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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 FORM 8-K
  
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): August 10, 2020 (August 6, 2020)
 
 THIRD POINT REINSURANCE LTD.
(Exact name of registrant as specified in its charter)
  
Bermuda   001-36052   98-1039994
(State or other jurisdiction
of incorporation) 		  (Commission
File Number) 		  (I.R.S. Employer
Identification No.)
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda
(Address of principal executive offices and Zip Code)
Registrant’s telephone number, including area code: +1 441 542-3300
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☒
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading symbol Name of each exchange on which registered
Common Shares, $0.10 par value TPRE New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Exchange Act of 1934 (17 CFR 240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐


Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Employment Agreement
In connection with the entry into the Agreement and Plan of Merger (the “Merger Agreement”), dated as of August 6, 2020, by and among Third Point Reinsurance Ltd. (the “Company), Sirius International Insurance Group Ltd. (“Sirius”), a Bermuda exempted company limited by shares, and Yoga Merger Sub Limited (“Merger Sub”), a Bermuda exempted company limited by shares and wholly owned subsidiary of the Company, pursuant to which Merger Sub will be merged with and into Sirius (the “Merger”), with Sirius continuing as the surviving company in the Merger, as a wholly owned subsidiary of the Company. The Company, to be renamed SiriusPoint Ltd., following the Merger is referred to herein as the “Surviving Company”. The Company has agreed to the terms of an employment agreement with Sid Sankaran, dated as of August 6, 2020 (the “Employment Agreement”), pursuant to which Mr. Sankaran has been appointed Chairman of the Board and, concurrently with the closing of the Merger (“Closing”), shall be appointed as President and Chief Executive Officer of the Surviving Company. The employment term for Mr. Sankaran will be three years beginning on the Closing with an automatic one-year renewal, subject to a 90-day contractual non-renewal notice period that may be exercised by either party. During the employment term, Mr. Sankaran is entitled to receive (a) an annual salary of $1,000,000, (b) a target bonus of 75% of his annual salary, and (c) an annual equity award equal to 475% of his annual salary. The first annual equity award will be granted in calendar year 2021 within 30 days after the Closing. Immediately following the public announcement of the execution of the Merger Agreement, on August 6, 2020, Mr. Sankaran was granted a restricted share award with a grant date fair value of $3,000,000 (the “Announcement Share Award”), and immediately following the Closing he will be granted a restricted share award with a grant date fair value of $5,500,000 (the “Closing Share Award”) and an award of 400,000 options to purchase common shares, par value $0.01 per share, of the Surviving Company (“Company Shares”) with an exercise price equal to $15.00 per Company Share or, if higher, the closing price on the grant date (the “Closing Option Award,” and, together with the Announcement Share Award and the Closing Share Award, the “Initial Awards”). The Initial Awards will generally vest in five equal installments on each anniversary of the Closing, subject to Mr. Sankaran’s continued services to the Surviving Company.
If, following the Closing, Mr. Sankaran’s employment is terminated by the Surviving Company without cause (or by reason of non-renewal of the Employment Agreement), if Mr. Sankaran resigns for good reason, Mr. Sankaran will be entitled to receive: (i) all accrued and unpaid base salary and benefits, (ii) an annual bonus payment, prorated for the period of his service prior to the termination date; (iii) payment of two times the sum of Mr. Sankaran’s base salary and target annual bonus opportunity; (iv) 24 months of continued participation in medical and life insurance benefits at active employee rates; (v) accelerated vesting of any portion of the Initial Awards that would vest within two years following his termination; (vii) any vested options to purchase Company Shares held by Mr. Sankaran will remain exercisable until their normal expiration date; and (viii) his performance shares will remain outstanding through the scheduled vesting dates and will vest pro rata through the termination date and/or be forfeited based solely on satisfaction of the applicable performance goals without regard to his continued service. The payment of the above shall be contingent on Mr. Sankaran executing a general release of all claims against the Surviving Company. Mr. Sankaran will be subject to 24 month post-termination non-compete and non-solicitation restrictions.
The foregoing description of the Employment Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Employment Agreement, a copy of which will be filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, and is incorporated by reference herein.
Employee Restricted Shares Agreement
In connection with the Merger Agreement, the Company entered into the Employee Restricted Shares Agreement with Mr. Sankaran, dated as of August 6, 2020 (the “Employee Restricted Shares Agreement”). Under the Employee Restricted Share Agreement, the Company has granted the Announcement Share Award described above under the heading “Employment Agreement” to Mr. Sankaran, pursuant to the terms and conditions of the Company’s 2013 Omnibus Incentive Plan and the Employee Restricted Shares Agreement.
The foregoing description of the Employee Restricted Shares Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Employee Restricted Shares Agreement, a copy of which will be filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, and is incorporated by reference herein.






Company Retention Program
On August 6, 2020, the Compensation Committee of the Board approved an amendment to the outstanding performance restricted share awards previously granted to employees of the Company in calendar years 2018, 2019 and 2020 such that at the end of each applicable performance period, the performance shall be deemed achieved at not less than the applicable target level of performance for each award.
Item 8.01
Other Events.
On August 7, 2020, the Company and Sirius made available the investor presentation and transcript from the investor conference call, which are filed as Exhibits 99.1 and 99.2, respectively, to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company entered into the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K.
As previously disclosed, at Closing the Surviving Company will file with the Bermuda Registrar of Companies a certificate of designation for the Series A preference shares, par value $0.10 per share, of the Surviving Company, a form of which is filed as Exhibit 3.1 to this Current Report on Form 8-K.
As previously disclosed, at Closing the Surviving Company will enter into a warrant agreement, a form of which is filed as Exhibit 4.1 to this Current Report on Form 8-K.
As previously disclosed, at Closing the Surviving Company will enter into a contingent value rights agreement, a form of which is filed as Exhibit 4.2 to this Current Report on Form 8-K.
As previously disclosed, at Closing the Surviving Company will issue a right, a form of which is filed as Exhibit 4.3 to this Current Report on Form 8-K.
As previously disclosed, at Closing the Surviving Company will enter into a registration rights agreement, a form of which is filed as Exhibit 4.4 to this Current Report on Form 8-K.
As previously disclosed, at Closing the Surviving Company will enter into an investor rights agreement, a form of which is filed as Exhibit 4.5 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company, Third Point Reinsurance Company Ltd. and Third Point Reinsurance (USA) Ltd. entered into the Third Amended and Restated Exempted Limited Partnership Agreement of Third Point Enhanced LP with Third Point Advisors LLC, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company and Third Point LLC (d/b/a Third Point Insurance Portfolio Solutions) entered into an Investment Management Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company and Sirius entered into a voting agreement with CM Bermuda Limited and CMIG International Holding Pte. Ltd., which is filed as Exhibit 10.3 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company and Sirius entered into a voting agreement with Daniel S. Loeb, The 2010 Loeb Family Trust, Third Point Advisors LLC, Third Point Opportunities Master Fund L.P. and the 2011 Loeb Family GST Trust, which is filed as Exhibit 10.4 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company and Sirius entered into a voting agreement with Joshua L. Targoff, Joseph L. Dowling III, Rafe de la Gueronniere, Gretchen A. Hayes, Daniel V. Malloy, Mark Parkin and Sid Sankaran, which is filed as Exhibit 10.5 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company entered into a debt commitment letter with JPMorgan Chase Bank, N.A., which is filed as Exhibit 10.6 to this Current Report on Form 8-K.
As previously disclosed, on August 6, 2020, the Company, Third Point Opportunities Master Fund Ltd. and Daniel S. Loeb entered into an equity commitment letter, which is filed as Exhibit 10.7 to this Current Report on Form 8-K.




Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No. 		   Description
2.1
Agreement and Plan of Merger, dated as of August 6, 2020, among Third Point Reinsurance Ltd., Yoga Merger Sub Limited and Sirius International Insurance Group, Ltd.
3.1 Form of Certificate of Designation of Series A Preference Shares, par value $0.10 per share.
4.1 Form of Warrant Agreement.
4.2 Form of Contingent Value Rights Agreement.
4.3 Form of Upside Rights.
4.4 Form of Registration Rights Agreement, between Third Point Reinsurance Ltd. and CM Bermuda Limited.
4.5 Form of Investor Rights Agreement, between Third Point Reinsurance Ltd. and CM Bermuda Limited.
10.1 Third Amended and Restated Exempted Limited Partnership Agreement of Third Point Enhanced LP, dated August 6, 2020, between Third Point Advisors LLC, as General Partner, Third Point Reinsurance Ltd., Third Point Reinsurance Company Ltd., Third Point Reinsurance (USA) Ltd., and the initial limited partner.
10.2 Investment Management Agreement, among Third Point LLC and Third Point Reinsurance Company Ltd., dated as of August 6, 2020.
10.3 Voting Agreement, dated as of August 6, 2020, by and among CM Bermuda Limited, CMIG International Holding Pte. Ltd., Sirius International Insurance Group, Ltd. and Third Point Reinsurance Ltd.
10.4 Voting Agreement, dated as of August 6, 2020, by and among Daniel S. Loeb, The 2010 Loeb Family Trust, Third Point Advisors LLC, Third Point Opportunities Master Fund L.P., The 2011 Loeb Family GST Trust, Sirius International Insurance Group, Ltd. and Third Point Reinsurance Ltd.
10.5 Voting Agreement, dated as of August 6, 2020, by and among Joshua L. Targoff, Joseph L. Dowling III, Rafe de la Gueronniere, Gretchen A. Hayes, Daniel V. Malloy, Mark Parkin, Sid Sankaran, Sirius International Insurance Group, Ltd. and Third Point Reinsurance Ltd.
10.6 Debt Commitment Letter, dated as of August 6, 2020, by and between Third Point Reinsurance Ltd. and JPMorgan Chase Bank, N.A.
10.7 Equity Commitment Letter, dated as of August 6, 2020, by and between Third Point Reinsurance Ltd., Third Point Opportunities Master Fund Ltd. and Daniel S. Loeb.
99.1 Investor Presentation.
99.2 Investor Conference Call Transcript.
101 Pursuant to Rule 406 of Regulation S-T, the cover page information in formatted in Inline XBRL
104 Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101)











Where to Find Additional Information
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. This communication may be deemed to be solicitation material in respect of the proposed merger between Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. In connection with the proposed merger, Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. intend to file a joint proxy statement/prospectus with the SEC. INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE, BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain a free copy of the proxy statement/prospectus (when available) and other documents filed by Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. with the SEC at http://www.sec.gov. Free copies of the joint proxy statement/prospectus, once available, and each company’s other filings with the SEC may also be obtained from the respective companies. Free copies of documents filed with the SEC by Third Point Reinsurance Ltd. will be made available free of charge on Third Point Reinsurance Ltd.’s investor relations website at https://www.thirdpointre.com/investors/financial-information/sec-filings/default.aspx. Free copies of documents filed with the SEC by Sirius International Insurance Group Ltd. will be made available free of charge on Sirius International Insurance Group Ltd.’s investor relations website at https://ir.siriusgroup.com/.
Participants in the Solicitation
Third Point Reinsurance Ltd. and its directors and executive officers, and Sirius International Insurance Group Ltd. and its directors and executive officers, may be deemed to be participants in the solicitation of proxies from their respective shareholders in respect of the proposed merger. Information about the directors and executive officers of Third Point Reinsurance Ltd. is set forth in its Annual Proxy Statement, which was filed with the SEC on April 27, 2020. Information about the directors and executive officers of Sirius International Insurance Group Ltd. is set forth in it Annual Report on For 10-K, which was filed with the SEC on April 21, 2020. Investors may obtain additional information regarding the interest of such participants by reading the proxy statement/prospectus regarding the proposed merger when it becomes available.
Forward-Looking Statements
Information set forth in this communication, including financial estimates and statements as to the expected timing, completion and effects of the proposed merger between Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd., constitute forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These estimates and statements are subject to risks and uncertainties, and actual results might differ materially. Such estimates and statements include, but are not limited to, statements about the benefits of the merger, including future financial and operating results, the combined company’s plans, objectives, expectations and intentions, and other statements that are not historical facts. Such statements are based upon the current beliefs and expectations of the management of Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. and are subject to significant risks and uncertainties outside of our control. Among the risks and uncertainties that could cause actual results to differ from those described in the forward-looking statements are the following: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, (2) the risk that Sirius International Insurance Group Ltd. shareholders may not adopt the merger agreement or that Third Point Reinsurance Ltd. shareholders may not approve the stock issuance, (3) the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated, (4) risks that any of the closing conditions to the proposed merger may not be satisfied in a timely manner and (5) the risk that the Surviving Company may not achieve the expected benefits of the transaction. Discussions of additional risks and uncertainties are contained in Third Point Reinsurance Ltd.’s and Sirius International Insurance Group Ltd.’s filings with the Securities and Exchange Commission (the “SEC”). Neither Third Point Reinsurance Ltd. nor Sirius International Insurance Group Ltd. is under any obligation, and each expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this announcement are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.






SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
Date: August 10, 2020   /s/ Christopher S. Coleman
  Name: Christopher S. Coleman
  Title: Chief Financial Officer

EXHIBIT INDEX
Exhibit
No. 		   Description
2.1
3.1
4.1
4.2
4.3
4.4
4.5
10.1
10.2
10.3
10.4
10.5
10.6
10.7
99.1
99.2
101 Pursuant to Rule 406 of Regulation S-T, the cover page information in formatted in Inline XBRL
104 Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101)

EXHIBIT 2.1








AGREEMENT AND PLAN OF MERGER
By and Among
SIRIUS INTERNATIONAL INSURANCE GROUP, LTD.,
THIRD POINT REINSURANCE LTD.
and
YOGA MERGER SUB LIMITED
Dated as of August 6, 2020










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Exhibit A Statutory Merger Agreement
Exhibit B Form of Memorandum of Association of the Surviving Company
Exhibit C Form of CVR Agreement
Exhibit D Form of Parent Certificate of Designation
Exhibit E Form of Parent Warrant Agreement
Exhibit F Form of Upside Right
Exhibit G Form of Investor Rights Agreement
Exhibit H Form of Registration Rights Agreement
Exhibit I Form of Waiver Agreement

Schedule 5.21  Parent Board
Schedule 6.01(b) Governmental Approvals
Schedule 8.11(a) Independent Shareholder Representatives
Schedule 8.11(b) Original SRC Members


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This AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of August 6, 2020, among Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (the “Company”), Third Point Reinsurance Ltd., a Bermuda exempted company limited by shares (“Parent”), and Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a wholly owned Subsidiary of Parent (“Merger Sub”).
WHEREAS the Board of Directors of each of Parent (the “Parent Board”) and Merger Sub (the “Merger Sub Board”) have (i) unanimously by those voting approved (x) the business combination transaction provided for herein in which Merger Sub will, subject to the terms and conditions set forth herein and in the Statutory Merger Agreement, merge with and into the Company, with the Company surviving such merger (the “Merger”), so that immediately following the Merger, the Company will be a wholly owned Subsidiary of Parent, (y) this Agreement and (z) the Statutory Merger Agreement, (ii) determined that the terms of this Agreement, the Statutory Merger Agreement and the Transactions, including the Merger, are in the best interests of and fair to Parent or Merger Sub, as applicable, (iii) resolved to recommend the approval by the holders of the Parent Shares of the issuance of the Parent Shares pursuant to the terms and conditions of this Agreement and (iv) declared the advisability of this Agreement, the Statutory Merger Agreement and the Transactions;
WHEREAS the Board of Directors of the Company (the “Company Board”) has unanimously (i) determined that the Merger Consideration constitutes fair value for each Company Share in accordance with the Bermuda Companies Act, (ii) determined that the terms of this Agreement, the Statutory Merger Agreement and the Transactions, including the Merger, are in the best interests of and fair to the Company, (iii) approved the Merger, this Agreement and the Statutory Merger Agreement and (iv) resolved to recommend the approval of the Merger, the Statutory Merger Agreement and this Agreement to the holders of Company Shares;
WHEREAS Parent, as the sole shareholder of Merger Sub, shall approve this Agreement immediately following the execution of this Agreement;
WHEREAS concurrently with the execution and delivery of this Agreement, as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, Parent, the Company and one of the Company’s shareholders (the “Existing Shareholder”) are entering into an agreement (the “Company Voting Agreement”), pursuant to which the Existing Shareholder has agreed, subject to the terms and conditions set forth in the Company Voting Agreement, to vote or cause to be voted any Company Shares beneficially owned by it in favor of the Merger, approving this Agreement and the Statutory Merger Agreement and any other actions contemplated hereby and thereby in respect of which approval of holders of Company Shares is requested;
WHEREAS concurrently with the execution and delivery of this Agreement, as a condition and inducement to the willingness of the Company to enter into this Agreement, Parent, the Company and certain of Parent’s shareholders (the “Parent Shareholders”) are entering into an agreement (the “Parent Voting Agreement”), pursuant to which the Parent Shareholders have agreed, subject to the terms and conditions set forth in the Parent Voting Agreement, to vote or cause to be voted any Parent Shares beneficially owned by them in favor
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of the Merger, approving this Agreement and the Statutory Merger Agreement and any other actions contemplated hereby and thereby in respect of which approval of holders of Parent Shares in requested;
WHEREAS concurrently with the execution and delivery of this Agreement, as a condition and inducement to the willingness of the Exiting Shareholder to enter into this Agreement, Parent, the Company, the Existing Shareholder and the parent of the Existing Shareholder are entering into an agreement (the “Transaction Matters Agreement”), pursuant to which the Company and Parent have made certain commitments regarding, among other things, reimbursement of legal expenses;
WHEREAS concurrently with the execution and delivery of this Agreement, as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, Parent and Third Point LLC are entering into an investment management agreement (the “Investment Management Agreement”) to be effective at the Closing; and
WHEREAS the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows:
Article I.

The Merger
Section i.. Merger. On the terms and subject to the conditions set forth in this Agreement and the Statutory Merger Agreement, and pursuant to Section 104H of the Companies Act 1981 of Bermuda, as amended (the “Bermuda Companies Act”), at the Effective Time, Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the surviving company in the Merger (such surviving company, the “Surviving Company”).
Section ii.. Merger Effective Time. On the terms and subject to the conditions set forth in this Agreement and the Statutory Merger Agreement, the Company, Parent and Merger Sub shall (a) concurrently with the Closing, execute and deliver the Statutory Merger Agreement, (b) prior to or concurrently with the Closing, cause an application for registration of the Surviving Company (the “Merger Application”) to be executed and delivered to the Registrar of Companies in Bermuda (the “Registrar”) as provided under Section 108 of the Bermuda Companies Act and to be accompanied by the documents required by Section 108(2) of the Bermuda Companies Act and (c) cause to be included in the Merger Application a request that the Registrar issue the certificate of merger with respect to the Merger (the “Certificate of Merger”) on the Closing Date at the time of day mutually agreed upon by the Company and Parent and set forth in the Merger Application. The Merger shall become effective upon the issuance of the Certificate of Merger by the Registrar at the time and date shown on the Certificate of Merger. The Company, Parent
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and Merger Sub agree that they will request that the Registrar provide in the Certificate of Merger that the effective time of the Merger shall be 10:00 a.m., Bermuda time (or such other time mutually agreed upon by the Company and Parent) on the Closing Date (such time, the “Effective Time”).
Section iii.. Effects of Merger. From and after the Effective Time, the Merger shall have the effects set forth in this Agreement, the Statutory Merger Agreement and Section 109(2) of the Bermuda Companies Act.
Section iv.. Memorandum of Association and Bye-Laws of the Surviving Company. The memorandum of association of the Company shall, at the Effective Time, by virtue of the Merger and without any further action, be amended and restated to read in its entirety as set forth on Exhibit B and, as so amended and restated, shall be the memorandum of association of the Surviving Company until thereafter changed or amended as provided therein or by applicable Law. The bye-laws of the Surviving Company shall, at the Effective Time, by virtue of the Merger and without any further action, be amended and restated to be in the form of the bye-laws of Merger Sub as in effect immediately prior to the Effective Time until thereafter changed or amended as provided therein or by applicable Law, except that references to the name of Merger Sub shall be replaced by references to the name of the Surviving Company (in each case, subject to Section 5.09).
Section v.. Board of Directors and Officers of Surviving Company. The directors of Merger Sub in office immediately prior to the Effective Time shall be the directors of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be, in accordance with the bye-laws of the Surviving Company. The officers of the Company in office immediately prior to the Effective Time shall be the officers of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be, in accordance with the bye-laws of the Surviving Company.
Section vi.. Closing. The closing (the “Closing”) of the Merger and the other Transactions shall take place at the offices of Conyers Dill & Pearman Limited, Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda at 10:00 a.m., Bermuda time, on a date to be specified by the Company and Parent, which date shall be as soon as reasonably practicable (but in any event no later than the third (3rd) Business Day) following the satisfaction or (to the extent permitted herein and by applicable Law) waiver by the party or parties entitled to the benefits thereof of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted herein and by applicable Law) waiver of those conditions at such time), or at such other place, time and date as shall be agreed to in writing by the Company and Parent. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
Article II.

