SECURITIES PURCHASE AGREEMENT

 

EXECUTION COPY

 

 

 

SECURITIES PURCHASE AGREEMENT

dated as of

July 4, 2009

among

PARTNERRE LTD.

(as buyer),

THE SELLERS NAMED HEREIN

(as sellers)

and,

solely for purposes of Sections 7.04, 7.05, 7.07(a), 11.02 and 11.03,

PARIS RE HOLDINGS LIMITED

relating to the purchase and sale

of

Common Shares

and

Warrants to purchase Common Shares

of

PARIS RE HOLDINGS LIMITED

 

 

 

TABLE OF CONTENTS

Page

SECURITIES PURCHASE AGREEMENT

SECURITIES PURCHASE AGREEMENT (this “ Agreement ”) dated as of July 4, 2009 among:

(i) PartnerRe Ltd., a Bermuda exempted company (“ Parent ”);

(ii) Hellman & Friedman Capital Partners V (Cayman), L.P., Hellman & Friedman Capital Partners V (Cayman Parallel), L.P. and Hellman & Friedman Capital Associates V (Cayman), L.P. (collectively, the “ Hellman & Friedman Sellers ”);

(iii) Trident III, L.P. and Trident III Professionals Fund, L.P. (collectively, the “ Stone Point Sellers ”);

(iv) Vestar Capital Partners V, L.P., Vestar Capital Partners V-A, L.P., Vestar Executives V, L.P. and Vestar Holdings V, L.P. (collectively, the “ Vestar Sellers ”);

(v) Crestview Partners (Outbound), L.P., Crestview Partners TE (Outbound), L.P., Crestview Partners ERISA (Outbound), L.P., Crestview Partners (PF), L.P. and Crestview Offshore Holdings (Cayman), L.P. (collectively, the “ Crestview Sellers ”);

(vi) Caisse de depot et placement du Québec (the “ Caisse de Dépôt Seller ”);

(vii) New Mountain Partners II (Cayman), L.P., Allegheny New Mountain Partners (Cayman), L.P. and New Mountain Affiliated Investors II (Cayman), L.P. (collectively, the “ New Mountain Sellers ”); each of the Hellman & Friedman Sellers, the Stone Point Sellers, the Vestar Sellers, the Crestview Sellers, the Caisse de Dépôt Seller and the New Mountain Sellers is individually referred to as a “ Seller ”, and collectively is referred to as the “ Sellers ”); and

(ix) Solely for purposes of Sections  7.04, 7.05, 7.07(a), 11.02 and 11.03 hereof, PARIS RE Holdings Limited, a Swiss corporation (the “ Company ”).

W I T N E S S E T H:

WHEREAS, Parent intends to consummate, through Purchaser (as defined below), a series of transactions in order to acquire the Company;

WHEREAS, as the first step in acquiring the Company, Parent desires to cause Purchaser to purchase (the “ Purchase ”) all of the Company Shares and Company Warrants (in each case, as defined below) owned by the Sellers, and the Sellers, as the owners of such Company Shares and Company Warrants, desire to

 

 

sell such Company Shares and Company Warrants to Purchaser, upon the terms and subject to the conditions of this Agreement;

WHEREAS, upon the consummation of the transactions contemplated by this Agreement, Parent intends to cause Purchaser, pursuant to the terms and conditions of the Transaction Agreement dated as of the date hereof (the “ Transaction Agreement ”) between Parent and the Company, to commence an exchange offer for all of the Company Shares and Company Warrants that Purchaser does not own prior to the commencement of such exchange offer, and provided Purchaser owns at least 90% of the outstanding Company Shares following consummation of such exchange offer, to consummate the Merger immediately thereafter; and

WHEREAS, the parties intend, to the extent permitted by Applicable Law, for the Merger, together with the other transactions contemplated in the Transaction Agreement and herein, to qualify as a “reorganization” within the meaning of Section 368(a) of the United States Internal Revenue Code of 1986, as amended.

The parties hereto agree as follows:

ARTICLE 1

Definitions

Section 1.01 .  Definitions.   Article 1 The following terms, as used herein, have the following meanings:

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided that (i) none of the Company or any of its Subsidiaries shall be considered an Affiliate of any of the Sellers or any of their respective Affiliates (other than the Company and its Subsidiaries), (ii) none of the Sellers or any of their respective Affiliates (other than the Company and its Subsidiaries) shall be considered an Affiliate of the Company or any of its Subsidiaries and (iii) no portfolio company in which any Seller or an Affiliate of a Seller has an investment shall be considered an Affiliate of such Seller or Affiliate.

