STOCK PURCHASE AGREEMENT, dated as of January 7, 1999, among ZURICH
INSURANCE COMPANY ("Zurich Insurance"), ZURICH AMERICAN INSURANCE COMPANY
("Zurich American"), CENTRE REINSURANCE LIMITED ("Centre Re"), ZURICH
REINSURANCE (NORTH AMERICA), INC. ("Zurich Re"), EMPIRE FIRE AND MARINE
INSURANCE COMPANY ("Empire"), UNIVERSAL UNDERWRITERS INSURANCE COMPANY
("Universal Insurance"), UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY
("Universal Life Insurance"), FIDELITY AND DEPOSIT COMPANY OF MARYLAND
("Fidelity" and, together with Zurich American, Centre Re, Zurich Re, Empire,
Universal Insurance and Universal Life Insurance, the "Sellers"), TIGER, a New
York limited partnership ("Tiger"), PUMA, a New York limited partnership
("Puma"), THE JAGUAR FUND N.V., a Netherlands Antilles corporation ("Jaguar"),
LION L.P., a New York limited partnership ("Lion"), OCELOT PARTNERS L.P., a
Delaware limited partnership ("Ocelot Partners"), and OCELOT (CAYMAN) LTD., a
Cayman Islands corporation ("Ocelot (Cayman)" and, together with Tiger, Puma,
Jaguar, Lion and Ocelot Partners, the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Sellers own an aggregate of 12,698,414 issued and outstanding
shares of common stock, par value $1.00 per share ("Common Stock"), of Provident
Companies, Inc., a Delaware corporation (the "Company");
WHEREAS, Zurich Insurance, the Sellers and the Company are parties to (i)
an Amended and Restated Registration Rights Agreement, executed on November 27,
1996 and dated as of May 31, 1996 (the "Registration Rights Agreement"),
pursuant to which the Company granted certain registration rights to Zurich
Insurance and the Sellers, and (ii) an Amended and Restated Relationship
Agreement, executed on November 27, 1996 and dated as of May 31, 1996 (the
"Relationship Agreement"), pursuant to which, among other things, Zurich
Insurance and the Sellers are subject to certain restrictions on the sale of
shares of Common Stock;
WHEREAS, each of the Sellers wishes to sell to the Purchasers the number of
shares of Common Stock set forth opposite such Seller's name on Schedule I
hereto, and each of the Purchasers wishes to purchase from the Sellers the
number of shares of Common Stock set forth opposite such Purchaser's name on
Schedule I hereto (such shares being referred to herein as the "Shares"), upon
the terms and subject to the conditions set forth herein;
WHEREAS, in connection therewith and as a condition thereto, Zurich
Insurance and the Sellers have agreed to assign, or cause to be assigned, to the
Purchasers certain rights granted to Zurich Insurance and the Sellers under the
Registration Rights Agreement;
WHEREAS, pursuant to Section 2.4 of the Relationship Agreement, Zurich
Insurance has given written notice (the "Transfer Notice") to the Company on
behalf of the Sellers of the proposed transfers contemplated hereby, specifying
the proposed transferees of the
Shares, the number of Shares proposed to be disposed of, the proposed
consideration to be received in exchange therefor, and the other material terms
of the proposed transfers; and
WHEREAS, each of the Purchasers has received a copy of the Acknowledgment
Letter (as defined below) duly executed by the Company and in a form
satisfactory to each of the Purchasers;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, Zurich Insurance, each of the Sellers and
each of the Purchasers hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Acknowledgment Letter" means the letter, dated January 7, 1999, from the
Company to Tiger Management Corporation and each of the Purchasers addressing,
among other things, (i) the Company's acknowledgment of its receipt of a duly
executed Transfer Notice, (ii) the Company's acknowledgment that the Purchasers
have the right to require the Company to amend the Shelf Registration Statement
(as such term is defined in the Acknowledgment Letter) to name the Purchasers as
selling securityholders and (iii) the Company's acknowledgment that none of the
Purchasers shall be regarded as an "affiliate" of the Company (as such term is
defined in the Acknowledgment Letter) following the transactions contemplated by
this Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person.