Effect on the Share Capital of the Constituent Entities; Payment of Consideration
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Section i.. Effect of Merger on the Share Capital of Merger Sub and the Company. At the Effective Time, by virtue of the occurrence of the Merger, and without any action on the part of the Company, Parent, Merger Sub or any holder of any common shares, par value $0.01 per share, of the Company (“Company Shares”) or Series B preference shares, par value $0.01 per share, of the Company (“Company Preference Shares”) or any shares, par value $1.00 per share, of Merger Sub (“Merger Sub Shares”):
(1) Share Capital of Merger Sub. Each Merger Sub Share issued and outstanding immediately prior to the Effective Time shall be converted into and become one duly authorized, validly issued, fully paid and nonassessable common share, par value $1.00 per share, of the Surviving Company (the “Surviving Company Shares”), and such converted shares shall constitute the only issued and outstanding shares of the Surviving Company. The Surviving Company Shares shall constitute the only class of authorized share capital of the Surviving Company.
(2) Cancelation of Treasury Shares and Parent-Owned Shares; Treatment of Shares Held by Company Subsidiaries. All Company Shares that are owned by the Company as treasury shares and any Company Shares issued and outstanding immediately prior to the Effective Time and owned by the Company, Parent, Merger Sub or any other direct or indirect wholly owned Subsidiary of the Company or Parent immediately prior to the Effective Time (in each case, other than those held on behalf of any third party) shall automatically be canceled and shall cease to exist and be outstanding, and no consideration shall be delivered in exchange therefor.
(3) Conversion of Company Shares.
(a) Subject to Sections 2.01(b), 2.06 and 2.07, each Company Share, including each Company Share subject to a Company Restricted Share Award, that is issued and outstanding immediately prior to the Effective Time shall automatically be canceled and converted into, and shall thereafter represent the right to receive, the following consideration, in each case, without interest:
(i) Each Company Share with respect to which an election to receive only cash (a “Cash Election”) has been effectively made and not revoked or lost pursuant to Section 2.03 (each, a “Cash Electing Company Share”) shall be converted into the right to receive $9.50 in cash.
(ii) Each Company Share with respect to which an election to receive a combination of Parent Shares and CVR consideration (a “Share & CVR Election”) has been effectively made and not revoked or lost pursuant to Section 2.03 (each, a “Share & CVR Electing Company Share”) and each Non-Electing Company Share shall be converted into the right to receive the combination of (1) subject to adjustment in accordance with Section 2.07, 0.743 of a share of duly authorized, validly issued, fully paid and non-assessable Parent Shares (such fraction of a Parent Share, the “Share & CVR Election Exchange Ratio”) and (2) one (1) contractual contingent value right
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(each, a “CVR”), which shall represent the right to receive a contingent cash payment as set forth in, and subject to and in accordance with the terms and conditions of the Contingent Value Rights Agreement substantially in the form attached hereto as Exhibit C, but subject to the review and comment of the Rights Agent (the “CVR Agreement”), to be entered into by and between Parent and a rights agent selected by Parent and reasonably acceptable to the Company (the “Rights Agent”), if any, at the times provided for in the CVR Agreement.
(iii) Each Company Share with respect to which an election to receive a combination of cash, Parent Shares, Merger Consideration Preference Shares, Merger Consideration Warrants and Upside Rights (a “Mixed Election”) has been effectively made and not revoked or lost pursuant to Section 2.03 shall be converted into the right to receive the combination of (1) $0.905 in cash, (2) a number of duly authorized, validly issued, fully paid and non-assessable Parent Shares, subject to adjustment in accordance with Section 2.07, equal to the Mixed Election Common Shares Exchange Ratio, (3) subject to adjustment in accordance with Section 2.07, a number of duly authorized, validly issued, fully paid and non-assessable Series A preference shares, par value $0.10 per share, of Parent (the “Merger Consideration Preference Shares”), having the terms and conditions set forth in the certificate of designation of Parent substantially in the form attached hereto as Exhibit D (the “Parent Certificate of Designation”) equal to the Mixed Election Preference Shares Exchange Ratio, (4) subject to adjustment in accordance with Section 2.07, 0.190 of a warrant (each, a “Merger Consideration Warrant”) in the form of and subject to and in accordance with the terms and conditions of the warrant agreement substantially in the form attached hereto as Exhibit E, but subject to the review and comment of the Paying Agent (the “Parent Warrant Agreement”) to be entered into by and between Parent and the Paying Agent and (5) $0.905 aggregate principal amount of a right issued by Parent (collectively, the “Upside Rights”) in the form of and subject to and in accordance with the terms and conditions of the form of Upside Right (the “Upside Right Instrument”) substantially in the form attached hereto as Exhibit F, but subject to the review and comment of the Rights Agent; provided that an Upside Right may be issued in an applicable aggregate principal amount to any holder of Company Shares making a Mixed Election.
(b) The consideration payable pursuant to this Section 2.01(c), together with cash in lieu of fractional Parent Shares and Merger Consideration Preference Shares, as the case may be, as contemplated by Section 2.2(e), is collectively referred to herein, as the “Merger Consideration.”
(c) Subject to Section 2.06, as of the Effective Time, all Company Shares shall no longer be issued and outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate that immediately prior to the Effective Time evidenced
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any Company Shares (each, a “Certificate”) or uncertificated Company Shares represented by book entry immediately prior to the Effective Time (each, a “Book-Entry Share”) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration in respect of the Company Shares represented by such Certificate or Book-Entry Share, as applicable, to be paid in consideration therefor, in accordance with Section 2.02(b), and the right to receive dividends and other distributions in accordance with Section 2.02(f), in each case, without interest.
Section ii.. Exchange Fund.
(1) Paying Agent. Not less than thirty (30) days prior to the anticipated Closing Date, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Paying Agent”) in connection with the payment and delivery of the aggregate Merger Consideration payable to holders of Company Shares in accordance with this Article II and, in connection therewith, shall enter into an agreement with the Paying Agent on or prior to the Closing Date in a form reasonably acceptable to the Company. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent (i) a number of Parent Shares represented by book entry sufficient to pay the full number of Parent Shares issuable pursuant to Section 2.01 in exchange for outstanding Company Shares based on a good faith estimate thereof, (ii) a number of Merger Consideration Preference Shares represented by book entry sufficient to pay the full number of Merger Consideration Preference Shares issuable pursuant to Section 2.01 in exchange for outstanding Company Shares based on a good faith estimate thereof, (iii) a number of Merger Consideration Warrants represented by book entry sufficient to pay the full number of Merger Consideration Warrants issuable pursuant to Section 2.01 in exchange for outstanding Company Shares based on a good faith estimate thereof and (iv) an amount in cash sufficient to pay the aggregate cash portion of the Merger Consideration payable to holders of Company Shares, assuming that there will not be any fractional Parent Shares or Merger Consideration Preference Shares (such shares, warrants and cash described in the foregoing clauses (i) through (iv), and the shares, warrants and cash referred to in the following two sentences, being hereinafter referred to as the “Exchange Fund”). From time to time as necessary, Parent shall promptly deposit, or cause to be deposited with the Paying Agent, additional cash sufficient to pay the aggregate cash payable in lieu of fractional Parent Shares and Merger Consideration Preference Shares to holders of Company Shares pursuant to Section 2.02(e) and any dividends or other distributions payable to holders of Company Shares pursuant to Section 2.02(f) and Section 2.02(h). In the event that the Exchange Fund shall at any time be insufficient to make the payments contemplated by this Section 2.02, Parent shall promptly deposit, or cause to be deposited, additional cash, Parent Shares, Merger Consideration Preference Shares and Merger Consideration Warrants with the Paying Agent in an amount sufficient to make such payments. The Exchange Fund shall be held in trust by the Paying Agent for the benefit of the holders of Company Shares that are entitled to receive the Merger Consideration. Pending its disbursement in accordance with this Section 2.02, any cash included in the Exchange Fund shall be invested by the Paying Agent as directed by Parent in (A) short-term direct obligations of the United States of America, (B) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (C) short-term commercial paper rated the highest quality by either
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Moody’s Investors Service, Inc. or Standard and Poor’s Ratings Services or (D) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5 billion; provided that no investment of such deposited funds shall relieve Parent, the Surviving Company or the Paying Agent from promptly making the payments required by this Article II, and following any losses from any such investment, Parent shall promptly provide additional funds to the Paying Agent, to be held in trust by the Paying Agent for the benefit of the holders of Company Shares, in the amount of such losses, which additional funds will be held and disbursed in the same manner as funds initially deposited with the Paying Agent to make the payments contemplated by this Article II. No investment losses resulting from investment of the funds deposited with the Paying Agent shall diminish the rights of any former holder of Company Shares to receive the Merger Consideration as provided herein. The Exchange Fund shall not be used for any purpose other than the payment to holders of Company Shares of the Merger Consideration and of any dividends and other distributions payable pursuant to Section 2.02(f) and Section 2.02(h).
(2) Letter of Transmittal; Exchange of Company Shares. As soon as practicable after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), the Surviving Company or Parent shall cause the Paying Agent to mail to each holder of record of a Certificate whose Company Shares were converted into the right to receive the Merger Consideration pursuant to this Agreement (other than a holder of Dissenting Shares or any holder of a Certificate who properly made and did not revoke a Mixed Election, a Cash Election or a Share & CVR Election) a form of letter of transmittal (which shall (i) specify that delivery of a Certificate shall be effected, and risk of loss and title to such Certificate shall pass, only upon delivery of such Certificate to the Paying Agent and (ii) be in such form and have such other customary provisions as the Surviving Company may specify, subject to the Company’s reasonable approval (to be obtained prior to the Effective Time)), together with instructions thereto, setting forth, among other things, the procedures by which holders of Certificates may effect the surrender of the Certificates in exchange for payment of the Merger Consideration and any dividends or other distributions to which they are entitled pursuant to this Article II. Each holder of a Certificate who properly made and did not revoke a Mixed Election, a Cash Election or a Share & CVR Election pursuant to Section 2.01(c) shall be entitled to receive in exchange therefor the applicable Merger Consideration in accordance with Section 2.01(c) for each Company Share formerly represented by such Certificate, and cash in lieu of fractional Parent Shares or Merger Consideration Preference Shares, as the case may be, as set forth in Section 2.2(e), and the Certificate so surrendered shall forthwith be cancelled. Upon surrender of a Certificate (or affidavit of loss in lieu thereof in accordance with Section 2.02(c)) representing Non-Electing Company Shares for cancellation to the Paying Agent, and upon delivery of a letter of transmittal, duly executed and in proper form, with respect to such Certificate, the holder of such Certificate shall be entitled to receive in exchange therefor the number of whole Parent Shares (which shall be in non-certificated book-entry form) and CVRs which the aggregate number of Company Shares previously represented by such Certificate shall have been converted pursuant to Section 2.01(c) into the right to receive and cash in lieu of fractional Parent Shares as set forth in Section 2.2(e), and the Certificate so surrendered shall forthwith be cancelled. If payment of the Merger Consideration (including, for the avoidance of doubt, payment in the form of or with respect to CVRs, Merger Consideration Preference Shares,
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Merger Consideration Warrants or Upside Rights) is to be made to a Person other than the Person in whose name a Certificate surrendered is registered, it shall be a condition of payment that (x) the Certificate so surrendered shall be accompanied by all documents evidencing transfer to such Person and (y) the Person requesting such payment shall have established to the reasonable satisfaction of the Surviving Company that any transfer, stamp or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder either has been paid or is not applicable. Notwithstanding anything herein to the contrary, no holder of Book-Entry Shares shall be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant hereto. In lieu thereof, each registered holder of one or more Book-Entry Shares shall automatically, upon the delivery of a Form of Election (and, in the case of Book-Entry Shares held via a depository, upon receipt by the Paying Agent of any customary transmission or materials required by the Paying Agent), be entitled to receive the Merger Consideration. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Company Book-Entry Shares are registered. Until satisfaction of the applicable procedures contemplated by this Section 2.02 and subject to Section 2.06, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration and any dividends or other distributions pertaining to Company Shares formerly represented by such Certificate or Book-Entry Share as contemplated by Section 2.02(f). No interest shall be paid or shall accrue on the cash payable with respect to Company Shares pursuant to this Article II. For Federal, State and local income Tax purposes, Parent shall be treated as owning the Exchange Fund and all income and loss related thereto, and no party shall file any tax return inconsistent with such treatment, unless otherwise required by a determination (as defined in Section 1313 of the Code) and any other applicable State and local tax Law.
(3) Lost, Stolen or Destroyed Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Company, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, Parent or the Surviving Company shall pay, or cause the Paying Agent to pay, in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration and any dividends or other distributions to be paid in respect of Company Shares formerly represented by such Certificate as contemplated by this Article II.
(4) Termination of Exchange Fund. At any time following the first anniversary of the Closing Date, the Surviving Company shall be entitled to require the Paying Agent to deliver to it any portion of the Exchange Fund (including any interest received with respect thereto) that had been delivered to the Paying Agent and which has not been disbursed to former holders of Company Shares, and thereafter such former holders shall be entitled to look only to Parent and the Surviving Company for, and Parent and the Surviving Company shall remain liable for, payment of their claims of the Merger Consideration and any dividends or other distributions pertaining to their former Company Shares that such former holders have the right to receive pursuant to the provisions of Section 2.02(f). Any amounts remaining unclaimed by such
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holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, the property of Parent or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
(5) No Fractional Shares. Notwithstanding any provision of this Agreement to the contrary, no fraction of a Parent Share or Merger Consideration Preference Share may be issued in connection with the Merger and no dividends or other distributions with respect to Parent Shares or Merger Consideration Preference Shares shall be payable on or with respect to any such fractional share and no such fractional share will entitle the owner thereof to vote or to any rights of a shareholder of Parent or the Surviving Company. In lieu of the issuance of any such fractional Parent Share or Merger Consideration Preference Share, as the case may be, any holder of Company Shares or Company Awards who would otherwise have been entitled to a fraction of a Parent Share or Merger Consideration Preference Share shall be paid cash, without interest, in an amount equal to the product of (i) the fractional interest in a Parent Share or Merger Consideration Preference Share, as the case may be, to which such holder would otherwise be entitled under this Article II but for this Section 2.02(e) multiplied by (ii) the applicable Measurement Price.
(6) Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to Parent Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or Book-Entry Share with respect to any Parent Shares that the holder thereof has the right to receive upon the surrender thereof until the holder of such Certificate or Book-Entry Share shall surrender such Certificate, or (in the case of a Book-Entry Share) deliver a Form of Election (and, in the case of Book-Entry Shares held via a depository, the Paying Agent shall have received any customary transmission or materials required by the Paying Agent), in accordance with this Article II. Subject to any applicable state, federal or other abandoned property, escheat or similar Law, following surrender of any such Certificate or Book-Entry Share, there shall be paid to the holder thereof, without interest, (i) at the time of such surrender or delivery, as the case may be, in addition to all other amounts to which such holder is entitled under this Article II, the amount of dividends or other distributions payable with respect to the number of Parent Shares that such holder is entitled to pursuant to this Article II (rounded down to the nearest whole Parent Share) with a record date after the Effective Time and paid with respect to Parent Shares prior to such surrender and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender or delivery, as the case may be, and a payment date subsequent to such surrender or delivery, as the case may be, payable with respect to such whole shares of Parent Shares that such holder is entitled to pursuant to this Article II.
(7) No Liability. Notwithstanding any provision of this Agreement to the contrary, none of the parties hereto, the Surviving Company or the Paying Agent shall be liable to any Person in respect of any Parent Shares, Merger Consideration Preference Shares, Merger Consideration Warrants, CVRs (or, in each case, dividends or distributions with respect thereto) or cash from the Exchange Fund or provided by the Rights Agent, as applicable, to the extent
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delivered to a public official pursuant to any applicable state, federal or other abandoned property, escheat or similar Law.
(8) Transfer Books; No Further Ownership Rights in Company Shares. The Merger Consideration paid and any payments, if any, made pursuant to Section 2.02(f) in respect of each Company Share in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company Shares previously represented by such Certificates or Book-Entry Shares, subject, however, to (i) Section 2.06 and (ii) the Surviving Company’s obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time that may have been declared by the Company on Company Shares not in violation of the terms of this Agreement or prior to the date of this Agreement and which remain unpaid at the Effective Time. At the Effective Time, the share transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers on the share transfer books of the Surviving Company of Company Shares that were issued and outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of Company Shares formerly represented by Certificates or Book-Entry Shares immediately prior to the Effective Time shall cease to have any rights with respect to such underlying Company Shares, except as otherwise provided for herein or by applicable Law. Subject to the last sentence of Section 2.02(d), if, at any time after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article II.
(9) Withholding Taxes. Parent, the Company, the Surviving Company and the Paying Agent (without duplication) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement and any Redemption Price under Section 2.04 such amounts as are required to be deducted and withheld with respect to the making of such payment under the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of other applicable Tax Law. Parent shall notify the Company at least five (5) Business Days prior to the Closing (or, if such time is unreasonable under the circumstances, as soon as practicable thereafter) of any Tax that Parent, Merger Sub or the Paying Agent intends to withhold. Parent, Merger Sub and the Company shall cooperate to reduce or eliminate any withholding tax, and shall each provide to the other party any forms it is eligible to provide to reduce or eliminate such withholding tax. To the extent amounts are so deducted or withheld by Parent, Merger Sub or the Paying Agent, Parent shall promptly remit (or cause to be remitted) such deduction or withholding to the appropriate Governmental Authority and shall promptly provide the Person in respect of which such deduction and withholding was made with the appropriate documentation for such payments. To the extent amounts of Tax are deducted or withheld and paid over to the appropriate Governmental Authority, the deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Section iii.. Company Election Procedures.
(1) Each Person who, on or prior to the Election Deadline, is a record holder of Company Shares (which shall include, for purposes of this Section 2.03 and as contemplated by
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Section 2.04(b), any holder of Private Warrants who shall exercise such Private Warrants for Company Shares), other than Dissenting Shares and Company Shares to be cancelled in accordance with Section 2.01(b), shall be entitled to specify the number of such holder’s Company Shares with respect to which such holder makes a Cash Election, a Share & CVR Election or a Mixed Election in accordance with the terms hereof.
(2) Parent shall prepare and file as an exhibit to the registration statement on Form S-4 pursuant to which each of the Parent Shares, CVRs, Merger Consideration Preference Shares, Merger Consideration Warrants and Upside Rights issued as the Merger Share Consideration will be registered under the Securities Act (the “Registration Statement”) a form of election (the “Form of Election”) in form and substance reasonably acceptable to the Company. The Form of Election shall specify that delivery shall be effected, and risk of loss and title to any Certificates shall pass, only upon proper delivery of the Form of Election and any Certificates to the Paying Agent. The Company shall mail the Form of Election with the proxy statement relating to the Company Shareholders Meeting (such proxy statement, together with the proxy statement relating to the Parent Shareholders Meeting, in each case as amended or supplemented from time to time, the “Joint Proxy Statement”) to all Persons who are record holders of Company Shares as of the record date for the Company Shareholders Meeting. The Form of Election shall be used by each record holder of Company Shares (or, in the case of nominee record holders, the beneficial owner through proper instructions and documentation) to make a Cash Election, a Share & CVR Election or a Mixed Election. In the event that a holder fails to make a Cash Election, a Share & CVR Election or a Mixed Election with respect to any Company Shares held or beneficially owned by such holder by the Election Deadline, then such holder shall be deemed to have made a Share & CVR Election with respect to those Company Shares (each such Company Share, a “Non-Electing Company Share”). The Company shall use its reasonable best efforts to make the Form of Election available to all Persons who become record holders of Company Shares during the period between the record date for the Company Shareholder Meeting and the Election Deadline.
(3) Any such holder’s election shall have been properly made only if the Paying Agent shall have received at its designated office by 5:00 p.m., Bermuda time, on the date that is ten (10) Business Days preceding the Closing Date (the “Election Deadline”), a Form of Election properly completed and signed and accompanied by (i) Certificates representing the Company Shares represented by Certificates to which such Form of Election relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company (or by an appropriate guarantee of delivery of such Certificates as set forth in such Form of Election from a firm that is an “eligible guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act)) provided that such Certificates are in fact delivered to the Paying Agent by the time set forth in such guarantee of delivery) or (ii) in the case of Book-Entry Shares, any documents required by the procedures set forth in the Form of Election. After a Cash Election, a Share & CVR Election or a Mixed Election is validly made with respect to any Company Shares, no further registration of transfers of such Company Shares shall be made on the stock transfer books of the Company, unless and until such Cash Election, Share & CVR Election or Mixed Election is properly revoked.
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(4) Parent and the Company shall publicly announce the anticipated Election Deadline at least three (3) Business Days prior to the anticipated Election Deadline. If the Closing Date is delayed to a subsequent date, the Election Deadline shall be similarly delayed to a subsequent date, and Parent and the Company shall, as promptly as reasonably practicable, announce any such delay and, when determined, the rescheduled Election Deadline.
(5) Any Cash Election, Share & CVR Election or Mixed Election may be revoked with respect to all or a portion of the Company Shares subject thereto by the holder who submitted the applicable Form of Election by written notice received by the Paying Agent prior to the Election Deadline. All Cash Elections, Share & CVR Elections and Mixed Elections shall automatically be revoked if this Agreement is terminated in accordance with Article VII. If a Cash Election or Mixed Election is revoked, the Company Shares as to which such election previously applied shall be treated as Share & CVR Electing Shares in accordance with Section 2.01(c)(i)(B) unless a contrary election is submitted by the holder prior to the Election Deadline. Certificates will not be returned to holders unless the holder so requests.
(6) The determination of the Paying Agent (or the joint determination of Parent and the Company, in the event that the Paying Agent declines to make any such determination) shall be conclusive and binding as to whether or not Cash Elections, Share & CVR Elections or Mixed Elections shall have been properly made or revoked pursuant to this Section 2.03 and as to when Cash Elections, Share & CVR Elections, Mixed Elections and revocations were received by the Paying Agent. The Paying Agent (or Parent and the Company jointly, in the event that the Paying Agent declines to make the following computation) shall also make all computations contemplated by Section 2.01(c), and absent manifest error, such computation shall be conclusive and binding. The Paying Agent may, with the written agreement of Parent (subject to the consent of the Company, not to be unreasonably withheld, conditioned or delayed), make any rules as are consistent with this Section 2.03 for the implementation of the Cash Elections, Share & CVR Elections and Mixed Elections provided for in this Agreement as shall be necessary or desirable to effect these Cash Elections, Share & CVR Elections and Mixed Elections.
Section iv.. Redemption of Company Preference Shares; Treatment of Warrants.
(1) At the Closing, Parent shall pay or cause to be paid to each of the holders of Company Preference Shares, by wire transfer of same-day funds, the Redemption Price (as such term is defined in the Company Certificate of Designation) to which such holder is entitled in accordance with the Company Certificate of Designation. The Company shall use its reasonable best efforts to provide for the redemption of the Company Preference Shares at the Closing, including delivering a Redemption Notice (as such term is defined in the Company Certificate of Designation) at least twenty (20) calendar days prior to the anticipated Closing Date in accordance with the Company Certificate of Designation.
(2) At the Closing, subject to the terms and conditions set forth in the Private Warrants or the Public Warrants, as applicable, (collectively, the “Company Warrants”), automatically and without any action on the part of the holder thereof, the Company Warrants shall be converted into the right to purchase and receive upon exercise thereof, upon the basis and upon the terms and conditions specified in such Company Warrant and in lieu of the
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Company Shares immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, (i) in the case of a Public Warrant, the Merger Consideration that the holder of such Public Warrant is entitled to receive pursuant to the terms of such Public Warrant, if any, or (ii) in the case of a Private Warrant, the Merger Consideration that the holder of such Private Warrant would have received if such holder had exercised such Private Warrant immediately prior to the Closing, and each holder of Private Warrants shall be entitled to deliver a Form of Election in respect of the Merger Consideration such holder is entitled to receive, if any, in accordance with Section 2.03 as if such holder was a holder of a corresponding number of Company Shares. Prior to the Effective Time, Parent shall assume, by written instrument, all of the Company’s obligations under the terms of the Private Warrants in respect of the rights of the holders thereof to receive the Merger Consideration as set forth in the foregoing clause (ii) of this Section 2.04(b).
Section v.. Company Equity Awards.
(1) Company Options. Each Company Option, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time shall cease, at the Effective Time, to represent a right to acquire Company Shares and shall be converted at the Effective Time, without any action on the part of any holder of any Company Option, into a right and option to acquire Parent Shares (each, an “Assumed Option”), on the same terms and conditions as were applicable under such Company Option (including applicable vesting, exercise and expiration provisions and any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the Merger). The number of Parent Shares subject to each such Company Option shall be equal to the number of Company Shares subject to each such Company Option multiplied by the Equity Award Exchange Ratio (subject to adjustment in accordance with Section 2.07), rounded down to the nearest whole number of Parent Shares, and such Parent Option shall have an exercise price per share (rounded up to the nearest cent) equal to the per share exercise price specified in such Company Option divided by the Equity Award Exchange Ratio (subject to adjustment in accordance with Section 2.07); provided that the Equity Award Exchange Ratio, exercise price, number of Parent Shares subject to such Assumed Option, and terms and conditions of exercise of each such option shall be determined in a manner consistent with the requirements of Section 409A of the Code.
(2) Company RSU Awards. At the Effective Time, each Company RSU Award that is outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without further action on the part of the holder thereof, be assumed by Parent and shall be converted into a restricted stock unit award (each, an “Assumed RSU Award”) relating to (and that is settled by the delivery of) a number of Parent Shares equal to the number of Company Shares underlying the Company RSU Award multiplied by the Equity Award Exchange Ratio (subject to adjustment in accordance with Section 2.07), rounded down to the nearest whole number of shares. Each Assumed RSU Award shall continue to have, and shall be subject to, the same terms and conditions as applied to the corresponding Company RSU Award immediately prior to the Effective Time (including any terms and conditions relating to
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accelerated vesting upon a termination of the holder’s employment in connection with or following the Merger).
(3) Reservation of Shares. To the extent necessary to give effect to this Section 2.05, not later than the Effective Time, Parent shall reserve for future issuance under the 2013 Omnibus Incentive Plan a number of Parent Shares at least equal to the number of Parent Shares that will be subject to the Assumed Options, the Assumed RSU Awards and the CVR Restricted Shares as a result of the actions contemplated by this Section 2.05 and the Waiver Agreements entered into as of immediately prior to the Effective Time. Not later than the Effective Time, Parent shall file an effective registration statement on Form S-8 (or other applicable form) with respect to the Parent Shares subject to such Assumed Options, Assumed RSU Awards and CVR Restricted Shares and shall distribute a prospectus relating to such Form S-8, and Parent shall maintain the effectiveness of such registration statement or registration statements for so long as such Assumed Options, Assumed RSU Awards and CVR Restricted Shares remain outstanding.
(4) Actions of Company and Parent. Prior to the Effective Time, the Company Board (or applicable committee thereof) shall and the Parent Board (or applicable committee thereof) shall adopt such resolutions as are necessary to give effect to the transactions contemplated by this Section 2.05. Without limiting the generality of the immediately preceding sentence, not later than thirty (30) days following the date hereof, (i) the Company Board (or applicable committee thereof) shall adopt such resolutions as are necessary to give effect to the treatment of Company Performance Share Awards and Company LTIP Awards set forth on Section 2.05(d)(i) of the Company Disclosure Letter, (ii) the Company shall use its reasonable best efforts to cause the employees of the Company and its Subsidiaries who hold Company Performance Share Awards or Company LTIP Awards to execute an agreement, in the form prescribed by the Company, to give effect to such treatment and (iii) the Company shall request that, and shall use commercially reasonable efforts to cause, the employees of the Company and its Subsidiaries set forth on Section 2.05(d)(ii) of the Company Disclosure Letter to execute the Waiver Agreement substantially in the form attached hereto as Exhibit I.
Section vi.. Shares of Dissenting Holders.
(1) At the Effective Time, all Dissenting Shares shall automatically be canceled and, unless otherwise required by applicable Law, converted into the right to receive the Merger Consideration pursuant to Section 2.01(c), and any holder of Dissenting Shares shall, in the event that the fair value of a Dissenting Share as appraised by the Supreme Court of Bermuda under Section 106(6) of the Bermuda Companies Act (the “Appraised Fair Value”) is greater than the Merger Consideration, be entitled to receive such difference from the Surviving Company by payment in cash made within thirty (30) days after such Appraised Fair Value is finally determined pursuant to such appraisal procedure.
(2) In the event that a holder fails to perfect, effectively withdraws or otherwise waives any right to appraisal (each, an “Appraisal Withdrawal”), such holder’s Dissenting Shares shall be deemed to be Cash Electing Company Shares that have been converted as of the Effective Time into, and be deemed to have become exchangeable solely for the right to receive,
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the Merger Consideration as provided in Section 2.01(c)(i)(A), without interest and subject to any required withholding of Taxes.
(3) The Company shall give Parent (i) written notice of (A) any demands for appraisal or payment of the fair value of any Dissenting Shares or Appraisal Withdrawals and any other written instruments, notices, petitions or other communications received by the Company in connection with the foregoing, in each case, pursuant to the provisions of the Bermuda Companies Act concerning the rights of holders of Company Shares to require appraisal of such Company Shares in accordance with this Section 2.06 and (B) to the extent that the Company has Knowledge thereof, any applications to the Supreme Court of Bermuda for appraisal of the fair value of the Dissenting Shares and (ii) to the extent permitted by applicable Law, the opportunity to participate with the Company in any settlement negotiations and proceedings with respect to any demands for appraisal under the Bermuda Companies Act, and the Company shall consider in good faith any requests made by Parent in connection therewith. The Company shall not, without the prior written consent of Parent, voluntarily make any payment with respect to, offer to settle or settle any such demands or applications or take any other action to exercise appraisal rights in accordance with the Bermuda Companies Act. Payment of any amount payable to holders of Dissenting Shares shall be the obligation of the Surviving Company.
Section vii.. Adjustments. Notwithstanding any provision of this Article II to the contrary, if between the date of this Agreement and the Effective Time the issued and outstanding Company Shares shall have been changed into a different number of shares or a different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the Merger Consideration, the Share & CVR Exchange Ratio, the Mixed Election Exchange Ratio, the Equity Award Exchange Ratio and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide the holders of Company Shares the same economic effect as contemplated by this Agreement prior to such event.
Article III.