“ AMF ” means the Autorité des Marchés Financiers.

“ Applicable Law ” means, with respect to any Person, any supranational, foreign, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, permit, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated, made mandatory or applied by a Governmental Authority that is

 

 

binding upon or applicable to such Person, as amended unless expressly specified otherwise.

“ Burdensome Condition ” shall have the meaning given to such term in the Transaction Agreement.

“ Business Day ” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, Paris or Zurich are authorized or required by Applicable Law to close.

“ Charter Amendmen t” shall have the meaning given to such term in the Transaction Agreement.

“ CHF ” means Swiss Francs, being the lawful currency of Switzerland .

“ Closing Date ” means the date of the Closing.

“ Company Shares ” means the common bearer shares, CHF 4.51 par value per share of the Company.

“ Company Warrants ” means any and all warrants to purchase Company Shares.

“ FINMA ” means the Swiss Financial Supervisory Market Authority.

“ General Rules of the AMF ” means the Règlement général de l'Autorité des marchés financiers and any instruction, regulation or recommendation enacted, adopted, promulgated or applied by the AMF.

“ Governmental Authority ” means any transnational, domestic or foreign federal, state or local, governmental, regulatory or administrative (including social security) authority, department, court, agency or official, including any political subdivision thereof.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“ Investor Agreements ” means the Investor Agreements, each substantially in the form attached as Exhibit B hereto.

“ knowledge ” means the actual knowledge, after reasonable inquiry, of the officers of Parent and its Subsidiaries set forth in Section 1.01 of the Parent Disclosure Schedule or the executives of each Seller and its Affiliates set forth in Section 1.01 of the Seller Disclosure Schedule, as the case may be. It is agreed that the actual knowledge of the individuals listed in the Disclosure Schedules excludes any knowledge which may be implied, imputed or construed from or on the basis of the knowledge of any other Person including, without limitation,

 

 

professional advisers or any other employee, director or officer of any Seller or any of its Affiliates or Parent or any of its Subsidiaries not so listed.

“ Lien ” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance or other adverse claim of any kind in respect of such property or asset.  For purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset.

“ Material Adverse Effect ” shall have the meaning given to such term in the Transaction Agreement.

“ Merger ” shall have the meaning given to such term in the Transaction Agreement.

“ 1933 Act ” means the Securities Act of 1933.

“ 1934 Act ” means the Securities Exchange Act of 1934.

“ NYSE ” means the New York Stock Exchange.

“ Offer ” shall have the meaning given to such term in the Transaction Agreement.

“ Parent Disclosure Schedule ”   means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by Parent to the Sellers.

“ Parent Note ” means a promissory note of Parent substantially in the form attached as Exhibit E hereto.

“ Parent Shares ” means Parent’s common shares, par value US$1.00 per share.

“ Per Share Consideration ” shall have the meaning given to such term in the Transaction Agreement (but without giving effect to any adjustment thereto pursuant to Section 2.07 thereto).

“ Per Warrant Consideration ” shall have the meaning given to such term in the Transaction Agreement (but without giving effect to any adjustment thereto pursuant to Section 2.07 thereto).

“ Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“ Purchaser ” shall have the meaning given to such term in the Transaction Agreement.

“ Registration Rights Agreement ” means each of the Registration Rights Agreements to be entered into at the Closing between Parent and each Seller, substantially in the form attached as Exhibit D hereto.

“ Seller Disclosure Schedule ”   means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by the Sellers to the Company.

“ Share Capital Repayment ” shall have the meaning given to such term in the Transaction Agreement.

“ Subsidiary ” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person.

“ Swiss Cartel Act ” means the Swiss Federal Act on Cartels and Other Restraints of Competition and its implementing ordinances.

(a) Each of the following terms is defined in the Section set forth opposite such term:

Section 1.02 .  Other Definitional and Interpretative Provisions.   The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.  References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified.  All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.  Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.  “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.  References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder.  References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements must also be listed in the appropriate schedule.  References to any Person include the successors and permitted assigns of that Person.  References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.  References to “law”, “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law.

