Exhibit 10.3
EXECUTION COPY
ARCH CAPITAL GROUP LTD.
20 Horseneck Lane
Greenwich, CT 06830
November 20, 2001
Orbital Holdings, Ltd. Warburg Pincus Private Equity VIII, L.P.
(the "GE Orbital Holdings Warburg Pincus International Partners, L.P.
Purchaser") Warburg Pincus Netherlands International
c/o GE Capital Partners I, C.V.
120 Longridge Rd. Warburg Pincus Netherlands International
Stamford, CT 06927 Partners II, C.V.
(collectively, "Warburg")
466 Lexington Avenue
New York, NY 10017
HFCP IV (Bermuda), L.P. ("H&F")
c/o Hellman & Friedman LLC
One Maritime Plaza
Suite 1200
San Francisco, CA 94111
Ladies and Gentlemen:
This letter agreement (this "Agreement") confirms the agreement reached
today among each of the parties signatories hereto regarding the participation
of the GE Orbital Holdings Purchaser in the purchase of a portion of the
Securities, as contemplated by, and on the terms set forth in, this Agreement
and the Subscription Agreement dated as of October 24, 2001, as amended (the
"Subscription Agreement") by and among Arch Capital Group Ltd. ("Arch"), Warburg
and H&F (the "Original Signatories"), and certain other matters in connection
therewith. Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Subscription Agreement.
1. Investment by GE Orbital Holdings Purchaser. Warburg hereby assigns,
without recourse or warranty by it, to the GE Orbital Holdings Purchaser (as set
forth in Schedule 1 hereto) the right, and obligation, to purchase an aggregate
of $10,000,000 of the Securities on the terms and conditions set forth in the
Subscription Agreement (except as ex-
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plicitly modified hereby), as a Purchaser (as defined in the Subscription
Agreement). The GE Orbital Holdings Purchaser acknowledges that its investment
will be required to be made on the Closing Date, simultaneously with the
investments being made by the Original Signatories. The GE Orbital Holdings
Purchaser shall become a "Purchaser" under the Subscription Agreement and an
"Investor" under the Shareholders Agreement (solely for purposes of Sections
3.4, 5.1, 5.2 and 5.3 and Articles II, IV and VIII thereof, and the provisions
implementing the provisions described in paragraph 2 below); provided that:
(a) Warburg and H&F shall jointly have the sole right (on behalf of
themselves and all other Purchasers) to make any and all determinations
with respect to, or to take any and all actions necessary to effectuate the
provisions of, Section B of the Subscription Agreement (including the right
to approve any amendment or acceleration of, or to waive compliance by Arch
with, any of the terms thereof), provided that the consequences of such
determinations and actions by Warburg and H&F do not apply differently to
the GE Orbital Holdings Purchaser than to Warburg and H&F (or, if they
apply differently, it is because of differences in the treatment of Warburg
and H&F as opposed to other Purchasers existing in the Subscription
Agreement (as modified by this Agreement) and such differences are not made
more adverse to the GE Orbital Holdings Purchaser or more favorable to
Warburg and H&F as a result of such determination or action);
(b) Warburg and H&F shall have the sole right to determine whether
each condition for the Purchasers contained in Section C of the
Subscription Agreement is satisfied;
(c) the failure of the conditions set forth in Section C.2 of the
Subscription Agreement due to any breach by the GE Orbital Holdings
Purchaser of any representation, warranty or covenant shall not affect the
obligation of the Company to sell the Securities on the Closing Date to
either Warburg or H&F
(d) the GE Orbital Holdings Purchaser shall be subject to Section D.1
and D.2 of the Subscription Agreement, including the covenants thereunder;
(e) the GE Orbital Holdings Purchaser shall have no rights (including
no right to consent to any action proposed to be taken by Arch under, or
any right to waive compliance by Arch with, any covenant or agreement) as a
"Purchaser" under Section D.4 of the Subscription Agreement, it being
acknowledged that each GE Orbital Holdings Purchaser shall, however, have
the obligations of a "Purchaser" under Sections D.4(d), (g) and (i)
thereof; provided that any information provided to the Company pursuant to
Section D.4(g) shall be held
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confidentially and not used for any purpose other than as set forth in
Section D.4(g);
(f) the GE Orbital Holdings Purchaser shall not be considered an
"original signatory" to the Subscription Agreement for purposes of Section
E.6 thereof; provided that no amendment, modification or waiver of Section
E of the Subscription Agreement shall affect the GE Orbital Holdings
Purchaser differently than Warburg and H&F (or, if they affect them
differently, it is because of differences in the treatment of Warburg and
H&F as opposed to other Purchasers existing in the Subscription Agreement
(as modified by this Agreement) and such differences are not made more
adverse to the GE Orbital Holdings Purchaser or more favorable to Warburg
and H&F as a result of such determination or action);
(g) no consent of the GE Orbital Holdings Purchaser shall be required
to effect any modification or amendment to the Subscription Agreement
(including, without limitation, Schedules A and B, and Exhibits I, II and
III thereto), unless such amendment or modification affects the GE Orbital