Representations and Warranties of the Company
The Company represents and warrants to Parent and Merger Sub that, except as (A) set forth in the corresponding section of the disclosure letter delivered by the Company to Parent and Merger Sub on the date of this Agreement (the “Company Disclosure Letter”) or (B) disclosed or reserved for in any Company SEC Documents filed prior to the third Business Day prior to the date hereof (other than disclosures in the “Risk Factors” sections of any such filings and any disclosure of risks included in any “forward-looking statements” disclaimer contained in any such filings and any other disclosures in any such filings that are cautionary, predictive or forward-looking in nature (it being agreed and understood that any matter disclosed in such Company SEC Documents shall not be deemed disclosed for purposes of Sections 3.01, 3.02, 3.03, 3.14 and 3.21)):
Section i.. Organization; Standing.
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(1) Each of the Company and its Subsidiaries (i) is a corporation or other legal entity, duly incorporated or organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the Laws of its jurisdiction of incorporation or organization, (ii) has full corporate or similar power and authority to own, lease and operate its properties, rights and assets and to conduct its business as presently conducted, and (iii) is duly qualified or licensed to do business as a foreign corporation and is in good standing (with respect to jurisdictions that recognize such concept) in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except, in each case of clause (iii), where such failure would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(2) A true and correct copy of each of the Company Organizational Documents is included in the Company SEC Documents. The Company is not in violation of any provisions of the Company Organizational Documents. The Company has made available to Parent true and correct copies of the organizational documents of each Subsidiary of the Company that conducts the business of insurance or reinsurance or is licensed as a Lloyd’s corporate member or Lloyd’s managing agent (each, a “Company Insurance Subsidiary”), in each case, as amended and in effect as of the date of this Agreement.
Section ii.. Capitalization.
(1) The authorized share capital of the Company consists of 500,000,000 Company Shares and 100,000,000 preference shares, par value $0.01 per share, of the Company. At the close of business on August 3, 2020 (the “Company Capitalization Date”), (i) 115,299,341 Company Shares were issued and outstanding, (ii) 11,901,670 Company Preference Shares were issued and outstanding, (iii) 6,088,535 Public Warrants were issued and outstanding, (iv) 5,418,434 Private Warrants were issued and outstanding, and (v) zero Company Shares were held by the Company as treasury shares. Since the Company Capitalization Date through the date of this Agreement, other than in connection with the vesting or settlement of Company Awards, neither the Company nor any of its Subsidiaries has issued any Company Shares or any securities that are convertible into or exchangeable or exercisable for Company Shares. All of the issued and outstanding Company Shares and Company Preference Shares and the Public Warrants and the Private Warrants have been duly authorized and validly issued and are fully paid and non-assessable and were issued in compliance with all applicable securities Laws.
(2) As of the close of business on the Company Capitalization Date, the Company had no Company Shares or Company Preference Shares reserved for issuance, except for 13,940,688 Company Shares reserved for issuance pursuant to the Company Share Plans (including 4,416,553 Company Shares subject to outstanding Company Awards at target), 6,088,535 Company Shares reserved for issuance pursuant to the Public Warrants, 5,418,434 Company Shares reserved for issuance pursuant to the Private Warrants and 15,000,000 Company Shares reserved for issuance pursuant to the terms of the Company Preference Shares.
(3) Section 3.02(c) of the Company Disclosure Letter contains a true and correct list as of the Company Capitalization Date of outstanding Company Awards, including for each such
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award (as applicable) the holder (the specific identity of whom may be redacted to the extent required by applicable Law), type of award, the number of Company Shares subject to each award (for the avoidance of doubt, for performance-based awards, the target number of Company Shares is the number at target level of performance), the applicable Company Share Plan under which such awards were granted, grant date, vesting schedule, expiration date, exercise price and performance period. There are no outstanding compensatory share options, restricted shares, restricted share units or other equity-related securities or awards other than the Company Awards. No Company Option is an “incentive stock option” within the meaning of Section 421 of the Code.
(4) Except as set forth in Section 3.02(d) of the Company Disclosure Letter: as of the date of this Agreement, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Shares, Company Preference Shares or Company Rights or to pay any dividend or make any other distribution in respect thereof, and, as of the date of this Agreement, no such obligations have been asserted by any holders of Company Shares, Company Preference Shares or Company Rights. All dividends required to be paid in respect of the Company Preference Shares have been timely paid and there are no accrued and unpaid dividends with respect to the Company Preference Shares. There are no voting trusts or other agreements or understandings to which the Company is a party with respect to the voting of shares of the Company. There are no preemptive or similar rights granted by the Company or any Subsidiary of the Company on the part of any holders of any class of securities of the Company or any Subsidiary of the Company. Except as set forth above in Section 3.02(d) of the Company Disclosure Letter, other than the outstanding Company Awards and the outstanding Company Warrants, there are not any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, restricted stock units, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind to which the Company or any of the Subsidiaries of the Company is a party or by which any of them is bound (i) obligating the Company or any of its Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of capital stock of, or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company or any Subsidiary of the Company, (ii) obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of capital stock of, or other equity interests in, the Company or any of its Subsidiaries.
(5) A true and correct list of all the Subsidiaries of the Company including any branch offices of such Subsidiaries, as of the date of this Agreement, is set forth in Section 3.02(e) of the Company Disclosure Letter. Except as set forth in Section 3.02(e) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has entered into a written contract that provides for the right to acquire at any time by any means, directly or indirectly, an equity interest in any other Person. The Company or one of its wholly owned Subsidiaries is the owner of all outstanding shares of capital stock of each Subsidiary of the Company and all such shares are duly authorized, validly issued, fully paid and nonassessable. All of the outstanding
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shares of capital stock of each Subsidiary of the Company are owned by the Company free and clear of all Liens, except for Permitted Liens. There are no outstanding Company Subsidiary Stock Rights. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of any Subsidiary of the Company or any Company Subsidiary Stock Rights or to pay any dividend or make any other distribution in respect thereof.
Section iii.. Authority; Noncontravention; Voting Requirements.
(1) The Company has all necessary power and authority to execute and deliver this Agreement and the Statutory Merger Agreement, to perform its obligations hereunder and, subject to obtaining the Company Shareholder Approval and any required Governmental Approvals, to consummate the Transactions. The execution, delivery and performance by the Company of this Agreement and the Statutory Merger Agreement, and the consummation by the Company of the Transactions, have been duly authorized and approved by the Company Board, and, except for obtaining the Company Shareholder Approval, executing and delivering the Statutory Merger Agreement, filing the Merger Application with the Registrar pursuant to the Bermuda Companies Act and obtaining any required Governmental Approvals as set forth in Section 3.04 or Sections 3.04(e) or 3.04(g) of the Company Disclosure Letter, no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Agreement and the Statutory Merger Agreement and the consummation by the Company of the Transactions. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, rehabilitation, conservatorship, liquidation, receivership and other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity (clauses (i) and (ii), collectively, the “Bankruptcy and Equity Exception”).
(2) The Company Board has (i) determined that the Merger Consideration constitutes fair value for each Company Share in accordance with the Bermuda Companies Act, (ii) determined that the Merger, on the terms and subject to the conditions set forth herein, is fair to, and in the best interests of, the Company, (iii) approved this Agreement, the Statutory Merger Agreement and the Transactions and (iv) resolved, subject to Section 5.02, to recommend approval of the Merger, this Agreement and the Statutory Merger Agreement to the holders of Company Shares (such recommendation, the “Company Board Recommendation”), and, as of the date of this Agreement, such resolutions have not been subsequently rescinded, modified or withdrawn in any way.
(3) Neither the execution and delivery of this Agreement by the Company, nor the consummation by the Company of the Transactions, nor performance or compliance by the Company with any of the terms or provisions hereof, will (i) subject to obtaining the Company Shareholder Approval, conflict with or violate any provision of (A) the Company Organizational
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Documents or (B) the similar organizational documents of any of the Company’s Subsidiaries in any material respect or (ii) assuming (A) compliance with the matters set forth in Section 4.03(c) (other than Section 4.03(c)(ii)(A)) (and assuming the accuracy of the representations and warranties made in such Section 4.03(c)), (B) that the actions described in Section 3.03(a) have been completed, (C) that the Consents referred to in Section 3.04 and the Company Shareholder Approval are obtained and (D) that the filings referred to in Section 3.04 are made and any waiting periods thereunder have terminated or expired, in the case of each of the foregoing clauses (A) through (D), prior to the Effective Time, (x) violate any Law applicable to the Company or any of its Subsidiaries in any material respect, (y) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments pursuant to, any of the terms, conditions or provisions of any Company Material Contract or (z) result in the creation of any Lien other than a Permitted Lien on any properties or assets of the Company or any of its Subsidiaries, except, in the case of clauses (ii)(y) and (ii)(z), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(4) The affirmative vote (in person or by proxy) of the holders of a majority of the voting power of the Company Shares and the Company Preference Shares, voting together as a single class, that are present (in person or by proxy) at the Company Shareholders Meeting at which at least two Persons holding or representing by proxy more than fifty percent (50%) of the voting power represented by the Company Shares that are entitled to vote thereat (the “Company Shareholder Approval”), in each case, in favor of the approval of this Agreement, the Merger and the Statutory Merger Agreement, are the only votes or approvals of the holders of any class or series of share capital of the Company or any of its Subsidiaries that are necessary to approve this Agreement, the Statutory Merger Agreement and the Merger. The Company Preference Shares entitled the holders thereof to an aggregate of 11,901,670 votes, representing 9.36% of the aggregate vote required to obtain the Company Shareholder Approval.
Section iv.. Governmental Approvals. Except for (a) compliance with the applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), including the filing with the Securities and Exchange Commission (the “SEC”) of the Joint Proxy Statement and such filings under Sections 13 and 16 of the Exchange Act as may be required in connection with this Agreement, the Merger and the Transactions, (b) compliance with the rules and regulations of NASDAQ, (c) the filing of (i) the Merger Application with the Registrar pursuant to the Bermuda Companies Act and (ii) appropriate documents with the relevant authorities of other jurisdictions in which the Company or any of its Subsidiaries is qualified to do business, (d) the approval of the Bermuda Monetary Authority pursuant to the Exchange Control Act 1972 regarding the change of ownership of the Company, (e) filings required under, and compliance with other applicable requirements of, the HSR Act, and the other Consents, filings, declarations or registrations required to be made or obtained under the Antitrust Laws set forth in Section 3.04(e) of the Company Disclosure Letter, (f) compliance with any applicable state securities or blue sky laws, (g) approvals, filings and notices under all applicable Insurance Laws
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as set forth in Section 3.04(g) of the Company Disclosure Letter (the “Company Insurance Approvals”), (h) the Parent Insurance Approvals (assuming the accuracy of the representations and warranties made in Section 4.04(k) and the completeness of Section 4.04 of the Parent Disclosure Letter), no Consent of, or filing, declaration or registration with, any Governmental Authority by the Company is necessary for the execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the Transactions, other than such other Consents, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect or would not reasonably be likely to prevent, impede, interfere with, hinder or delay in any material respect the ability of the Company to consummate the Transactions.
Section v.. Company SEC Documents; Undisclosed Liabilities; Controls.
(1) Since January 1, 2019, the Company has filed with or furnished to (as applicable) the SEC all reports, schedules, forms, statements, registration statements, prospectuses, proxy statements or other documents required to be filed or furnished by the Company with the SEC on a timely basis pursuant to the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”) or the Exchange Act (collectively with any reports, schedules, forms, certifications, statements, registration statements, prospectuses, proxy statements and other documents (including the exhibits and other information incorporated therein) filed or furnished by the Company with the SEC after the date of this Agreement, the “Company SEC Documents”). As of their respective effective dates (in the case of Company SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) or their respective SEC filing dates (in the case of all other Company SEC Documents), or, if supplemented, modified or amended since the time of filing, as of the date of the most recent supplement, modification or amendment, the Company SEC Documents (i) complied as to form in all material respects with the requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and NASDAQ, as the case may be, applicable to such Company SEC Documents, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments from the SEC staff with respect to any Company SEC Document. Since January 1, 2019, the Company has been in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations of the SEC promulgated thereunder (the “Sarbanes-Oxley Act”) that are applicable to the Company.
(2) The Joint Proxy Statement and the Registration Statement will not, on the date of filing with the SEC, on the date of any amendment or supplement thereto, and, with respect to the Joint Proxy Statement, at the time the Joint Proxy Statement is first mailed to the shareholders of the Company and at the time of the Company Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Joint Proxy Statement and the Registration Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules
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and regulations thereunder and other applicable Law, including the provisions of the Securities Act, the Exchange Act and any other applicable Law governing the preparation, distribution or dissemination of such documents. Notwithstanding the foregoing, no representation or warranty is made by the Company with respect to statements made or incorporated by reference in the Joint Proxy Statement or the Registration Statement based on information supplied by Parent or Merger Sub or any of their Representatives specifically for inclusion (or incorporation by reference) therein.
(3) Each of the consolidated financial statements of the Company and its consolidated Subsidiaries (including all related notes or schedules) included or incorporated by reference in the Company SEC Documents (the “Company Financial Statements”) (i) complied as to form in all material respects with the applicable accounting requirements under the Securities Act, the Exchange Act and the applicable rules and regulations of the SEC, (ii) were prepared in accordance with GAAP (as in effect on the date of such Company Financial Statement) applied on a consistent basis during the periods involved except, in the case of unaudited statements, as permitted by SEC rules and regulations and (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries and the results of their operations and their cash flows as of the dates and for the periods referred to therein, in each case, except as may be indicated in the notes thereto, and, in the case of interim financial statements, for normal year-end adjustments that were or will be made in the ordinary course of business and none of which were material to the Company and its Subsidiaries, taken as a whole. None of the Company or its Subsidiaries is a party to, or has any obligation or other commitment to become a party to, any “off balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).
(4) Neither the Company nor any of its Subsidiaries has any liabilities of any nature (whether accrued, absolute, contingent or otherwise) that would be required under GAAP, as in effect on the date of this Agreement, to be reflected on a consolidated balance sheet of the Company (including the notes thereto) except liabilities (i) reflected or reserved against in the balance sheet (or the notes thereto) of the Company and its Subsidiaries as of December 31, 2019, included in the Company SEC Documents, (ii) incurred after December 31, 2019, in the ordinary course of business, (iii) as contemplated or permitted to be incurred by this Agreement or otherwise incurred in connection with the Transactions or otherwise disclosed in Section 3.05(d) of the Company Disclosure Letter or (iv) as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(5) The Company has established and maintains “disclosure controls and procedures” and “internal control over financial reporting” (each as defined in Rule 13a-15(e) or 15d-15(e), as applicable, under the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act and designed as necessary to permit the preparation of financial statements in conformity with GAAP. Such disclosure controls and procedures are designed to ensure that all information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding
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required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP, and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the Company’s financial statements in accordance with GAAP and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, has not identified any significant deficiencies and material weaknesses or any fraud with respect to its financial reporting.
(6) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NASDAQ.
(7) As of the date of this Agreement, except as disclosed in the Company’s definitive proxy statements included in the Company SEC Documents or in Section 3.05(g) of the Company Disclosure Letter, within the last twelve (12) months no event has occurred and no relationship exists that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K.
Section vi.. Absence of Certain Changes. From January 1, 2020 through the date of this Agreement, (a) except in response to or related to any Contagion Event or any change in applicable Law or policy as a result of or related to any Contagion Event, except for the execution, delivery and performance of this Agreement and the discussions, negotiations and transactions related thereto and to alternative transactions to the Transactions, and other than in connection with the Transactions, or as set forth in Section 3.06 of the Company Disclosure Letter, the business of the Company and its Subsidiaries has been conducted in all material respects in the ordinary course of business and (b) there has been no event or condition that has had, or would reasonably likely to have, a Company Material Adverse Effect.
Section vii.. Legal Proceedings.
(1) Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, or as set forth in Section 3.07(a) of the Company Disclosure Letter, there is no (i) pending or, to the Knowledge of the Company, threatened in writing, Action against the Company or any of its Subsidiaries (other than Actions under or in connection with any Company Insurance Policies) or (ii) outstanding Order imposed upon the Company or any of its Subsidiaries.
(2) Prior to the date of this Agreement, the Company has made available to Parent all information in its possession that would reasonably be expected to be considered
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material to an evaluation by Parent of any claims brought or threatened by the holders of the Company Preference Shares (the “Series B Preferred Shareholders”) relating to Section 6(a)(ii) of the Company Certificate of Designation (the “Series B Claims”), including all written correspondence in its possession relating to the Series B Claims since November 5, 2018 received by, or delivered by, the Company and its Representatives from or to the Series B Preferred Shareholders and their Representatives, and none of the statements made by the Company in such information contains an untrue statement of material fact or omits to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(3) This Section 3.07 does not relate to Intellectual Property matters, which are the subject of Section 3.13.
Section viii.. Compliance with Laws; Permits.
(1) The Company, each of its Subsidiaries and any branch offices of such Subsidiaries are, and since January 1, 2019 have been, in compliance with all federal, national, provincial, state, local or multinational laws, statutes, codes, rules and regulations (collectively, “Laws”) and Orders, in each case, applicable to the Company, any of its Subsidiaries or any branch offices thereof, except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. No investigation or review by any Governmental Authority with respect to the Company, any of its Subsidiaries or any branch offices thereof is pending or, to the Knowledge of the Company, threatened in writing, the outcome of which is reasonably likely to have a Company Material Adverse Effect.
(2) The Company, each of its Subsidiaries and any branch offices of such Subsidiaries hold, and since January 1, 2019 have held, all Permits, except where the failure to hold such Permits would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. There are no Actions pending or, to the Knowledge of the Company, threatened in writing, that seek the revocation, cancellation or adverse modification of any Permit, except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(3) None of the Company and its Subsidiaries nor, to the Knowledge of the Company, any director, officer or employee or anyone in a position to exercise a senior management function or other key function of the Company or any of its Subsidiaries is, or has been, (i) ineligible or unfit to act in such role or (ii) subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of, or suspension or revocation of the authorization of any UK-regulated Subsidiary of the Company, by the PRA or FCA, for the conduct of regulated activities except, in the case of clauses (i) and (ii), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(4) This Section 3.08 does not relate to the Company SEC Documents, financial statements or compliance with the Sarbanes-Oxley Act, which are the subject of Section 3.05, Tax matters, which are the subject of Section 3.09, employee benefits and labor matters, which
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are the subject of Sections 3.10 and 3.11, or insurance or reinsurance matters, which are the subject of Sections 3.16 through 3.19.
Section ix.. Tax Matters. Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect:
(1) The Company and each of its Subsidiaries has prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all Tax Returns required to be filed by any of them. All such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate, and all Taxes owed by the Company and each of its Subsidiaries that are due have been timely paid or have been reserved against in accordance with GAAP.
(2) All Taxes which the Company or any of its Subsidiary is required by law to withhold or to collect for payment have been duly withheld and collected and have been paid to the appropriate Governmental Authority. The Company and its Subsidiaries have reported such withheld amounts to the appropriate taxing or Governmental Authority and to any such payee, as required by Law.
(3) The charges, accruals and reserves for Taxes with respect to the Company and its Subsidiaries reflected on the books of the Company and its Subsidiaries (excluding any provision for deferred income taxes) are adequate to cover tax liabilities accruing through the end of the last period for which the Company and its Subsidiaries have recorded items on their respective books, and since the end of the last period for which the Company and its Subsidiaries have recorded items on their respective books, neither the Company nor any of its Subsidiaries has incurred any Tax liability, engaged in any transaction, or taken any other action, other than in the ordinary course of business.
(4) Neither the Company nor any of its Subsidiaries is, or during the past 12-month period has been, a United States shareholder (within the meaning of Section 951(b) of the Code) of a controlled foreign corporation (within the meaning of Section 957 of the Code).
(5) Neither the Company nor any of its Subsidiaries is, or during the past 12-month period has been, a controlled foreign corporation (within the meaning of Section 957 of the Code), except, in each case, for a controlled foreign corporation solely as a result of the application of Section 318(a)(3)(C) of the Code.
(6) Neither the Company nor any of its Subsidiaries is (immediately before the Merger based on a closing of the book approach), or has been, a passive foreign investment company (within the meaning of Section 1297 of the Code).
(7) Neither the Company nor any of its Subsidiaries is (i) a domestic corporation as a result of the application of Section 7874(b) of the Code, or (ii) a surrogate foreign corporation (within the meaning of Section 7874(a) of the Code).
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(8) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has received written notice from any Tax authority of any pending or threatened audits, examinations, investigations, claims or other proceedings in respect of any Taxes of the Company or any of its Subsidiaries. No deficiency for any Tax has been asserted or assessed by any Governmental Authority in writing against the Company or any of its Subsidiaries, except for deficiencies that have been satisfied by payment in full, settled or withdrawn, or that have been adequately reserved for in accordance with GAAP.
(9) There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens.
(10) Neither the Company nor any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the two (2)-year period ending on the date of this Agreement that was purported or intended to be governed by Section 355 of the Code (or any similar provision of applicable Law).
(11) Neither the Company nor any of its Subsidiaries is subject to a particular Tax or is required to file in a jurisdiction where the Company or its Subsidiaries does not file Tax Returns (or files a tax return showing no tax) or has been notified by any Governmental Authority that it is or may be subject to Tax by that jurisdiction.
(12) Neither the Company nor any of its Subsidiaries (i) has any income that is effectively connected with a United States trade or business (within the meaning of Section 864(c) of the Code) or (ii) is engaged in a trade or business in the United States within the meaning of Section 864(b) of the Code.
(13) Neither the Company nor any of its Subsidiaries has (i) waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to an assessment or deficiency for Taxes, which waiver or agreement, as applicable, remains in effect (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course), (ii) since May, 2016, applied for a ruling from a taxing authority relating to any material Taxes that has not been granted or has proposed to enter into an agreement with a taxing authority that is pending or (iii) entered into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Tax Law) or has been issued any private letter rulings, technical advice memoranda or similar agreement or rulings by any taxing authority, in each case that is binding on the Company or its Subsidiaries (as applicable) for any post-Closing Tax period.
(14) Neither the Company nor any of its Subsidiaries is a party to a Tax allocation, sharing, indemnity or similar agreement or arrangement (other than indemnities or gross-ups included in ordinary course contracts or leases or contracts solely among or between any of the Company and its Subsidiaries) or has any liability for Taxes of another Person (other than the Company or any of its Subsidiaries) under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of applicable Law), as a transferee or successor or by contract (other than any contract that does not relate principally to Taxes) that will require any payment by the Company or any of its Subsidiaries after the Closing Date.
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(15) Neither the Company nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of U.S. Treasury Regulation Section 1.6011-4(b)(2).
(16) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has a permanent establishment in a jurisdiction outside of the jurisdiction in which the Company or its Subsidiaries, respectively, are organized.
(17) The Company and each of its Subsidiaries has conducted all intercompany transactions in substantial compliance with applicable transfer pricing requirements (including, with respect to the United States, the principles of Sections 482 and 845 of the Code) (or any similar provision of applicable Law). The Company and each of its Subsidiaries has complied in all respects with applicable rules relating to transfer pricing (including the filing of all required transfer pricing reports) and has maintained in all respects all necessary documentation in connection with any intercompany reinsurance transactions in accordance with applicable Law.
(18) Neither the Company nor any of its Subsidiaries organized outside of the United States has made an election under Section 953(d) of the Code to be treated as a domestic corporation.
(19) All excise Tax Returns and excise Taxes under Section 4371 of the Code with respect to any reinsurance or retrocession agreement to which the Company or any of its Subsidiaries is a party have been duly and timely filed and paid.
(20) The representations and warranties made in this Section 3.09 and Section 3.10 are the only representations and warranties under Article III made by the Company with respect to matters relating to Taxes and, notwithstanding anything else to the contrary in this Agreement, no representation or warranty is provided with respect to any current or deferred Tax asset of the Company or any of its Subsidiaries (including any reserves or offsetting assets with respect thereto).
Section x.. Employee Benefits.
(1) Section 3.10(a) of the Company Disclosure Letter contains a true and correct list, as of the date of this Agreement, of each material Company Plan. With respect to each material Company Plan, the Company has made available to Parent true and correct copies (to the extent applicable) of (i) the plan document, including any amendments thereto, other than any document that the Company or any of its Subsidiaries is prohibited from making available to Parent as the result of applicable Law relating to the safeguarding of data privacy, (ii) the most recent summary plan description for each material Company Plan for which such summary plan description is required by applicable Law, (iii) each applicable trust agreement, insurance or group annuity contract or other funding vehicle, including any amendments thereto, (iv) the most recent annual report on Form 5500 required to be filed with the IRS with respect thereto or any similar reports filed with any comparable Governmental Authority in any non-U.S. jurisdiction having jurisdiction over any Company Plan (if any) and (v) any material correspondence with any Governmental Authority regarding any Company Plan sent or received in the preceding twelve (12) months. Neither the Company nor any of its Subsidiaries has announced any
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intention or commitment to amend or modify or enter into any material Company Plan or to take any action with respect to a Company Plan that in any such case would reasonably be likely to result in a material increase to the costs of providing compensation or employee benefits to employees, directors, officers or other service providers.
(2) Each Company Plan is in compliance with its terms and applicable Laws and has been administered in accordance with its terms and applicable Laws, other than instances of noncompliance that would not, individually or in the aggregate, reasonably be likely to result in a material liability to the Company or any of its Subsidiaries. Each Company Pension Plan that, as of the date of this Agreement, is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS or is entitled to rely upon a favorable opinion issued by the IRS, and to the Knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be likely to cause the loss of any such qualification status of any such Company Pension Plan, except where such loss of qualification status would not, individually or in the aggregate, reasonably be likely to result in a material liability to the Company or any of its Subsidiaries. Except as would not reasonably be likely to have a Company Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened or anticipated claims, actions, suits, investigations, audits or examinations with respect to any Company Plan or its assets (other than routine claims for benefits).
(3) The Company does not maintain or contribute to a plan subject to Title IV of ERISA or Section 412 of the Code, including any “single employer” defined benefit plan or any “multiemployer plan” (each, as defined in Section 4001 of ERISA).
(4) Except as required under applicable Laws, or during any applicable severance period of not more than three (3) years, no Company Plan provides or has promised to provide health, medical, dental or life insurance benefits following retirement or other termination of employment the cost of which would be material to the Company or any of its Subsidiaries.
(5) Except as would not reasonably be likely to have a Company Material Adverse Effect, each Company Plan subject to the laws of any jurisdiction outside of the U.S. (each, a “Non-U.S. Company Plan”) (i) complies in all material respects with applicable Laws, (ii) is funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, to the extent such Non-U.S. Company Plan is intended or required to be funded and/or book reserved, (iii) has been registered to the extent required, and has been maintained in good standing with each applicable Governmental Authority and (iv) if intended to qualify for special Tax treatment, meets all requirements for such treatment.
(6) Except as otherwise contemplated under this Agreement or as set forth in Section 3.10(f) of the Company Disclosure Letter, the consummation of the Transactions will not, either alone or in combination with another event, (i) entitle any current or former employee, director, officer or other individual service provider of the Company or any of its Subsidiaries to severance pay or any other payment or benefit under any Company Plan, (ii) accelerate the time of payment or vesting of compensation or benefits, or increase the amount of compensation due to any director, officer, employee or individual service provider of the Company or any of its
