Exhibit 99.6
Dated 2003
TRENWICK UK PLC,
TRENWICK GROUP LIMITED and
ADIT HOLDINGS LIMITED
(as Sellers)
and
MAGICSUNNY LIMITED
(as Buyer)
and
THE EXECUTIVES
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SHARE ACQUISITION AGREEMENT
relating to
Trenwick Managing Agents Limited
Trenwick UK Management Services Limited
Resource Underwriting Pacific Pty Limited
Acorn Corporate Capital Limited
Oak Dedicated Four Limited
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Telephone +44 [0] ▇▇ ▇▇▇▇ ▇▇▇▇ Fax +44 [0] ▇▇ ▇▇▇▇ ▇▇▇▇
Website ▇▇▇.▇▇▇.▇▇.▇▇ DX 155 London CDE
CONTENTS
CLAUSE PAGE
1 INTERPRETATION.........................................................1
2 SALE AND PURCHASE......................................................7
3 CONSIDERATION..........................................................7
4 COMPLETION.............................................................7
5 SELLERS' WARRANTIES....................................................8
6 INDEMNITY..............................................................8
7 LIMITATION OF LIABILITY................................................8
8 ANNOUNCEMENTS..........................................................8
9 CONFIDENTIAL INFORMATION...............................................9
10 COSTS.................................................................10
11 CHARTWELL TRANSACTIONS................................................10
12 GENERAL...............................................................11
13 NOTICES...............................................................12
14 ASSIGNMENT AND THIRD PARTY RIGHTS.....................................12
15 LAW AND JURISDICTION..................................................12
16 EXECUTIVES' WARRANTIES................................................13
17 RELEASE...............................................................13
SCHEDULE
1 PARTICULARS OF THE COMPANIES..........................................15
2 SELLERS/SHARES........................................................20
3 SELLERS' COMPLETION OBLIGATIONS.......................................21
4 SELLERS' WARRANTIES...................................................22
DOCUMENTS IN AGREED TERMS
1 OAKS CORPORATE SERVICES AGREEMENTS
2 TMAL/OAKS FEE AGREEMENT
3 LASALLE UK CORPORATE SERVICES AGREEMENT
4 CCM1 CORPORATE SERVICES AGREEMENT
5 TMAL/CCM1 FEE AGREEMENT
6 TUKHL CORPORATE SERVICES AGREEMENT
7 OFFICERS' RESIGNATION LETTERS
8 SIDE LETTER FROM SELLERS TO BUYER CONCERNING PROPOSALS TO EXTINGUISH DEBT
OF OAK 4
9 INDEMNITY FOR LOST SHARE CERTIFICATES
Exhibit 99.6 Share Acquisition Agreement 1
THIS AGREEMENT is made on 2003
BETWEEN:
(1) TRENWICK UK PLC, a company incorporated in England and Wales with
registered number 02186145 whose registered office is at No. ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("TUKPLC");
(2) TRENWICK GROUP LIMITED (in provisional liquidation), a company
incorporated in Bermuda having its principal office at ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("TGL");
(3) ADIT HOLDINGS LIMITED, a company incorporated in England and Wales with
registered number 02979473 whose registered office is at No. ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("AHL");
(4) MAGICSUNNY LIMITED, a company incorporated in England and Wales with
registered number 04818520 whose registered office is at No. ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Buyer"); and
(5) THE EXECUTIVES, as defined below.
RECITALS:
(A) TUKPLC is the legal and beneficial owner of all the issued shares in
Trenwick Managing Agents Limited, 2 of the issued shares in Trenwick UK
Management Services Limited (Trenwick Managing Agents Limited being the
legal and beneficial owner of the other 6,800,000 issued shares therein)
and 75% of the issued shares in Resource Underwriting Pacific Pty Limited,
which TUK is to sell and the Buyer is to buy on the terms and subject to
the conditions set out in this Agreement.
(B) TGL is the legal and beneficial owner of all the issued shares in Acorn
Corporate Capital Limited, which TGL is to sell and the Buyer is to buy on
the terms and subject to the conditions set out in this Agreement.