Holdings Purchaser differently than Warburg and H&F (or, if they affect
them differently, it is because of differences in the treatment of Warburg
and H&F as opposed to other Purchasers existing in the Subscription
Agreement (as modified by this Agreement) and such differences are not made
more adverse to the GE Orbital Holdings Purchaser or more favorable to
Warburg and H&F as a result of such determination or action);
(h) the GE Orbital Holdings Purchaser shall have no rights under
Section F.2 (except the right to be reimbursed by the Company, together
with the other GE Orbital Holdings Purchaser, for up to an aggregate of up
to $50,000 in counsel fees), and no right to assign under Section F.4, of
the Subscription Agreement (except that the GE Orbital Holdings Purchaser
may assign its rights and obligations under the Subscription Agreement in
connection with a transfer of Securities to (i) any person or entity that
directly or indirectly through one or more intermediaries controls, or is
controlled by or under common control with, such GE Orbital Holdings
Purchaser, (ii) an entity over which such GE Orbital Holdings Purchaser has
management rights, or (iii) if such GE Orbital Holdings Purchaser is
affiliated with a trustee of a pension trust, to a successor trustee or
trust, in each case so long as such transferee becomes a party to, and
bound by, this Agreement, Amendment No. 1 to the Subscription Agreement and
the Shareholders Agreement (a "Permitted Transferee");
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(i) Amendment No. 1 to the Subscription Agreement will contain a
covenant by the Company to conduct its business in compliance with law
including, without limitation, the Foreign Corrupt Practices Act;
(j) so long as the GE Orbital Holdings Purchaser owns any equity
interest in the Company, the Company agrees to furnish to the GE Orbital
Holdings Purchaser a copy of its annual and quarterly reports filed under
the Securities and Exchange Act of 1934; and
(k) for the avoidance of doubt, the GE Orbital Holdings Purchaser
shall become parties to the Shareholders Agreement as an "Investor" solely
for purposes of Sections 3.4, 5.1, 5.2 and 5.3 and Articles II, IV and VIII
thereof and the provisions thereof implementing the provisions of paragraph
2 below; it being further understood that Warburg and H&F can consent on
behalf of all other Investors to (A) any amendment or modification
whatsoever of the Sections of the Shareholders Agreement that do not apply
to the GE Orbital Holdings Purchaser and (B) any amendment or modification
of the Sections of the Shareholders Agreement that do apply to the GE
Orbital Holdings Purchaser, so long as in the case of clause (B), such
amendment or modification does not affect the GE Orbital Holdings Purchaser
differently than Warburg and H&F (or, if it affects them differently, it is
because of differences in the treatment of Warburg and H&F as opposed to
other Purchasers existing in the Subscription Agreement or the Shareholders
Agreement (as modified by this Agreement) and such differences are not made
more adverse to the GE Orbital Holdings Purchaser or more favorable to
Warburg and H&F as a result of such determination or action).
2. Registration; Tag-Along.
Arch, the Original Signatories and the GE Orbital Holdings Purchaser agree
that the Shareholders Agreement will be amended and restated to provide that:
(a) if the GE Orbital Holdings Purchaser exercises its right under
Section 4.3 thereof, any cutback pursuant to Section 4.4 thereof will treat
the GE Orbital Holdings Purchaser at least as favorably as Warburg and H&F
(i.e., the GE Orbital Holdings Purchaser will have priority under clause
(b), and not under clause (c), thereof);
(b) Warburg and H&F agree that in the case of a Warburg Demand or an
H&F Demand involving an underwritten public offering, when selecting an
underwriter, the consent of the General Electric Pension Trust will be
required for the selection of any underwriter in which the General Electric
Com-
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pany has a direct or indirect interest of 5% or more if the GE Orbital
Holdings Purchaser will be a participating seller in the offering;
(c) the GE Orbital Holdings Purchasers will have the obligations of a
Selling Investor (considered together for the purpose of determining
whether the Selling Investor has met the $50 million threshold), and the
rights of a Tag-Along Investor, under Section 5.1 thereof; provided that
(1) each Investor participating in a transaction under Section 5.1 shall
only be responsible for its pro rata portion of any indemnification (except
in respect of representations specifically relating to such Investor) and
(2) in the event that H&F is a Selling Investor, the GE Orbital Holdings
Purchasers shall only be permitted to elect to participate as a Tag-Along
Investor if Warburg so elects;
(d) the GE Orbital Holdings Purchaser shall be subject to the
restrictions of Section 5.2 of the Shareholders Agreement with respect to
the Securities acquired by it under the Subscription Agreement and any
securities acquired in respect thereof, to the same extent that Warburg and
H&F are restricted with respect to the Securities acquired by them under
the Subscription Agreement and any securities acquired in respect thereof,
provided that the GE Orbital Holdings Purchaser will be permitted to
transfer Securities to a Permitted Transferee.