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Subsidiaries (whether by virtue of any termination, severance, change of control or similar benefit or otherwise), (iii) cause the Company to transfer or set aside any assets to fund any benefits under any Company Plan, (iv) result in any forgiveness of indebtedness, trigger any funding obligation under any Company Plan or impose any restrictions or limitations on the Company’s rights to administer, amend or terminate any Company Plan or (v) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation section 1.280G-1) that would reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defied in section 280G(b)(1) of the Code). No person is entitled to receive any additional payment (including any tax gross-up, indemnification or other payment) from the Company or any of its Subsidiaries as a result of the imposition of the excise taxes required by Section 4999 of the Code or any taxes required by Section 409A of the Code.
Section xi.. Labor Matters.
(1) Except as has not had and would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, as of the date of this Agreement, (i) neither the Company nor any of its Subsidiaries is a party or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other agreement with a labor union, works council or similar organization, (ii) to the Knowledge of the Company, there are no activities or proceedings of any labor organization to organize any employees of the Company or any of its Subsidiaries and no demand for recognition as the exclusive bargaining representative of any employees has been made by or on behalf of any labor union or similar organization, (iii) there is no pending or, to the Knowledge of the Company, threatened labor strike, lockout, slowdown, work stoppage, picketing or other labor dispute by or with respect to the employees of the Company or any of its Subsidiaries and (iv) no material unfair labor practice charges, grievances, arbitrations, administrative charges or complaints are pending or, to the Knowledge of the Company, threatened against it or any of its Subsidiaries.
(2) Except as has not had and would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, the Company and each of its Subsidiaries are in compliance with all applicable Laws (and, to the extent applicable, the terms of all applicable internal policies, procedures and contracts between the Company or any of its Subsidiaries and the effected Person(s)) relating to labor, employment, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety and health requirements, wages and hours, employee and worker classification, disability rights or benefits, immigration and Form I-9 compliance, withholding of taxes, employment discrimination, whistleblower and retaliation, equal opportunity, labor relations, employee leave, termination pay, layoffs, furloughs, reductions in hours, compensation and/or benefits, unemployment insurance and related matters (collectively, “Employee Matters”). Except as set forth on Section 3.11 of the Company Disclosure Letter, there is no pending or, to the Knowledge of the Company, threatened action or proceeding involving any Employee Matters (including actions or proceedings involving allegations of sexual harassment or misconduct) that would reasonably be likely to have a Company Material Adverse Effect.
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Section xii.. Investments.
(1) The Company has made available to Parent a true and correct list of all investment assets that are beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by the Company or a Subsidiary of the Company and carried on the books and records of the Company and its Subsidiaries (“Company Investment Assets”) as of and for the twelve-month period ended December 31, 2019. The Company, or its applicable Subsidiary, has, as of the date of this Agreement, and will have (except for such Company Investment Assets that are sold or otherwise transferred not in violation of this Agreement), as of the Closing Date, valid title to all Company Investment Assets, free and clear of any Liens other than Permitted Liens.
(2) The Company has made available to Parent a true and correct copy of the Company Investment Guidelines and, to the Knowledge of the Company, the Company Investment Assets comply, and the acquisition thereof complied, in all respects with any and all investment restrictions under applicable Law and the Company Investment Guidelines, except where such non-compliance would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.
(3) To the Knowledge of the Company, as of the date of this Agreement, none of the Company Investment Assets is subject to any capital calls or similar liabilities, or any restrictions or suspensions on redemptions, lock-ups, “gates,” “side-pockets,” stepped-up fee provisions or other penalties or restrictions relating to withdrawals or redemptions, except as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.
(4) Each material agreement providing for investment management services to the Company or any of its Subsidiaries was entered into, and the performance of each investment manager is evaluated, in a commercially reasonable, arm’s length manner and complies with the Investment Advisers Act of 1940 in all material respects.
Section xiii.. Intellectual Property; IT Systems; Data Security; Privacy Laws.
(1) Section 3.13(a) of the Company Disclosure Letter sets forth a true and complete list of all registered trademarks, registered copyrights, issued patents, registered domain names and pending applications for any of the foregoing that are material Company Intellectual Property. Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, the Company or a Subsidiary exclusively owns all Company Intellectual Property and the Company and its Subsidiaries own, or are licensed to use, all Intellectual Property used in the conduct of the business of the Company and its Subsidiaries as currently conducted (in each case, free and clear of all Liens other than Permitted Liens).
(2) No claims are pending or, to the Knowledge of the Company, threatened in writing (i) challenging the ownership, enforceability, scope, validity or use by the Company or any of its Subsidiaries of any Company Intellectual Property or (ii) alleging that the Company or
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any of its Subsidiaries is violating, misappropriating or infringing the Intellectual Property rights of any Person.
(3) Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, (i) no Person is misappropriating, violating, diluting or infringing the rights of the Company or any of its Subsidiaries with respect to any Company Intellectual Property and (ii) the operation of the business of the Company and its Subsidiaries as currently conducted does not violate, misappropriate, dilute or infringe the Intellectual Property rights of any other Person.
(4) Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, no software included in the Company Intellectual Property contains or is derived from any software code that is subject to the provisions of any open source software license that (i) requires, or conditions the use or distribution of any such software in the manner currently used or distributed by the Company or any of its Subsidiaries on the disclosure, licensing or distribution of any source code for any portion of such software or (ii) otherwise imposes any material limitation, restriction or condition on the right or ability of the Company and its Subsidiaries to use or distribute any such software in the manner currently used or distributed by the Company or any of its Subsidiaries.
(5) Since January 1, 2019, there has been no failure or malfunction of any Company IT Systems that caused any material disruption to the business of the Company or any of its Subsidiaries and, except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, the Company IT Systems that are owned, leased or under the control of the Company or any of its Subsidiaries do not, to the Knowledge of the Company, contain any Malware that would reasonably be expected to disrupt in any material respect the ability of the Company or any of its Subsidiaries to conduct their businesses or present a material risk of unauthorized access, disclosure, use, corruption, destruction or loss of any Personal Information or other non-public information.
(6) Except as would not reasonably be likely to have a Company Material Adverse Effect, the Company and all of its Subsidiaries have (i) implemented and materially complied with written information security (including cybersecurity), business continuity and backup and infrastructure disaster recovery plans and procedures that are materially consistent with applicable Privacy Laws and (ii) have tested such plans and procedures on a periodic basis, and such plans and procedures have proven reasonably effective upon such testing in all material respects or the Company and its Subsidiaries have remediated or have developed plans to remediate any material issues identified. Since January 1, 2019, to the Knowledge of the Company, there has been no material unauthorized disclosure, use of or access to (1) any Personal Information or other non-public information held by or on behalf of any of the Company or any of its Subsidiaries (other than as would not need to be notified to a data protection authority under applicable Privacy Laws) or (2) the Company IT Systems.
(7) Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, since January 1, 2019, the Company and all of its Subsidiaries have implemented and complied with internal privacy policies and procedures that
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are consistent with applicable Privacy Laws. To the Knowledge of the Company, since January 1, 2019, neither the Company nor any of its Subsidiaries has received a written complaint from any Person in relation to the Processing of Personal Information or a written communication from any Governmental Authority that the Company or any of its Subsidiaries is acting or has acted in material breach of or is otherwise being investigated or is the subject of enforcement action in respect of a breach of any Privacy Laws.
Section xiv.. Anti-Takeover Provisions. Assuming the accuracy of the representations contained in Section 4.24, no “fair price”, “moratorium”, “control share acquisition” or other similar anti-takeover statute or similar statute or regulation (each, a “Takeover Law”) applies to the Company with respect to this Agreement or the Merger.
Section xv.. Contracts.
(1) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act since January 1, 2019 of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed with the SEC. All such filed Contracts shall be deemed to have been made available to Parent and to Merger Sub.
(2) Except for this Agreement and Contracts described in Section 3.15(a), Section 3.15(b) of the Company Disclosure Letter sets forth a list of all the Contracts to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound as of the date of this Agreement (other than any Company Plans, Company Reinsurance Contracts, Company Insurance Policies, and any contracts, agreements, instruments or commitments that relate to the acquisition, disposition or custody of any Company Investment Assets) (the Contracts required to be listed in Section 3.15(b) of the Company Disclosure Letter, together with the Contracts described in Section 3.15(a), collectively, “Company Material Contracts”) that:
(a) are with an affiliate that would be required to be disclosed under Item 404(a) of Regulation S-K under the Exchange Act;
(b) relate to the formation or management of any joint venture or partnership that is material to the business of the Company and its Subsidiaries, taken as a whole;
(c) provide for Indebtedness of the Company or any of its Subsidiaries having an outstanding or committed amount in excess of $2,000,000, other than any Indebtedness between or among any of the Company and any of its Subsidiaries and other than any letters of credit;
(d) have been entered into since January 1, 2019, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $2,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the investment policies and
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guidelines of the Company (the “Company Investment Guidelines”), or of supplies, products, properties or other assets in the ordinary course of business);
(e) impose material exclusivity (other than non-competition covenants) or non-solicitation obligations on the Company or any of its Subsidiaries (including Parent or any of its Subsidiaries following the Effective Time), except for confidentiality or commercial agreements entered into in the ordinary course of business;
(f) contain provisions that prohibit the Company or any of its Subsidiaries from competing in any material line of business or grant a right of exclusivity to any Person which prevents the Company or any Subsidiary of the Company from entering any material territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty;
(g) involve or would reasonably be likely to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $2,000,000 in any twelve (12)-month period, other than (x) Contracts that can be terminated by the Company or any of its Subsidiaries on less than ninety (90) days’ notice without payment by the Company or any Subsidiary of the Company of any material penalty or (y) commercial agreements entered into in the ordinary course of business;
(h) include an indemnification obligation of the Company or any of its Subsidiaries with a maximum potential liability in excess of $5,000,000;
(i) are investment advisory or investment management agreements or arrangements to which the Company or any of its Subsidiaries is a party pursuant to which assets valued at $35,000,000 or greater are managed;
(j) are suretyship contracts, performance bonds, working capital maintenance agreements or other forms of guaranty agreements pursuant to which $1,000,000 or more is guaranteed, other than insurance or reinsurance contracts, letters of credit, surety bonds or other forms of security entered into in the ordinary course of business;
(k) prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries, prohibit the pledging of the capital stock of the Company or any of its Subsidiaries or prohibit the issuance of any guarantee by the Company or any of its Subsidiaries; or
(l) related to (A) development, assignment or licensing of Intellectual Property or (B) information technology services (including support, maintenance and hosting agreements), in each case involving or reasonably likely to involve aggregate payments by or to the Company and/or its Subsidiaries in excess of $1,000,000 in any twelve (12)-month period.
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(3) Each of the Company Material Contracts is valid and binding on the Company and each of its Subsidiaries to the extent the Company or such Subsidiary is a party thereto and, to the Knowledge of the Company, each other party thereto and is in full force and effect (subject to the Bankruptcy and Equity Exception), except for such failures to be valid and binding or to be in full force and effect which would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. There is no breach or default under any Company Material Contract by the Company or any of its Subsidiaries and to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries, in each case except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. Except as would not reasonably be likely to have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received written notice from any other party to a Company Material Contract that such other party intends to terminate, not renew, or renegotiate the terms of any such Company Material Contract (except in accordance with the terms thereof).
Section xvi.. Insurance Business.
(1) Section 3.16(a) of the Company Disclosure Letter contains a true and complete list of the Company Insurance Subsidiaries and any branch offices thereof, together with the jurisdiction of domicile thereof. None of the Company Insurance Subsidiaries is commercially domiciled in any other jurisdiction or is otherwise treated as domiciled in a jurisdiction other than that of its incorporation. Each of the Company Insurance Subsidiaries is duly licensed or authorized as an insurance company or, where applicable, reinsurance company, Lloyd’s corporate member or Lloyd’s managing agent in its jurisdiction of incorporation or organization. Each of the Company Insurance Subsidiaries and each branch offices thereof is duly licensed, authorized or otherwise eligible to transact the business of insurance or reinsurance or participate in Lloyd’s, as applicable, in each other jurisdiction where it is required to be so licensed, authorized or otherwise eligible in order to conduct its business as currently conducted.
(2) Except as required by Insurance Laws of general applicability and the insurance or reinsurance licenses maintained by the Company Insurance Subsidiaries, or as set forth in Section 3.16(b) of the Company Disclosure Letter, there are no material written agreements, memoranda of understanding, commitment letters or similar undertakings binding on the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party, on one hand, and any Governmental Authority is a party or addressee, on the other hand, or any orders or directives by, or supervisory letters or cease-and-desist orders from, any Governmental Authority, nor has the Company nor any of its Subsidiaries adopted any board resolution at the request of any Governmental Authority, in each case specifically with respect to it or any of its Subsidiaries, which (i) limit the ability of the Company or any of the Company Insurance Subsidiaries to issue Company Insurance Policies or enter into reinsurance agreements, (ii) require any divestiture of any investment of any Subsidiary, (iii) in any manner relate to the ability of any of the Company’s Subsidiaries to pay dividends, or (iv) otherwise restrict the conduct of business of the Company or any of its Subsidiaries, except, in each of clauses (i)
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through (iv), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(3) All insurance policies and contracts, together with all binders, slips, certificates, endorsements and riders thereto that are issued by a Company Insurance Subsidiary (the “Company Insurance Policies”) and in effect as of the date of this Agreement are, to the extent required under applicable Insurance Laws, on forms and at rates approved by the insurance regulatory authority of the jurisdiction where issued or, to the extent required by applicable Insurance Laws, have been filed with and not objected to by such authority within the period provided for objection, except that would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(4) The Company Insurance Subsidiaries, and, to the Knowledge of the Company, their respective agents and administrators that wrote, sold, produced, managed or marketed the Company Insurance Policies for any of the Company Insurance Subsidiaries, have issued, sold, produced, managed and marketed such Company Insurance Policies in compliance with applicable Law in the respective jurisdictions in which such products have been sold, except such non-compliance as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, each agent or administrator (i) was duly licensed as required by Law in the particular jurisdiction in which such agent or administrator wrote, sold, produced, managed or marketed the Company Insurance Policies (for the type of business wrote, sold, produced, managed or marketed on behalf of the Company Insurance Subsidiary) except for such failures to be licensed which have been cured, which have been resolved or settled through agreements with applicable Governmental Authorities, which are barred by an applicable statute of limitations and which have not had and would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, and (ii) if required by applicable Law, was duly appointed by the applicable Company Insurance Subsidiary, except such omissions as have not had and would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.
(5) Except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, since January 1, 2019, each Subsidiary of the Company that participates in Lloyd’s: (i) has not participated in any Lloyd’s syndicate other than Syndicate 1945, (ii) has not agreed to sell, transfer or “drop” any of its rights to participate in a Lloyd’s syndicate or offered to acquire rights to participate in a Lloyd’s syndicate, and (iii) has complied with the franchise standards (including principles and minimum standards, guidance and advice) issued by Lloyd’s. Additionally, no Person is, or has the right to participate as, a member of Syndicate 1945 other than Sirius International Corporate Member Limited.
(6) Since January 1, 2019: (i) all funds held on behalf of Lloyd’s Syndicate 1945 have been held in accordance with the terms of the relevant premiums trust deed or other deposit arrangement as required by the bye-laws, regulations, codes of practice and mandatory directions and requirements governing the conduct and management of underwriting business at Lloyd’s from time to time and the provisions of any deed, agreement or undertaking executed, made or given for compliance with Lloyd’s requirements from time to time (“Lloyd’s Regulations”) and
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(ii) the Company and/or any of its Subsidiaries required to do so have complied in all material respects with all relevant regulations, directions, notices and requirements in relation to the maintenance of Funds at Lloyd’s (as defined in the Lloyd's Membership Byelaw (No. 5 of 2005)) in accordance with Lloyd’s Regulations and any directions imposed on the Company or any of its Subsidiaries by Lloyd’s, except, in each of clauses (i) and (ii), as would not, individually or in the aggregate, reasonably be likely to result in a material liability to the Company and its Subsidiaries, taken as a whole.
(7) The Company has taken commercially reasonable steps and implemented a framework so that the Company and its Subsidiaries be able to continue to conduct their respective businesses, in each case as conducted on or prior to the date of this Agreement, in the same manner and in the ordinary course following the end of the United Kingdom’s “transition period” in connection with the United Kingdom’s exit from the European Union.
(8) Since January 1, 2019, neither the Company nor any of its Subsidiaries has been subject to or received any pending or threatened investigations, complaints, information requests, censures, fines, enforcements, civil or criminal proceedings by any European Insurance Regulator or other European regulatory or governmental body with authority or jurisdiction over the Company or its Subsidiaries, except as would not, individually or in the aggregate, reasonably be likely to result in a material liability to the Company and its Subsidiaries, taken as a whole.
Section xvii.. Statutory Statements; Examinations.
(1) Except for any failure to file or submit the same that has been cured or resolved to the satisfaction of the applicable Insurance Regulator, since January 1, 2019, each of the Company Insurance Subsidiaries has filed or submitted all material annual and quarterly statutory financial statements, in each case, required by applicable Insurance Law to be filed with or submitted to the appropriate Insurance Regulator of each jurisdiction in which it is licensed, authorized or otherwise eligible with respect to the conduct of the business of insurance or reinsurance, as applicable (collectively, the “Company Statutory Statements”), except for such failures to file which would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(2) The Company has made available to Parent, to the extent permitted by applicable Law and to the extent required to be filed with the applicable Insurance Regulator on or prior to the date of this Agreement, true and correct copies of all material (i) Company Statutory Statements as of December 31, 2019 and December 31, 2018, and for the annual periods then ended, each in the form filed with the applicable Insurance Regulator and (ii) examination reports of any insurance regulatory authorities received by the Company relating to the Company Insurance Subsidiaries since January 1, 2019. The financial statements included in such Company Statutory Statements were prepared in all material respects in accordance with Applicable SAP, applied on a consistent basis, except as may have been noted therein, during the periods involved, and fairly present in all material respects, to the extent required by and in conformity with Applicable SAP, the statutory financial position of the relevant Company Insurance Subsidiary as of the respective dates thereof and the results of operations of such
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Company Insurance Subsidiary for the respective periods then ended, and no material deficiency has been asserted in writing by any Insurance Regulator with respect to any of such Company Statutory Statements that has not been cured or otherwise resolved prior to the date hereof. Except as indicated therein, (x) all assets that are reflected on the Company Statutory Statements comply with all applicable Insurance Laws regulating the investments of the Company Insurance Subsidiaries and (y) all applicable Insurance Laws with respect to admitted assets and are in amount at least equal to the minimum amount required by applicable Insurance Laws except, in the case of clauses (x) and (y), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. The financial statements included in the Company Statutory Statements accurately reflect in all material respects the extent to which, under applicable Law and Applicable SAP, the applicable Company Insurance Subsidiary is entitled to take credit for reinsurance (or any local equivalent concept). The Company has made available to Parent, to the extent permitted by applicable Law, true and correct copies of all material correspondence with any applicable Insurance Regulator on or prior to the date of this Agreement since January 1, 2019.
(3) Since January 1, 2019 through the date of this Agreement, each of the Company’s Subsidiaries that are members of Lloyd’s has prepared audited accounts for each syndicate managed by it for all applicable years ended December 31 in all material respects in accordance with the requirements of the Insurance Accounts Directive (Lloyd’s Syndicate and Aggregate Accounts) Regulations 2008 and the Syndicate Accounting Byelaw (No. 8 of 2005).
(4) Since January 1, 2019, no material fine or penalty has been imposed on any Company Insurance Subsidiary by any Insurance Regulator. Since January 1, 2019, neither the Company nor any of its Subsidiaries has received any material adverse remarks, comments or responses on any of the reporting, visits, reviews, questionnaires or surveys, or any other matter from the relevant Insurance Regulator.
Section xviii.. Reinsurance.
(1) As of the date of this Agreement, each reinsurance or retrocession treaty or agreement, slip, binder, cover note or other similar arrangement pursuant to which any Company Insurance Subsidiary is the cedent or reinsurer (the “Company Reinsurance Contracts”) is a legal, valid and binding obligation of the applicable Company Insurance Subsidiary and, to the Knowledge of the Company, each other party thereto, and is enforceable against the applicable Company Insurance Subsidiary, and, to the Knowledge of the Company, each other party thereto, in accordance with its terms (except in each case as may be limited by the Bankruptcy and Equity Exception), except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. Neither the applicable Company Insurance Subsidiary nor, to the Knowledge of the Company, any of the other parties to any Company Reinsurance Contract is in material default or material breach or has failed to perform any material obligation under any such Company Reinsurance Contract, and, to the Knowledge of the Company, there does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both), except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. None of the
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Company Insurance Subsidiaries has received written notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of such Company Insurance Subsidiary under any Company Reinsurance Contract, except where such default would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. There are no pending or, to the Knowledge of the Company, threatened Actions with respect to any material Company Reinsurance Contract.
(2) To the Knowledge of the Company, (i) no party to a Company Reinsurance Contract is insolvent or the subject of a rehabilitation, liquidation, conservatorship, receivership, bankruptcy or similar proceeding, (ii) there are no, and since January 1, 2019 there have been no, disputes under any Company Reinsurance Contract other than disputes in the ordinary course of business for which adequate loss reserves have been established and (iii) the applicable Company Insurance Subsidiary is entitled to take credit for reinsurance in the Company Statutory Statements for all such Company Reinsurance Contracts with respect to which credit for reinsurance is available and all such amounts recoverable, receivable or payable have been properly recorded in the books and records of account (if so accounted therefor) of the applicable Company Insurance Subsidiary and are properly reflected in the Company Statutory Statements and in the Company’s financial statements prepared in accordance with GAAP except, in each of clauses (i) through (iii), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(3) With respect to any Company Reinsurance Contract for which any Company Insurance Subsidiary is taking credit on its most recent Company Statutory Statements, from and after January 1, 2019: (i) there has been no separate written or oral agreement between the Company or any of its Subsidiaries and the assuming reinsurer that would adversely reduce, limit, mitigate or otherwise affect any actual or potential loss to the applicable Company Insurance Subsidiary that is a party thereto under any such Company Reinsurance Contract, other than inuring contracts that are explicitly defined in any such Company Reinsurance Contract; and (ii) the Company Insurance Subsidiary party thereto complies and has complied with any applicable requirements set forth in Applicable SAP, except, in each of clauses (i) through (ii), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
Section xix.. Reserves. The statutory policy reserves with respect to the Company Insurance Policies (the “Company Reserves”) of each Company Insurance Subsidiary contained in the Company Statutory Statements (a) were, except as otherwise noted in the applicable Company Statutory Statement, determined in all material respects in accordance with Applicable SAP and (b) satisfied the requirements of Applicable SAP and all applicable Law in all material respects, except as otherwise noted in such statutory statements and notes thereto included in such statutory statements. The Company has made available to Parent a true and correct copy of all material actuarial analyses of the Company and its Subsidiaries that were prepared since January 1, 2019 by third-party actuaries (or the Company’s internal actuaries if such actuarial analyses were shared with any Governmental Authorities) and are available as of the date of this Agreement. Any information and data furnished by the Company or any of its Subsidiaries to actuaries, independent or otherwise, in connection with the preparation of such actuarial analyses
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were derived, in all material respects, from the books and records of the Company and its Subsidiaries. Each such actuarial analysis was based upon, in all material respects, a complete and accurate inventory of Company Insurance Policies in force at the relevant time of preparation and was prepared in all material respects in conformity with generally accepted actuarial principles in effect at such time, consistently applied (except as may be noted therein).
Section xx.. Opinion of Financial Advisor. On or prior to the date of this Agreement, the Company Board has received the opinion of Barclays Capital Inc., to the effect that, as of the date of such opinion and subject to the assumptions, qualifications and limitations set forth therein, the Merger Consideration, in the aggregate, to be offered to the holders of Company Shares in the Merger is fair, from a financial point of view, to the holders of Company Shares, collectively. It is agreed and understood that such opinion is for the benefit of the Company Board and may not be relied on by Parent or Merger Sub for any purpose.
Section xxi.. Brokers and Other Advisors. Except for Barclays Capital Inc., the fees and expenses of which will be paid by the Company pursuant to an engagement letter, a copy of which has been provided to Parent, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.
Section xxii.. Anti-Corruption; Trade Compliance.
(1) In the past five (5) years, the Company and its Subsidiaries and, to the Knowledge of the Company, each of their respective officers, directors, employees, and agents (collectively, the “Company Relevant Persons”) have not directly or indirectly violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 (as amended) or any other applicable anti-corruption or anti-bribery laws or regulations except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(2) In the past five (5) years, the Company Relevant Persons have not in the course of their actions for, or on behalf of, the Company or any of its Subsidiaries engaged directly or indirectly in transactions: (i) with any of Crimea, Cuba, Iran, North Korea, or Syria; (ii) with any government, country, or other individual or entity that is the target of U.S. economic sanctions administered by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”), or the target of any applicable sanctions regime, including any transactions with specially designated nationals or blocked persons designated by OFAC; or (iii) prohibited by any law administered by OFAC, or by any other applicable economic or trade sanctions law applicable to the jurisdictions in which the Company and its Subsidiaries are domiciled or operate, except, in each of clauses (i) through (iii), as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
Section xxiii.. Real Property. Except as would not constitute a Company Material Adverse Effect, (a) the Company or one of its Subsidiaries has fee simple title to each parcel of real property owned by the Company or any of its Subsidiaries, and a good and valid leasehold interest in each Company Lease, in each case free and clear of all Liens (other than Permitted
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Liens) and (b) none of the Company or any of its Subsidiaries has received or given notice of any default under any Company Lease, which default continues on the date of this Agreement.
Section xxiv.. No Other Representations or Warranties. The Company acknowledges that it has conducted its own independent investigation and analysis of the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) and prospects of Parent and its Subsidiaries and that it and its Representatives have received access to such books and records, facilities, equipment, Contracts and other assets of Parent and its Subsidiaries that it and its Representatives have desired or requested to review for such purpose and that it and its Representatives have had full opportunity to meet with the management of Parent and its Subsidiaries and to discuss the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) and prospects of Parent and its Subsidiaries. Except for the representations and warranties made by the Company in this Article III, neither the Company nor any other Person makes any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding any delivery or disclosure to Parent, Merger Sub or any of their respective Representatives or Affiliates of any documentation, forecasts or other information with respect to any one or more of the foregoing, and each of Parent and Merger Sub acknowledge the foregoing. In particular, and without limiting the generality of the foregoing, neither the Company nor any other Person makes or has made any express or implied representation or warranty to Parent, Merger Sub or any of their respective Representatives or Affiliates with respect to (a) any financial projection, forecast, estimate, budget or prospective information relating to the Company, any of its Subsidiaries or their respective businesses, (b) any judgment based on actuarial principles, practices or analyses by any Person or as to the future satisfaction or outcome of any assumption, (c) except for the representations and warranties made by the Company in this Article III, the adequacy or sufficiency of the Company Reserves or its effect on any “line item” or asset, liability or equity amount on any financial or other document, (d) the future profitability of the business of the Company or its Subsidiaries or (e) except for the representations and warranties made by the Company in this Article III, any oral or written information presented to Parent, Merger Sub or any of their respective Representatives or Affiliates in the course of their due diligence investigation of the Company, the negotiation of this Agreement or the course of the Transactions. Neither the Company, its Subsidiaries nor any other Person will have or be subject to any liability to Parent, Merger Sub or any other Person resulting from the distribution to Parent, Merger Sub or their respective Representatives or Affiliates, or Parent’s, Merger Sub’s or their Representatives’ or Affiliates’ use of, any such information, including any information, documents, projections, forecasts or any other material made available to Parent, Merger Sub or their Representatives or Affiliates in certain “data rooms” or management presentations in connection with Parent’s and Merger Sub’s consideration and review of the transactions contemplated hereby, unless any such information is expressly included in a representation or warranty contained in this Article III.
Article IV.

