................................................7
11. PAYMENTS....................................................................................8
12. INFORMATION AND RECORDS.....................................................................9
13. CHANGE OF NAME.............................................................................10
14. CONFIDENTIALITY............................................................................10
15. ENTIRE AGREEMENT...........................................................................11
16. VARIATION..................................................................................12
17. ASSIGNMENT.................................................................................12
18. ANNOUNCEMENTS..............................................................................12
19. COSTS......................................................................................12
20. VALUE ADDED TAX............................................................................13
21. FURTHER ASSURANCE..........................................................................13
22. SEVERABILITY...............................................................................13
23. COUNTERPARTS...............................................................................13
24. TIME OF THE ESSENCE........................................................................13
25. NOTICES....................................................................................13
26. NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999...............................15
27. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS.........................................15
SCHEDULE 1 INTERPRETATION...........................................................................17
SCHEDULE 2 DETAILS OF THE COMPANY...................................................................28
Page I
SCHEDULE 3 DETAILS OF THE SUBSIDIARY................................................................30
SCHEDULE 4 CHANGE OF NAME...........................................................................31
SCHEDULE 5 VENDOR WARRANTIES........................................................................33
PART A : GENERAL WARRANTIES REGARDING THE VENDOR...............................................33
PART B : GENERAL WARRANTIES REGARDING THE COMPANY..............................................35
PART C : VENDOR TAX WARRANTIES.................................................................45
SCHEDULE 6 PURCHASER WARRANTIES.....................................................................48
SCHEDULE 7 LIMITATIONS ON CLAIMS....................................................................50
SCHEDULE 8 PRE-SALE REORGANISATION DOCUMENTS........................................................52
SCHEDULE 9 PRO-FORMA EFFECTIVE DATE BALANCE SHEET...................................................53
SCHEDULE 10 COMPLETION ARRANGEMENTS.................................................................54
PART A VENDOR'S OBLIGATIONS...................................................................54
PART B PURCHASER'S OBLIGATIONS................................................................58
SCHEDULE 11 TAX SCHEDULE............................................................................59
SCHEDULE 12 EMPLOYMENT CONSEQUENCES ON TRANSFER OF PORTFOLIO ADMINISTRATION
AND MANAGEMENT AGREEMENT..............................................................69
SCHEDULE 13 COMPANIES CONTROLLED BY ZURICH NORTH AMERICA INSURANCE COMPANY..........................73
Page II
THIS SALE AND PURCHASE AGREEMENT is made on 29 October 2004
BETWEEN:
(1) ZURICH INSURANCE COMPANY, a company incorporated under the laws of
Switzerland, whose registered office is at Xxxxxxxxxx 0, 0000 Xxxxxx,
Xxxxxxxxxxx (the VENDOR);
(2) XXXXXX HOLDING SARL (registered no. B 50.984) whose registered office
is at 000 Xxxxx xx Xxxxxx, X-0000 Xxxxxxxxxx (the Purchaser); and
(3) KENMARE HOLDINGS LIMITED (registered no. 30917) whose registered office
is at Sofia House, 45 Church Street, Hamilton, Bermuda (the Purchaser
Parent).
WHEREAS:
(A) Turegum Insurance Company (the COMPANY) is a company incorporated in
Switzerland and carrying on business in the United Kingdom via a branch.
(B) The Vendor is the sole registered holder and beneficial owner of the share
capital of the Company.
(C) The Company is the sole registered holder and beneficial owner of the share
capital of TIC Financing Limited (the SUBSIDIARY).
(D) The Vendor has agreed to sell all of the issued shares in the capital of the
Company (the Shares) to the Purchaser, and the Purchaser has agreed to purchase
the Shares, for the consideration and upon the terms and subject to the
conditions set out in this Agreement.
(E) The Purchaser Parent has agreed to perform certain obligations in connection
with the sale and purchase of the Shares.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Words and expressions used in this Agreement shall have the meanings set out
in Schedule 1, unless the context requires otherwise.
1.2 The Schedules comprise schedules to this Agreement and form part of this
Agreement.
2. SALE AND PURCHASE
2.1 The Vendor as legal and beneficial owner of the Shares agrees to sell and
transfer and the Purchaser agrees to purchase the Shares as at and with effect
from Completion, fully paid and free from all Encumbrances, together with all
rights which now are, or at any time hereafter may become, attached to them
(including the right to receive all dividends and other distributions declared,
made or paid after Completion).
AB
2.2 Neither the Vendor nor the Purchaser shall be obliged to complete the sale
and purchase of the Shares unless the sale and purchase of all the Shares is
completed simultaneously.