"Agreement" or "this Agreement" means this Stock Purchase Agreement, dated
as of January 7, 1999, among Zurich Insurance, the Sellers and the Purchasers
(including the Schedule hereto) and all amendments hereto made in accordance
with the provisions of Section 9.10.
"Business Day" means any day that is not a Saturday, a Sunday or other day
on which banks are required or authorized by Law to be closed in the City of New
York.
"Centre Re" has the meaning specified in the preamble to this Agreement.
"Closing" has the meaning specified in Section 2.03.
"Closing Date" has the meaning specified in Section 2.03.
"Common Stock" has the meaning specified in the recitals to this Agreement.
"Company" has the meaning specified in the recitals to this Agreement.
"control" (including the terms "controlled by" and "under common control
with"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly or as trustee or executor, of the
power to direct or cause the direction of the affairs or management of a Person,
whether through the ownership of voting securities, as trustee or executor, by
contract or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Empire" has the meaning specified in the preamble to this Agreement.
"Encumbrance" means (i) any security interest, pledge, mortgage, lien
(including, without limitation, tax liens), charge, encumbrance or adverse
claim, and (ii) any restriction arising out of any agreement to which Zurich
Insurance or any of the Sellers is a party, including, without limitation, any
restriction on the voting, transfer or other exercise of any attributes of
ownership; provided, however, that "Encumbrance" does not include (i)
restrictions imposed by any applicable insurance regulatory authority or
applicable insurance Laws, (ii) restrictions imposed by federal or state
securities laws and (iii) restrictions under the Registrations Rights Agreement.
"Fidelity" has the meaning specified in the preamble to this Agreement.
"Governmental Authority" means any United States federal, state or local or
any foreign government, governmental, regulatory or administrative authority,
agency or commission or any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental
Authority.
"Holder" has the meaning specified in the Registration Rights Agreement.
"IP Agreement" means the Stock Purchase Agreement between Centre
Reinsurance Services (Bermuda) Limited and Xxxxxxxxxx, dated as of March 27,
1997.
"Jaguar" has the meaning specified in the preamble to this Agreement.
"Law" means any federal, state, local or foreign statute, law, ordinance,
regulation, rule, code, order, other requirement or rule of law.
"Lion" has the meaning specified in the preamble to this Agreement.
"Xxxxxxxxxx" means Xxxxxxxxxx I, L.L.C., a Delaware limited liability
company.
"Ocelot Partners" has the meaning specified in the preamble to this
Agreement.
"Ocelot (Cayman)" has the meaning specified in the preamble to this
Agreement.
"Person" means any individual, partnership, limited liability company,
firm, corporation, association, trust, unincorporated organization or other
entity, as well as any syndicate or group that would be deemed to be a person
under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
"Puma" has the meaning specified in the preamble to this Agreement.
"Purchase Price" has the meaning specified in Section 2.02.
"Purchasers" has the meaning specified in the preamble to this Agreement.
"Registrable Securities" has the meaning specified in the Registration
Rights Agreement.
"Registration Rights Agreement" has the meaning specified in the recitals
to this Agreement.
"Relationship Agreement" has the meaning specified in the recitals to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Sellers" has the meaning specified in the preamble to this Agreement.
"Shares" has the meaning specified in the recitals to this Agreement.
"Tax" or "Taxes" means any and all taxes, fees, levies, duties, tariffs,
imposts, and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with respect thereto)
imposed by any government or taxing authority, including, without limitation:
taxes or other charges on or with respect to income, franchises, windfall or
other profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise, withholding, ad
valorem, stamp, transfer, value added, or gains taxes; license, registration and
documentation fees; and customs duties, tariffs, and similar charges.
"Tiger" has the meaning specified in the preamble to this Agreement.