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Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub jointly and severally represent and warrant to the Company that, except as (A) set forth in the corresponding section of the disclosure letter delivered by Parent to the Company on the date of this Agreement (the “Parent Disclosure Letter”) or (B) disclosed or reserved for in any Parent SEC Documents filed prior to the third Business Day prior to the date hereof (other than disclosures in the “Risk Factors” sections of any such filings and any disclosure of risks included in any “forward-looking statements” disclaimer contained in any such filings and any other disclosures in any such filings that are cautionary, predictive or forward-looking in nature (it being agreed and understood that any matter disclosed in such Parent SEC Documents shall not be deemed disclosed for purposes of Sections 4.01, 4.02, 4.03, 4.14 and 4.23):
Section i.. Organization; Standing.
(1) Each of Parent and its Subsidiaries (including Merger Sub) (i) is a corporation or other legal entity, duly incorporated or organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the Laws of its jurisdiction of incorporation or organization, (ii) has full corporate or similar power and authority to own, lease and operate its properties, rights and assets and to conduct its business as presently conducted, and (iii) is duly qualified or licensed to do business as a foreign corporation and is in good standing (with respect to jurisdictions that recognize such concept) in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except, in the case of clause (iii), where such failure would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(2) A true and correct copy of each of the Parent Organizational Documents is included in the Parent SEC Documents
(3) Parent has made available to the Company true and correct copies of Merger Sub’s certificate of incorporation, memorandum of association, bye-laws or other comparable charter or organizational documents, each as amended to the date of this Agreement. Parent is not in violation of any provisions of the Parent Organizational Documents. Parent has made available to the Company true and correct copies of the organizational documents of Parent’s material U.S. domiciled Subsidiaries, in each case, as amended and in effect as of the date of this Agreement.
Section ii.. Capitalization.
(1) The authorized share capital of Parent consists of 300,000,000 common shares, par value $0.10 per share, of Parent (the “Parent Shares”) and 30,000,000 preference shares, par value $0.10 per share, of Parent (the “Parent Preference Shares”). At the close of business on August 5, 2020 (the “Parent Capitalization Date”), (i) 94,950,373 Parent Shares were issued and outstanding, (ii) no Parent Preference Shares were issued and outstanding, (iii) 3,494,979 Parent Warrants were issued and outstanding, and (iv) no Parent Shares were held by Parent as treasury shares. Since the Parent Capitalization Date through the date of this Agreement, other than in
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connection with the vesting or settlement of Parent Awards, neither Parent nor any of its Subsidiaries has issued any Parent Shares or any securities that are convertible into or exchangeable or exercisable for Parent Shares. All of the issued and outstanding Parent Shares have been duly authorized and validly issued and are fully paid and non-assessable and were issued in compliance with all applicable securities Laws.
(2) As of the close of business on the Parent Capitalization Date, Parent had no Parent Shares or Parent Preference Shares reserved for issuance, except for 22,252,206 Parent Shares reserved for issuance pursuant to the Parent Share Plans and 3,494,979 shares reserved for issuance pursuant to the Parent Warrants, and there were vested but unexercised Parent Options outstanding for 8,306,658 Parent Shares.
(3) Section 4.02(c) of the Parent Disclosure Letter contains a true and correct list as of the Parent Capitalization Date of outstanding Parent Awards, including for each such award (as applicable) the holder (the specific identity of whom may be redacted to the extent required by applicable Law), type of award, the number of Parent Shares subject to each award (for the avoidance of doubt, for performance-based awards, the target number of Parent shares is the number at target level of performance), the applicable Parent Share Plan under which such awards were granted, grant date, vesting schedule, expiration date, exercise price and performance period. There are no outstanding compensatory share options, restricted shares, restricted share units or other equity-related securities or awards other than the Parent Awards. No Parent Option is an “incentive stock option” within the meaning of Section 421 of the Code.
(4) Except as set forth in Section 4.02(d) of the Parent Disclosure Letter, as of the date of this Agreement, there are no outstanding contractual obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Parent Shares, Parent Preference Shares or Parent Rights or to pay any dividend or make any other distribution in respect thereof, and, as of the date of this Agreement, no such obligations have been asserted by any holders of Parent Shares, Parent Preference Shares or Parent Rights. There are no voting trusts or other agreements or understandings to which Parent is a party with respect to the voting of shares of Parent. There are no preemptive or similar rights granted by Parent or any Subsidiary of Parent on the part of any holders of any class of securities of Parent or any Subsidiary of Parent. Except as set forth above in Section 4.02(d) of the Parent Disclosure Letter, other than the outstanding Parent Awards and the outstanding Parent Warrants, there are not any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, restricted stock units, stock-based performance units, commitments, contracts, arrangements or undertakings of any kind to which Parent or any of the Subsidiaries of Parent is a party or by which any of them is bound (i) obligating Parent or any of its Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of capital stock of, or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, Parent or any Subsidiary of Parent, (ii) obligating Parent or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights
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accruing to holders of capital stock of, or other equity interests in, Parent or any of its Subsidiaries.
(5) A true and correct list of all the Subsidiaries of Parent, as of the date of this Agreement, is set forth in Section 4.02(e) of the Parent Disclosure Letter. Except as set forth in Section 4.02(e) of the Parent Disclosure Letter, neither Parent nor any of its Subsidiaries has entered into a written contract that provides for the right to acquire at any time by any means, directly or indirectly, an equity interest in any other Person. Parent or one of its wholly owned Subsidiaries is the owner of all outstanding shares of capital stock of each Subsidiary of Parent and all such shares are duly authorized, validly issued, fully paid and nonassessable. All of the outstanding shares of capital stock of each Subsidiary of Parent are owned by Parent free and clear of all Liens, except for Permitted Liens. There are no outstanding Parent Subsidiary Stock Rights. There are no outstanding contractual obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of any Subsidiary of Parent or any Parent Subsidiary Stock Rights or to pay any dividend or make any other distribution in respect thereof.
(6) The authorized share capital of Merger Sub consists of 100 shares, par value $1.00 per share, all of which are validly issued and outstanding. Parent owns beneficially and of record all of the issued and outstanding shares of Merger Sub, free and clear of all Liens. Merger Sub has no assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to the Transactions, and prior to the Effective Time, will not have engaged in any business activities other than those relating to the Transactions.
Section iii.. Authority; Noncontravention; Voting Requirements.
(1) Each of Parent and Merger Sub has all necessary power and authority to execute and deliver this Agreement and, subject to the Merger Sub Shareholder Approval, the Parent Shareholders Approval and any required Governmental Approvals, to perform its obligations hereunder and to consummate the Transactions. The execution, delivery and performance by Parent and Merger Sub of this Agreement and the Statutory Merger Agreement, and the consummation by Parent and Merger Sub of the Transactions, have been duly authorized and approved by each of the Parent Board and the Merger Sub Board, as applicable, and, except for executing and delivering the Statutory Merger Agreement, filing the Merger Application with the Registrar pursuant to the Bermuda Companies Act and obtaining the Merger Sub Shareholder Approval (which approval shall be provided by the written consent of Parent immediately following the execution of this Agreement), the Parent Shareholder Approval and any required Governmental Approvals as set forth in Section 4.04 or Sections 4.04(e) or 4.04(k) of the Parent Disclosure Letter, no other corporate action on the part of Parent or Merger Sub is necessary to authorize the execution, delivery and performance by Parent and Merger Sub of this Agreement and the Statutory Merger Agreement and the consummation by Parent and Merger Sub of the Transactions. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of each of Parent and Merger Sub, enforceable against each of
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them in accordance with its terms, except that such enforceability may be limited by and is subject to the Bankruptcy and Equity Exception.
(2) The Parent Board has (i) determined that the Merger, the Share Issuance and the other Transactions contemplated hereby, on the terms and subject to the conditions set forth herein, are fair to, and in the best interests of, Parent, (ii) approved this Agreement, the Statutory Merger Agreement and the Transactions and (iii) resolved, subject to Section 5.03, to recommend approval by the holders of the Parent Shares of the issuance of Parent Shares in the Merger as contemplated by this Agreement, including the issuance of Parent Shares upon the exercise or exchange of the Merger Consideration Preference Shares, the Merger Consideration Warrants and the Upside Rights (the “Share Issuance”), to the holders of Parent Shares (such recommendation, the “Parent Board Recommendation”), and, as of the date of this Agreement, such resolutions have not been subsequently rescinded, modified or withdrawn in any way.
(3) Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent or Merger Sub of the Transactions, nor performance or compliance by Parent or Merger Sub with any of the terms or provisions hereof, will (i) conflict with or violate any provision of (A) the Parent Organizational Documents or (B) subject to obtaining the Merger Sub Shareholder Approval, the similar organizational documents of Merger Sub or any of Parent’s other Subsidiaries in any material respect or (ii) assuming (A) compliance with the matters set forth in Section 3.03(c) (other than Section 3.03(c)(ii)(A)) (and assuming the accuracy of the representations and warranties made in such Section 3.03(c)), (B) that the actions described in Section 4.03(a) have been completed, (C) that the Consents referred to in Section 4.04, the Merger Sub Shareholder Approval and the Parent Shareholder Approval are obtained and (D) that the filings referred to in Section 4.04 are made and any waiting periods thereunder have terminated or expired, in the case of each of the foregoing clauses (A) through (D), prior to the Effective Time, (x) violate any Law applicable to Parent or any of its Subsidiaries in any material respect, (y) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments pursuant to, any of the terms, conditions or provisions of any Parent Material Contract or (z) result in the creation of any Lien other than a Permitted Lien on any properties or assets of Parent or any of its Subsidiaries, except, in the case of clauses (ii)(y) and (ii)(z), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(4) Other than the Merger Sub Shareholder Approval, the affirmative vote (in person or by proxy) of the holders of a majority of the voting power of the Parent Shares that are present (in person or by proxy) at the Parent Shareholders Meeting at which at least two Persons holding or representing by proxy more than fifty percent (50%) of the voting power represented by the Parent Shares that are entitled to vote thereat (the “Parent Shareholder Approval”) in favor of the Share Issuance, are the only votes or approvals of the holders of any class or series of share capital of Parent or any of its Subsidiaries that are necessary to approve this Agreement, the Statutory Merger Agreement and the Merger.
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Section iv.. Governmental Approvals. Except for (a) compliance with the applicable requirements of the Exchange Act, including the filing with the SEC of the Joint Proxy Statement, the Registration Statement and such filings under Sections 13 and 16 of the Exchange Act as may be required in connection with this Agreement, the Merger and the Transactions, (b) compliance with the rules and regulations of the NYSE, (c) the filing of (i) the Merger Application with the Registrar pursuant to the Bermuda Companies Act and (ii) appropriate documents with the relevant authorities of other jurisdictions in which Parent or any of its Subsidiaries is qualified to do business, (d) the approval of the Bermuda Monetary Authority pursuant to the Exchange Control Act 1972 regarding the change of ownership of the Company (the “BMA Filing”), (e) filings required under, and compliance with other applicable requirements of, the HSR Act, and the other Consents, filings, declarations or registrations required to be made or obtained under the Antitrust Laws set forth in Section 4.04(e) of the Parent Disclosure Letter, (f) compliance with any applicable state securities or blue sky laws, (g) the filing of ownership and ownership management assessment forms FFFS 2015:8; appendix 1a (natural person)(as applicable), appendix 1b (legal person) and appendix 1c (senior management in a firm that owns an insurance entity) with the Swedish Financial Supervisory Authority (the “SFSA Filings”), (h) notification under Section 178 of the Financial Services and Markets Act 2000 to the U.K. Prudential Regulation Authority and the U.K. Financial Conduct Authority for approval or non-objection in respect of the proposed change in control of Sirius International Managing Agency Limited (i) notification under Section 178 of the Financial Services and Markets Act 2000 to the U.K. Financial Conduct Authority for approval or non-objection in respect of the proposed change in control of Sirius International Managing Agency Limited, IMG Europe Ltd and A La Carte Healthcare Limited (j) such pre-acquisition change of control notifications to Lloyd’s as are required in respect of the acquisition of Sirius International Corporate Member Limited, Sirius International Managing Agency Limited and Sirius International Underwriting Division (Lloyd’s China Platform) (the filings, approvals or notifications in clauses (h) through (j), the “U.K. Filings”); (k) approvals, filings and notices under all applicable Insurance Laws as set forth in Section 4.04 of the Parent Disclosure Letter (the “Parent Insurance Approvals”) and (l) the Company Insurance Approvals (assuming the accuracy of the representations and warranties made in Section 3.04(g) and the completeness of Section 3.04 of the Company Disclosure Letter), no Consent of, or filing, declaration or registration with, any Governmental Authority by Parent is necessary for the execution and delivery of this Agreement by Parent and Merger Sub, the performance by Parent and Merger Sub of their obligations hereunder and the consummation by Parent and Merger Sub of the Transactions, other than such other Consents, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect or would not reasonably be likely to prevent, impede, interfere with, hinder or delay in any material respect the ability of Parent and Merger Sub to consummate the Transactions. Parent has no reason to believe that any facts or circumstances related to its or its Affiliates’ identity, financial condition, jurisdiction or domicile or regulatory status will impair or delay its ability to promptly obtain the consents, approvals, authorizations and waivers set forth in Section 4.03 and 4.03 of the Parent Disclosure Letter.
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Section v.. Parent SEC Documents; Undisclosed Liabilities
(1) Since January 1, 2019, Parent has filed with or furnished to (as applicable) the SEC all reports, schedules, forms, statements, registration statements, prospectuses, proxy statements or other documents required to be filed or furnished by Parent with the SEC on a timely basis pursuant to the Securities Act or the Exchange Act (collectively with any reports, schedules, forms, certifications, statements, registration statements, prospectuses, proxy statements and other documents (including the exhibits and other information incorporated therein) filed or furnished by Parent with the SEC after the date of this Agreement, the “Parent SEC Documents”). As of their respective effective dates (in the case of Parent SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) or their respective SEC filing dates (in the case of all other Parent SEC Documents), or, if supplemented, modified or amended since the time of filing, as of the date of the most recent supplement, modification or amendment, the Parent SEC Documents (i) complied as to form in all material respects with the requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and the NYSE, as the case may be, applicable to such Parent SEC Documents, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. There are no outstanding or unresolved comments from the SEC staff with respect to any Parent SEC Document. Since January 1, 2019, Parent has been in compliance in all material respects with the provisions of the Sarbanes-Oxley Act that are applicable to Parent.
(2) The Joint Proxy Statement and the Registration Statement will not, on the date of filing with the SEC, on the date of any amendment or supplement thereto, and, with respect to the Joint Proxy Statement, at the time the Joint Proxy Statement is first mailed to the shareholders of Parent and at the time of the Parent Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Joint Proxy Statement and the Registration Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder and other applicable Law, including the provisions of the Securities Act, the Exchange Act and any other applicable Law governing the preparation, distribution or dissemination of such documents. Notwithstanding the foregoing, no representation or warranty is made by Parent with respect to statements made or incorporated by reference in the Joint Proxy Statement or the Registration Statement based on information supplied by the Company or any of its Representatives specifically for inclusion (or incorporation by reference) therein.
(3) Each of the consolidated financial statements of Parent and its consolidated Subsidiaries (including all related notes or schedules) included or incorporated by reference in the Parent SEC Documents (the “Parent Financial Statements”) (i) complied as to form in all material respects with the applicable accounting requirements under the Securities Act, the Exchange Act and the applicable rules and regulations of the SEC, (ii) were prepared in accordance with GAAP (as in effect on the date of such Parent Financial Statement) applied on a consistent basis during the periods involved except, in the case of unaudited statements, as
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permitted by SEC rules and regulations and (iii) fairly present, in all material respects, the financial position of Parent and Parent’s consolidated Subsidiaries and the results of their operations and their cash flows as of the dates and for the periods referred to therein, in each case, except as may be indicated in the notes thereto, and, in the case of interim financial statements, for normal year-end adjustments that were or will be made in the ordinary course of business and none of which were material to Parent and its Subsidiaries, taken as a whole. None of Parent or its Subsidiaries is a party to, or has any obligation or other commitment to become a party to, any “off balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).
(4) Neither Parent nor any of its Subsidiaries has any liabilities of any nature (whether accrued, absolute, contingent or otherwise) that would be required under GAAP, as in effect on the date of this Agreement, to be reflected on a consolidated balance sheet of Parent (including the notes thereto) except liabilities (i) reflected or reserved against in the balance sheet (or the notes thereto) of Parent and its Subsidiaries as of December 31, 2019, included in the Parent SEC Documents, (ii) incurred after December 31, 2019, in the ordinary course of business, (iii) as contemplated or permitted to be incurred by this Agreement or otherwise incurred in connection with the Transactions or otherwise disclosed in Section 4.05(d) of the Parent Disclosure Letter, or (iv) as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(5) Parent has established and maintains “disclosure controls and procedures” and “internal control over financial reporting” (each as defined in Rule 13a-15(e) or 15d-15(e), as applicable, under the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act and designed as necessary to permit the preparation of financial statements in conformity with GAAP. Such disclosure controls and procedures are designed to ensure that all information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP, and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of Parent, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of Parent’s financial statements in accordance with GAAP and that receipts and expenditures of Parent are being made only in accordance with authorizations of management and directors of Parent and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of Parent’s assets that could have a material effect on its financial statements. Parent, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, has not identified any significant deficiencies and material weaknesses or any fraud with respect to its financial reporting.
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(6) Parent is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the NYSE.
(7) As of the date of this Agreement, except as disclosed in Parent’s definitive proxy statements included in the Parent SEC Documents or in Section 4.05(g) of the Parent Disclosure Letter, within the last twelve (12) months no event has occurred and no relationship exists that would be required to be reported by Parent pursuant to Item 404 of Regulation S-K.
Section vi.. Absence of Certain Changes. From January 1, 2020 through the date of this Agreement, (a) except in response to or related to any Contagion Event or any change in applicable Law or policy as a result of or related to any Contagion Event, except for the execution, delivery and performance of this Agreement and the discussions, negotiations and transactions related thereto and to alternative transactions to the Transactions, and other than in connection with the Transactions, or as set forth in Section 4.06 of the Parent Disclosure Letter, the business of Parent and its Subsidiaries has been conducted in all material respects in the ordinary course of business and (b) there has been no event or condition that has had, or would reasonably be likely to have, a Parent Material Adverse Effect.
Section vii.. Legal Proceedings.
(1) Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, or as set forth in Section 4.07 of the Parent Disclosure Letter, as there is no (i) pending or, to the Knowledge of Parent, threatened in writing, Action against Parent or any of its Subsidiaries (other than Actions under or in connection with any Parent Insurance Policies) or (ii) outstanding Order imposed upon Parent or any of its Subsidiaries.
(2) Prior to the date of this Agreement, Parent has made available to the Company all written correspondence received by Parent from the Series B Preferred Shareholders and their Representatives with respect to the Series B Claims.
(3) This Section 4.07 does not relate to Intellectual Property matters, which are the subject of Section 4.13.
Section viii.. Compliance with Laws; Permits
(1) Parent and each of its Subsidiaries are, and since January 1, 2019 have been, in compliance with all Laws and Orders, in each case, applicable to Parent or any of its Subsidiaries, except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. No investigation or review by any Governmental Authority with respect to Parent or any of its Subsidiaries is pending or, to the Knowledge of Parent, threatened in writing, the outcome of which is reasonably likely to have a Parent Material Adverse Effect.
(2) Parent and each of its Subsidiaries hold, and since January 1, 2019 have held, all Permits, except where the failure to hold such Permits would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. There are no Actions
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pending or, to the Knowledge of Parent, threatened in writing, that seek the revocation, cancellation or adverse modification of any Permit, except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(3) None of Parent and its Subsidiaries nor, to the Knowledge of Parent, any director, officer or employee or anyone in a position to exercise a senior management function or other key function of Parent or any of its Subsidiaries is, or has been, (i) ineligible or unfit to act in such role or (ii) subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of, or suspension or revocation of the authorization of any UK-regulated Subsidiary of Parent, by the PRA or FCA, for the conduct of regulated activities except, in the case of clauses (i) and (ii), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(4) This Section 4.08 does not relate to the Parent SEC Documents, financial statements or compliance with the Sarbanes-Oxley Act, which are the subject of Section 4.05, Tax matters, which are the subject of Section 4.09, employee benefits and labor matters, which are the subject of Sections 4.10 and 4.11, or insurance or reinsurance matters, which are the subject of Sections 4.16 through 4.19.
Section ix.. Tax Matters. Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect:
(1) Parent and each of its Subsidiaries has prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all Tax Returns required to be filed by any of them. All such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate, and all Taxes owed by Parent and each of its Subsidiaries that are due have been timely paid or have been reserved against in accordance with GAAP.
(2) All Taxes which Parent or any of its Subsidiary is required by law to withhold or to collect for payment have been duly withheld and collected and have been paid to the appropriate Governmental Authority. Parent and its Subsidiaries have reported such withheld amounts to the appropriate taxing or Governmental Authority and to any such payee, as required by Law.
(3) The charges, accruals and reserves for Taxes with respect to Parent and its Subsidiaries reflected on the books of Parent and its Subsidiaries (excluding any provision for deferred income taxes) are adequate to cover tax liabilities accruing through the end of the last period for which Parent and its Subsidiaries have recorded items on their respective books, and since the end of the last period for which Parent and its Subsidiaries have recorded items on their respective books, neither Parent nor any of its Subsidiaries has incurred any Tax liability, engaged in any transaction, or taken any other action, other than in the ordinary course of business.