3. CONSIDERATION
The total consideration for the sale of the Shares shall be the sum of US$1 (the
PRICE).
4. COMPLETION
4.1 The sale and purchase of the Shares shall be completed at the offices of the
Vendor's Solicitors on the date of this Agreement, when:
(a) the Vendor shall perform its obligations under Part A of Schedule 10;
and
(b) the Purchaser shall perform its obligations under Part B of Schedule
10.
4.2 All of the documents and items delivered at Completion pursuant to this
clause 4 shall be held by the recipient to the order of the person delivering
the same until such time as Completion is deemed to have taken place.
4.3 Upon:
(a) delivery of all of the documents required to be delivered on Completion
(or waiver of the delivery thereof by the person entitled to receive
the same);
(b) payment by the Purchaser of the Price in accordance with paragraph 1 of
Part B of Schedule 10; and
(c) payment of any amount due under the Pre-Sale Reorganisation Documents,
the Tax Schedule shall come into effect and Completion shall be deemed to have
taken place.
4.4 The Parties agree that payment of any net amount due to the Company under
the Pre Sale Reorganisation Documents shall be discharged by the payment of the
Company Completion Monies.
4.5 The Vendor shall procure that, on or before Completion, a resolution is duly
passed by the directors of the Company which authorises the entry of the
Purchaser in the share register of the Company as shareholder in respect of the
Shares immediately following Completion.
4.6 The Purchaser shall procure that, immediately following Completion:
(a) resolutions are duly passed by the shareholder of the Company to elect
an entirely new board of directors in accordance with applicable
requirements of the laws of Switzerland and to appoint Deloitte &
Touche AG as auditors of the Company; and
(b) resolutions are duly passed by the directors of the Company to revoke
the signing authorities in respect of the Company of each of the
persons listed in
Page 2
paragraph 5 of Schedule 2, to remove the names of those persons from
the Commercial Register of the Company and to change the registered
office of the Company from Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx to
another address in the city of Zurich, Switzerland,
and shall:
(c) within 3 Business Days after the Completion Date:
(i) procure that the Company applies to the Commercial Registry to
register the effect of such resolutions and of the
resignations of the directors and auditors of the Company
pursuant to Schedule 10 Part A 1(gg) in the Commercial
Register of the Company; and
(ii) deliver to the Vendor copies of such resolutions and the
application to the Commercial Registry to register the effect
of such resolutions (certified by a duly appointed officer as
true and correct); and
(d) within 15 Business Days after the Completion Date, deliver to the
Vendor an excerpt from the Commercial Register of the Company which
shows that such registrations have occurred.
4.7 The Vendor shall procure that, immediately following Completion, resolutions
of the directors of the Subsidiary are duly passed by which the following
business is transacted:
(a) the resignations referred to in Schedule 10 Part A 1(hh) and Schedule
10Part A 1(jj) are accepted;
(b) Xxxxx Xxxxxxx Xxxxx and Xxxxx Xxxxxx Xxxxxxx Xxxx are appointed as
directors of the Subsidiary;
(c) Cornhill Secretaries Limited is appointed as the secretary of the
Subsidiary;
(d) Deloitte & Touche LLP are appointed as auditors of the Subsidiary; and
(e) the registered office of the Subsidiary is changed to Xx Xxxx'x Xxxxx,
Xxxxxxx Xxxx, Xxxxxx XX0X 0XX.
4.8 The Vendor shall, within 5 Business Days after the Completion Date (or such
longer period as agreed by the Purchaser) deliver to xxx Xxxxx Xxxx & Partners,
Attorneys at Law, Xxxxxxxxxxxxx 00, XX-0000 Xxxxxx the originals of all minutes
of meetings of and resolutions of the directors and shareholders of the Company
(which shall be written-up to but not including the Completion Date) which are
held by the Company.
4.9 Following Completion, the Vendor shall arrange for the books and records
belonging to and held on behalf of the Company and the Subsidiary in Switzerland
to be delivered to the Purchaser in accordance with a process and timetable to
be agreed between the Vendor and the Purchaser promptly following Completion.
Page 3
4.10 Following Completion, the Purchaser shall not, and shall procure that the
Company does not, bring any claim (other than in respect of fraud, dishonesty or
gross misconduct) against any person who at any time prior to the Completion
Date was a director, officer, company secretary or employee of the Company in
respect of any matter arising from his or her position as a director, officer,
company secretary or employee of the Company.
4.11 The Purchaser shall procure that, at the first annual general meeting of
the Company following Completion, a resolution is duly passed by the
shareholders of the Company which releases each person who at any time during
the financial year ending 31 December 2004 was a director of the Company from
any liabilities arising from his or her position as a director of the Company
("Entlastung des Verwaltungsrates").