ARTICLE 2

Purchase and Sale

Section 2.01 .  Purchase and Sale.   Article 2 Upon the terms and subject to the conditions of this Agreement, each Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from each Seller, the number of the Company Shares and Company Warrants set forth opposite such Seller’s name on Exhibit A

 

 

hereto at the Closing.  The purchase price for each Company Share is equal to (i) the Per Share Consideration plus (ii), solely to the extent the Share Capital Repayment is not paid immediately prior to the Closing pursuant to Section 9.03(b) of the Transaction Agreement, a Parent Note with a principal amount equal to the difference between (x) US $3.85 minus (y) any per share payment of the Share Capital Repayment made prior to Closing pursuant to Section 9.03(b)(ii) of the Transaction Agreement, and the purchase price for each Company Warrant is equal to the Per Warrant Consideration.  The aggregate number of Parent Shares to be issued to each Seller in respect of the Company Shares and Company Warrants owned by such Seller and the maximum aggregate principal amount of Parent Notes, if any, to be issued to such Seller are set forth under the headings “Parent Shares to be Issued” and “Maximum Aggregate Principal Amount of Notes”, respectively, on Exhibit A hereto.  The Per Share Consideration, Per Warrant Consideration and the principal amount of any Parent Notes shall be paid as provided in Section 2.02.

(b)        To the extent that any adjustment is made to the Per Share Consideration and Per Warrant Consideration pursuant to Section 2.06(d) of the Transaction Agreement, Exhibit A hereto shall be adjusted accordingly to give effect to such adjustment.

Section 2.02 .  Closing.   The closing of the purchase and sale of the Company Shares and Company Warrants hereunder (the “ Closing ”) shall take place at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York three Business Days after the Adjustment Determination Date (as defined in the Transaction Agreement), or at such other time or place as Parent and each Seller may agree.  At the Closing:

 

(a)        Purchaser shall deliver to each Seller certificates evidencing the aggregate number of Parent Shares set forth opposite such Seller’s name under the heading “Parent Shares to be Issued” on Exhibit A , in definitive form and registered in the name of such Seller;

 

(b)        Each Seller shall give the irrevocable and unconditional instruction to the investment services provider ( prestatataire de service d'investissement ) in charge of the transaction, to debit its share account ( compte titres ) as specified by such Seller prior to the Closing with the number of Company Shares set forth opposite such Seller’s name on Exhibit A and credit the share account of Purchaser with such number of Company Shares;

 

(c)        Each Seller owning Company Warrants shall deliver to Purchaser all certificates for the Company Warrants, duly endorsed and accompanied by assignments, substantially in the form attached to the Company Warrants; and

 

(d)        Solely to the extent the Share Capital Repayment is not paid immediately prior to the Closing pursuant to Section 9.03(b) of the Transaction

 

 

Agreement, Purchaser shall deliver to each Seller a Parent Note having an aggregate principal amount equal to (i) the difference between (x) US$3.85 and (y) any per share payment of the Share Capital Repayment made prior to Closing pursuant to Section 9.03(b)(ii) of the Transaction Agreement times (ii) the number of Company Shares set forth opposite such Seller’s name on Exhibit A hereto, which maximum aggregate principal amount is set forth under the heading “Maximum Aggregate Principal Amount of Notes” on Exhibit A hereto.

Section 2.03 .    No Fractional Shares.   No fractional Parent Shares shall be issued in the Purchase. All fractional Parent Shares that a holder of Company Shares or Company Warrants would otherwise be entitled to receive as a result of the Purchase shall be aggregated and if a fractional share results from such aggregation, the number of Parent Shares to be issued shall be rounded to the nearest whole Parent Share (with 0.50 being rounded upward).

Section 2.04 .  Adjustments.   If, during the period between the date of this Agreement and the Closing,

the Per Share Consideration, Per Warrant Consideration and any other amounts payable pursuant to this Agreement shall be appropriately adjusted to provide to the holders of Company Shares or Company Warrants the same economic effect as contemplated by this Agreement prior to such event.

Section 2.05 .  Withholding Rights.   Notwithstanding any provision contained herein to the contrary, either of Purchaser or Parent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 2 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of applicable tax law.  If Purchaser or Parent, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Shares or Company Warrants in respect of which Purchaser or Parent, as the case may be, made such deduction and withholding.