"Transfer Notice" has the meaning specified in the recitals to this
Agreement.
"Universal Insurance" has the meaning specified in the preamble to this
Agreement.
"Universal Life Insurance" has the meaning specified in the preamble to
this Agreement.
"Zurich American" has the meaning specified in the preamble to this
Agreement.
"Zurich Insurance" has the meaning specified in the preamble to this
Agreement.
"Zurich Re" has the meaning specified in the preamble to this Agreement.
SECTION 1.02. Use of Defined Terms. The meanings of the terms defined in this
Agreement shall be applicable to the singular as well as the plural forms of
such terms, unless otherwise stated.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares. Upon the terms and subject
to the conditions of this Agreement, at the Closing, each of the Sellers shall
sell, assign, transfer and deliver to the Purchasers the number of Shares set
forth opposite such Seller's name on Schedule I hereto, and each of the
Purchasers shall purchase from the Sellers the number of Shares set forth
opposite such Purchaser's name on Schedule I hereto.
SECTION 2.02. Purchase Price. The purchase price ("Purchase Price") for the
Shares shall be $39.75 per Share.
SECTION 2.03. Closing. Upon the terms and subject to the conditions of this
Agreement, the sale and purchase of the Shares contemplated by this Agreement
shall take place at a closing (the "Closing") to be held at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M. New
York time on January 13, 1999, or at such other place or at such other time or
on such other date as the parties may mutually agree (the day on which the
Closing takes place being referred to as the "Closing Date").
SECTION 2.04. Closing Deliveries by the Sellers. At the Closing, the
Sellers shall deliver or cause to be delivered to each of the Purchasers:
(a) stock certificates evidencing the Shares being purchased by such
Purchaser duly endorsed in blank, or accompanied by stock powers duly executed
in blank and with all required stock transfer tax stamps affixed; and
(b) a receipt for the Purchase Price in respect of the Shares being
purchased by such Purchaser.
SECTION 2.05. Closing Deliveries by the Purchasers. At the Closing, the
Purchasers shall deliver or cause to be delivered to the Sellers the aggregate
Purchase Price for the Shares, by wire transfer of immediately available funds
to the account or accounts designated by written notice to the Purchasers prior
to the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ZURICH INSURANCE
As an inducement to each of the Purchasers to enter into this Agreement,
Zurich Insurance hereby represents and warrants to each of the Purchasers as
follows:
SECTION 3.01. Organization and Authority of Zurich Insurance. Zurich
Insurance is a corporation duly organized, validly existing and in good standing
under the laws of Switzerland and has all necessary power and authority to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by Zurich Insurance, the performance by Zurich Insurance of its
obligations hereunder and the consummation by Zurich Insurance of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of Zurich Insurance. This Agreement has been duly executed
and delivered by Zurich Insurance, and (assuming due authorization, execution
and delivery by each of the Purchasers) this Agreement constitutes a legal,
valid and binding obligation of Zurich Insurance enforceable against Zurich
Insurance in accordance with its terms.
SECTION 3.02. No Conflict. The execution, delivery and performance of this
Agreement by Zurich Insurance do not and will not (a) violate, conflict with or
result in the breach of any provision of the charter or by-laws (or similar
organizational documents) of Zurich Insurance, (b) conflict with or violate any
Law or Governmental Order applicable to Zurich Insurance or (c) conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which Zurich Insurance is a
party or by which any of its assets or properties is bound or affected.
SECTION 3.03. Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement by Zurich Insurance do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
SECTION 3.04. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Zurich Insurance.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As an inducement to each of the Purchasers to enter into this Agreement,
each of the Sellers hereby severally and not jointly represents and warrants to
each of the Purchasers as follows:
SECTION 4.01. Organization and Authority of the Seller. Such Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all necessary power and authority
to enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by such Seller, the performance by such Seller of its obligations
hereunder and the consummation by such Seller of the transactions contemplated
hereby have been duly authorized by all requisite action on the part of such
Seller. This Agreement has been duly executed and delivered by such Seller, and
(assuming due authorization, execution and delivery by each of the Purchasers)
this Agreement constitutes a legal, valid and binding obligation of such Seller
enforceable against such Seller in accordance with its terms.