4.12 Following Completion, the Purchaser shall procure that the Company does not
bring any claim (other than in respect of fraud, dishonesty or gross misconduct)
against CMGL in connection with any breach by CMGL on or prior to the Completion
Date of its obligations under the Portfolio Administration and Management
Agreement.
5. EMPLOYEES
The provisions of Schedule 12 shall apply in respect of Employees.
6. PRE-SALE REORGANISATION
6.1 Subject to clauses 6.2, 6.3 and 6.4, the Vendor shall indemnify the
Purchaser, the Company and the Subsidiary against any Costs suffered or incurred
by any of them (which, for the purposes of this clause, shall include the loss,
use or set off of a relief (as defined in the Tax Schedule) arising to the
Company other than a relief arising as a result of the entry into and
performance of the Pre-Sale Reorganisation Documents provided that for these
purposes it shall be assumed that reliefs arising as a result of the entry into
and performance of the Pre-Sale Reorganisation Documents are, to the extent
allowed by law, used in priority to any other relief) to the extent that such
Costs arise as a result of the entry into and the performance of the Pre-Sale
Reorganisation Documents.
6.2 The aggregate liability of the Vendor under clause 6.1 shall not exceed US$1
million.
6.3 The indemnity in clause 6.1 shall not apply in respect of any liability if:
(a) any provision or reserve in respect of such Costs has been made in the
Pro-forma Effective Date Balance Sheet, or such Costs were taken into
account in the preparation of the Pro-forma Effective Date Balance
Sheet;
(b) such liability is of a nature which is included in the Pro-forma
Effective Date Balance Sheet or was taken into account in the
preparation of the Pro-forma Effective Date Balance Sheet (for the
avoidance of doubt, an increase in the amount of any Cost which is
included in the Pro-forma Effective Date Balance Sheet or was taken
into account in the preparation of the Pro-forma Effective
Page 4
Date Balance Sheet shall not, for the purposes of this clause 6.3(b),
constitute a Cost of a different nature to that which is included in
the Pro-forma Effective Date Balance Sheet or was taken into account in
the preparation of the Pro-forma Effective Date Balance Sheet);
(c) such liability was paid or discharged before the Effective Date, or
such payment or discharge was taken into account in the preparation of
the Pro-forma Effective Date Balance Sheet;
(d) such liability arises as a result of any voluntary act or omission of
any member of the Purchaser's Group following Completion; or
(e) such liability arises as a result of any change in rates of tax made
after Completion or of any change in law (or a change in interpretation
on the basis of case law), regulation, directive or requirement, or the
practice of any tax or other authority, occurring after Completion.
6.4 To the extent that the Costs referred to in clause 6.1 above constitute the
loss, use or set off of a relief (as defined in the Tax Schedule) arising to the
Company, the liability of the Vendor under clause 6.1 shall be limited to the
amount of any tax payable by the Company which would not have been payable but
for the loss, use or set off of the relevant relief.
6.5 The Purchaser shall, promptly after the Purchaser or any member of the
Purchaser's Group becomes aware of any matter which gives rise to a claim under
the indemnity in clause 6.1, give to the Vendor written notice containing
sufficient details of the claim to enable the Vendor to understand the nature of
the claim, including an estimate of the amount thereof.
6.6 The Vendor shall promptly pay to the Purchaser any amount which it becomes
liable to pay under the indemnity in clause 6.1.
6.7 Each of the Purchaser and the Purchaser Parent shall procure that no member
of the Purchaser's Group shall bring any claim against any member of the
Vendor's Group in connection with any of the Pre-Sale Reorganisation Documents
save as expressly provided under this clause 6 or under the terms of any of the
Pre-Sale Reorganisation Documents.
7. WARRANTIES
7.1 The Vendor warrants to the Purchaser in the terms of the Vendor Warranties
as at the date of this Agreement, subject to:
(a) any matter fairly disclosed in the Disclosure Letter (or treated by the
Disclosure Letter as being disclosed) or in any document annexed to the
Disclosure Letter;
(b) the restrictions of scope set out in clause 7.3; and
(c) the limitations and qualifications set out in clause 8.
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7.2 Each of the Vendor Warranties is a separate and independent Vendor Warranty
and, except where expressly stated, no other Vendor Warranty restricts or limits
the extent or application of any other Vendor Warranty.