(C) AHL is the legal and beneficial owner of all the issued ordinary shares in
Oak Dedicated Four Limited, which AHL is to sell and the Buyer is to buy
on the terms and subject to the conditions set out in this Agreement.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 Definitions
In this Agreement, unless otherwise provided, the following words have the
following meanings:
Acorn: Acorn Corporate Capital Limited, certain details of which are set
out in Part 1 of Schedule 1;
Exhibit 99.6 Share Acquisition Agreement 1
Acorn Shares: the 1 issued ordinary share of(pound)1 in the capital of
Acorn (being the entirety of Acorn's issued share capital);
Act: the Companies ▇▇▇ ▇▇▇▇;
Books and Records: all books, accounts, files and other records of any
kind (including those held electronically) and in whatever form containing
data or information concerning or in any way related to the Chartwell
Transactions;
Business Day: a day other than a Saturday or Sunday or public holiday in
England and Wales;
Buyer's Group: the Buyer, any subsidiary or holding company of the Buyer
and all subsidiaries of any such holding company from time to time;
Buyer's Solicitors: ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ of Beaufort House, ▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
CCM1: Packchance Limited (to be renamed Flintstone Limited) (a company
incorporated in England and Wales with registered number 04765920);
CCM1 Corporate Services Agreement: the corporate services agreement
between CCM1 and TUKMS for the provision of certain accounting,
secretarial and administrative services;
Chartwell Reinsurance Company, Chartwell Re Corporation and Chartwell UK
Management Services Limited are the previous names of TARCO, Trenwick
America Corporation and TUKMS respectively;
Chartwell Transactions: as the case may be, all or any of:
(a) the Limit 8 Transaction;
(b) the NLC 6 Transaction;
(c) the Syndicates 947 and 994 Transaction; and
(d) the Syndicate 866 Transaction;
Chartwell Transactions Information: all Books and Records in relation to,
in respect of, in connection with or which are relevant to the Chartwell
Transactions whether such Books and Records exist before, on or after the
date hereof;
Claim: any claim, action, proceedings or demand;
Companies: TMAL, TUKMS, RUPPL, Acorn and Oak 4 (and Company shall be
construed accordingly);
Completion: completion of the sale and purchase of the Shares in
accordance with clause 4;
Exhibit 99.6 Share Acquisition Agreement 2
Completion Date: the date on which Completion occurs;
Confidential Information: all information used in or relating to the
business, customers, financial or other affairs of each of the Companies
but not publicly known, including information relating to:
(i) the marketing or sale of services, customer and policyholder names
and other details of customers, premium rates, sales targets, sales
and market share statistics, premium rates, market research reports
and surveys and advertising or other promotional material; and
(ii) future projects, business development or planning, commercial
relationships and negotiations;
Consideration: the consideration for the sale and purchase of the Shares
as stated in clause 3;
Encumbrance: a mortgage, charge, pledge, lien, option, restriction, right
of first refusal, right of pre-emption, third party right or interest,
other encumbrance or security interest of any kind or other type of
preferential arrangement (including a title transfer or retention
arrangement) having similar effect;
Executives: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
Executives' Warranties: the warranties contained in clause 16;
LaSalle UK: LaSalle (UK) Ltd, (34318) ▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇;
LaSalle UK Corporate Services Agreement: the agreement between LaSalle
(UK) Ltd, TUKMS and Magicsunny Limited for the provision of accounting and
financial services;
Limit 8 Transaction:
(a) the transaction whereby Chartwell Reinsurance Company (as it was
then called) acquired the entire issued share capital of LIMIT No. 8
pursuant to a share sale and purchase agreement dated 29 September
1998 between Chartwell Reinsurance Company and LIMIT plc; and
(b) all other contracts, agreements and documents entered into in
respect of, in relation to or in connection with that transaction
regardless of the parties to those contracts, agreements and
documents;
LIMIT No. 8: Oak Dedicated Two Limited (Company No. 02852607) previously
known as LIMIT (No. 8) Limited;
NLC 6 Transaction:
Exhibit 99.6 Share Acquisition Agreement 3
(a) the transaction whereby Chartwell Reinsurance Company (as it was
then called) acquired the entire issued share capital of NLC No. 6
pursuant to a share sale and purchase agreement dated 18 March 1999
between New London Capital Holdings Limited, Chartwell Reinsurance
Company, New London Capital plc and NLC No. 6; and
(b) all other contracts, agreements and documents entered into in
respect of, in relation to or in connection with that transaction
regardless of the parties to those contracts, agreements and
documents;
NLC No. 6: Oak Dedicated Three Limited (Company No. 02982085) previously
called NLC Name No. 6 Limited;
Oak 4: Oak Dedicated Four Limited, certain details of which are set out in
Part 2 of Schedule 1;
Oak 4 Ordinary Shares: the 2 issued ordinary shares of (pound)1 each in
the capital of Oak 4 (being all Oak 4's issued ordinary shares);
Oaks Corporate Services Agreements: the agreements in the agreed terms to
be made between (1) the Oaks 1-3 and Oak 4 respectively and, in each case,
(2) TUKMS for the provision by TUKMS to Oaks 1-3 and Oak 4 respectively of
accounting, secretarial and administrative services;
the Oaks 1-3: Oak Dedicated Limited, Oak Dedicated Two Limited and Oak
Dedicated Three Limited (and "Oak" shall be construed accordingly);
Office Hours: the hours between 9.30am and 5.30pm in the time zone of the
recipient;
Put Option Agreement: the agreement between LaSalle UK (1) and FOSPV
Limited (2) dated 11 November 2003 and relating to the First and Second