SECTION 4.02. Ownership of the Shares. The number of Shares set forth
opposite such Seller's name on Schedule I hereto are owned of record solely by
such Seller free and clear of all Encumbrances, except Encumbrances created by
the Relationship Agreement. Upon consummation of the transactions contemplated
by this Agreement and registration of such Shares in the names of the Purchasers
in the stock records of the Company, the Purchasers, assuming they shall have
purchased such Shares for value in good faith and without notice of any adverse
claim, will own such Shares free and clear of all Encumbrances. Upon
consummation of the transactions contemplated by this Agreement, such Shares
will be fully paid and nonassessable. There are no voting trusts, stockholder
agreements, proxies or other agreements or understandings in effect with respect
to the voting or transfer of any of such Shares, other than the Registration
Rights Agreement, the Relationship Agreement and the IP Agreement.
SECTION 4.03. No Conflict. The execution, delivery and performance of this
Agreement by such Seller do not and will not (a) violate, conflict with or
result in the breach of any provision of the charter or by-laws (or similar
organizational documents) of such Seller, (b) conflict with or violate any Law
or Governmental Order applicable to such Seller or (c) conflict with, result in
any breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any
Encumbrance on any of the Shares owned by such Seller or on any of the assets or
properties of such Seller pursuant to, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which such Seller is a party or
by which any of such Shares or any of such assets or properties is bound or
affected.
SECTION 4.04. Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement by such Seller do not and will not require any
consent, approval, authorization or other order of, action by, filing with or
notification to any Governmental Authority.
SECTION 4.05. Private Placement.. Assuming the accuracy of the
representations of the Purchasers in Section 5.04, the offer and sale hereunder
of the Shares owned by such Seller are exempt from registration under the
Securities Act.
SECTION 4.06. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of such Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
As an inducement to Zurich Insurance and each of the Sellers to enter into
this Agreement, each of the Purchasers hereby severally and not jointly
represents and warrants to Zurich Insurance and each of the Sellers as follows:
SECTION 5.01. Organization and Authority of the Purchasers. Such Purchaser
is a corporation or limited partnership duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by such Purchaser, the performance
by such Purchaser of its obligations hereunder and the consummation by such
Purchaser of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of such Purchaser. This Agreement has been duly
executed and delivered by such Purchaser, and (assuming due authorization,
execution and delivery by Zurich Insurance and each of the Sellers) this
Agreement constitutes a legal, valid and binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms.
SECTION 5.02. No Conflict. Except as may result from any facts or
circumstances relating solely to Zurich Insurance or the Sellers, the execution,
delivery and performance of this Agreement by such Purchaser do not and will not
(a) violate, conflict with or result in the breach of any provision of the
charter or by-laws (or similar organizational documents) of such Purchaser, (b)
conflict with or violate any Law or Governmental Order applicable to such
Purchaser or (c) conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse or time, or both, would
become a default) under,
require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, any note,
bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which such Purchaser is
a party or by which any of its assets or properties are bound or affected.