7.3 Notwithstanding any other provision of this Agreement (including the Vendor
Warranties) or any document referred to in this Agreement, the Vendor is not
giving any representation or warranty:
(a) as to the adequacy of the Company's reserves or insurance funds
(including against the level of claims 'incurred but not reported' or
'incurred but not enough reported', claims handling expenses and
administration expenses) as at the date of this Agreement (or any other
date);
(b) as to whether the reinsurance treaties and retrocession agreements to
which the Company is a party as the insured or cedant (as the case may
be) are valid, legally binding or enforceable in accordance with their
terms or that any amounts owing to or which may be claimed by the
Company under such reinsurance treaties or retrocession agreements will
be paid; or
(c) as to the amount or availability of any reliefs (as defined in the Tax
Schedule) or other losses of the Company or the Subsidiary to the
extent that they arise (or would but for an election pursuant to
section 107 Finance Xxx 0000 and regulations made thereunder (as
amended) have arisen) in respect of or as a consequence of:
(i) an event occurring or period or part period ending on or
before Completion; or
(ii) the entry into or performance of any of the Pre-Sale
Reorganisation Documents,
and any implication to the contrary is hereby expressly excluded.
7.4 The only warranties given by the Vendor in respect of tax matters are the
Vendor Tax Warranties.
7.5 The Purchaser acknowledges and agrees that:
(a) the Vendor Warranties are the only warranties of any kind given by or
on behalf of the Vendor or any member of the Vendor's Group and on
which the Purchaser or any other member of the Purchaser's Group may
rely in entering into this Agreement; and
(b) at the time of entering into this Agreement, the Purchaser has no
actual knowledge of any right to make a Relevant Claim against the
Vendor.
7.6 The Vendor makes no representation or warranty to the Purchaser as to the
completeness, truth or accuracy of the matters disclosed in the Disclosure
Letter.
8. LIMITATIONS ON CLAIMS
Page 6
The liability of the Vendor shall be limited in accordance with the provisions
of Schedule 7.
9. PURCHASER WARRANTIES
9.1 The Purchaser warrants to the Vendor in the terms of the Purchaser
Warranties.
9.2 Except as expressly provided in this Agreement, the sole remedy of the
Vendor for any breach of any of the Purchaser Warranties or any other provision
of this Agreement by the Purchaser shall be an action for damages. The Vendor
shall not be entitled (whether before or after Completion) to rescind or
terminate this Agreement in any circumstances whatsoever, other than in respect
of fraudulent misrepresentation or as expressly provided in this Agreement.
10. COMMUTATION OF INTRA-GROUP REINSURANCES
10.1 The Vendor shall use reasonable endeavours to procure that, within 20
Business Days after the Completion Date, the following members of the Vendor's
Group shall make legally binding unconditional offers (the OFFERS) to the
Company to enter into agreements under which all of the Company's reinsurance
liabilities to those members of the Vendor's Group and all of the reinsurance
liabilities of those members of the Vendor's Group to the Company (the RELEVANT
REINSURANCE LIABILITIES) are finally terminated, cancelled, settled, commuted or
otherwise determined and the aggregate consideration payable by the Company is
no greater than US$2,826,141 (the TARGET COMMUTATION AMOUNT):
(a) Zurich North America Insurance Company (ZNA); and
(b) the entities controlled by ZNA and listed in Schedule 13,
each of them a ZNA COMPANY.
10.2 If any ZNA Company does not make an Offer to the Company as contemplated by
clause 10.1 and, as a result, the amount paid by the Company to finally
terminate, cancel, settle, commute or otherwise determine the Relevant
Reinsurance Liabilities (the PAID AMOUNT) exceeds the Target Commutation Amount,
the Vendor shall pay to the Company an amount equal to the difference between
the Paid Amount and the Target Commutation Amount within 10 Business Days after
any payment in excess of the Target Commutation Amount is paid by the Company in
respect of the Relevant Reinsurance Liabilities.
10.3 The Purchaser shall procure that the Company accepts the Offers within 20
Business Days of the Offers being made. If the Company does not accept any of
the Offers and, as a result, the Paid Amount is less than the Target Commutation
Amount, the Purchaser shall procure that the Company pays to the Vendor an
amount equal to the difference between the Target Commutation Amount and the
Paid Amount within 10 Business Days after the Paid Amount is paid by the Company
in respect of the Relevant Reinsurance Liabilities.
10.4 If the Company is required to make a payment to Truck, Mid Century or Fire
Insurance in order to finally terminate, cancel, settle, commute or otherwise
determine
Page 7
all of the reinsurance liabilities of the Company to any of Truck, Mid Century
or Fire Insurance under any reinsurance agreements other than the ones listed,
(i) in relation to Truck, in schedule 1 of the Truck Agreement, (ii) in relation
to Mid Century, in Schedule 1 of the Mid Century Agreement and, (iii) in
relation to Fire Insurance, in Schedule 1 of the Fire Insurance Agreement, the
Vendor shall pay to the Company an amount equal to the amount of any such
payment within 10 Business Days after any such payment is paid by the Company to
Truck, Mid Century or Fire Insurance.