Preference Shares (as defined in that agreement) in Oaks 1-3;
RUPPL: Resource Underwriting Pacific Pty Limited, certain details of which
are set out in Part 3 of Schedule 1;
RUPPL Shares: the 93,750 issued shares of A$1 each in the capital of RUPPL
of which TUK is the legal and beneficial owner immediately prior to the
signature of this Agreement (constituting 75% of RUPPL's issued share
capital);
Sellers: TUKPLC, TGL and AHL;
Sellers' Solicitors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
Sellers' Warranties: the representations and warranties set out in
Schedule 4 and "Sellers' Warranty" means any one of those representations
and warranties;
Exhibit 99.6 Share Acquisition Agreement 4
Shares: the Acorn Shares, the Oak 4 Ordinary Shares, the RUPPL Shares, the
TMAL Shares and the TUKMS Shares;
Syndicate 866 Transaction:
(a) the transaction whereby on or around October 1998 Chartwell Managing
Agents Limited, ▇▇▇▇▇▇ Personal Lines Limited, Chartwell UK
Management Services Limited and Chartwell Re Corporation (in each
case as they were then called) made an offer in Brussels to sell
certain businesses and business assets including the right to the
renewals and certain other assets relating to syndicate 866 at
Lloyd's to Boncaster Limited, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Limited and Cox
Services Limited, which was accepted by conduct; and
(b) all other contracts, agreements and documents entered into in
respect of, in relation to or in connection with that transaction
regardless of the parties to those contracts, agreements and
documents;
Syndicates 947 and 994 Transaction:
(a) the transaction whereby TMAL disposed of the managing agency
function of certain Lloyd's syndicates and other assets pursuant to
a business purchase agreement dated 30 September 1999 between TMAL
and Greenwich Managing Agency Limited; and
(b) all other contracts, agreements and documents entered into in
respect of, in relation to or in connection with that transaction
regardless of the parties to those contracts, agreements and
documents;
Term Sheet: the "Summary of Terms and Conditions of Proposed Chapter 11
Plan and Restructuring for Trenwick Group Limited and its Subsidiaries",
dated 6 August 2003;
TGL Group: TGL and each of its subsidiary undertakings (each a TGL Group
Company);
TMAL Trenwick Managing Agents Limited (previously called Chartwell
Managing Agents Limited) certain details of which are set out in Paragraph
4 of Schedule 1;
TMAL/CCM1 Fee Agreement: the agreement to be made in the agreed terms
between TMAL and CCM1 concerning managing agent's fees for the 2004-2006
years of account;
TMAL/Oaks Fee Agreement: the agreement to be made in the agreed terms
between TMAL and the Oaks 1-3 and Oak 4 varying fee and profit commission
arrangements;
Exhibit 99.6 Share Acquisition Agreement 5
TMAL Shares: the 100 issued A shares and 307,900 issued B shares,
respectively of (pound)1 each, in the capital of TMAL (constituting all of
TMAL's issued share capital);
TUKHL Corporate Services Agreement: the agreement in the agreed terms to
be made between (1) Trenwick UK Holdings Limited and its subsidiaries, (2)
Trenwick Holdings Limited and (3) TUKMS for the provision by TUKMS to
Trenwick UK Holdings Limited and its subsidiaries and to Trenwick Holdings
Limited of accounting, secretarial and administrative services;
TUKMS: Trenwick UK Management Services Limited, certain details of which
are set out in Part 5 of Schedule 1;
TUKMS Shares: the 2 issued shares of(pound)1 each in the capital of TUKMS
of which TUKPLC is the legal and beneficial owner;
Warranties: the Sellers' Warranties and the Executives' Warranties.
1.2 Construction
In this Agreement a reference to:
1.2.1 a "subsidiary" or "holding company" shall have the meanings given to
them by section 736 of the Act and a "subsidiary undertaking" or
"parent undertaking" shall have the meanings given to them by
section 258 of the Act;
1.2.2 any statute or statutory provision includes, except where otherwise
stated, the statute or statutory provision as amended, consolidated
or re-enacted from time to time before the date of this Agreement
and includes any subordinate legislation made under the statute or
statutory provision (as so amended, consolidated or re-enacted, but
no such amendment, consolidation or re-enactment shall operate to
increase the liability of any party to this Agreement) before the
date of this Agreement;
1.2.3 a clause, Schedule or paragraph is (except where otherwise stated)
to a clause of or Schedule to this Agreement or to a paragraph of
the relevant Schedule (the Schedules forming part of this Agreement
and to be read as though they were set out in the main body hereof);
1.2.4 a "person" includes any individual, firm, company, corporation, body
corporate, Lloyd's syndicate, government, supranational body, state
or agency of state, joint venture, organisation, association, trust,
works council or employee representative body (whether or not having
separate legal personality and irrespective of the jurisdiction in
or under the law of which it was incorporated or exists);
1.2.5 a document in the "agreed terms" means a document the terms of which
have been agreed by the parties, identified as such and
Exhibit 99.6 Share Acquisition Agreement 6
initialled by or on behalf of each party for the purposes of
identification;
1.2.6 a document expressed to be an "Annexure" means a document, a copy of
which has been identified as such and initialled by or on behalf of
each party and which is attached to this Agreement;
1.2.7 a word importing one gender shall (where appropriate) include any
other gender and a word importing the singular shall (where
appropriate) include the plural and vice versa;
1.2.8 "including", "includes" and "in particular" are illustrative, none
of them shall limit the sense of the words preceding them and each
of them shall be deemed to incorporate the expression "without
limitation". "Other" and "otherwise" are also illustrative and shall
not limit the sense of the words preceding them; and
1.2.9 the time of day is to London time.