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(4) Neither Parent nor any of its Subsidiaries is, or during the past 12-month period has been, a United States shareholder (within the meaning of Section 951(b) of the Code) of a controlled foreign corporation (within the meaning of Section 957 of the Code).
(5) Neither Parent nor any of its Subsidiaries is, or during the past 12-month period has been, a controlled foreign corporation (within the meaning of Section 957 of the Code); except, in each case, for a controlled foreign corporation solely as a result of the application of Section 318(a)(3)(C) of the Code.
(6) Neither Parent nor any of its Subsidiaries is (immediately before the Merger based on a closing of the book approach), or has been, a passive foreign investment company (within the meaning of Section 1297 of the Code).
(7) Neither Parent nor any of its Subsidiaries is (i) a domestic corporation as a result of the application of Section 7874(b) of the Code, or (ii) a surrogate foreign corporation (within the meaning of Section 7874(a) of the Code).
(8) As of the date of this Agreement, neither Parent nor any of its Subsidiaries has received written notice from any Tax authority of any pending or threatened audits, examinations, investigations, claims or other proceedings in respect of any Taxes of Parent or any of its Subsidiaries. No deficiency for any Tax has been asserted or assessed by any Governmental Authority in writing against Parent or any of its Subsidiaries, except for deficiencies that have been satisfied by payment in full, settled or withdrawn, or that have been adequately reserved for in accordance with GAAP.
(9) There are no Liens for Taxes on any of the assets of Parent or any of its Subsidiaries other than Permitted Liens.
(10) Neither Parent nor any of its Subsidiaries has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the two (2)-year period ending on the date of this Agreement that was purported or intended to be governed by Section 355 of the Code (or any similar provision of applicable Law).
(11) Neither Parent nor any of its Subsidiaries is subject to a particular Tax or is required to file in a jurisdiction where Parent or its Subsidiaries does not file Tax Returns (or files a tax return showing no tax) or has been notified by any Governmental Authority that it is or may be subject to Tax by that jurisdiction.
(12) Neither Parent nor any of its Subsidiaries (i) has any income that is effectively connected with a United States trade or business (within the meaning of Section 864(c) of the Code) or (ii) is engaged in a trade or business in the United States within the meaning of Section 864(b) of the Code.
(13) Neither Parent nor any of its Subsidiaries has (i) waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to an assessment or deficiency for Taxes, which waiver or agreement, as applicable, remains in effect (other than
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pursuant to extensions of time to file Tax Returns obtained in the ordinary course), (ii) applied for a ruling from a taxing authority relating to any material Taxes that has not been granted or has proposed to enter into an agreement with a taxing authority that is pending or (iii) entered into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Tax Law) or has been issued any private letter rulings, technical advice memoranda or similar agreement or rulings by any taxing authority, in each case that is binding on Parent or its Subsidiaries (as applicable) for any post-Closing Tax period.
(14) Neither Parent nor any of its Subsidiaries is a party to a Tax allocation, sharing, indemnity or similar agreement or arrangement (other than indemnities or gross-ups included in ordinary course contracts or leases or contracts solely among or between any of Parent and its Subsidiaries) or has any liability for Taxes of another Person (other than Parent or any of its Subsidiaries) under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of applicable Law), as a transferee or successor or by contract (other than any contract that does not relate principally to Taxes) that will require any payment by Parent or any of its Subsidiaries after the Closing Date.
(15) Neither Parent nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of U.S. Treasury Regulation Section 1.6011-4(b)(2).
(16) As of the date of this Agreement, neither Parent nor any of its Subsidiaries has a permanent establishment in a jurisdiction outside of the jurisdiction in which Parent or its Subsidiaries, respectively, are organized.
(17) Parent and each of its Subsidiaries has conducted all intercompany transactions in substantial compliance with applicable transfer pricing requirements (including, with respect to the United States, the principles of Sections 482 and 845 of the Code) (or any similar provision of applicable Law). Parent and each of its Subsidiaries has complied in all respects with applicable rules relating to transfer pricing (including the filing of all required transfer pricing reports) and has maintained in all respects all necessary documentation in connection with any intercompany reinsurance transactions in accordance with applicable Law.
(18) Except for Third Point Reinsurance (USA) Ltd., neither Parent nor any of its Subsidiaries organized outside of the United States has made an election under Section 953(d) of the Code to be treated as a domestic corporation. Third Point Reinsurance (USA) Ltd. (i) has in effect, and has had in effect since its formation, a valid election under Section 953(d) of the Code to be treated as a domestic corporation and (ii) has complied in all material respects with the terms and conditions of the closing agreement with the IRS regarding Section 953(d) of the Code, dated August 2016.
(19) All excise Tax Returns and excise Taxes under Section 4371 of the Code with respect to any reinsurance or retrocession agreement to which Parent or any of its Subsidiaries is a party have been duly and timely filed and paid.
(20) The representations and warranties made in this Section 4.09 and Section 4.10 are the only representations and warranties under Article IV made by Parent and Merger
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Sub with respect to matters relating to Taxes and, notwithstanding anything else to the contrary in this Agreement, no representation or warranty is provided with respect to any current or deferred Tax asset Parent or any of its Subsidiaries (including any reserves or offsetting assets with respect thereto).
Section x.. Employee Benefits.
(1) Section 4.10(a) of the Parent Disclosure Letter contains a true and correct list, as of the date of this Agreement, of each material Parent Plan. With respect to each material Parent Plan, Parent has made available to the Company true and correct copies (to the extent applicable) of (i) the plan document, including any amendments thereto, other than any document that Parent or any of its Subsidiaries is prohibited from making available to the Company as the result of applicable Law relating to the safeguarding of data privacy, (ii) the most recent summary plan description for each material Parent Plan for which such summary plan description is required by applicable Law, (iii) each applicable trust agreement, insurance or group annuity contract or other funding vehicle, including any amendments thereto, (iv) the most recent annual report on Form 5500 required to be filed with the IRS with respect thereto or any similar reports filed with any comparable Governmental Authority in any non-U.S. jurisdiction having jurisdiction over any Parent Plan (if any) and (v) any material correspondence with any Governmental Authority regarding any Parent Plan sent or received in the preceding twelve (12) months. Neither Parent nor any of its Subsidiaries has announced any intention or commitment to amend or modify or enter into any material Parent Plan or to take any action with respect to a Parent Plan that in any such case would reasonably be likely to result in a material increase to the costs of providing compensation or employee benefits to employees, directors, officers or other service providers.
(2) Each Parent Plan is in compliance with its terms and applicable Laws and has been administered in accordance with its terms and applicable Laws, other than instances of noncompliance that would not, individually or in the aggregate, reasonably be likely to result in a material liability to Parent or any of its Subsidiaries. Each Parent Pension Plan that, as of the date of this Agreement, is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS or is entitled to rely upon a favorable opinion issued by the IRS, and to the Knowledge of Parent, there are no existing circumstances or any events that have occurred that would reasonably be likely to cause the loss of any such qualification status of any such Parent Pension Plan, except where such loss of qualification status would not, individually or in the aggregate, reasonably be likely to result in a material liability to Parent or any of its Subsidiaries. Except as would not reasonably be likely to have a Parent Material Adverse Effect, there are no pending or, to the Knowledge of Parent, threatened or anticipated claims, actions, suits, investigations, audits or examinations with respect to any Parent Plan or its assets (other than routine claims for benefits).
(3) Parent does not maintain or contribute to a plan subject to Title IV of ERISA or Section 412 of the Code, including any “single employer” defined benefit plan or any “multiemployer plan” (each, as defined in Section 4001 of ERISA).
(4) Except as required under applicable Laws or during any applicable severance period of not more than three (3) years, no Parent Plan provides or has promised to provide
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health, medical, dental or life insurance benefits following retirement or other termination of employment the cost of which would be material to Parent or any of its Subsidiaries.
(5) Except as would not reasonably be likely to have a Parent Material Adverse Effect, each Parent Plan subject to the laws of any jurisdiction outside of the U.S. (each, a “Non-U.S. Parent Plan”) (i) complies in all material respects with applicable Laws, (ii) is funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions, to the extent such Non-U.S. Parent Plan is intended or required to be funded and/or book reserved, (iii) has been registered to the extent required, and has been maintained in good standing with each applicable Governmental Authority and (iv) if intended to qualify for special Tax treatment, meets all requirements for such treatment.
(6) Except as otherwise contemplated under this Agreement or as set forth in Section 4.10(f) of the Parent Disclosure Letter, the consummation of the Transactions will not, either alone or in combination with another event, (i) entitle any current or former employee, director, officer or other individual service provider of Parent or any of its Subsidiaries to severance pay or any other payment or benefit under any Parent Plan, (ii) accelerate the time of payment or vesting of compensation or benefits, or increase the amount of compensation due to any director, officer, employee or individual service provider of Parent or any of its Subsidiaries (whether by virtue of any termination, severance, change of control or similar benefit or otherwise), (iii) cause Parent to transfer or set aside any assets to fund any benefits under any Parent Plan, (iv) result in any forgiveness of indebtedness, trigger any funding obligation under any Parent Plan or impose any restrictions or limitations on Parent’s rights to administer, amend or terminate any Parent Plan or (v) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation section 1.280G-1) that would reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in section 280G(b)(1) of the Code). No Person is entitled to receive any additional payment (including any tax gross-up, indemnification or other payment) from Parent or any of its Subsidiaries as a result of the imposition of the excise taxes required by Section 4999 of the Code or any taxes required by Section 409A of the Code.
Section xi.. Labor Matters.
(1) Except as has not had and would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, as of the date of this Agreement, (i) neither Parent nor any of its Subsidiaries is a party or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other agreement with a labor union, works council or similar organization, (ii) to the Knowledge of Parent, there are no activities or proceedings of any labor organization to organize any employees of Parent or any of its Subsidiaries and no demand for recognition as the exclusive bargaining representative of any employees has been made by or on behalf of any labor union or similar organization, (iii) there is no pending or, to the Knowledge of Parent, threatened labor strike, lockout, slowdown, work stoppage, picketing or other labor dispute by or with respect to the employees of Parent or any of its Subsidiaries and (iv) no material unfair labor practice charges, grievances, arbitrations,
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administrative charges or complaints are pending or, to the Knowledge of Parent, threatened against it or any of its Subsidiaries.
(2) Except as has not had and would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, Parent and each of its Subsidiaries are in compliance with all applicable Laws (and, to the extent applicable, the terms of all applicable internal policies, procedures and contracts between Parent or any of its Subsidiaries and the effected Person(s)) relating to Employee Matters. Except as set forth on Section 4.11 of the Parent Disclosure Letter, there is no pending or, to the Knowledge of Parent, threatened action or proceeding involving any Employee Matters (including actions or proceedings involving allegations of sexual harassment or misconduct) that would reasonably be likely to have a Parent Material Adverse Effect.
Section xii.. Investments.
(1) Parent has made available to the Company a true and correct list of all investment assets that are beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by Parent or a Subsidiary of Parent and carried on the books and records of Parent and its Subsidiaries (“Parent Investment Assets”) as of and for the twelve-month period ended December 31, 2019. Except as set forth in Section 4.12 of the Parent Disclosure Letter, Parent, or its applicable Subsidiary, has, as of the date of this agreement, and will have (except for such Parent Investment Assets that are sold or otherwise transferred not in violation of this Agreement), as of the Closing Date, valid title to all Parent Investment Assets, free and clear of any Liens other than Permitted Liens.
(2) Parent has made available to the Company a true and correct copy of the Parent Investment Guidelines and, to the Knowledge of Parent, the Parent Investment Assets comply, and the acquisition thereof complied, in all respects with any and all investment restrictions under applicable Law and the Parent Investment Guidelines, except where such non-compliance would not reasonably be likely to have, individually or in the aggregate, a Parent Material Adverse Effect.
(3) To the Knowledge of Parent, as of the date of this Agreement, none of the Parent Investment Assets is subject to any capital calls or similar liabilities, or any restrictions or suspensions on redemptions, lock-ups, “gates,” “side-pockets,” stepped-up fee provisions or other penalties or restrictions relating to withdrawals or redemptions, except as would not reasonably be likely to have, individually or in the aggregate, a Parent Material Adverse Effect.
(4) Each material agreement providing for investment management services to Parent or any of its Subsidiaries was entered into, and the performance of each investment manager is evaluated, in a commercially reasonable, arm’s length manner and complies with the Investment Advisers Act of 1940 in all material respects.
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Section xiii.. Intellectual Property; IT Systems; Data Security; Privacy Laws.
(1) Section 4.13(a) of the Parent Disclosure Letter sets forth a true and complete list of all registered trademarks, registered copyrights, issued patents, registered domain names and pending applications for any of the foregoing that are material Parent Intellectual Property. Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, Parent or a Subsidiary exclusively owns all Parent Intellectual Property and Parent and its Subsidiaries own, or are licensed to use, all Intellectual Property used in the conduct of the business of Parent and its Subsidiaries as currently conducted (in each case, free and clear of all Liens other than Permitted Liens).
(2) No claims are pending or, to the Knowledge of Parent, threatened in writing (i) challenging the ownership, enforceability, scope, validity or use by Parent or any of its Subsidiaries of any Parent Intellectual Property or (ii) alleging that Parent or any of its Subsidiaries is violating, misappropriating or infringing the Intellectual Property rights of any Person.
(3) Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, (i) no Person is misappropriating, violating, diluting or infringing the rights of Parent or any of its Subsidiaries with respect to any Parent Intellectual Property and (ii) the operation of the business of Parent and its Subsidiaries as currently conducted does not violate, misappropriate, dilute or infringe the Intellectual Property rights of any other Person.
(4) Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, no software included in the Parent Intellectual Property contains or is derived from any software code that is subject to the provisions of any open source software license that (i) requires, or conditions the use or distribution of any such software in the manner currently used or distributed by Parent or any of its Subsidiaries on the disclosure, licensing or distribution of any source code for any portion of such software or (ii) otherwise imposes any material limitation, restriction or condition on the right or ability of Parent and its Subsidiaries to use or distribute any such software in the manner currently used or distributed by Parent or any of its Subsidiaries.
(5) Since January 1, 2019, there has been no failure or malfunction of any Parent IT Systems that caused any material disruption to the business of Parent or any of its Subsidiaries and, except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, the Parent IT Systems that are owned, leased or under the control of Parent or any of its Subsidiaries do not, to the Knowledge of Parent, contain any Malware that would reasonably be expected to disrupt in any material respect the ability of the Parent or any of its Subsidiaries to conduct their businesses or present a material risk of unauthorized access, disclosure, use, corruption, destruction or loss of any Personal Information or other non-public information.
(6) Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, Parent and all of its Subsidiaries have (i) implemented and
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complied with written information security (including cybersecurity), business continuity and backup and infrastructure disaster recovery plans and procedures that are materially consistent with applicable Privacy Laws and (ii) have tested such plans and procedures on a periodic basis, and such plans and procedures have proven reasonably effective upon such testing in all material respects or Parent and its Subsidiaries have remediated or have developed plans to remediate any material issues identified. Since January 1, 2019, to the Knowledge of Parent, there has been no material unauthorized disclosure, use of or access to (1) any Personal Information or other non-public information held by or on behalf of any of Parent or any of its Subsidiaries (other than as would not need to be notified to a data protection authority under applicable Privacy Laws) or (2) the Parent IT Systems.
(7) Except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, since January 1, 2019, Parent and all of its Subsidiaries have implemented and complied with internal privacy policies and procedures that are consistent with applicable Privacy Laws. To the Knowledge of Parent, since January 1, 2019, neither Parent nor any of its Subsidiaries has received a written complaint from any Person in relation to the Processing of Personal Information or a written communication from any Governmental Authority that Parent or any of its Subsidiaries is acting or has acted in material breach of or is otherwise being investigated or is the subject of enforcement action in respect of a breach of any Privacy Laws.
Section xiv.. Anti-Takeover Provisions. No Takeover Law applies to Parent with respect to this Agreement or the Merger.
Section xv.. Contracts.
(1) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of Parent filed pursuant to the Exchange Act since January 1, 2019 of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed. All such filed Contracts shall be deemed to have been made available to the Company.
(2) Except for this Agreement and Contracts described in Section 4.15(a), Section 4.15(b) of the Parent Disclosure Letter sets forth a list of all the Contracts to which Parent or any of its Subsidiaries is a party or by which Parent, any of its Subsidiaries or any of their respective properties or assets is bound as of the date of this Agreement (other than any Parent Plans, Parent Reinsurance Contracts, Parent Insurance Policies, and any contracts, agreements, instruments or commitments that relate to the acquisition, disposition or custody of any Parent Investment Assets) (the Contracts required to be listed in Section 4.15(b) of the Parent Disclosure Letter, together with the Contracts described in Section 4.15(a), collectively, “Parent Material Contracts”) that:
(a) are with an affiliate that would be required to be disclosed under Item 404(a) of Regulation S-K under the Exchange Act;
(b) relate to the formation or management of any joint venture or partnership that is material to the business of Parent and its Subsidiaries, taken as a whole;
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(c) provide for Indebtedness of Parent or any of its Subsidiaries having an outstanding or committed amount in excess of $2,000,000, other than any Indebtedness between or among any of Parent and any of its Subsidiaries and other than any letters of credit;
(d) have been entered into since January 1, 2019, and involve the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business, in each case, for aggregate consideration under such Contract in excess of $2,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of investments made pursuant to the investment policies and guidelines of Parent (the “Parent Investment Guidelines”), or of supplies, products, properties or other assets in the ordinary course of business;
(e) impose material exclusivity (other than non-competition covenants) or non-solicitation obligations on Parent or any of its Subsidiaries (including the Company or any of its Subsidiaries following the Effective Time), except for confidentiality or commercial agreements entered into in the ordinary course of business;
(f) contain provisions that prohibit Parent or any of its Subsidiaries from competing in any material line of business or grant a right of exclusivity to any Person which prevents Parent or any Subsidiary of Parent from entering any material territory, market or field or freely engaging in business anywhere in the world, other than Contracts that can be terminated (including such restrictive provisions) by Parent or any of its Subsidiaries on less than ninety (90) days’ notice without payment by Parent or any Subsidiary of Parent of any material penalty;
(g) involve or would reasonably be likely to involve aggregate payments by or to Parent and/or its Subsidiaries in excess of $2,000,000 in any twelve (12)-month period, other than (x) Contracts that can be terminated by Parent or any of its Subsidiaries on less than ninety (90) days’ notice without payment by Parent or any Subsidiary of Parent of any material penalty or (y) commercial agreements entered into in the ordinary course of business;
(h) include an indemnification obligation of Parent or any of its Subsidiaries with a maximum potential liability in excess of $5,000,000;
(i) are an investment advisory or investment management agreements or arrangements to which Parent or any of its Subsidiaries is a party pursuant to which assets valued at $35,000,000 or greater are managed;
(j) are suretyship contracts, performance bonds, working capital maintenance agreements or other forms of guaranty agreements pursuant to which $1,000,000 or more is guaranteed, other than insurance or reinsurance contracts, letters of credit, surety bonds or other forms of security entered into in the ordinary course of business;
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(k) prohibit the payment of dividends or distributions in respect of the capital stock of Parent or any of its Subsidiaries, prohibit the pledging of the capital stock of Parent or any of its Subsidiaries or prohibit the issuance of any guarantee by Parent or any of its Subsidiaries; or
(l) related to (A) development, assignment, or licensing of Intellectual Property or (B) information technology services (including support, maintenance and hosting agreements), in each case involving or reasonably likely to involve aggregate payments by or to Parent and/or its Subsidiaries in excess of $1,000,000 in any twelve (12)-month period.
(3) Each of the Material Contracts is valid and binding on Parent and each of its Subsidiaries to the extent Parent or such Subsidiary is a party thereto and, to the Knowledge of Parent, each other party thereto and is in full force and effect (subject to the Bankruptcy and Equity Exception), except for such failures to be valid and binding or to be in full force and effect which would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. There is no breach or default under any Parent Material Contract by Parent or any of its Subsidiaries and, to the Knowledge of Parent, no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Parent or any of its Subsidiaries, in each case except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. Except as would not reasonably be likely to have a Parent Material Adverse Effect, neither Parent nor any of its Subsidiaries has received written notice from any other party to a Parent Material Contract that such other party intends to terminate, not renew, or renegotiate the terms of any such Parent Material Contract (except in accordance with the terms thereof).
Section xvi.. Insurance Business.
(1) Section 4.16(a) of the Parent Disclosure Letter contains a true and complete list of each Subsidiary of Parent that conducts the business of insurance or reinsurance (each, a “Parent Insurance Subsidiary”), together with the jurisdiction of domicile thereof. None of the Parent Insurance Subsidiaries is commercially domiciled in any other jurisdiction or is otherwise treated as domiciled in a jurisdiction other than that of its incorporation. Each of the Parent Insurance Subsidiaries is (i) duly licensed or authorized as an insurance company or, where applicable, reinsurance company, in its jurisdiction of incorporation or organization and (ii) duly licensed, authorized or otherwise eligible to transact the business of insurance or reinsurance, as applicable, in each other jurisdiction where it is required to be so licensed, authorized or otherwise eligible in order to conduct its business as currently conducted.
(2) Except as required by Insurance Laws of general applicability and the insurance or reinsurance licenses maintained by the Parent Insurance Subsidiaries, or as set forth in Section 4.16(b) of the Parent Disclosure Letter, there are no material written agreements, memoranda of understanding, commitment letters or similar undertakings binding on Parent or any of its Subsidiaries or to which Parent or any of its Subsidiaries is a party, on one hand, and any Governmental Authority is a party or addressee, on the other hand, or any orders or directives by, or supervisory letters or cease-and-desist orders from, any Governmental