10.5 If any of Truck, Mid Century or Fire Insurance is required to make a
payment to the Company in order to finally terminate, cancel, settle, commute or
otherwise determine all of its reinsurance liabilities to the Company under any
reinsurance agreements other than the ones listed, (i) in relation to Truck, in
Schedule 1 of the Truck Agreement, (ii) in relation to Mid Century, in Schedule
1 of the Mid Century Agreement and, (iii) in relation to Fire Insurance, in
Schedule 1 of the Fire Insurance Agreement, the Purchaser shall procure that the
Company pays to the Vendor an amount equal to the amount of any such payment
within 10 Business Days after any such payment is paid by any of Truck, Mid
Century or Fire Insurance to the Company.
10.6 If, in order to finally terminate, cancel, settle, commute or otherwise
determine all of the reinsurance assets of the Company due from Agrippina,
Agrippina is required to pay to the Company an amount which is less than
US$179,263, the Vendor shall pay to the Company an amount equal to the
difference between the amount paid by Agrippina and US$179,263 within 10
Business Days after any such payment is paid by Agrippina to the Company.
10.7 If, in order to finally terminate, cancel, settle, commute or otherwise
determine all of the reinsurance assets of the Company due from Agrippina,
Agrippina is required to pay to the Company an amount that is in excess of
US$179,263, the Purchaser shall procure that the Company pays to the Vendor an
amount equal to such excess paid by Agrippina within 10 Business Days after any
such payment is paid by Agrippina to the Company.
11. PAYMENTS
11.1 Any payment to be made or procured to be made pursuant to this Agreement by
the Purchaser shall be made to such bank account in the United Kingdom as the
Vendor shall nominate in writing from time to time for payment purposes in
immediately available funds by electronic transfer in dollars on the due date
for payment, or by such other method as the Vendor shall nominate in writing.
Receipt of such sums in the relevant bank account of or nominated by the Vendor
shall be an effective discharge of the Purchaser's obligation to pay or procure
payment of such sums to the Vendor, and the Purchaser shall not be concerned to
see to the application or be answerable for loss or misapplication of such
amount.
11.2 Any payment to be made or procured to be made pursuant to this Agreement by
the Vendor shall be made to such bank account in the United Kingdom as the
Purchaser shall nominate in writing from time to time for payment purposes in
immediately available funds by electronic transfer in dollars on the due date
for payment, or by such other method as the Purchaser shall nominate in writing.
Receipt of such sums in that bank account shall be an effective discharge of the
Vendor's
Page 8
obligation to pay or procure payment of such sums to the Purchaser, and the
Vendor shall not be concerned to see to the application or be answerable for
loss or misapplication of such amount.
11.3 If any sum due for payment under or in accordance with this Agreement is
not paid on the due date (the DUE DATE), the party in default shall pay Default
Interest on that sum (the DUE SUM) from but excluding the Due Date to and
including the date of actual payment calculated on a daily basis.
11.4 If any tax authority brings into charge to tax any sum paid by the
Purchaser, the Purchaser Parent or the Vendor pursuant to any indemnity (as
described as such in this Agreement) given by the Purchaser, the Purchaser
Parent or the Vendor under this Agreement (or pursuant to any claim made under
paragraph 4 of the Tax Schedule), the payer shall pay such additional amount as
shall be required to ensure that the total amount paid, less the tax chargeable
on such amount, is equal to the amount that would otherwise be payable pursuant
to this Agreement.
11.5 To the extent that any deduction, withholding or tax in respect of which an
additional amount has been paid under clause 11.4, or the matter giving rise to
such payment, results in the payee obtaining a relief (all reasonable endeavours
having been used to obtain such relief), the payee (being the Vendor, the
Purchaser or the Purchaser Parent where applicable) shall pay to the payer
(being the Vendor, the Purchaser or the Purchaser Parent where applicable),
within ten Business Days of obtaining the benefit of the relief, an amount equal
to the lesser of the value of the relief obtained and the additional sum paid
under clause 11.4.
11.6 All payments made by the Vendor to the Purchaser or by the Purchaser to the
Vendor under this Agreement (excluding, for the avoidance of doubt, any payment
due under the Pre-Sale Reorganisation Documents), other than payments of
interest, shall so far as possible be made by way of adjustment to the
consideration for the sale of the Shares.
