Exhibit 2.2
Execution
Copy
AMENDMENT NO. 2 TO SECURITIES
PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO SECURITIES PURCHASE
AGREEMENT (this “ Amendment ”), dated as of
September 28, 2009, is entered into among PartnerRe Ltd., a Bermuda
exempted company (“ Parent ”), and the other parties hereto .
W I T N E S S E T H
:
WHEREAS, Parent and the other parties hereto are
the parties to that certain Securities Purchase Agreement dated as
of July 4, 2009 (as amended by Amendment No. 1 thereto, the “
Block Purchase Agreement ”), which contemplates, as a
first step in Parent acquiring the Company, the acquisition by
Purchaser of all of the Company Shares and Company Warrants owned
by the Sellers;
WHEREAS, simultaneously with entering into the
Block Purchase Agreement, Parent entered into the Transaction
Agreement with the Company and Purchaser, pursuant to which, among
other things, Parent has agreed to cause Purchaser to commence an
exchange offer following the Closing for all of the outstanding
Company Shares and Company Warrants not owned by Purchaser and,
provided that Purchaser and its Affiliates own at least 90% of the
outstanding Company Shares following consummation of the exchange
offer, the merger of the Company with and into Purchaser as soon as
practicable thereafter;
WHEREAS, the parties to the Transaction
Agreement are entering into Amendment No. 1 to the Transaction
Agreement (the “ Transaction Agreement Amendment
”) contemporaneously with this Amendment to amend the
Transaction Agreement to, among other things and subject to certain
conditions therein, eliminate the requirement that Purchaser make
the exchange offer following the Closing, and instead provide for
the acquisition of the remaining outstanding Company Shares not
owned by Purchaser and its Affiliates following the Closing by
means of a merger of the Company with and into Purchaser on the
terms and subject to the conditions set forth in the Transaction
Agreement Amendment;
WHEREAS, the parties to the Block Purchase
Agreement desire to amend certain provisions of the Block Purchase
Agreement impacted by the structural changes to the Transaction
Agreement; and
WHEREAS, in accordance
with Section 11.02 of the Block Purchase Agreement
, the parties hereto wish to effect the
amendments to the Block Purchase Agreement provided
hereunder.
NOW, THEREFORE, the Block Purchase
Agreement is amended as follows:
1.
Definitions;
References . All capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given them
in the Block Purchase Agreement, and each reference in the Block
Purchase Agreement to “this Agreement”,
“hereof”, “herein”, “hereunder”
or “hereby” and each other similar reference shall be
deemed to refer to the Block Purchase Agreement as amended hereby
and as previously amended by Amendment No. 1 thereto. Each
reference to the “the date hereof”, “the date of
this Agreement” and each other similar reference contained in
the Block Purchase Agreement shall refer to July 4,
2009. Each reference to “Transaction
Agreement” shall refer to the Transaction Agreement as
amended by the Transaction Agreement Amendment.
2.
Closing . Notwithstanding anything in Section
2.02(a) of the Block Purchase Agreement to the contrary, so long as
a Non-Acceleration Event (as defined in the Transaction Agreement
Amendment) shall not have occurred, the Closing shall occur on the
later to occur of (a) October 2, 2009 and (b) one Business Day
after all conditions set forth in Article 8 of the Block Purchase
Agreement are satisfied or waived (other than those conditions that
by their nature cannot be satisfied until or immediately prior to
the Closing); provided that if a Non-Acceleration Event
shall have occurred prior to the Closing, the provisions of this
Section 2 shall be inapplicable and the provisions of Section
2.02(a) of the Block Purchase Agreement shall apply without regard
to this Section 2.
3.
Amendment to Exhibit E
. Exhibit E to
the Block Purchase Agreement is hereby amended and restated in its
entirety as set forth in Exhibit E attached
hereto.
4.
Subsequently Acquired Company
Shares or Company Warrants . Section 5.04 of the Block Purchase
Agreement is hereby amended and restated in its entirety as
follows:
“Section 5.04. Subsequently
Acquired Company Shares or Company Warrants
. (a) Prior to the Effective Time (as defined
in the Transaction Agreement), if any Seller or any of its
Affiliates purchases or otherwise acquires beneficial ownership of
any Company Shares or Company Warrants in addition to those Company
Shares and Company Warrants set forth opposite such Seller’s
(or, if applicable, any of its Affiliate’s) name on
Exhibit A hereto, such Company Shares or Company Warrants
shall be subject to the terms and conditions of this Agreement to
the same extent as if they were owned by such Seller as of the date
hereof and Exhibit A hereto shall be adjusted accordingly to
give effect to such purchase or acquisition; provided ,
however, that if such Company Shares or Company Warrants are
purchased or otherwise acquired after the Closing, but prior to the
Effective Time (as defined in the Transaction
Agreement), the Per Share
Consideration and Per Warrant Consideration shall not be paid as
provided in Article 2, and instead, such Seller hereby agrees that
at any meeting (whether annual or special and whether or not
adjourned or postponed) of the holders of Company Shares, however
called, or in connection with any written consent of the holders of
Company Shares, such Seller shall vote (or cause to be voted) or
deliver a consent (or cause a consent to be delivered) with respect
to such Company Shares to the fullest extent that such Company
Shares are entitled to be voted at the time of any vote or action
by written consent:
(i) in
favor of the approval and adoption of the Merger Agreement (as
defined in the Transaction Agreement) and the Merger;
and
(ii) against
any (A) Company Acquisition Proposal (as defined in the Transaction
Agreement), (B) reorganization, recapitalization, liquidation or
winding-up of the Company or any other extraordinary transaction
involving the Company or (C) corporate action the consummation of
which would frustrate the purposes, or prevent or delay the
consummation, of the Merger.
(b) This
Section 5.04 shall terminate and be of no further force or effect
whatsoever as of the earlier of (a) the approval and adoption of
the Merger Agreement (as defined in the Transaction Agreement) and
the Merger in accordance with the Swiss Merger Act (as defined in
the Transaction Agreement) and (b) the termination of the
Transaction Agreement in accordance with its
terms.”
5.
Reasonable Best Efforts; Further
Assurances .
Section 7.01 of the Block Purchase Agreement is
amended hereby by deleting “2.01,” from the last
sentence of such Section; provided that if a Merger End Date
(as defined in the Transaction Agreement Amendment) occurs, this
Section 5 of this Amendment shall be deemed inapplicable and of no
further force and effect.
(a) Section 8.01(h)
shall be disregarded and deemed inapplicable; provided that
if a Merger End Date occurs prior to the Closing, to the extent
reasonably necessary, Parent shall have obtained exemptive and
no-action relief from the SEC permitting Purchaser to commence and
consummate the Offer in compliance with the General Rules of the
AMF.
(b) Clause (i) of
Section 8.01(e) shall be disregarded and deemed inapplicable;
provided that if a Merger End Date occurs prior
to
the Closing, this clause (b) shall
be deemed inapplicable and of no further force and
effect.
(c) Section 8.01(f) is
hereby amended by adding the words “, unless the issuance of
the Parent Shares in the Offer and the Merger would reasonably be
expected to qualify for an exemption from the registration
requirements of the 1933 Act” immediately prior to the
period.
7.
Investor Agreement
. Exhibit B to
the Block Purchase Agreement is hereby amended by amending and
restating the definition of “Restriction Termination
Date&