1.3 The index and headings in this Agreement and the descriptive notes in
brackets where they appear after a clause or section number are for
convenience only and shall not affect its interpretation.
2 SALE AND PURCHASE
2.1 The Sellers shall each sell with full title guarantee, and the Buyer shall
purchase, those of the Shares specified opposite their respective names in
Schedule 2, with effect from Completion free from any Encumbrance and
together with all rights and benefits attaching to them including all
dividends declared or paid in relation thereto on or after the Completion
Date.
2.2 Each Seller waives and will, on or before Completion, procure the waiver
of, any pre-emption rights over the Shares specified opposite the name of
the relevant Seller in Schedule 2, whether conferred by the articles of
association of the Company concerned or otherwise.
3 CONSIDERATION
The consideration for the sale and purchase of the Shares shall be the sum
of (pound)1 payable by the Buyer to the Sellers' Solicitors upon
Completion (and the Buyer shall not be concerned with the apportionment of
such sum between the Sellers).
4 COMPLETION
4.1 On Completion the Sellers shall fulfil the obligations set out in Schedule
3.
4.2 On Completion the Buyer shall pay the Consideration in cash to the
Sellers' Solicitors who are irrevocably authorised by the Seller to accept
the same and whose receipt shall be an absolute discharge to the Buyer of
its obligation to pay the same.
Exhibit 99.6 Share Acquisition Agreement 7
4.3 On Completion the parties shall join in procuring (to the extent they are
able to do so, and to the extent not already done) that TUKMS enters into
the TUKHL Corporate Services Agreement, the Oaks Corporate Services
Agreements, the LaSalle UK Corporate Services Agreement and the CCM1
Corporate Services Agreement.
4.4 On Completion the Sellers shall deliver to the Buyer the side letter in
the agreed terms concerning proposals to extinguish debt of Oak 4.
5 SELLERS' WARRANTIES
5.1 Each Seller, upon the execution of this Agreement, warrants and represents
to the Buyer in the terms of each of the Sellers' Warranties and
separately and additionally immediately before Completion, each Seller
shall be deemed to warrant and represent to the Buyer in the terms of each
of the Sellers' Warranties by reference to the facts and circumstances as
at Completion and, for this purpose, any reference (express or implied) in
the Sellers' Warranties to "the date of this Agreement" shall be construed
as a reference to "the Completion Date".
5.2 The Sellers' Warranties shall continue in full force and effect
notwithstanding Completion.
5.3 Each Seller undertakes to the Buyer to disclose to it in writing,
immediately upon it becoming aware of the same, full details of any fact
or circumstance which constitutes or will or might constitute a breach of
clause 5.1.
6 INDEMNITY
6.1 The Buyer shall indemnify LaSalle UK in respect of any reduction in the
Net Asset Value (as defined in the Put Option Agreement) of any Oak in
consequence of any loan made by the Oak concerned from its corporate funds
(being funds to which it is absolutely entitled) after Completion PROVIDED
THAT:
6.1.1 such loan was made in consequence of a breach by the directors of
the Oak concerned of their directors' fiduciary duties or of their
fraud; and
6.1.2 a majority of the directors of the Oak concerned are employees
within the Buyer's Group at the time that the grounds giving rise to
a claim under this clause arise.
7 LIMITATION OF LIABILITY
The total liability of all the Sellers together in connection with this
Agreement or any matters or documents referred to in it, including under
the Sellers' Warranties, is limited to (pound)1 save in the case of fraud,
wilful concealment or wilful misrepresentation by any Seller.
Exhibit 99.6 Share Acquisition Agreement 8
8 ANNOUNCEMENTS
8.1 No announcement, communication or circular concerning the transactions
referred to in this Agreement shall be made by or on behalf of any Seller
or the Buyer unless it has first obtained the written consent of the other
(which shall not to be unreasonably withheld or delayed).