12. INFORMATION AND RECORDS
12.1 The Purchaser shall, and shall procure that the Company and the Subsidiary
shall, for a period of ten years following Completion, within three Business
Days after a request is made and subject to the Vendor reimbursing the
Purchaser, the Purchaser's Group, the Company or the Subsidiary (as the case may
be) for its reasonable costs, provide the Vendor or its representatives with
access during business hours to the books and records of the Company and the
Subsidiary to the extent that they relate to the business of the Company or the
Subsidiary during the period up to Completion (and in relation to the books and
records relating to the UTO Business, irrespective of whether such books and
records relate to the period up to Completion or any period following
Completion) (the RECORDS) except to the extent such access is restricted by law,
regulation or the terms of this Agreement.
12.2 For a period of ten years following the Completion Date, the Purchaser
shall not dispose of or destroy, and shall procure that the members of the
Purchaser's Group shall not dispose of or destroy, any of the Records without
first giving the Vendor at least two months' notice of its intention to do so
and giving the Vendor the opportunity to remove and retain any of them (at the
Vendor's expense).
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13. CHANGE OF NAME
13.1 The Purchaser shall procure that the company names of the Company and the
Subsidiary are changed in accordance with Schedule 4.
14. CONFIDENTIALITY
14.1 For the purposes of this clause 14, CONFIDENTIAL INFORMATION means in
respect of a party (the DISCLOSING PARTY) all information received, whether
before, on or after the date of this Agreement, by the other party (the
RECEIVING PARTY) or any of the Receiving Party's Connected Persons from or on
behalf of the Disclosing Party's Group relating to the Disclosing Party's Group,
including not only written information but information received orally,
visually, electronically or by any other means, but shall not include:
(a) information that is in the public domain as at the date of this
Agreement;
(b) information that is required to be disclosed by law or by any judicial,
governmental, administrative or regulatory body or process or
proceeding and, in such circumstances, unless it is impracticable to do
so, only after prior consultation with the Disclosing Party;
(c) information that comes into the public domain after the date of this
Agreement, otherwise than as a result of a breach of this Agreement;
(d) information which the Receiving Party or any of its Connected Persons
obtains from a third party not under any confidentiality obligation to
the Disclosing Party in respect of such information;
(e) information relating to the UTO Business to the extent that it is used
by the Vendor or by any member of the Vendor's Group in connection with
the administration and management of the UTO Business pursuant to
clause 5 and the UTO Business Services Agreement;
(f) information which the Receiving Party or any of its Connected Persons
at the time of disclosure already has in its possession and which is
not subject to any confidentiality obligation on their part to the
Disclosing Party; or
(g) information which is independently developed by the Receiving Party or
any of its Connected Persons.
14.2 Each party undertakes (on its own behalf and on behalf of its Connected
Persons) to maintain Confidential Information of the other party received by it
or any of its Connected Persons in confidence and not to disclose that
Confidential Information except with the prior written approval of the other
party.
14.3 The undertaking in clause 14.2 shall not prevent disclosure by a party to
any of its Connected Persons of Confidential Information of the other party
which is reasonably required for the purposes of performing its obligations
under the Transaction Documents, provided that such Connected Persons are aware
of the confidential nature of the Confidential Information and have undertaken
to keep it confidential.
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14.4 Each party shall be responsible for any breach of the undertaking in clause
14.2 by it or its Connected Persons and undertakes to indemnify and hold
harmless the other party or any member of the other party's Group against all
actions, proceedings, costs, claims, demands, liabilities, losses or expenses
(including legal expenses) arising from such breach.
14.5 In the event that, after receipt of any Confidential Information of the
other party, a party or any of its Connected Persons to whom it has disclosed
such Confidential Information becomes legally required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigation, demand or similar process, or otherwise) to disclose such
Confidential Information, that party shall provide the other party with prompt
written notice of that requirement and (unless it is impracticable to do so)
shall take into account the reasonable comments of the other party in
determining the extent of such disclosure.
14.6 Clauses 14.1 to 14.5 are subject to clause 18.
15. ENTIRE AGREEMENT
This Agreement and the other Transaction Documents set out the entire agreement
and understanding between the parties in respect of their respective subject
matters. This Agreement and the other Transaction Documents supersede all other
prior agreements, understandings or arrangements (whether oral or written)
relating to their respective subject matters, which shall cease to have any
further force or effect. It is agreed that:
(a) no party has entered into this Agreement or any other Transaction
Document in reliance upon any representation, warranty or undertaking
of any other party or any Connected Person of any other party which is
not expressly set out or referred to in this Agreement or such other
Transaction Document. In particular, each of the Purchaser and the
Purchaser Parent acknowledges that it has not entered into any
Transaction Document in reliance upon any information contained in the
Information Memorandum or in the Independent Actuary's Report;
(b) a party may claim in contract for breach of warranty under this
Agreement but shall have no claim or remedy in respect of
misrepresentation (whether negligent or otherwise, and whether made
prior to, and/or in, this Agreement) or untrue statement made by any
other party or any Connected Person of any other party under this
Agreement or any other Transaction Document;
(c) this clause shall not exclude any liability for, or remedy in respect
of, fraudulent misrepresentation; and
(d) save as expressly set out in this Agreement or in any other agreement
or document referred to in this Agreement, no party or any of its
Connected Persons shall owe any duty of care, nor have any liability in
tort or otherwise, to any other party or any Connected Person of any
other party in respect of, arising out of or in any way relating to the
transaction contemplated by this Agreement.
