EXHIBIT 10.10
CAPITAL SECURITIES SUBSCRIPTION AGREEMENT
May 13, 2003
THIS CAPITAL SECURITIES SUBSCRIPTION AGREEMENT (this "Subscription
Agreement") is made as of May 13, 2003 among PXRE Capital Trust III, a statutory
trust created under the laws of the State of Delaware (the "Trust"), PXRE Group
Ltd. (the "Company" and, collectively with the Trust, the "Offerors") and InCapS
Funding I, Ltd., a newly formed exempted company with limited liability
established under the laws of the Cayman Islands (the "Purchaser").
RECITALS:
A. The Trust desires to issue $15,000,000 liquidation amount of its
InCapSSM (the "Capital Securities"), with a liquidation amount of $1,000 per
Capital Security, representing undivided beneficial interests in the assets of
the Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration"), by the Company, as Sponsor, Wilmington
Trust Company, as Institutional Trustee and Wilmington Trust Company, as
Delaware Trustee, the Administrators named therein, and the holders, from time
to time, of the Capital Securities, which Capital Securities are to be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise to the extent provided in and pursuant to
the terms of a Guarantee Agreement (the "Guarantee") between the Company, as
Guarantor, and Wilmington Trust Company, as Guarantee Trustee; and
B. The proceeds from the sale of the Capital Securities will be
combined with the proceeds from the sale of the Common Securities by the Trust
to the Company and will be used by the Trust to purchase an equivalent aggregate
principal amount of Fixed Rate Junior Subordinated Debentures, Series C due 2033
of the Company (the "Debentures"), to be issued by the Company pursuant to an
Indenture (the "Indenture") to be executed by the Company, as Issuer, and
Wilmington Trust Company, as Debenture Trustee; and
C. The Purchaser intends to complete an offering of its securities
(the "CBO Offering") on or about May 22, 2003 or such other business day as may
be agreed upon by the Offerors and the placement agent ("Placement Agent")
identified in the Placement Agreement (the "Closing Date") and to use the
proceeds of the CBO Offering to, among other things, acquire the Capital
Securities from the Trust and other capital securities, senior notes and surplus
notes in a quantity and with other particular characteristics, in the aggregate,
sufficient to permit the successful completion of the CBO Offering; and
D. In consideration of the premises and the mutual representations
and covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Subscription Agreement, subject to
the conditions precedent set forth in Section 1.5, the Purchaser hereby agrees
to purchase from the Trust 15,000 Capital Securities at a price equal to $1,000
per Capital Security (the "Purchase Price") and the Trust agrees to sell 15,000
of Capital Securities with a liquidation amount of $1,000 per Capital Security
to the Purchaser for the Purchase Price. The rights and preferences of the
Capital Securities will be set forth in the Declaration in form and substance
reasonably acceptable to the Purchaser. The Purchase Price is payable by the
Purchaser on the Closing Date in immediately available funds to the account
designated by Wilmington Trust Company against delivery of the aforementioned
Capital Securities.
1.2. The certificate for the Capital Securities shall be
authenticated by the Institutional Trustee and delivered in definitive form by
the Trust on the Closing Date to the Purchaser or its designee, shall be
registered in the name of the Purchaser and shall represent the aggregate
liquidation amount of the Capital Securities being purchased by the Purchaser.
1.3. Each of the provisions of the Placement Agreement, dated May
13, 2003 (the "Placement Agreement"), including the definitions therein, are
hereby incorporated by reference into this Subscription Agreement. In addition,
to the extent provided for in the Placement Agreement, the Purchaser shall be
entitled to the benefits of the Placement Agreement and shall be entitled to
enforce such obligations of the Offerors under the Placement Agreement as fully
as if the Purchaser were a party to such Placement Agreement, it being agreed
between the parties that any and all representations, covenants and other
agreements made by the Offerors to the Placement Agent in the Placement
Agreement shall be deemed to have also been made to the Purchaser.
1.4. If any condition specified herein or in the Placement Agreement
shall not have been fulfilled when and as required to be fulfilled by, on behalf
of or in respect of the Offerors or the Capital Securities or the Subordinated
Debt Securities, this Subscription Agreement may be terminated by the Purchaser
by notice to the Offerors at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to any other party except as
provided in Section 5(j) of the Placement Agreement and except that Sections 1,
7, and 8 of the Placement Agreement shall survive any such termination and
remain in full force and effect.
1.5. If the CBO Offering is not successfully completed for any
reason, including, without limitation, as a result of the inability of the
Purchaser to acquire sufficient capital securities, senior notes and surplus
notes from the Trust and other issuers and sellers in a quantity and with other
particular characteristics, in the aggregate, sufficient to satisfy rating
agency criteria with respect to expected ratings on the securities to be issued
by the Purchaser and other criteria deemed necessary or advisable by the
Purchaser, all obligations of the Purchaser hereunder and any claims against the
Purchaser and the Trust hereunder shall automatically terminate and be
extinguished and shall not thereafter revive.