8.2 Clause 8.1 does not apply to an announcement, communication or circular:
8.2.1 made in order to implement this Agreement or any matters connected
with it including but not limited to communications to bankruptcy
courts, creditors and liquidators;
8.2.2 made or sent by the Buyer or by any of the Companies to an employee
of any of the Companies informing the employee of the sale and
purchase of the Shares; or
8.2.3 required by law, existing contractual obligations, or a governmental
or other authority with relevant powers to which any party is
subject or submits (whether or not the requirement has the force of
law), provided that the announcement, communication or circular
shall so far as practicable be made only after consultation with the
other party and after taking into account the reasonable
requirements of the other party as to timing, content and manner of
despatch.
9 CONFIDENTIAL INFORMATION
9.1 Before and after Completion each Seller shall:
9.1.1 not use or disclose to any person Confidential Information which the
relevant Seller has or acquires; and
9.1.2 use all reasonable endeavours to prevent the use or disclosure of
Confidential Information by any person.
9.2 Clause 9.1 shall not apply to:
9.2.1 disclosure of any confidential information required to implement
this Agreement, including to regulators, bankruptcy courts,
liquidators and creditors, nor to any matters or documents referred
to in this Agreement or contemplated by it so required to be
disclosed;
9.2.2 disclosure of Confidential Information to a director, other officer
or employee of the Buyer or of any of the Companies whose function
requires him to have the Confidential Information;
9.2.3 the use or disclosure of Confidential Information required to be
used or disclosed by law or any regulatory or governmental authority
with relevant powers to which the Seller is subject or submits
(whether or not such requirement has the force of law);
Exhibit 99.6 Share Acquisition Agreement 9
9.2.4 disclosure of Confidential Information to an adviser for the purpose
of advising the Seller, on terms that clause 9.1 applies to the use
or disclosure by the adviser; or
9.2.5 Confidential Information which becomes publicly known except by the
Seller's breach of clause 9.1.
9.3 All records, papers and documents in the possession, custody or control of
a Seller relating exclusively to the business or affairs of the Company or
Companies whose Shares are specified opposite the name of the Seller in
Schedule 2 shall be deemed to be the property of the Company concerned and
all such items shall be delivered to the Buyer or as the Buyer may direct
at Completion.
10 COSTS
Except where this Agreement provides otherwise, each party shall pay its
own costs relating to the negotiation, preparation, execution and
performance by it of this Agreement and of each document referred to in
it.
11 CHARTWELL TRANSACTIONS
11.1 The Buyer shall procure that:
11.1.1 each member of the Buyer's Group which has from time to time
Chartwell Transactions Information within its power, possession or
control preserves the same for such period as the Sellers
reasonably require;
11.1.2 each member of the Buyer's Group which has from time to time
Chartwell Transactions Information within its power, possession or
control shall on reasonable notice during normal business hours
make such Chartwell Transactions Information available to the
Sellers and their agents to examine the same and to make and remove
copies thereof, and the Sellers shall meet any external costs
associated therewith; and
11.1.3 the Buyer shall procure that:
(a) employees within the Buyer's Group shall be made available at
the Sellers' cost to provide the Sellers and their agents with
all such assistance as the Sellers may reasonably require in
connection with any continuing, ongoing or outstanding aspect
of any Chartwell Transaction;
(b) as soon as reasonably practicable following receipt of the
same the Sellers are provided with a copy (or in the case of
non-written communication, correspondence or information a
full note of it) of any communication, correspondence or
information (in each case whether
Exhibit 99.6 Share Acquisition Agreement 10
written or not) received in connection with any Chartwell
Transaction; and
(c) such action as the Sellers may reasonably require to be taken
or omitted by any member of the Buyer's Group in connection
with any continuing, ongoing or outstanding aspect of any
Chartwell Transaction is so taken or omitted at the Sellers'
cost.
11.2 If any member of the Buyer's Group receives any payment in connection
with any Chartwell Transaction, it will:
11.2.1 notify the Sellers in writing as soon as is reasonably practicable and
provide the Sellers with all information available to it concerning such
payment as the Sellers may reasonably require; and
11.2.2 as soon as is reasonably practicable following receipt, after deducting
an amount equal to any liabilities of any member of the Buyer's Group of
which such member may be aware in connection with any Chartwell
Transaction, pay such amount to the order of TGL.
11.3 TMAL confirms and agrees that it will comply in all material respects
with every obligation on it pursuant to the Chartwell Transactions.
12 GENERAL
12.1 This Agreement, together with all the documents which are required by its
terms to be entered into by any of the parties, constitutes the entire
and only agreement and understanding between the parties and supersedes
any previous agreement or understanding relating to the subject matter of
this Agreement.
12.2 No variation of this Agreement will be effective unless in writing,
signed by or on behalf of the parties and expressed to be such a
variation and no waiver of a breach of any terms of this Agreement or of
a default under this Agreement will be effective unless in writing,
signed by or on behalf of the parties and expressed to be such a waiver.