"Tag-Along Investor," "Third Party Sale" and "Selling Investor" have the
meanings given to them in the Shareholders Agreement and to the extent necessary
the term "Tag-Along Investor" shall be deemed to include more than one party.
3. Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary or desirable under applicable legal requirements, to consummate
and make effective the transactions contemplated by this Agreement. If at any
time after the Closing Date, any further action is necessary or desirable to
carry out the purposes of this Agreement, the parties hereto shall use their
reasonable best efforts to take or cause to be taken all such necessary or
desirable action and execute, and deliver and file, or cause to be executed,
delivered and filed, all necessary or desirable documentation. The GE Orbital
Holdings Purchaser agrees (to the full extent of their current or future
ownership of securities of Arch) to vote in favor of all matters to be submitted
to shareholders of Arch in connection with the foregoing or the transactions
contemplated by the Subscription Agreement (and the grants of any shares or
options contemplated thereby or in connection therewith). Each of the parties
will consult with each other with respect to the issuance of any press release
or public announcement with respect to the foregoing.
4. Notices. All notices or other communications given or made hereunder
shall be validly given or made if in writing and delivered by facsimile
transmission or in per-
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son at, or mailed by registered or certified mail, return receipt requested,
postage prepaid, to, the addresses (and shall be deemed effective at the time of
receipt thereof):
(a) If to Arch:
Arch Capital Group Ltd.
20 Horseneck Lane
Greenwich, CT 06830
Attention: Peter Appel, President and Chief Executive Officer
Facsimile: (203) 861-7240
(b) If to the GE Orbital Holdings Purchaser:
c/o GE Capital
120 Longridge Rd.
Stamford, CT 06927
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above. A notice hereunder shall not be deemed given until copies thereof are
given as contemplated above. Notices to all other parties hereto shall be given
in accordance with the Subscription Agreement.
5. Entire Agreement; Amendment. This Agreement, together with the
Subscription Agreement, Amendment No. 1 to the Subscription Agreement (including
the exhibits thereto) the Shareholders Agreement contains all of the terms
agreed upon by the parties with respect to the subject matter hereof. This
Agreement may be amended or the provisions thereof waived only by a written
instrument signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
6. Headings. The headings of the sections of this Agreement are inserted
for convenience only and shall not constitute a part hereof.
7. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any party without the prior
written consent of the other party; provided that this Agreement may be assigned
by a Purchaser consistent with an assignment in accordance with Section F.4 of
the Subscription Agreement and Section 1(h) of this Agreement, so long as the
assignee executes an agreement in the form of this Agreement.
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8. Severability. In the event that any provision or any part of this
Agreement is held to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not effect the validity or enforceability
of any other provision or part thereof.
9. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the substantive laws of the
State of New York, without giving effect to principles of conflicts of laws.
10. Counterparts. This Agreement and any instrument delivered in connection
herewith may be executed in any number of counterparts with the same effect as
if the signatures on all counterparts are upon the same instrument.
[Signature pages follow]
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Please confirm that the foregoing is in accordance with your understanding
by signing and returning to us the duplicate enclosed copy of this Agreement.
Very truly yours,
ARCH CAPITAL GROUP LTD.
By: /s/ Louis T. Petrillo
--------------------------------------------
Name: Louis T. Petrillo
Title: Senior Vice President and
General Counsel
Agreed to and Accepted
As of the Date First Above Written:
ORBITAL HOLDINGS, LTD.
By: /s/ Lorraine Hliboki
---------------------------------------
Name: Lorraine Hliboki
Title: Attorney-in-fact
Notice Information for Orbital
Holdings, Ltd.:
c/o GE Capital
120 Longridge Rd.
Stamford, CT 06927
HFCP IV (BERMUDA), L.P.
By: H&F Investors IV (Bermuda), L.P.,
its General Partner
By: H&F Corporate Investors IV (Bermuda) Ltd.
its General Partner
By: /s/ David R. Tunnell
--------------------------------------
Name: David R. Tunnell
Title: Authorized Signatory
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WARBURG PINCUS PRIVATE
EQUITY VIII, L.P.
WARBURG PINCUS INTERNATIONAL
PARTNERS, L.P.
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS I, C.V.
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS II, C.V.
By: Warburg, Pincus & Co.,
its General Partner
By: /s/ Kewsong Lee
------------------------------------
Name: Kewsong Lee
Title: Partner
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SCHEDULE 1
Amount
Warburg Purchaser Assigned
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Warburg Pincus Private Equity VIII, L.P. $5,000,000
Warburg Pincus International Partners, L.P. $4,800,000
Warburg Pincus Netherlands International Partners I, C.V. $120,000
Warburg Pincus Netherlands International Partners II, C.V. $80,000
=================
Total $10,000,000