SECTION 5.03. Governmental Consents and Approvals. The execution, delivery
and performance of this Agreement by such Purchaser do not and will not require
any consent, approval, authorization or other order of, action by, filing with,
or notification to, any Governmental Authority, including, without limitation,
any filing under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
SECTION 5.04. Investment Purpose; Ability to Bear Economic Risks. Such
Purchaser is acquiring its respective Shares solely for the purpose of
investment and not with a view to, or for offer or sale in connection with, any
distribution thereof. Such Purchaser acknowledges that it had been advised by
the Sellers that the Company has, pursuant to Section 2(i) of the Registration
Rights Agreement, suspended the registration rights set forth in the
Registration Rights Agreement until such time as the Company notifies the
Sellers that the suspension is lifted. Accordingly, without limiting any rights
that such Purchaser may have under the Registration Rights Agreement, such
Purchaser further acknowledges that there can be no assurance as to when the
suspension will be lifted and that such Purchaser may not be able to sell the
Shares purchased by it at the times it would otherwise propose to do so or at
all during the suspension period. Such Purchaser has knowledge and experience in
financial and business matters; is capable of evaluating the merits and risks of
the investment contemplated by this Agreement; and is able to bear the economic
risk of the investment in the Company contemplated hereby (including a complete
loss of such investment). Such Purchaser is an "accredited investor" as defined
in Regulation D under the Securities Act.
SECTION 5.05. Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of such Purchaser.
ARTICLE VI
ASSIGNMENT AND EXERCISE OF REGISTRATION RIGHTS
SECTION 6.01. Assignment of Registration Rights. Effective as of the
Closing, Zurich Insurance and the Sellers hereby sell, assign, transfer, convey
and deliver to each Purchaser, its successors and assigns, forever, Zurich
Insurance's and the Sellers' right, title and interest under the Registration
Rights Agreement with respect to the Shares being purchased by such Purchaser;
provided that Zurich Insurance and the Sellers shall retain their rights under
the Registration Rights Agreement with respect to the Registrable Securities not
being sold under this Agreement, including the right to request one but not more
than one of the registrations described in Section 2(a) of the Registration
Rights Agreement; provided, however, that such right to
request one registration shall become a right of the Purchasers in the
event the Sellers, together with any subsequent assignees of the Sellers'
registration rights under the Registration Rights Agreement or portion of such
rights or Registrable Securities, are, in the aggregate, no longer Holders of at
least 100,000 shares of Registrable Securities.
SECTION 6.02. Purchasers' Obligations. Following the Closing, pursuant to
Section 2(k) of the Registration Rights Agreement, each of the Purchasers hereby
agrees to be bound by all obligations and limitations in the Registration Rights
Agreement with respect to the Shares purchased by such Purchaser.
SECTION 6.03. Requested Registration Rights. Following the Closing, the
parties hereto acknowledge and agree that (i) in accordance with the IP
Agreement, Xxxxxxxxxx shall have the sole right (together with any subsequent
assignees of such right or portion thereof) to request one of the three
registrations described in Section 2(a) of the Registration Rights Agreement for
so long as Xxxxxxxxxx and any of such assignees are, in the aggregate, Holders
of more than 10% of the then outstanding Registrable Securities, (ii) the
Purchasers and their Affiliates shall have the right to request one but not more
than one registration, or cause another Person to request one but not more than
one registration, under Section 2(a) of the Registration Rights Agreement
without the consent of Zurich Insurance or any Seller (provided that such right
to request one registration shall become a right of the Sellers in the event the
Purchasers, together with any subsequent assignees of the Purchasers'
registration rights under the Registration Rights Agreement or portion of such
rights or Registrable Securities, are, in the aggregate, no longer Holders of at
least 100,000 shares of Registrable Securities) and (iii) each of the Purchasers
shall cause any assignee of, or successor to, any of its registration rights
under the Registration Rights Agreement to be bound by this Section 6.03.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to the Obligations of Zurich Insurance, the
Sellers and the Purchasers. The obligations of Zurich Insurance, each of the
Sellers and each of the Purchasers to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment, at or prior to the
Closing, of each of the following conditions:
(a) Expiration of the Right of First Offer. The Company shall not have
exercised its rights pursuant to Section 2.4 of the Relationship Agreement to
purchase, or to designate an alternative purchaser of, any of the Shares within
seven business days following the Company's receipt of the Transfer Notice, or
the Company shall have irrevocably waived such rights.
(b) No Governmental Order. No Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any Law (whether temporary, preliminary
or permanent) which is then in effect and has the effect of making the
acquisition of the Shares by the Purchasers
illegal or otherwise restricting, preventing or prohibiting consummation of
the transactions contemplated hereby.