12.3 The failure to exercise or delay in exercising a right or remedy provided
by this Agreement or by law shall not impair or constitute a waiver of
the right or remedy or operate as an impairment or a waiver of other
rights or remedies.
12.4 No single or partial exercise of a right or remedy provided by this
Agreement or by law shall preclude any further exercise of the right or
remedy or the exercise of any other right or remedy.
12.5 This Agreement may be executed in any number of counterparts, which
together shall constitute one agreement. Execution by each of the parties
of any one of such counterparts shall constitute due execution of this
Agreement.
12.6 Each Seller shall at its own cost and shall procure that any third party
shall, execute such further deeds and documents in a form satisfactory to
the Buyer
Exhibit 99.6 Share Acquisition Agreement 11
and do all such things as the Buyer reasonably requires to give effect to
the transactions contained or referred to in this Agreement PROVIDED that
should anything be required in respect of RUPPL it shall be at the Buyer's
cost.
12.7 Except to the extent that they have been performed and except where
otherwise stated the provisions of this Agreement shall remain in full
force and effect after Completion.
12.8 Time shall be of the essence of this Agreement as regards any time, date
or period fixed hereby for the performance of any obligation by any of the
parties, whether as originally fixed or as altered in any manner provided
herein.
13 NOTICES
13.1 Any notice or other communication under or in connection with this
Agreement shall be given in writing delivered personally, or sent by first
class pre-paid or recorded delivery post, or by facsimile, to the party
due to receive such notice at the address set out in this Agreement or the
fax number specified on the receiving party's headed notepaper at the date
of this Agreement, or such other address or fax number as that party has
specified in writing to the party giving the notice.
13.2 Any notice delivered personally during Office Hours shall be deemed to be
received when delivered (otherwise on the next Business Day) and any
notice sent by first class pre-paid or recorded delivery post shall be
deemed (in the absence of evidence of earlier receipt) to be received
forty-eight hours after posting and in proving the time of despatch it
shall be sufficient to show that the envelope containing such notice was
properly addressed, stamped and posted. A notice sent by facsimile shall
be deemed to have been received on receipt by the sender of the
transmission report confirming satisfactory transmission PROVIDED that if
such transmission occurs outside Office Hours on a Business Day, or on a
day which is not a Business Day, service shall be deemed to occur at 9 am
Greenwich Mean Time on the next following Business Day.
14 ASSIGNMENT AND THIRD PARTY RIGHTS
14.1 Each Seller shall not, without the prior written consent of the Buyer
(which it may in its absolute discretion refuse), assign, transfer, charge
or deal in any other manner with this Agreement or any rights under it or
purport to do any of the same, nor sub-contract any or all of its
obligations under this Agreement or declare any trust in respect of this
Agreement or any of its obligations under it in favour of a third party.
14.2 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
Exhibit 99.6 Share Acquisition Agreement 12
15 LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with
English law.
15.2 The courts of England shall have exclusive jurisdiction to hear or decide
any Claim and to settle any disputes arising out of or in connection with
this Agreement and for these purposes each party irrevocably submits to
the jurisdiction of the English courts.
15.3 Process by which any proceedings are begun in England may be served on a
party by being delivered in accordance with clause 13 but nothing in
clause 13 affects the right to serve process in any other manner permitted
by law.
16 EXECUTIVES' WARRANTIES
16.1 Each of the Executives warrants in his capacity as director or employee of
one or more of the Companies that to the extent that he has in such
capacity been concerned in the provision, in the course of 2002 and 2003,
of information to the Sellers relating to the Companies he has not:
(a) knowingly or recklessly made false statements of fact to Sellers
material to their decision to sell the Companies in order to induce
the Sellers to make that sale; and
(b) knowingly concealed:
(i) the existence of any asset, right or benefit (outside those in
or actually, or expected to be, created by the MBO itself)
which if disclosed would reveal that the collective financial
condition of the Companies is significantly better than that
which is apparent or implicit in the information actually
provided to or known to the Sellers or any of them or their
directors; and
(ii) any approach or business opportunity (outside those in or
actually, or expected to be, created by the MBO itself) which,
if the MBO did not proceed, could reasonably have enabled the
Sellers to realise significantly greater value and benefit for
the TGL Group overall than that which is apparent or implicit
in the information actually provided to or known to the
Sellers or any of them or their directors.
16.2 Each of the Executives warrants that he is not aware at the date of this
Agreement of any subsisting debt by any of the Companies to the Sellers
and their subsidiaries which has not been disclosed to the Sellers.
16.3 The Executives' Warranties shall continue in full force and effect
notwithstanding Completion.