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The agreements and undertakings in this clause 15 are given by each party on its
own behalf and as agent for each of its Connected Persons. Each party
acknowledges that each other party gives such agreements and undertakings as
agent with the full knowledge and authority of each of its respective Connected
Persons. In this clause 15, CONNECTED PERSON means, in relation to a party and,
in each case, to the extent that they are involved in the transaction
contemplated by this Agreement, (a) that party's officers, employees, group
undertakings, agents and advisers, (b) officers, employees, agents and advisers
of that party's group undertakings; and (c) officers, employees and partners of
any such agent or adviser or of any group undertaking of such an agent or
adviser.
16. VARIATION
No variation of this Agreement (or of any of the documents referred to in this
Agreement) shall be valid unless it is in writing and signed by or on behalf of
each of the parties to it. The expression "variation" shall include any
variation, supplement, deletion or replacement however effected.
17. ASSIGNMENT
17.1 Subject to clause 17.2, no party may assign or transfer all or any of its
rights or obligations under this Agreement or dispose of any right or interest
in this Agreement without the prior written consent of each other party, except
that any party may assign or transfer the benefit of the whole (but not part
only) of this Agreement to any member of its Group, but if such transferee shall
cease to be a member of its Group, then such party shall on or before such event
procure the assignment or transfer of the benefit of the whole of this Agreement
back to such party.
17.2 The parties acknowledge and agree that if one party assigns the benefit of
this Agreement in whole or in part to any other person, the liabilities of each
other party under this Agreement shall be no greater than such liabilities would
have been had the assignment not occurred.
18. ANNOUNCEMENTS
Except as required by law or by any stock exchange or governmental or other
regulatory or supervisory body or authority of competent jurisdiction to whose
rules the party making the announcement or disclosure is subject, whether or not
having the force of law, no announcement or circular or disclosure in connection
with the existence or subject matter of this Agreement shall be made or issued
by or on behalf of the Vendor or the Purchaser (or any member of their
respective Groups) without the prior written approval of the other (such
approval not to be unreasonably withheld or delayed).
19. COSTS
19.1 Subject to clause 19.2, each of the parties shall pay its own Costs
incurred in connection with the negotiation, preparation and implementation of
this Agreement.
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19.2 The Purchaser shall bear all stamp or other documentary or transaction
duties and any other transfer taxes arising as a result or in consequence of
this Agreement or of its implementation.
20. VALUE ADDED TAX
Any sum payable under and in connection with this Agreement shall be exclusive
of VAT. Each party shall in addition to such sums, pay VAT, if required by
applicable law and properly chargeable thereon upon receipt of a valid invoice.
21. FURTHER ASSURANCE
Each of the parties agrees to perform, or procure the performance of, all
further acts and things and execute and deliver, or procure the execution and
delivery of such further documents as may in each case be required by law or as
may be necessary or reasonably required by any other party to implement and give
effect to this Agreement and the other Transaction Documents.
22. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable, then
such provision shall (so far as it is invalid or unenforceable) be given no
effect and shall be deemed not to be included in this Agreement but without
invalidating any of the remaining provisions of this Agreement.
23. COUNTERPARTS
This Agreement may be executed into in any number of counterparts and by the
parties to it on separate counterparts, each of which is an original but all of
which together constitute one and the same instrument.
24. TIME OF THE ESSENCE
Time shall be of the essence of this Agreement, both as regards the times, dates
and periods mentioned herein and as to any times, dates and periods which may,
by agreement in writing between or on behalf of the Vendor and the Purchaser, be
substituted for them.