SECTION 7.02. Conditions to the Obligations of Zurich Insurance and the
Sellers. The obligations of Zurich Insurance and each of the Sellers to
consummate the transactions contemplated by this Agreement shall be further
subject to the fulfillment, at or prior to the Closing, of the following
conditions: (i) the representations and warranties of each of the Purchasers
contained in this Agreement shall have been true and correct when made and shall
be true and correct in all material respects as of the Closing, with the same
force and effect as if made at the Closing, (ii) the covenants and agreements
contained in this Agreement to be complied with by each of the Purchasers on or
before the Closing shall have been complied with in all material respects, and
(iii) Zurich Insurance and the Sellers shall have received a certificate from
each of the Purchasers to such effect signed by a duly authorized representative
thereof.
SECTION 7.03. Conditions to the Obligations of the Purchasers. The
obligations of each of the Purchasers to consummate the transactions
contemplated by this Agreement shall be further subject to the fulfillment, at
or prior to the Closing, of the following conditions: (i) the representations
and warranties of Zurich Insurance and each of the Sellers contained in this
Agreement shall have been true and correct when made and shall be true and
correct in all material respects as of the Closing, with the same force and
effect as if made at the Closing, (ii) the covenants and agreements contained in
this Agreement to be complied with by Zurich Insurance and each of the Sellers
on or before the Closing shall have been complied with in all material respects,
and (iii) the Purchasers shall have received a certificate from Zurich Insurance
and each of the Sellers to such effect signed by a duly authorized
representative thereof.
ARTICLE VIII
TERMINATION
SECTION 8.01. Termination. This Agreement may be terminated at any time
prior to the Closing by Zurich Insurance and the Sellers or the Purchasers if
the Closing shall not have occurred on or prior to January 13, 1999; provided,
however, that the right to terminate this Agreement under this Section 8.01
shall not be available to any party whose failure to perform any covenant or
agreement under this Agreement shall have been the cause of, or shall have
resulted in, the failure of the Closing to occur on or prior to such date.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial
advisors and accountants, incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
costs and expenses.
SECTION 9.02. Further Action. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things necessary, proper or advisable under applicable Law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and consummate and make effective the
transactions contemplated by this Agreement.
SECTION 9.03. Conveyance Taxes. The Sellers shall be liable for and shall
hold each of the Purchasers harmless against any real property transfer or
gains, sales, use, transfer, value added, stock transfer, and stamp taxes, any
transfer, recording, registration, and other fees, and any similar Taxes which
become payable in connection with the sale of the Shares to the Purchasers under
this Agreement. Each of the Purchasers shall execute and deliver all instruments
and certificates necessary to enable the Sellers to comply with the foregoing.
SECTION 9.04. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 9.04):
(a) if to Zurich Insurance or any Seller:
c/o Zurich Insurance Company
Xxxxxxxxxx 0
X.X. Xxx Xx-0000
Xxxxxx, Xxxxxxxxxxx
Telecopy: 000-000-000-0000
Attention: General Counsel
with copies to:
Zurich Centre Group LLC
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(b) if to any Purchaser:
c/o Tiger Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
SECTION 9.05. Public Announcements. Except as required by Law or by the
rules of any securities exchange on which securities of any of the parties
hereto are listed or quoted, no party to this Agreement shall make, or cause to
be made, any press release or public announcement in respect of this Agreement
or the transactions contemplated hereby or otherwise communicate with any news
media without the prior written consent of the other parties, and the parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
SECTION 9.06. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 9.07. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to the subject matter hereof.
SECTION 9.08. Assignment. This Agreement may not be assigned by operation
of law or otherwise without the express written consent of the parties hereto
(which consent may be granted or withheld in the sole discretion of each party
hereto); provided, however, that each of the Purchasers may assign this
Agreement or any of its rights hereunder to an Affiliate of such Purchaser
without the consent of any other party hereto; provided further that if
registration rights under the Registration Rights Agreement are transferred
therewith, any such transferee shall expressly assume in writing the obligations
in Section 6.03.