1.6. Notwithstanding any other provision of this Subscription
Agreement, the obligations of the Purchaser hereunder are limited recourse
obligations of the Purchaser, payable solely from the proceeds of the CBO
Offering, and if the CBO Offering is not completed or the proceeds of the CBO
Offering are insufficient to satisfy the obligations of the Purchaser, all
obligations of the Purchaser hereunder and any claims against the Purchaser
hereunder shall be extinguished and shall not thereafter revive. No recourse
shall be had to any subscriber, officer, director, employee, administrator,
shareholder, incorporator or agent of the Purchaser or their respective
successors or assigns for any obligations hereunder. The Trust, Wilmington Trust
Company (on behalf of the Trust) and the Company further agree (i) not to take
any action in respect of any claims hereunder against any subscriber, officer,
director, employee, administrator, shareholder, incorporator or agent of the
Purchaser and (ii) not to institute against the Purchaser any insolvency,
bankruptcy, reorganization, liquidation or similar proceedings in any
jurisdiction until one year and one day or, if longer, the applicable preference
period then in effect, as the case may be, shall have elapsed since the final
payments to the holders of the securities issued by the Purchaser in connection
with the CBO Offering.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that (i) none of the
Capital Securities, the Subordinated Debt Securities or the Guarantee (the
"Offeror Securities") have been or will be registered under the Securities Act
of 1933, as amended (the "Securities Act"), or any other applicable securities
laws, (ii) the Offeror Securities are being offered for sale by the Offerors in
transactions not requiring registration under the Securities Act, and (iii) the
Offeror Securities may not be offered, sold, pledged or otherwise transferred by
the Purchaser except in compliance with the registration requirements of the
Securities Act, or any other applicable securities laws, pursuant to an
exemption therefrom or in a transaction not subject thereto.
2.2. The Purchaser represents and warrants that (i) it is not a
"U.S. person" (as such term is defined in Rule 902 under the Securities Act),
(ii) it is not acquiring the Capital Securities for the account or benefit of
any U.S. person, and (iii) the offer and sale of Capital Securities to the
Purchaser constitutes an "offshore transaction" under Regulation S under the
Securities Act.
2.3. The Purchaser represents and warrants that it is purchasing the
Capital Securities for its own account, for investment and not with a view to,
or for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Capital Securities
pursuant to an effective registration statement under the Securities Act or
pursuant to an exemption therefrom or in a transaction not subject thereto, and
the Purchaser agrees to the legends and transfer restrictions applicable to the
Capital Securities contained in the Declaration.
2.4. The Purchaser, a Cayman Islands company whose business includes
the issuance of certain notes and acquiring the Capital Securities and other
similar securities, has had the opportunity to ask questions of, and receive
answers and request additional information from, the Offerors and is aware that
it may be required to bear the economic risk of an investment in the Capital
Securities.
2.5. The Purchaser is an exempted company with limited liability
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction where it is organized, with full power and authority to execute,
deliver and perform this Subscription Agreement, to make the representations and
warranties specified herein, and to consummate the transactions contemplated
herein and it has full right and power to subscribe for the Capital Securities.
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2.6. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any governmental body, agency
or court having jurisdiction over the Purchaser, other than those that have been
made or obtained, is necessary or required for the performance by the Purchaser
of its obligations under this Subscription Agreement or to consummate the
transactions contemplated herein.
2.7. This Subscription Agreement has been duly authorized, executed
and delivered by the Purchaser.
2.8. The Purchaser is not in violation of or default under any term
of its Memorandum of Association or Articles of Association, of any provision of
any mortgage, indenture, contract, agreement, instrument or contract to which it
is a party or by which it is bound or of any judgment, decree, order, writ or,
to its knowledge, any statute, rule or regulation applicable to the Purchaser
which would prevent the Purchaser from performing any material obligation set
forth in this Subscription Agreement. The execution, delivery and performance of
and compliance with this Subscription Agreement, and the consummation of the
transactions contemplated herein, will not, with or without the passage of time
or giving of notice, result in any such violation or default or the suspension,
revocation, impairment, forfeiture or non-renewal of any permit, license,
authorization or approval applicable to the Purchaser, its business or
operations or any of its assets or properties which would prevent the Purchaser
from performing any material obligations set forth in this Subscription
Agreement.
2.9. The Purchaser understands and acknowledges that the Offerors
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements and agrees that if any of the
foregoing acknowledgments, representations, warranties or agreements cease to be
accurate, it shall promptly notify the Offerors.
2.10. The Purchaser understands that no public market exists for any
of the Capital Securities, and that it is unlikely that a public market will
ever exist for the Capital Securities.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier, or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: PXRE Group Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: Chief Financial Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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To the Purchaser: InCapS Funding I, Ltd.
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ House
South Church Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands
Attention: Directors
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To the Purchaser
for service of
all process: CT Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Unless otherwise expressly provided herein, notices shall be deemed
to have been given when received.
3.2. This Subscription Agreement shall not be changed, modified or
amended except by a writing signed by the parties hereto.
3.3. Upon the execution and delivery of this Subscription Agreement
by the parties hereto, this Subscription Agreement shall become a binding
obligation of each such party with respect to the matters covered herein,
including those incorporated by reference from the Placement Agreement.
3.4. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW. EACH OF THE TRUST, PURCHASER AND THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE
TRUST), HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION
WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE
MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE
TRUST, PURCHASER AND THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES
(INCLUDING, WITHOUT LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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3.5. The parties hereto agree to execute and deliver all such
further documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes and intent
of this Subscription Agreement.
3.6. This Subscription Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
Signatures appear on the following page
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IN WITNESS WHEREOF, this Subscription Agreement is agreed to and
accepted as of the day and year first written above.
PXRE GROUP LTD.
By:
-------------------------------------
Name:
Title:
PXRE CAPITAL TRUST III
By:
-------------------------------------
Name:
Title: Administrator
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IN WITNESS WHEREOF, I have set my hand the day and year first
written above.
INCAPS FUNDING I, LTD.
By:
---------------------------------
Name:
Title:
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