ARTICLE 3

Representations and Warranties of Sellers

Subject to Section 11.04, except as set forth in the Seller Disclosure Schedule, each Seller severally as to itself but not jointly with the other Sellers represents and warrants to Parent as of the date hereof and as of the Closing that:

Section 3.01 .  Existence and Power.   Such Seller is duly organized, validly existing and (where applicable) in good standing under the laws of its jurisdiction of organization and has all organizational powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not, individually or in the aggregate, adversely affect such Seller’s ability to consummate the transactions contemplated by this Agreement to be consummated by it.

Section 3.02 .  Authorization.   The execution, delivery and performance by such Seller of this Agreement and the consummation by such Seller of the transactions contemplated hereby are within such Seller’s powers and have been duly authorized by all necessary action on the part of such Seller.  This Agreement constitutes a valid and binding agreement of such Seller enforceable against such Seller in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

Section 3.03 .  Governmental Authorization.   The execution, delivery and performance by such Seller of this Agreement and the consummation by such Seller of the transactions contemplated hereby require no action by or in respect of, or filing with or notifications to, any Governmental Authority, other than compliance with any other applicable requirements of the 1933 Act or the 1934

 

 

Act and notifications required to be made to, and approvals required to be obtained from, the Company, FINMA or the AMF due to crossing certain ownership thresholds, with only such exceptions that, individually or in the aggregate, would not reasonably be expected to adversely affect such Seller’s ability to consummate the transactions contemplated by this Agreement to be consummated by it.

Section 3.04 .  Noncontravention.   The execution, delivery and performance by such Seller of this Agreement and the consummation by such Seller of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the certificate of incorporation or bylaws or other similar organizational documents of such Seller, (ii) assuming compliance with the matters referred to in Section 3.03, contravene, conflict with, or result in a violation or breach of any provision of any Applicable Law, or (iii) assuming compliance with the matters referred to in Section 3.03, require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which such Seller or any of its Affiliates is entitled under, any provision of any agreement or other instrument binding upon such Seller or any of its Affiliates, or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of such Seller or any of its Affiliates or (iv) result in the creation or imposition of any Lien on any asset of such Seller or any of its Affiliates, with only such exceptions, in the case of each of clauses (ii) through (iv), that, individually or in the aggregate, would not reasonably be expected to adversely affect such Seller’s ability to consummate the transactions contemplated by this Agreement to be consummated by it.

Section 3.05 .  Ownership of Company Shares.   Such Seller is the owner of the Company Shares and Company Warrants set forth opposite such Seller’s name on Exhibit A , free and clear of any Lien and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Company Shares), and will transfer and deliver to Purchaser at the Closing valid title to such Company Shares and Company Warrants free and clear of any Lien and any such limitation or restriction.  Except for the Company Shares and Company Warrants set forth opposite such Seller’s name on Exhibit A , such Seller does not own beneficially or of record any capital stock of the Company or any of its Subsidiaries or any interest therein.

Section 3.06 .  Related Party Agreements.   Neither such Seller nor any of its Affiliates is a party to any contract, agreement, arrangement or understanding with the Company or any of its Affiliates, excluding contracts, agreements, arrangements or understandings to which Parent or a Subsidiary of Parent is a party.

Section 3.07 .  Disclosure Documents.   Article 3 The information relating to such Seller supplied in writing by such Seller specifically for inclusion in the S-4 (as defined in the Transaction Agreement) shall not at the time the S-4 is declared effective by the U.S. Securities and Exchange Commission (the “ SEC ”) (or, with respect to any post-effective amendment or supplement, at the time such post-effective amendment or supplement becomes effective) contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(b)        The information relating to such Seller supplied in writing by such Seller specifically for inclusion in the Proxy Statement (as defined in the Transaction Agreement) shall not, on the date the Proxy Statement, and any amendments or supplements thereto, is first mailed to the shareholders of Parent, or at the time of the Parent Shareholder Approvals, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(c)        The information relating to such Seller supplied in writing by such Seller specifically for inclusion in the Company Disclosure Documents (as defined in the Transaction Agreement) shall, as of their respective filing dates, be accurate and fairly presented in accordance with the provisions of the General Rules of the AMF.

