AMENDMENT TO SHARE PURCHASE AGREEMENT
AMENDMENT TO SHARE PURCHASE AGREEMENT, dated as of September 1,
1993 (this Amendment), among UNIONAMERICA ACQUISITION COMPANY LTD.,
an English private company limited by shares (Buyer), UNIONAMERICA
HOLDINGS LTD., an English private company limited by shares
(Parent), and THE CONTINENTAL CORPORATION, a New York corporation
(Seller).
WITNESSETH:
WHEREAS, Buyer, Parent and Seller have entered into that certain
Share Purchase Agreement, dated as of June 30, 1993 (the Share
Purchase Agreement);
WHEREAS, Buyer, Parent and Seller have agreed to amend the Share
Purchase Agreement as set forth herein; and
WHEREAS, all capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Share
Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. AMENDMENT TO SECTION 1
Section 1 of the Share Purchase Agreement is amended by the
addition of a new Section 1.3 which reads in its entirety as
follows:
"SECTION 1.3 New Holding Company
(a) Seller undertakes to Parent that it will forthwith after
receiving notice that the board of directors of Parent (the
Board) has resolved that all the members of Parent (the
Shareholders) should be required to effect an exchange of
shares as provided in this clause:
(1) if so requested by the Board, take (in its capacity as a
Shareholder) all such actions (including but not limited
to the exercise of voting rights) and execute all such
documentation as the Board shall reasonably determine to
be necessary to convert all shares then held by Seller in
Parent to share warrants to bearer; and/or
(2) take (in its capacity as a Shareholder) all such actions
(including but not limited to the exercise of voting
rights) as the Board shall reasonably determine to be
necessary to transfer the whole of its legal and
beneficial interest in all shares then held by it in
Parent to a newly incorporated public company (Newco) in
consideration for the issue by Newco to it of, in respect
of each share so transferred, one share of the same
nominal amount and same class in the capital of Newco and
having the same rights and being subject to the same
restrictions, mutatis mutandis, in each case as its
shares in Parent prior to such transfer, so that
immediately after the completion of such transfer the
issued share capital of Newco comprises (apart from not
more than two initial subscribers' shares of a nominal
value of not more that $1 or 1 pound each) the same number of
shares with the same nominal amount and of the same
classes as the issued share capital of Parent immediately
prior to such transfer.
(b) The obligations of Seller in Section 1.3(a) are subject to the
satisfaction in full, prior to or simultaneously with the
performance of such obligations, of each of the following
conditions precedent (any one or more of which may be waived
by Seller):
(1) Seller shall in its sole discretion be satisfied that it
will suffer no immediate or delayed adverse tax
consequence as a direct or indirect result of the
performance of its obligations or shall have received a
written indemnity from Newco in terms reasonably
satisfactory to it against any such liability that may
occur.
(2) All Shareholders shall take steps identical, mutatis
mutandis, to those taken by Seller pursuant to this
clause in relation to the shares held by them in Parent
such that Parent becomes immediately after such steps
have been taken a wholly owned subsidiary of Newco.
(3) All representations and warranties of Buyer and Parent
contained in Article IV shall be true, complete and
accurate as of the time of the performance of the
obligations set out in Section 1.3(a) as if reference
therein to Buyer or Parent were to Newco (save that the
reference in Section 4.1 to a "private company" shall be
replaced by a reference to a "public company" and the
references to licenses and authorizations shall be deemed
to exclude the necessary certificate under Section 117 of
the Companies Act 1985 which certificate will be obtained
forthwith after the completion of the steps to be taken
by the Shareholders and the Seller as referred to above);
as if references to the Transaction Documents or to the
Agreement were to the documents necessary to perform the
obligations set out in this Section; as if references to
the Closing were to the performance in full of the
obligations set out in Section 1.3(a) and references to
the Closing Date were to the date of such performance; as
if reference to the Buyer Shares were to the shares to be
transferred by Seller pursuant to this Section; and as if
references to the A Senior Preference Shares and the B
Senior Preference Shares and the Senior Preference Shares
were, respectively, to the shares to be issued by Newco
pursuant to this Section 1.3 in exchange for those
shares.