SECTION 9.09. No Third Party Beneficiaries. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns and nothing
herein, express or implied, is intended to or shall confer upon any other
Person any legal or equitable right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
SECTION 9.10. Amendment. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto.
SECTION 9.11. Governing Law. This Agreement shall be governed by the laws
of the State of New York. All actions and proceedings arising out of or relating
to this Agreement shall be heard and determined in any New York state or federal
court sitting in the City of New York. The parties hereto hereby (i) submit to
the exclusive jurisdiction of any New York state or federal court sitting in the
City of New York for the purpose of any action or proceeding arising out of or
relating to this Agreement brought by any party hereto, and (ii) waive, and
agree not to assert by way of motion, defense, or otherwise, in any such action
or proceeding, any claim that it is not subject personally to the jurisdiction
of the above-named courts, that its property is exempt or immune from attachment
or execution, that the action or proceeding is brought in an inconvenient forum,
that the venue of the action or proceeding is improper, or that this Agreement
or the transactions contemplated hereby may not be enforced in or by any of the
above-named courts.
SECTION 9.12. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf as of the date first written above.
ZURICH INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
ZURICH AMERICAN INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice-President
CENTRE REINSURANCE LIMITED
By: /s/ Xxxx Xxxxxxx
----------------------
Name: Xxxx Xxxxxxx
Title:SVP & GAO
ZURICH REINSURANCE (NORTH
AMERICA), INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title:Senior Vice-President &
Chief Administrative Officer
EMPIRE FIRE AND MARINE
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
UNIVERSAL UNDERWRITERS
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
UNIVERSAL UNDERWRITERS LIFE
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND
By: /s/ Xxxxx X. Xxxxxx
----------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
TIGER
By: Tiger Performance L.L.C.,
its General Partner
By: /s/ X. Xxxxxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxxxx Caffray
Title: Senior Managing Director
PUMA
By: Tiger Performance L.L.C.,
its General Partner
By: /s/ X. Xxxxxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxxxx Caffray
Title: Senior Managing Director
THE JAGUAR FUND N.V.
By: Tiger Management L.L.C.,
its Investment Manager
By: /s/ X. Xxxxxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxxxx Caffray
Title: Senior Managing Director
LION L.P.
By: Tiger Performance L.L.C.,
its General Partner
By: /s/ X. Xxxxxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxxxx Caffray
Title: Senior Managing Director
OCELOT PARTNERS L.P.
By: Ocelot G.P., L.P.,
its General Partner
By: Tiger Performance L.L.C.,
its General Partner
By: /s/ X. Xxxxxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxxxx Caffray
Title: Senior Managing Director
OCELOT (CAYMAN) LTD.
By: Tiger Management L.L.C.,
its Investment Advisor
By: /s/ X. Xxxxxxxxx Xxxxxxx
---------------------------
Name: X. Xxxxxxxxx Caffray
Title: Senior Managing Director
SCHEDULE I
Seller Number of Shares Purchase Price
------ ---------------- --------------
Zurich American 989,999 $39,352,460.25
Centre Re 4,702,501 $186,924,414.75
Zurich Re 247,500 $9,838,125.00
Empire 132,000 $5,247,000.00
Universal Insurance 264,000 $10,494,000.00
Universal Life Insurance 66,000 $2,623,500.00
Fidelity 198,000 $7,870,500.00
Purchaser Number of Shares Purchase Price
--------- ---------------- --------------
Tiger 1,601,820 $63,672,345.00
Jaguar 3,771,900 $149,933,025.00
Puma 430,320 $17,105,220.00
Lion 58,740 $2,334,915.00
Ocelot Partners 565,620 $22,483,395.00
Ocelot (Cayman) 171,600 $6,821,100.00