 

(d)        The representations and warranties contained in this Section 3.07 will not apply to statements or omissions included or incorporated by reference in the S-4, the Proxy Statement or the Company Disclosure Documents based upon information supplied by the Company, Parent or Purchaser or any of their Representatives specifically for inclusion therein.

Section 3.08 .  Investment Purpose; Inspections; No Other Representations.   Article 4 The Parent Shares to be acquired by such Seller pursuant to this Agreement are being acquired for such Seller’s own account for investment and without a view to the public distribution of such Parent Shares or any interest therein.  Such Seller acknowledges that the Parent Shares being acquired pursuant to this Agreement have not been registered under the 1933 Act or under the securities laws of any state or non-U.S. jurisdiction and may not be sold or transferred without compliance with applicable federal, state or non-U.S. securities laws, pursuant to registration or exemption therefrom.

 

(b)        Such Seller has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Parent Shares and such Seller is capable of bearing the economic risks of such investment.

 

 

(c)        Such Seller has been given the opportunity to ask questions of and receive answers from Parent concerning Parent, the Parent Shares and other related matters.  Such Seller further represents and warrants to Parent and Purchaser that it has been furnished with all information it deems necessary or desirable to evaluate the merits and risks of the acquisition of the Parent Shares and that Parent has made available to such Seller or its agents all documents and information relating to an investment in the Parent Shares requested by or on behalf of such Seller. In evaluating the suitability of an investment in the Parent Shares, such Seller has not relied upon any other representations or other information (other than as contemplated by the preceding sentences) whether oral or written made by or on behalf of Parent.  Without limiting the generality of the foregoing, such Seller acknowledges that none of Parent, Purchaser or any of their Affiliates makes any representation or warranty with respect to Article 5 any projections, estimates or budgets delivered to or made available to such Seller of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of Parent or its Subsidiaries or the future business and operations of Parent or its Subsidiaries or Article 6 any other information or documents made available to such Seller or its counsel, accountants or advisors with respect to Parent or its Subsidiaries or their respective businesses or operations, except as expressly set forth in this Agreement or in the case of fraud or intentional misrepresentation.

 

(d)        Such Seller is an “Accredited Investor” as such term is defined in Regulation D under the 1933 Act.

 

(e)        Except for the representations and warranties of such Seller contained in this Agreement, such Seller makes no other representation or warranty in connection with, arising out of or relating to the transactions contemplated by this Agreement and the Transaction Agreement, express or implied, and such Seller hereby disclaims, and Parent and Purchaser may not rely on, any such other representation or warranty, notwithstanding the delivery or disclosure to Parent, Purchaser or any of their respective Affiliates or any other Person of any documentation or other information by such Seller or any of its Representatives or any other Person with respect to any of such matters, in each case except in the case of fraud or intentional misrepresentation.

Section 3.09 .  Transaction Expenses.   Except for the Persons set forth in Section 3.09 of the Seller Disclosure Schedule, there is no investment banker, broker, finder, attorney, tax advisor, actuarial advisor, accountant or other intermediary or advisor that has been retained by or is authorized to act on behalf of such Seller who might be entitled to any fee or commission from the Company or any of its Subsidiaries in connection with the transactions contemplated by this Agreement or the Transaction Agreement (including indirectly by way of reimbursement pursuant to Section 11.03(a)). With respect to each Person set forth on Section 3.09 of the Seller Disclosure Schedule for which a Seller reasonably believes fees and expenses in excess of US$100,000 would be payable

 

 

in connection with the transactions contemplated by this Agreement and the Transaction Agreement, Section 3.09 of the Seller Disclosure Schedule sets forth an estimate of the aggregate fees and expenses payable to such Person.  The estimate of each such Person’s fees and expenses are being provided to Parent for informational purposes only and are based solely on the estimate thereof provided by such Person to one or more Sellers prior to the date hereof.  Except for the immediately succeeding sentence, no Seller is making any representation or warranty hereunder as to the accuracy of any such Person’s estimated fees and expenses.  As of the date hereof and each Seller’s knowledge (without any obligation of inquiry or investigation), such Seller is not aware that the estimated fees and expenses of any Person set forth on Section 3.09 of the Seller Disclosure Schedule are materially inaccurate.