(c) Contemporaneously with and as conditions precedent to the
performance by Seller of its obligations pursuant to Section
1.3(a):
(1) Parent shall procure that Newco shall deliver to Seller,
and Newco shall have delivered to Seller, a legally
binding document containing in terms reasonably
satisfactory to Seller warranties and indemnities in the
terms described in Section 1.3(b)(3), and containing in
favor of Seller indemnification provisions identical,
mutatis mutandis, to those set out in Sections 8.1,
8.2(c) and (d) and 8.3 and subject to limitations only as
set out therein.
(2) Seller shall enter into and Parent shall procure that
Newco shall enter into agreements having the same effect,
mutatis mutandis, as the Contingent Payment Agreement and
the Senior Preference Share Support Agreement (the
Replacement Agreements) on the basis that the Replacement
Agreements shall be read and construed as if they had
been entered into on the Closing Date and as if the acts
and omissions of Seller and Parent respectively in
relation to or in connection with the Contingent Payment
Agreement and the Senior Preference Share Support
Agreement were and had been the acts and omissions of
Seller and Newco in relation to the Replacement
Agreements or in connection therewith and so that without
prejudice to the generality of the foregoing Newco will
assume all liability under the Replacement Agreements
which Parent would have had in relation to or arising out
of or in connection with the Contingent Payment Agreement
and the Senior Preference Share Support Agreement and so
that all references in the Replacement Agreements
replacing the Senior Preference Share Support Agreement
to the Company or Buyer shall refer also to Parent; and
with effect from the entry into of the Replacement
Agreements Seller and Parent shall mutually release each
other from all obligations and liabilities, actual,
contingent or otherwise, under the Contingent Payment
Agreement and Senior Preference Share Support Agreement."
SECTION 2. AMENDMENT TO SECTION 9.8
Section 9.8 of the Share Purchase Agreement is amended to read in
its entirety as follows:
"SECTION 9.8. Binding Effect; Assignment
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and legal
representatives. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other
parties, except that (a) Parent may assign, in its sole discretion,
any or all of its rights and interests hereunder to Buyer and (b)
Buyer and Parent may assign, in their sole discretion, any or all
of their respective rights and interests hereunder to, and grant a
security interest with respect thereto for the benefit of, any and
all Persons providing the financing referred to in Section 6.1(h)
and any and all Persons providing subsequent refinancings, if any,
of such financing."
SECTION 3. EFFECT UPON SHARE PURCHASE AGREEMENT AND TRANSACTION
DOCUMENTS
(a) On and after the date hereof, each reference in the Share
Purchase Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference to the
Share Purchase Agreement in any other Transaction Document or
any other document, shall mean and be a reference to the Share
Purchase Agreement as amended hereby.
(b) Except as specifically amended in Sections 1 and 2, the Share
Purchase Agreement shall remain in full force and effect and
all of its terms and conditions are hereby ratified and
confirmed.
(c) The execution and delivery of this Amendment by the parties
hereto shall not, except as expressly provide herein, operate
as a waiver of any right, power or remedy of any party under
the Share Purchase Agreement, any Transaction Document or any
related document, or constitute a waiver of any provision
thereunder.
SECTION 4. EXECUTION IN COUNTERPARTS
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute
one and the same instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together
signed by all of the parties hereto.
SECTION 5. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective authorized officers as of the
date first above written.
UNIONAMERICA ACQUISITION COMPANY LTD.
By: /s/Paul H. Warren
Name: Paul H. Warren
Title: Director
UNIONAMERICA HOLDINGS LTD.
By: /s/Paul H. Warren
Name: Paul H. Warren
Title: Director
THE CONTINENTAL CORPORATION
By: /s/J. Heath Fitzsimmons
Name: J. Heath Fitzsimmons
Title: Senior Vice President
and Chief Financial Officer