Exhibit 99.6 Share Acquisition Agreement 13
17 RELEASE
Each of the Sellers:
(a) for itself and each of its subsidiaries hereby discharges to the
fullest extent that it is lawfully able to do so each of the Companies
from all debts to the Sellers and their subsidiaries subsisting at the
date hereof; and
(b) undertakes to use all reasonable endeavours to procure the general
release and discharge referred to in the Term Sheet of the persons who are
respectively the current officers and employees of each of the Companies,
both in their capacities as such and, where relevant, in their capacities
as officers and employees of any member of the TGL Group either by (i)
motion to the Bankruptcy Court or (ii) in the context of a plan of
reorganisation, as TGL may deem expedient.
IN WITNESS of which this Agreement has been signed (in the case of the
Executives, executed as a deed) by or on behalf of the parties on the date first
before written
Exhibit 99.6 Share Acquisition Agreement 14
SCHEDULE 1
PARTICULARS OF THE COMPANIES
PART 1
Acorn
Date of Incorporation: 29 July 2002
Registered Number: 4497560
Registered Office: ▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇
Authorised Share Capital: (pound)1,000 divided into 1,000 ordinary shares
of (pound)1.00 each
Issued Share Capital: 1 share
Shareholder: Trenwick Group Limited
Accounting Reference Date: 31/12
Auditors: PricewaterhouseCoopers LLP
PART 2
Oak 4
Date of Incorporation: 17 October 1994
Registered Number: 2979555
Registered Office: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Exhibit 99.6 Share Acquisition Agreement 15
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇
Authorised Share Capital: (pound)18,599,700 divided into:
100 ordinary shares of (pound)1 each
185,986 First Preference Shares of (pound)100
each 100 Second Preference Shares of
(pound)10 each
Issued Share Capital: 2 ordinary shares
185,986 First Preference Shares
100 Second Preference Shares
Shareholders: Adit Holdings Limited (2 ordinary shares)
LaSalle UK (185,986 First Preference
Shares and 100 Second Preference Shares)
Accounting Reference Date: 31/12
Auditors: PricewaterhouseCoopers LLP
PART 3
RUPPL
Date of Incorporation: 12 April 1991
Country of Incorporation: Victoria, Australia
Registered Number: 051374228
Registered Office: ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Directors: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit 99.6 Share Acquisition Agreement 16
Authorised Share Capital: $1,000,000 divided into 1,000,000 shares of $1.00
each
Issued Share Capital: $125,000 divided into 125,000 ordinary shares of
$1.00 each
Shareholders: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (31,250 ordinary shares)
Trenwick UK plc (93,750 ordinary shares)
Accounting Reference Date: 31/12
Auditors: KPMG
PART 4
TMAL
Date of Incorporation: 27 August 1980
Registered Number: 1514453
Registered Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary: ▇▇▇▇▇▇▇ D'Arcy
Authorised Share Capital: (pound)500,000 divided 500,000 shares
of (pound)1.00 each
Issued Share Capital: (pound)308,000 divided into 100 "A" shares
of (pound)1.00 each and (pound)307,900 "B" shares
of (pound)1.00 each
Shareholders: Trenwick UK PLC: 99 "A" shares
Trenwick UK PLC: 307,900 "B" shares
Trenwick UK PLC jointly owns one "A" share with
BPD Kellet
Exhibit 99.6 Share Acquisition Agreement 17
Accounting Reference Date: 31/12
Auditors: KPMG
PART 5
TUKMS
Date of Incorporation: 23 July 1992
Registered Number: 2733994
Registered Office: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary: ▇▇▇▇▇ ▇▇▇▇
Authorised Share Capital: (pound)7,477,508 divided into 7,477,508 shares
of (pound)1.00 each
Issued Share Capital: 6,800,002 shares
Shareholders: Trenwick UK Plc (2)
Trenwick Managing Agents Limited (6,800,000)
Accounting Reference Date: 31/12
Auditors: PricewaterhouseCoopers LLP
PART 6
Trenwick UK Pension Trustees Limited
Date of Incorporation: 13 March 1997
Registered Number: 3332893
Registered Office: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Directors: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 99.6 Share Acquisition Agreement 18
▇▇▇▇▇▇ Emson
Secretary: ▇▇▇▇▇▇ Emson
Authorised Share Capital: (pound)100 divided into 100 ordinary shares
of (pound)1.00 each
Issued Share Capital: 2 shares
Shareholders: Trenwick UK Management Services Limited
Accounting Reference Date: 31/12
Auditors: PricewaterhouseCoopers LLP
Exhibit 99.6 Share Acquisition Agreement 19
SCHEDULE 2
SELLERS/SHARES
Seller Shares
TUKPLC TMAL Shares
TUKMS Shares
RUPPL Shares
TGL Acorn Shares
AHL Oak 4 Ordinary Shares
Exhibit 99.6 Share Acquisition Agreement 20
SCHEDULE 3
SELLERS' COMPLETION OBLIGATIONS
At Completion the Sellers shall deliver to the Buyer:
1 duly completed and executed transfers of the Shares by the registered holders
in favour of the Buyer or as it may direct, together with the certificates for
the Shares or indemnities in the agreed terms in respect of any lost
certificates and the duly executed powers of attorney or other authorities under
which any of the transfers and any such indemnities have been executed; and
2 resignation letters in the agreed terms from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇ in respect of their directorships of TMAL.