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Authority, nor has Parent nor any of its Subsidiaries adopted any board resolution at the request of any Governmental Authority, in each case specifically with respect to it or any of its Subsidiaries, which (i) limit the ability of Parent or any of the Parent Insurance Subsidiaries to issue Parent Insurance Policies or enter into reinsurance agreements, (ii) require any divestiture of any investment of any Subsidiary, (iii) in any manner relate to the ability of any of Parent’s Subsidiaries to pay dividends, or (iv) otherwise restrict the conduct of business of Parent or any of its Subsidiaries, except, in each of clauses (i) through (iv), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. Parent has made available to the Company, to the extent permitted by applicable Law, true and correct copies of all material correspondence with any applicable Insurance Regulator on or prior to the date of this Agreement since January 1, 2019.
(3) All insurance policies and contracts, together with all binders, slips, certificates, endorsements and riders thereto that are issued by a Parent Insurance Subsidiary (the “Parent Insurance Policies”) and in effect as of the date of this Agreement are, to the extent required under applicable Insurance Laws, on forms and at rates approved by the insurance regulatory authority of the jurisdiction where issued or, to the extent required by applicable Insurance Laws, have been filed with and not objected to by such authority within the period provided for objection, except that would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(4) The Parent Insurance Subsidiaries, and, to the Knowledge of Parent, their respective agents and administrators that wrote, sold, produced, managed or marketed the Parent Insurance Policies for any of the Parent Insurance Subsidiaries, have issued, sold, produced, managed and marketed such Parent Insurance Policies in compliance with applicable Law in the respective jurisdictions in which such products have been sold, except such non-compliance as would not reasonably be likely to have, individually or in the aggregate, a Parent Material Adverse Effect. To the Knowledge of Parent, each agent or administrator (i) was duly licensed as required by Law in the particular jurisdiction in which such agent or administrator wrote, sold, produced, managed or marketed the Parent Insurance Policies (for the type of business wrote, sold, produced, managed or marketed on behalf of the Parent Insurance Subsidiary) except for such failures to be licensed which have been cured, which have been resolved or settled through agreements with applicable Governmental Authorities, which are barred by an applicable statute of limitations and which have not had and would not reasonably be likely to have, individually or in the aggregate, a Parent Material Adverse Effect, and (ii) if required by applicable Law, was duly appointed by the applicable Parent Insurance Subsidiary, except such omissions as have not had and would not reasonably be likely to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section xvii.. Statutory Statements; Examinations.
(1) Except for any failure to file or submit the same that has been cured or resolved to the satisfaction of the applicable Insurance Regulator, since January 1, 2019, each of the Parent Insurance Subsidiaries has filed or submitted all material annual and quarterly statutory financial statements, in each case, required by applicable Insurance Law to be filed with or submitted to
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the appropriate Insurance Regulator of each jurisdiction in which it is licensed, authorized or otherwise eligible with respect to the conduct of the business of insurance or reinsurance, as applicable (collectively, the “Parent Statutory Statements”), except for such failures to file which would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(2) Parent has made available to the Company, to the extent permitted by applicable Law and to the extent required to be filed with the applicable Insurance Regulator on or prior to the date of this Agreement, true and correct copies of all material (i) Parent Statutory Statements as of December 31, 2019 and December 31, 2018, and for the annual periods then ended, each in the form filed with the applicable Insurance Regulator and (ii) examination reports of any insurance regulatory authorities received by Parent relating to the Parent Insurance Subsidiaries since January 1, 2019. The financial statements included in such Parent Statutory Statements were prepared in all material respects in accordance with Applicable SAP, applied on a consistent basis, except as may have been noted therein, during the periods involved, and fairly present in all material respects, to the extent required by and in conformity with Applicable SAP, the statutory financial position of the relevant Parent Insurance Subsidiary as of the respective dates thereof and the results of operations of such Parent Insurance Subsidiary for the respective periods then ended, and no material deficiency has been asserted in writing by any Insurance Regulator with respect to any of such Parent Statutory Statements that has not been cured or otherwise resolved prior to the date hereof. Except as indicated therein, (x) all assets that are reflected on the Parent Statutory Statements comply with all applicable Insurance Laws regulating the investments of the Parent Insurance Subsidiaries and (y) all applicable Insurance Laws with respect to admitted assets and are in amount at least equal to the minimum amount required by applicable Insurance Laws except, in the case of clauses (x) and (y), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. The financial statements included in the Parent Statutory Statements accurately reflect in all material respects the extent to which, under applicable Law and Applicable SAP, the applicable Parent Insurance Subsidiary is entitled to take credit for reinsurance (or any local equivalent concept).
(3) Since January 1, 2019, no material fine or penalty has been imposed on any Parent Insurance Subsidiary by any Insurance Regulator. Since January 1, 2019, neither Parent nor any of its Subsidiaries has received any material adverse remarks, comments or responses on any of the reporting, visits, reviews, questionnaires or surveys, or any other matter from the relevant Insurance Regulator.
Section xviii.. Reinsurance.
(1) As of the date of this Agreement, each reinsurance or retrocession treaty or agreement, slip, binder, cover note or other similar arrangement pursuant to which any Parent Insurance Subsidiary is the cedent or reinsurer (the “Parent Reinsurance Contracts”) is a legal, valid and binding obligation of the applicable Parent Insurance Subsidiary and, to the Knowledge of Parent, each other party thereto, and is enforceable against the applicable Parent Insurance Subsidiary, and, to the Knowledge of Parent, each other party thereto, in accordance with its
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terms (except in each case as may be limited by the Bankruptcy and Equity Exception), except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. Neither the applicable Parent Insurance Subsidiary nor, to the Knowledge of Parent, any of the other parties to any Parent Reinsurance Contract is in material default or material breach or has failed to perform any material obligation under any such Parent Reinsurance Contract, and, to the Knowledge of Parent, there does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both), except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. None of the Parent Insurance Subsidiaries has received written notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of such Parent Insurance Subsidiary under any Parent Reinsurance Contract, except where such default would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. There are no pending or, to the Knowledge of Parent, threatened Actions with respect to any material Parent Reinsurance Contract.
(2) To the Knowledge of Parent, (i) no party to a Parent Reinsurance Contract is insolvent or the subject of a rehabilitation, liquidation, conservatorship, receivership, bankruptcy or similar proceeding, (ii) there are no, and since January 1, 2019 there have been no, disputes under any Parent Reinsurance Contract other than disputes in the ordinary course of business for which adequate loss reserves have been established and (iii) the applicable Parent Insurance Subsidiary is entitled to take credit for reinsurance in the Parent Statutory Statements for all such Parent Reinsurance Contracts with respect to which credit for reinsurance is available and all such amounts recoverable, receivable or payable have been properly recorded in the books and records of account (if so accounted therefor) of the applicable Parent Insurance Subsidiary and are properly reflected in the Parent Statutory Statements and in Parent’s financial statements prepared in accordance with GAAP except, in each of clauses (i) through (iii), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(3) With respect to any Parent Reinsurance Contract for which any Parent Insurance Subsidiary is taking credit on its most recent Parent Statutory Statements, from and after January 1, 2019: (i) there has been no separate written or oral agreement between Parent or any of its Subsidiaries and the assuming reinsurer that would adversely reduce, limit, mitigate or otherwise affect any actual or potential loss to the applicable Parent Insurance Subsidiary that is a party thereto under any such Parent Reinsurance Contract, other than inuring contracts that are explicitly defined in any such Parent Reinsurance Contract; and (ii) the Parent Insurance Subsidiary party thereto complies, and has complied with any applicable requirements set forth in Applicable SAP, except, in each of clauses (i) through (ii), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
Section xix.. Reserves. The statutory policy reserves with respect to the Parent Insurance Policies (the “Parent Reserves”) of each Parent Insurance Subsidiary contained in the Parent Statutory Statements (a) were, except as otherwise noted in the applicable Parent Statutory Statement, determined in all material respects in accordance with Applicable SAP and (b) satisfied the requirements of Applicable SAP and all applicable Law in all material respects,
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except as otherwise noted in such statutory statements and notes thereto included in such statutory statements. Parent has made available to the Company a true and correct copy of all material actuarial analyses of Parent and its Subsidiaries that were prepared since January 1, 2019 by third-party actuaries (or Parent’s internal actuaries if such actuarial analyses were shared with any Governmental Authorities) and are available as of the date of this Agreement. Any information and data furnished by Parent or any of its Subsidiaries to actuaries, independent or otherwise, in connection with the preparation of such actuarial analyses were derived, in all material respects, from the books and records of Parent and its Subsidiaries. Each such actuarial analysis was based upon, in all material respects, a complete and accurate inventory of Parent Insurance Policies in force at the relevant time of preparation and was prepared in all material respects in conformity with generally accepted actuarial principles in effect at such time, consistently applied (except as may be noted therein).
Section xx.. Opinion of Financial Advisor. On or prior to the date of this Agreement, the Parent Board has received the opinion of J.P. Morgan Securities LLC, to the effect that, as of the date of such opinion and subject to the assumptions, qualifications and limitations set forth therein, the aggregate Merger Consideration to be paid by Parent with respect to the Company Shares, the Company Options and the Company’s restricted stock, performance stock awards and restricted stock awards is fair, from a financial point of view, to Parent. It is agreed and understood that such opinion is for the benefit of the Parent Board and may not be relied on by the Company for any purpose.
Section xxi.. Financing.
(1) Concurrently with the execution of this Agreement, Parent has delivered to the Company a true and correct copy of a fully executed debt commitment letter (as amended from time to time after the date hereof in compliance with Section 5.14, the “Debt Commitment Letter”) providing the terms and conditions upon which JPMorgan Chase Bank, N.A. (together with any other person that becomes party to such letter as an arranger or a lender after the date hereof, collectively, the “Lenders”) have committed to provide the full amount of financing described therein (the “Debt Financing”). As of the date of this Agreement, the Debt Commitment Letter is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect, and the Debt Commitment Letter has not been withdrawn, rescinded or terminated or otherwise amended, supplemented or modified in any respect and no waiver has been granted thereunder, no such amendment, supplement, waiver or modification is contemplated except as expressly set forth therein, and, to the Knowledge of Parent, no withdrawal or rescission thereof is contemplated (it being understood that the exercise of “market flex” provisions under the Fee Letter (as defined below) shall not be deemed an amendment, supplement, waiver or modification). The obligations to fund the full amount of the commitments under the Debt Commitment Letter are not subject to any conditions or contingencies other than as set forth in the Debt Commitment Letter delivered to the Company on the date hereof. As of the date hereof, assuming the satisfaction of the conditions precedent set forth in Section 6.01 and Section 6.02, there is no fact or occurrence existing as of the date of
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this Agreement that makes any of the assumptions or statements set forth in the Debt Commitment Letter inaccurate in any material respect or that causes the Debt Commitment Letter to be ineffective with respect to Parent, that in each case could reasonably be expected to constitute a material breach by Parent under the terms and conditions of the Debt Commitment Letter, that precludes or is reasonably likely to preclude the satisfaction of the conditions set forth in the Debt Commitment Letter or that, subject to the consummation of any Other Financing Arrangement (as defined in Section 5.14), could otherwise result in the Debt Financing not being available at or prior to the time that the Closing is required to occur pursuant to the terms of this Agreement. All commitment and other fees required to be paid under the Debt Commitment Letter on or prior to the date hereof have been paid. As of the date of this Agreement, Parent has provided the Company with a complete copy of all fee letters (collectively, the “Fee Letter”) relating to the Debt Commitment Letter, subject to redactions solely of fee amounts and economic and other commercially sensitive terms, none of which redacted provisions could reasonably be expected to affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing.
(2) Concurrently with the execution of this Agreement, Parent has delivered to the Company a true and correct copy of a fully executed equity commitment letter (the “Equity Commitment Letter” and, together with the Debt Commitment Letters, the “Commitment Letters”) providing the terms and conditions upon which the counterparty thereto (the “Equity Investor”) has committed to provide the full amount of financing described therein (the “Equity Financing” and, together with the Debt Financing, the “Financing”). As of the date of this Agreement, the Equity Commitment Letter is a legal, valid and binding obligation of Parent and the Equity Investor, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, the Equity Commitment Letter is in full force and effect, and the Equity Commitment Letter has not been withdrawn, rescinded or terminated or otherwise amended, supplemented or modified in any respect and no waiver has been granted thereunder, no such amendment, supplement, waiver or modification is contemplated except as expressly set forth therein, and, to the Knowledge of Parent, no withdrawal or rescission thereof is contemplated. The obligation to fund the full amount of the commitment under the Equity Commitment Letter is not subject to any conditions or contingencies other than as set forth in the Equity Commitment Letter delivered to the Company on the date hereof. As of the date hereof, assuming the satisfaction of the conditions precedent set forth in Section 6.01 and Section 6.02, there is no fact or occurrence existing as of the date of this Agreement that makes any of the assumptions or statements set forth in the Equity Commitment Letter inaccurate in any material respect or that causes the Equity Commitment Letter to be ineffective with respect to Parent, that could reasonably be expected to constitute a material breach by Parent under the terms and conditions of the Equity Commitment Letter, that precludes or is reasonably likely to preclude the satisfaction of the conditions set forth in the Equity Commitment Letter or that could otherwise result in the Equity Financing not being available on a timely basis at or prior to the time that the Closing is required to occur pursuant to the terms of this Agreement. All commitment and other fees required to be paid under the Equity Commitment Letter on or prior to the date hereof have been paid.
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(3) Subject to its terms and conditions, the Financing, when funded in accordance with the Commitment Letters as in effect on the date hereof, together with the proceeds of any Other Financing Arrangements, will provide Parent with sufficient funds to pay the aggregate amount of Merger Consideration required to be paid in cash, cash consideration payable to holders of Company Awards pursuant to Section 2.03 and any other amount required to be paid in cash in connection with the consummation of the Transactions, including any obligations of the Surviving Company or its Subsidiaries that become due or payable by the Surviving Company or its Subsidiaries in connection with, or as a result of, the Merger, and to pay all related fees and expenses of Parent and Merger Sub (such amount, the “Required Cash Amount”).
(4) For the avoidance of doubt, in no event shall the receipt or availability of any funds or Financing by or to Parent or any Affiliate of Parent be a condition to any of Parent’s or Merger Sub’s obligations hereunder.
Section xxii.. Solvency. Assuming that (a) the representations and warranties of the Company set forth in Article III are true and correct in all material respects, (b) the conditions to the obligation of Parent and Merger Sub to consummate the Merger have been satisfied or waived, (c) all estimates, projections and forecasts of the Company provided to Parent by the Company or its Representatives have been prepared in good faith based upon assumptions that were and are reasonable and (d) immediately prior to the Effective Time, the Company and its Subsidiaries, on a consolidated basis, are Solvent, then at and immediately following the Effective Time and after giving effect to all of the Transactions, including the funding of the Financing and any payment of all or part of the Required Cash Amount, Parent, the Surviving Company and each Subsidiary of the Surviving Company will be, on a consolidated basis, Solvent. Parent and Merger Sub are not entering into the Transactions with the intent to hinder, delay or defraud either present or future creditors.
Section xxiii.. Certain Arrangements. Other than the Company Voting Agreement and the Waiver Agreements, as of the date of this Agreement, there are no Contracts or other arrangements or understandings (whether oral or written) or commitments to enter into Contracts or other arrangements or understandings (whether oral or written) (a) between Parent, Merger Sub or any of their Affiliates, on the one hand, and any member of the Company’s management or the Company Board, on the other hand, that relate in any way to the Company or any of its Subsidiaries or the Transactions, (b) pursuant to which any shareholder of the Company would be entitled to receive consideration of a different amount or nature than the Merger Consideration or pursuant to which any shareholder of the Company agrees to vote to approve the Merger and this Agreement or agrees to vote against any Company Superior Proposal or (c) between Parent, Merger Sub or any of their Affiliates, on the one hand, and any holder of Company Awards, on the other hand, pursuant to which such holder would be entitled to receive consideration of a different amount or nature than the consideration payable pursuant to Section 2.03.
Section xxiv.. Brokers and Other Advisors. Except for J.P. Morgan Securities LLC, the fees and expenses of which will be paid by Parent pursuant to an engagement letter, a copy of which has
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been provided to the Company, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of Parent or any of its Subsidiaries.
Section xxv.. Ownership of Company Shares. None of Parent, Merger Sub or any of their Affiliates beneficially owns (within the meaning of Section 13d-3 of the Exchange Act), or will prior to the Closing Date beneficially own, any Company Shares or any securities that are convertible into or exchangeable or exercisable for Company Shares, or is a party, or will prior to the Closing Date become a party, to any Contract, other arrangement or understanding (whether written or oral) (other than this Agreement and the Company Voting Agreement) for the purpose of acquiring, holding, voting or disposing of any Company Shares.
Section xxvi.. Investment Intention. Parent is acquiring through the Merger the shares of the Surviving Company for its own account, for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof. Parent understands that the shares of the Surviving Company have not been registered under the Securities Act and cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available.
Section xxvii.. Anti-Corruption; Trade Compliance.
(1) In the past five (5) years, Parent and its Subsidiaries and, to the Knowledge of Parent, each of their respective officers, directors, employees, and agents (collectively, the “Parent Relevant Persons”) have not directly or indirectly violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 (as amended) or any other applicable anti-corruption or anti-bribery laws or regulations except as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
(2) In the past five (5) years, the Parent Relevant Persons have not in the course of their actions for, or on behalf of, Parent or any of its Subsidiaries engaged directly or indirectly in transactions: (i) with any of Crimea, Cuba, Iran, North Korea, or Syria; (ii) with any government, country, or other individual or entity that is the target of U.S. economic sanctions administered by OFAC, or the target of any applicable sanctions regime, including any transactions with specially designated nationals or blocked persons designated by OFAC; or (iii) prohibited by any law administered by OFAC, or by any other applicable economic or trade sanctions law applicable to the jurisdictions in which Parent and its Subsidiaries are domiciled or operate, except, in each of clauses (i) through (iii), as would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect.
Section xxviii.. Real Property. Except as would not constitute a Parent Material Adverse Effect, (a) Parent or one of its Subsidiaries has fee simple title to each parcel of real property owned by Parent or any of its Subsidiaries, and a good and valid leasehold interest in each Parent Lease, in each case free and clear of all Liens (other than Permitted Liens) and (b) none of Parent or any of its Subsidiaries has received or given notice of any default under any Parent Lease, which default continues on the date of this Agreement.
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Section xxix.. No Other Representations or Warranties. Each of Parent and Merger Sub acknowledges that it has conducted its own independent investigation and analysis of the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) and prospects of the Company and its Subsidiaries and that it and its Representatives have received access to such books and records, facilities, equipment, Contracts and other assets of the Company and its Subsidiaries that it and its Representatives have desired or requested to review for such purpose and that it and its Representatives have had full opportunity to meet with the management of the Company and its Subsidiaries and to discuss the business, operations, assets, liabilities, results of operations, condition (financial or otherwise) and prospects of the Company and its Subsidiaries. Except for the representations and warranties made by Parent and the Merger Sub in this Article IV, none of Parent, Merger Sub nor any other Person makes any other express or implied representation or warranty with respect to Parent or any of its Subsidiaries or their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding any delivery or disclosure to the Company or any of its Representatives or Affiliates of any documentation, forecasts or other information with respect to any one or more of the foregoing, and the Company acknowledges the foregoing. In particular, and without limiting the generality of the foregoing, none of Parent, Merger Sub or any other Person makes or has made any express or implied representation or warranty to the Company or any of its Representatives or Affiliates with respect to (a) any financial projection, forecast, estimate, budget or prospective information relating to Parent, any of its Subsidiaries or their respective businesses, (b) any judgment based on actuarial principles, practices or analyses by any Person or as to the future satisfaction or outcome of any assumption, (c) the adequacy or sufficiency of the Parent Reserves or its effect on any “line item” or asset, liability or equity amount on any financial or other document, (d) the future profitability of the business of Parent or its Subsidiaries or (e) except for the representations and warranties made by Parent and Merger Sub in this Article IV, any oral or written information presented to the Company or any of its Representatives or Affiliates in the course of their due diligence investigation of Parent or Merger Sub, the negotiation of this Agreement or the course of the Transactions. None of Parent, Merger Sub, their respective Subsidiaries nor any other Person will have or be subject to any liability to the Company or any other Person resulting from the distribution to the Company or its Representatives or Affiliates, or the Company’s or its Representatives’ or Affiliates’ use of, any such information, including any information, documents, projections, forecasts or any other material made available to the Company or its Representatives or Affiliates in certain “data rooms” or management presentations in connection with the Company’s consideration and review of the transactions contemplated hereby, unless any such information is expressly included in a representation or warranty contained in this Article IV. Parent acknowledges that a Contagion Event has had, is having and is likely to continue to have, an impact on the Company, its Subsidiaries and their business and, to the extent that any representation or warranty of the Company herein is or becomes inaccurate or breached as a result of the impact of a Contagion Event or any action or inaction by the Company or any of its Subsidiaries, including their compliance with any directive, order, policy, guidance or recommendation by any Governmental Authority or any disaster plan of the Company or any change in applicable Law as a result of a Contagion Event, then such representation or warranty shall not be deemed breached for any purpose under this Agreement. PARENT acknowledges that, if the Closing occurs, PARENT shall acquire the assets OF THE COMPANY AND ITS SUBSIDIARIES without any
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representation or warranty as to merchantability or fitness for any particular purpose, in an “as is” condition and on a “where is” and “with all faults” basis and without any warranty of non-infringement, except as expressly set forth in ARTICLE III.
Article V.