ARTICLE 4

Representations and Warranties of Parent

Subject to Section 11.04, except as disclosed in any Parent SEC Document (as defined in the Transaction Agreement) filed after December 31, 2008 and before the date of this Agreement or as set forth in the Parent Disclosure Schedule, Parent represents and warrants to each Seller as of the date hereof and as of the Closing that:

Section 4.01 .  Existence and Power.   Parent is, and Purchaser will be, duly organized, validly existing and (where applicable) in good standing under the laws of its jurisdiction of organization and has all organizational powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent. Parent is duly qualified to do business as a foreign stock corporation in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent.    Parent has heretofore made available to each Seller true and complete copies of the memorandum of association and bye-laws or similar organizational documents of Parent as currently in effect.  Since the date of its formation, Purchaser has not engaged in any activities other than in connection with or as contemplated by this Agreement and the Transaction Agreement.

Section 4.02 .  Authorization.   Article 7 The execution, delivery and performance by Parent of this Agreement and the consummation by Parent of the transactions contemplated by this Agreement and the Transaction Agreement are within the organizational powers of Parent and have been duly authorized by all necessary action on the part of Parent, except for the Parent Shareholder Approvals.  The execution, delivery and performance by Purchaser of this Agreement and the

 

 

consummation by Purchaser of the transactions contemplated by this Agreement and the Transaction Agreement will be, upon its execution and delivery hereof in accordance with Section 6.01, within the organizational powers of Purchaser and will be duly authorized by all necessary action on the part of Purchaser.  This Agreement constitutes a valid and binding agreement of Parent, and will upon its execution and delivery hereof by Purchaser pursuant to Section 6.01, constitute a valid and binding agreement of Purchaser, enforceable against Parent and Purchaser in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

(b)        The affirmative vote of a simple majority of the total votes cast in favor of Article 8 an increase in the number of directors constituting the board of directors of Parent (the “ Parent Board ”), Article 9 the issuance of the Parent Shares in connection with the transactions contemplated by this Agreement and the Transaction Agreement and Article 10 any amendments to Parent’s Amended and Restated 2005 Employee Equity Plan to the extent required to give effect to the provisions of Sections 3.02(a) and 3.02(c) of the Transaction Agreement (collectively, the “ Parent Shareholder Approvals ”) are the only votes or approvals of the holders of any class or series of capital shares of Parent necessary to approve this Agreement, the Transaction Agreement and the transactions contemplated by this Agreement and the Transaction Agreement.

Section 4.03 .  Governmental Authorization.   The execution, delivery and performance by Parent and Purchaser of this Agreement and the consummation by Parent and Purchaser of the transactions contemplated hereby and by the Transaction Agreement require no action by or in respect of, or filing with or notifications to, any Governmental Authority, other than (i) notifications required to be made to the Company or the AMF due to crossing certain ownership thresholds, (ii) compliance with any applicable requirements of the HSR Act, (iii) compliance with any applicable requirements of antitrust or other competition laws of jurisdictions other than the United States or investment laws relating to foreign ownership, including applicable European Commission antitrust laws and the Swiss Cartel Act (“ Foreign Antitrust Laws ”), (iv) compliance with any applicable requirements of the 1933 Act, the 1934 Act, the General Rules of the AMF and the Euronext Paris non-harmonized market rules, and any other federal, state or non-U.S. securities laws and (v) the approval (if any) of, or notifications (if any) to, the Delaware Insurance Commissioner, the California Insurance Commissioner, FINMA, the French Comité des entreprises d'assurance , the Canadian Office of the Superintendent of Financial Institutions, the Singapore Monetary Authority and the Bermuda Monetary Authority, except, in each case, for any actions or filings the absence of which would not reasonably be expected to (A) impair the ability of Parent and Purchaser to timely consummate the transactions contemplated by this Agreement or the Transaction Agreement or (B) be material to Parent and its Subsidiaries, taken as a whole.

Section 4.04 .  Noncontravention.   The execution, delivery and performance by Parent and Purchaser of this Agreement and the consummation by Parent and Purchaser of the transactions contemplated hereby and by the Transaction Agreement will not (i) contravene, conflict with, or result in any violation or breach of any provision of  the certificate of incorporation or bylaws or other similar organizational documents of Parent or Purchaser, (ii) assuming compliance with the matters referred to in Section 4.03, contravene, conflict with, or result in a violation or breach of any provision of any Applicable Law or (iii) assuming compliance with the matters referred to in Section 4.03, require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Parent or any of its Subs