Exhibit 10(xxiii)
Conformed Copy
AGREEMENT between Orion Capital Corporation, a Delaware
corporation ("Buyer"), and The Harper Group, Inc., a Delaware
corporation ("Seller").
1. Seller hereby agrees to sell and assign to Buyer,
and Buyer hereby agrees to purchase and pay for, shares of Common
Stock, par value $1.00, of Intercargo Corporation (the "Common
Stock") at the price, at the times and on the terms and conditions
set forth herein. Each represents and warrants to the other that
the purchase and sale of Common Stock has been duly authorized by
all necessary corporate action and that this Agreement creates a
valid and legally binding obligation.
2. Seller represents and warrants that it or one of its
wholly-owned subsidiaries is the owner of 1,006,484 shares of
Common Stock, having full right, title and interest in and to such
shares free and clear of claims, liens and encumbrances of any type
whatsoever and that Buyer will, upon purchasing shares of Common
stock form Seller in accordance with this Agreement, acquire all
right, title and interest in and to such shares, free and clear of
all rights, claims and encumbrances of any type whatsoever.
3. The shares of Common Stock to be sold hereunder
shall be sold at a price of $12.50 per share, such price to be
subject to adjustment as set forth in this Section 3. Seller will
deliver to Buyer certificates for all shares sold on any date (a
"Transfer Date"), accompanied by Stock powers duly endorsed in
blank, all in form satisfactory to Buyer and Buyer's counsel and
Buyer shall transfer to Seller or to Seller's order, in immediately
available funds, cash in an amount equal to the purchase price of
the shares of Common Stock to be transferred on that Transfer Date.
(a) The date hereof shall be the first Transfer Date.
Simultaneously with the execution and delivery of this Agreement
Seller shall transfer to Buyer 700,000 shares of Common Stock and
Buyer shall pay to Seller $8,750,000 in full and final payment
therefor.
(b) On a date to be determined by Buyer on not less
than five days prior written notice to Seller (the "Future Transfer
Date"), and in consideration of the execution and delivery of this
Agreement and for other good and valuable consideration the receipt
of which is mutually acknowledged by Buyer and Seller, Seller
shall, subject to compliance with Section 4, transfer to Buyer
306,484 shares of Common Stock and Buyer shall pay therefor the
Adjusted Future Price. The Adjusted Future Price per share shall
be the sum of $12.50 per share plus an adjustment on such amount
computed at a rate of 3% per annum from the date hereof to the
Future Transfer Date.
4. Buyer may not give notice of the determination of
the Future Transfer Date unless prior to the giving of such notice
Buyer and Seller shall have received all regulatory approvals which
may be required under any applicable federal or state statute and
unless Buyer shall have been advised by its counsel that no other
regulatory filings need be made nor approvals obtained which have
not theretofore been made or obtained. Buyer and Seller shall, in
good faith, seek all required regulatory approvals. Notice of
determination of a Future Transfer Date shall include a
certification by an officer of Buyer that the requirements of this
Section have been met and shall be given by Buyer not later than
the 30th day following receipt of the last required approval or the
making of the last required filing, whichever shall last occur. The
Future Transfer Date shall occur not later than December 31, 1993
if the Buyer shall have received the last required approval and
made the last required filing on or before the third business day
prior to December 31, 1993.
5. Buyer and Seller agree that each will cooperate with
the other party and with legal counsel and other advisers of such
other party in the preparation and making of all filings and
applications required to be made in connection with any of the
transactions contemplated by this Agreement.
6. This Agreement shall be governed by the laws of the
State of New York. The rights of the parties hereunder may not be
assigned except to the extent that Buyer may designate one or more
wholly-owned subsidiaries as the purchaser of some or all of the
shares of Common Stock to be purchased by Buyer on any Transfer
Date.
7. If the Future Transfer Date shall not have occurred
by 5:00 p.m. on December 31, 1993, then either party may terminate
this Agreement on ten days' written notice to the other; provided
that this Agreement shall automatically remain in force so long as
such notice of termination shall not be given and provided further
that a notice of termination given pursuant hereto shall not affect
the validity or finality of any purchase and sale of shares of
Common Stock theretofore made.
8. Each of Orion and Harper represents and warrants to
the other that it has not engaged any broker, finder, financial
adviser or other intermediary in connection with the sale of shares
of Common Stock by Harper to Orion except that Harper has engaged
the firm of Lehman Brothers. Harper agrees to be responsible for
and save Orion entirely harmless against any claim by Lehman
Brothers for fees, commissions, expenses or other compensation
arising out of or as a result of the sale of shares contemplated by
this Agreement. Each of Orion and Harper agrees to hold the other
entirely harmless against all loss, cost and expense to the other
arising out of any claim for fees, commissions, expenses or other
compensation by any person claiming to have been retained or
engaged by the indemnifying party.
IN WITNESS WHEREOF, this Agreement has been made and entered
into in New York City, N.Y. this 13th day of September, 1993.
The Harper Group, Inc.
By: /s/Robert H. Kennis
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Orion Capital Corporation
By: /s/ Alan R. Gruber
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Chairman
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