Exhibit 99.6 Share Acquisition Agreement 21
SCHEDULE 4
SELLERS' WARRANTIES
1 The Seller has the requisite power and authority and has taken all action
necessary, to enter into and perform this Agreement and each of the other
documents to which it is a party and which it is required to execute at or
before Completion under this Agreement, each of which will, when executed,
become binding and enforceable on it in accordance with its terms.
2 The Seller is the sole legal and beneficial owner of the Shares specified
opposite the name of the Seller in Schedule 2, free from Encumbrance and
from any agreement, arrangement or obligation to create or give an
Encumbrance and free from any Claims made or which could be made by any
other persons.
3 So far as the relevant Seller is aware (having made enquiry of the
directors of the Company or Companies concerned and of no other person)
the Shares specified opposite the name of the Seller in Schedule 2
constitute the entire allotted and issued share capital of the Company or
Companies concerned (except (i) the RUPPL Shares, which TUK warrants and
represents to constitute 75% of the allotted and issued share capital of
RUPPL (ii) the Oak 4 Shares, which AHL warrants and represents will
constitute upon Completion all of the allotted and issued share capital of
Oak 4 which carries the right to attend and vote at general meetings of
the members of Oak 4 and (iii) as otherwise indicated in Schedule 2), have
been properly allotted and issued and are fully paid or credited as fully
paid.
4 So far as the relevant Seller is aware (having made enquiry of the
directors of the Company or Companies concerned and of no other person) no
person has the right (whether exercisable now or in the future and whether
contingent or not) to call for and there is no agreement (except for this
Agreement), arrangement or obligation relating to, the allotment, issue,
transfer, redemption or repayment of any share or loan capital of the
Company or Companies whose Shares are specified opposite the name of the
Seller in Schedule 2 whether under any option, right of pre-emption or
conversion or otherwise.
5 TUK warrants and represents in the terms of paragraph 2, 3 and 4 above,
mutatis mutandis, with respect to the shares held by TUKMS in the capital
of Trenwick UK Pension Trustees Limited.
Exhibit 99.6 Share Acquisition Agreement 22
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ) /s/▇ ▇ ▇▇▇▇▇▇
duly authorised for and on behalf of )
TRENWICK UK PLC )
SIGNED by ▇▇▇▇ ▇. ▇▇▇▇▇ ) /s/▇▇▇▇ ▇. ▇▇▇▇▇
duly authorised for and on behalf of )
TRENWICK GROUP LIMITED )
(in provisional liquidation)
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ) /s/▇ ▇ ▇▇▇▇▇▇
duly authorised for and on behalf of )
ADIT HOLDINGS LIMITED )
SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ) /s/ ▇ ▇ ▇▇▇▇▇▇
duly authorised for and on behalf of )
MAGICSUNNY LIMITED )
EXECUTED AND DELIVERED AS A ) /s/ ▇ ▇ ▇▇▇▇▇▇
DEED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
/s/ ▇. ▇▇▇▇▇▇▇▇ (solicitor)
EXECUTED AND DELIVERED AS A ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DEED by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: )
/s/ ▇. ▇▇▇▇▇▇▇▇ (as above)
Exhibit 99.6 Share Acquisition Agreement 23
EXECUTED AND DELIVERED AS A ) /s/ P Tester
DEED by ▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
/s/ ▇. ▇▇▇▇▇▇▇▇ (solicitor)
EXECUTED AND DELIVERED AS A ) /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
DEED by ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: )
/s/ ▇. ▇▇▇▇▇▇▇▇ (as above)
EXECUTED AND DELIVERED AS A ) /s/ ▇▇▇▇▇▇ ▇▇▇
DEED by ▇▇▇▇▇▇ ▇▇▇ )
in the presence of: )
/s/ ▇. ▇▇▇▇▇▇▇▇ (as above)
EXECUTED AND DELIVERED AS A ) /s/ ▇ ▇ ▇▇▇▇▇▇ as Attorney
DEED by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
in the presence of: )
/s/ ▇. ▇▇▇▇▇▇▇▇ (as above)
EXECUTED AND DELIVERED AS A ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
DEED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
in the presence of: )
/s/ ▇. ▇▇▇▇▇▇▇▇ (as above)
EXECUTED AND DELIVERED AS A ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
DEED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of: )
/s/ ▇. ▇▇▇▇▇▇▇▇ (as above)
Exhibit 99.6 Share Acquisition Agreement 24