25. NOTICES
25.1 Any notice or other communication to be given by one party to the other
under, or in connection with, this Agreement shall be in writing and signed by
or on behalf of the party giving it. It shall be served by sending it by fax to
the number(s) set out in clause 25.2, or delivering it by hand, or sending it by
pre-paid recorded delivery, special delivery or registered post, to the address
set out in clause 25.2 and in each case marked for the attention of the relevant
party set out in clause 25.2 (or as otherwise notified from time to time in
accordance with the provisions of this clause 25). Any notice so served by hand,
fax or post shall be deemed to have been duly given:
(a) in the case of delivery by hand, when delivered;
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(b) in the case of fax, at the time of transmission (provided that the
transmission is validly receipted);
(c) in the case of prepaid recorded delivery, special delivery or
registered post, at 10am on the second Business Day following the date
of posting,
provided that in each case where delivery by hand or by fax occurs after 6pm on
a Business Day or on a day which is not a Business Day, service shall be deemed
to occur at 9am on the next following Business Day. Where any notice or other
communication concerns tax, such notice or communication shall also be copied to
the Vendor's Group Tax Director as detailed below.
References to time in this clause are to local time in the country of the
addressee.
25.2 The addresses and fax numbers of the parties for the purpose of clause 25.1
are as follows:
VENDOR (GENERAL)
Address: Zurich Insurance Company
Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx.
Fax: + 41 1 625 3670
For the attention of: Global Head of Discontinued Operations
With a copy to:
Address: Zurich Insurance Company
Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx.
Fax: + 41 1 625 1252
For the attention of: Associate Head of Discontinued Operations
And a copy to:
Address: Zurich Insurance Company
Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx.
Fax: + 41 1 625 3497
For the attention of: Head of Legal Department
VENDOR (TAX)
Address: Zurich Financial Services (UK) Limited
Xxx Xxxxxx Xxxxxx, 0000 Xxxxxxx, Xxxxxxxx,
Xxxxxxx XX00 0XX
Fax: + 44 148 958 4616
For the attention of: Group Tax Director (UK)
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With a copy to:
Address: Zurich Insurance Company
Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx.
Fax: + 41 1 625 3159
For the attention of: Head of Group Tax
PURCHASER
Address: 000 Xxxxx xx Xxxxxx, X-0000 Xxxxxxxxxx
Fax: + 352 22 42 52
For the attention of: Xxxxxx Sarl
With a copy to:
Address: Windsor Place, 00 Xxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx
Fax: + 1 441 296 7319
For the attention of: Xxxxxxx Xxxxxx
PURCHASER PARENT
Address: Kenmare Holdings Limited
Windsor Place, 00 Xxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx
Fax: + 1 441 296 7319
For the attention of: Xxxxxxx Xxxxxx
25.3 A party may notify any other party to this Agreement of a change to its
name, relevant addressee, address or fax number for the purposes of this clause
25, provided that, such notice shall only be effective on:
(a) the date specified in the notice as the date on which the change is to
take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
following five Business Days after notice of any change has been given.
26. NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement shall have no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its terms.
27. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
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27.1 This Agreement and the relationship between the parties shall be governed
by, and interpreted in accordance with, English law.
27.2 Each of the parties agrees that the courts of England are to have exclusive
jurisdiction to settle any disputes (including claims for set-off and
counterclaims) which may arise in connection with the creation, validity,
effect, interpretation or performance of, or the legal relationships established
by, this Agreement or otherwise arising in connection with this Agreement, and
for such purposes irrevocably submit to the jurisdiction of the English courts.
27.3 Each of the Vendor, the Purchaser and the Purchaser Parent shall at all
times maintain an agent for service of process and any other documents in
proceedings in England or any other proceedings in connection with this
Agreement. Such agent shall be:
(a) in the case of the Vendor, Zurich Financial Services (UKISA) Limited
currently of 00 Xxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX; and
(b) in the case of each of the Purchaser and the Purchaser Parent,
Castlewood (EU) Limited, currently of 0 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxx,
XX0 0XX.
27.4 Each party irrevocably undertakes not to revoke the authority of its agent
without the prior written consent of each other party (such consent not to be
unreasonably withheld or delayed) and, in any event, without first appointing
another agent with an address in England for the purposes described in clause
27.3 and advising each other party in writing of the identity and address of
such other agent. If a party fails to appoint another agent as required by this
clause 27.4, any other party shall be entitled to appoint one on behalf of such
party at the expense of such party.
27.5 Any claim form, judgment or other notice of legal process shall be
sufficiently served on a party if delivered to the agent of such party (as
specified in clause 27.3 or as appointed in accordance with clause 27.4) at its
address for the time being and marked for the attention of the Company
Secretary.
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SIGNED by ) /s/
and )
as duly authorised attorney )
for and on behalf of )
ZURICH INSURANCE COMPANY )
SIGNED by )
XXXXXX HOLDING SARL ) /s/
represented by Mr. Xxxxxxx Xxxxxx )
Title: Manager )
SIGNED by ) /s/
for and on behalf of )
KENMARE HOLDINGS LIMITED )
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