Additional Covenants and Agreements
Section i.. Conduct of Business.
(1) During the period from the date of this Agreement until the Closing or earlier termination of this Agreement, except as otherwise permitted by, or reasonably necessary to effectuate the transactions contemplated by, this Agreement, as set forth in Section 5.01 of the Company Disclosure Letter, in response to or related to any Contagion Event or any change in applicable Law or policy as a result of or related to any Contagion Event, as required by applicable Law, Order, fiduciary obligations, existing Contracts or the rules or regulation of NASDAQ or with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned), (x) the Company shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to conduct their respective businesses and operations in the ordinary course of business in all material respects, (y) the Company shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to preserve, in all material respects, its and each of its Subsidiaries’ business organizations substantially intact and preserve existing relationships with key customers, cedents, brokers, reinsurance providers, regulators, rating agencies, officers, employees and other Persons with whom the Company or any of its Subsidiaries have significant business relationships, and (z) the Company shall not and shall cause each of its Subsidiaries not to:
(a) issue or authorize the issuance of any equity securities in the Company or any Subsidiary of the Company, or securities convertible into, or exchangeable or exercisable for, any such equity securities, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than as required pursuant to the vesting, settlement or exercise of Company Awards or other equity awards (A) outstanding on the date of this Agreement in accordance with the terms of the applicable Company Award, other equity award or Company Right in effect on the date of this Agreement or (B) granted after the date of this Agreement in accordance with this Agreement;
(b) establish a record date for, declare, set aside or pay, or propose to declare, set aside or pay, any dividends on or make other distributions in respect of any of its share capital, options, warrants or other equity or voting interests (whether in cash, shares or property or any combination thereof), except for dividends or other distributions paid by a direct or indirect wholly owned Subsidiary to the Company or its Subsidiaries;
(c) adjust, split, combine, subdivide or reclassify any of its share capital or other equity or voting interests, or any other securities in respect of, in lieu of or in substitution for, shares of its share capital or other equity or voting interests;
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(d) (A) amend or waive the material terms of any option, warrant or other right to acquire shares of its share capital or (B) repurchase, redeem or otherwise acquire any shares of its (or any of its Subsidiaries’) share capital or any securities convertible into or exercisable for any shares of its (or any of its Subsidiaries’) share capital or other equity or voting interests, other than (1) repurchases, redemptions or acquisitions by a wholly owned Subsidiary of share capital or such other securities or equity or voting interests, as the case may be, of another of its wholly owned Subsidiaries or (2) the withholding of shares to satisfy applicable tax withholding requirements upon the exercise or settlement of any equity-based compensation award;
(e) incur, assume, guarantee or otherwise become responsible for any Indebtedness, except for (A) any borrowings under the Company’s existing credit facilities in an amount not in excess of $70,000,000 in the aggregate, consisting of $35,000,000 to be used for interest servicing and $35,000,000 to be used for run rate holding company operating expenses; provided that borrowings under this Section 5.01(a)(v)(A) shall be permitted only to the extent dividends from the Company’s Subsidiaries are unavailable or insufficient to pay such amounts, (B) draws under existing letters of credit in order to pay catastrophe (CAT) claims, (C) issuing or posting letters of credit as collateral for reinsurance arrangements and (D) Indebtedness incurred in connection with the refinancing upon expiration of the Company’s existing credit facilities;
(f) sell or lease to any Person, in a single transaction or series of related transactions, any of its owned properties or assets whose value or purchase price exceeds $1,000,000 individually or $5,000,000 in the aggregate, except (A) dispositions of obsolete, surplus or worn out assets or assets that are no longer used or useful in the conduct of the business of the Company or any of its Subsidiaries, (B) transfers among the Company and its Subsidiaries, (C) leases and subleases of real property owned by the Company or its Subsidiaries, (D) Company Investment Assets sold or leased in the ordinary course of business, (E) pursuant to Contracts in effect on the date of this Agreement (or entered into after the date of this Agreement in compliance with this Agreement) or (F) other transactions in the ordinary course of business or consistent with the Company Investment Guidelines;
(g) (A) acquire any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or substantially all of the assets of any of the foregoing, except for Company Investment Assets acquired in the ordinary course of business, or (B) make any loans, advances or capital contributions to, or investments in, any other person (other than any Subsidiary of the Company) other than (1) loans made in the ordinary course of business not to exceed $5,000,000 in the aggregate, (2) advances for expenses incurred in the ordinary course of business, (3) as relates to Company Investment Assets made in the ordinary course of business and (4) in connection with transactions permitted pursuant to Section 5.01(a)(viii);
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(h) except as permitted under Section 5.01(a)(vii), make any acquisition (including by merger or amalgamation) of the share capital or capital stock or a material portion of the assets of any other Person, in each case for consideration that is individually in excess of $1,000,000, or in the aggregate of $5,000,000;
(i) except as required pursuant to the terms of any Company Plan as in effect on the date of this Agreement or applicable Law, (A) grant to any employee, director, officer or other service provider any increase in salary or bonus compensation opportunity (other than increases in base salary and corresponding increases in annual bonus opportunities for employees who do not participate in the Company Severance Plan in the ordinary course of business and consistent with past practice), (B) grant to or provide any employee, director, officer or other service provider any severance pay, retention or transaction bonuses or termination pay or benefits, (C) establish, adopt, enter into or amend any Company Plan or collective bargaining agreement in a manner that materially increases the cost to the Company or any of its Subsidiaries above current budgeted levels, (D) enter into or amend any employment, consulting, severance or termination plan, agreement or arrangement with any employee, director, officer or other service provider of the Company or any of its Subsidiaries or (E) take any action to accelerate the time of payment, vesting or funding of compensation or benefits under any Company Plan; provided, however, that the foregoing shall not restrict the Company or any of its Subsidiaries from (1) entering into or making available to newly hired employees or to current employees who are not officers or directors in the context of promotions based on job performance or workplace requirements, in each case, in the ordinary course of business, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions, or consistent with the compensation and benefits of the then-current employee whom such newly hired or promoted employee is engaged to replace or succeed (in each case, excluding equity-based and cash-based incentive grants, transaction or retention benefits, or change in control enhancements to severance entitlements), (2) taking any of the foregoing actions to comply with, satisfy Tax-qualification requirements under, or avoid the imposition of Tax under, the Code and any applicable guidance thereunder, or other applicable Law or (3) making immaterial changes in the ordinary course of business to nondiscriminatory health and welfare plans available to all employees generally;
(j) (A) materially alter, change or depart from any underwriting, claims administration, loss control, investment, reserving, actuarial, reinsurance, retrocession or financial accounting policies, practices or principles of the Company or its Subsidiaries, in each case, in effect as of the date of this Agreement, except (x) insofar as may be necessary due to a change in applicable Law, GAAP or Applicable SAP or (y) as may be required by any Governmental Authority or (B) enter into any Contract providing for the investment of any assets of the Company or invest any Company Investment Assets, in each case, that cannot be cancelled or unwound upon ninety (90) days or less prior notice without penalty, make whole or other amounts becoming due;
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(k) (A) amend the Company Organizational Documents or (B) amend in any material respect the comparable organizational documents of any of the Subsidiaries of the Company in a manner that would reasonably be likely to prevent or to impede, interfere with, hinder or delay in any material respect the consummation of the Transactions;
(l) adopt a plan or agreement of complete or partial liquidation or dissolution, merger, amalgamation, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than dormant Subsidiaries or, with respect to any merger, amalgamation or consolidation, other than among the Company and any wholly owned Subsidiary of the Company or among wholly owned Subsidiaries of the Company);
(m) except to the extent relating to any shareholder litigation, which shall be solely governed by Section 5.12, settle any material Action (other than claims under the Company Insurance Policies in the ordinary course of business) made or pending against the Company or any of its Subsidiaries, or any of their respective directors or officers in their capacities as such, other than (A) Actions related to Company Insurance Policies or Company Reinsurance Contracts within applicable policy, contractual or reinsurance limits, as applicable, or (B) (1) for an amount not to exceed, for any such settlement individually, $1,000,000 (after taking into account the amount reserved for such matters by the Company or amounts covered by insurance) and (2) that would not impose equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries or any of its or their officers or directors;
(n) (A) make any material Tax election that is inconsistent with prior Tax Returns; (B) settle or compromise any audit or other proceeding relating to a material amount of Tax; (C) make any material change to any of its Tax accounting methods; (D) amend, refile or otherwise revise any material previously filed Tax Return; (E) request a ruling relating to a material amount of Taxes, (F) enter into or terminate any agreement with any Tax authority with respect to a material amount of Taxes; or (G) prepare any Tax Return in a manner materially inconsistent with past practices;
(o) (A) enter into any new line of business in which the Company and its Subsidiaries do not operate as of the date of this Agreement or (B) withdraw from any existing line of business;
(p) except in the ordinary course of business or as permitted by Section 5.1(a)(ix), enter into, amend or modify any Contract with an Affiliate or any of its Affiliates’ directors, officers or employees; or
(q) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.
(2) During the period from the date of this Agreement until the Closing or earlier termination of this Agreement, except as otherwise permitted by, or reasonably necessary to
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effectuate the transactions contemplated by, this Agreement, as set forth in Section 5.01 of the Parent Disclosure Letter, in response to or related to any Contagion Event or any change in applicable Law or policy as a result of or related to any Contagion Event, as required by applicable Law, Order, fiduciary obligations, existing Contracts or the rules or regulation of the NYSE or with the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), (x) Parent shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to conduct their respective businesses and operations in the ordinary course of business in all material respects, (y) Parent shall, and shall cause its Subsidiaries to, use its and their reasonable best efforts to preserve, in all material respects, its and each of its Subsidiaries’ business organizations substantially intact and preserve existing relationships with key customers, cedents, brokers, reinsurance providers, regulators, rating agencies, officers, employees and other Persons with whom Parent or any of its Subsidiaries have significant business relationships, and (z) Parent shall not and shall cause each of its Subsidiaries not to:
(a) issue or authorize the issuance of any equity securities in Parent or any Subsidiary of Parent, or securities convertible into, or exchangeable or exercisable for, any such equity securities, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than (A) as required pursuant to the vesting, settlement or exercise of Parent Awards or other equity awards (x) outstanding on the date of this Agreement in accordance with the terms of the applicable Parent Award, other equity award or Parent Right in effect on the date of this Agreement or (y) granted after the date of this Agreement in accordance with this Agreement or (B) equity securities issued for cash to fund, in whole or in part, the Merger Consideration or other amounts payable in connection with the transactions contemplated by this Agreement;
(b) establish a record date for, declare, set aside or pay, or propose to declare, set aside or pay, any dividends on or make other distributions in respect of any of its share capital, options, warrants or other equity or voting interests (whether in cash, shares or property or any combination thereof), except for dividends or other distributions paid by a direct or indirect wholly owned Subsidiary to Parent or its Subsidiaries;
(c) adjust, split, combine, subdivide or reclassify any of its share capital or other equity or voting interests, or any other securities in respect of, in lieu of or in substitution for, shares of its share capital or other equity or voting interests;
(d) (A) amend or waive the material terms of any option, warrant or other right to acquire shares of its share capital or (B) repurchase, redeem or otherwise acquire any shares of its (or any of its Subsidiaries’) share capital or any securities convertible into or exercisable for any shares of its (or any of its Subsidiaries’) share capital or other equity or voting interests, other than (1) repurchases, redemptions or acquisitions by a wholly owned Subsidiary of share capital or such other securities or equity or voting interests, as the case may be, of another of its wholly owned Subsidiaries or (2) the
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withholding of shares to satisfy applicable tax withholding requirements upon the exercise or settlement of any equity-based compensation award;
(e) incur, assume, guarantee or otherwise become responsible for any Indebtedness, except for (A) any borrowings under Parent’s existing credit facilities and any trade letters of credit and borrowings otherwise made in the ordinary course of business in an amount not in excess of $50,000,000 in the aggregate and (B) Indebtedness incurred as part of the Debt Financing or otherwise to fund, in whole or in part, the Merger Consideration or other amounts payable in connection with the transactions contemplated by this Agreement;
(f) sell or lease to any Person, in a single transaction or series of related transactions, any of its owned properties or assets whose value or purchase price exceeds $1,000,000 individually or $5,000,000 in the aggregate, except (A) dispositions of obsolete, surplus or worn out assets or assets that are no longer used or useful in the conduct of the business of Parent or any of its Subsidiaries, (B) transfers among Parent and its Subsidiaries, (C) leases and subleases of real property owned by Parent or its Subsidiaries, (D) Parent Investment Assets sold or leased in the ordinary course of business, (E) pursuant to Contracts in effect on the date of this Agreement (or entered into after the date of this Agreement in compliance with this Agreement) or (F) other transactions in the ordinary course of business or consistent with the Parent Investment Guidelines;
(g) (A) acquire any business or any corporation, partnership, joint venture, association or other business organization or division thereof, or substantially all of the assets of any of the foregoing, except for Parent Investment Assets acquired in the ordinary course of business, or (B) make any loans, advances or capital contributions to, or investments in, any other person (other than any Subsidiary of Parent) other than (1) loans made in the ordinary course of business not to exceed $5,000,000 in the aggregate, (2) advances for expenses incurred in the ordinary course of business, (3) as relates to Parent Investment Assets made in the ordinary course of business and (4) in connection with transactions permitted pursuant to Section 5.01(b)(viii);
(h) except as permitted under Section 5.01(b)(vii), make any acquisition (including by merger or amalgamation) of the share capital or capital stock or a material portion of the assets of any other Person, in each case for consideration that is individually in excess of $1,000,000, or in the aggregate of $5,000,000;
(i) except as required pursuant to the terms of any Parent Plan as in effect on the date of this Agreement or applicable Law, (A) grant to any employee, director, officer or other service provider any increase in salary or bonus compensation opportunity (other than increases in base salary and corresponding increases in annual bonus opportunities for employees other than those who are parties to employment agreements with Parent that provide for severance entitlements in excess of such entitlements provided by applicable Law in the ordinary course of business and consistent with past practice), (B) grant to or provide any employee, director, officer or other service provider any
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severance pay, retention or transaction bonuses or termination pay or benefits, (C) establish, adopt, enter into or amend any Parent Plan or collective bargaining agreement in a manner that materially increases the cost to the Parent or any of its Subsidiaries above current budgeted levels, (D) enter into or amend any employment, consulting, severance or termination plan, agreement or arrangement with any employee, director, officer or other service provider of Parent or any of its Subsidiaries or (E) take any action to accelerate the time of payment, vesting or funding of compensation or benefits under any Parent Plan; provided, however, that the foregoing shall not restrict Parent or any of its Subsidiaries from (1) entering into or making available to newly hired employees or to current employees who are not officers or directors in the context of promotions based on job performance or workplace requirements, in each case, in the ordinary course of business, plans, agreements, benefits and compensation arrangements that have a value that is consistent with the past practice of making compensation and benefits available to newly hired or promoted employees in similar positions, or consistent with the compensation and benefits of the then-current employee whom such newly hired or promoted employee is engaged to replace or succeed (in each case, excluding equity-based and cash-based incentive grants, transaction or retention benefits, or change in control enhancements to severance entitlements), (2) taking any of the foregoing actions to comply with, satisfy Tax-qualification requirements under, or avoid the imposition of Tax under, the Code and any applicable guidance thereunder, or other applicable Law or (3) making immaterial changes in the ordinary course of business to nondiscriminatory health and welfare plans available to all employees generally;
(j) materially alter, change or depart from any underwriting, claims administration, loss control, investment, reserving, actuarial, reinsurance, retrocession or financial accounting policies, practices or principles of Parent or its Subsidiaries, in each case, in effect as of the date of this Agreement, except (x) insofar as may be necessary due to a change in applicable Law, GAAP or Applicable SAP or (y) as may be required by any Governmental Authority;
(k) (A) amend the Parent Organizational Documents or (B) amend in any material respect the comparable organizational documents of any of the Subsidiaries of Parent in a manner that would reasonably be likely to prevent or to impede, interfere with, hinder or delay in any material respect the consummation of the Transactions;
(l) adopt a plan or agreement of complete or partial liquidation or dissolution, merger, amalgamation, consolidation, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries (other than dormant Subsidiaries or, with respect to any merger, amalgamation or consolidation, other than among Parent and any wholly owned Subsidiary of Parent or among wholly owned Subsidiaries of Parent);
(m) except to the extent relating to any shareholder litigation, which shall be solely governed by Section 5.12, settle any material Action (other than claims under the Parent Insurance Policies in the ordinary course of business) made or pending against Parent or any of its Subsidiaries, or any of their respective directors or officers in their
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capacities as such, other than (A) Actions related to Parent Insurance Policies or Parent Reinsurance Contracts within applicable policy, contractual or reinsurance limits, as applicable or (B) (1) for an amount not to exceed, for any such settlement individually, $1,000,000 (after taking into account the amount reserved for such matters by Parent or amounts covered by insurance) and (2) that would not impose equitable relief on, or the admission of wrongdoing by, Parent or any of its Subsidiaries or any of its or their officers or directors;
(n) (A) make any material Tax election that is inconsistent with prior Tax Returns; (B) settle or compromise any audit or other proceeding relating to a material amount of Tax; (C) make any material change to any of its Tax accounting methods; (D) amend, refile or otherwise revise any material previously filed Tax Return; (E) request a ruling relating to a material amount of Taxes, (F) enter into or terminate any agreement with any Tax authority with respect to a material amount of Taxes; or (G) prepare any Tax Return in a manner materially inconsistent with past practices;
(o) (A) enter into any new line of business in which Parent and its Subsidiaries do not operate as of the date of this Agreement or (B) withdraw from any existing line of business;
(p) except in the ordinary course of business or as permitted by Section 5.1(b)(ix), enter into, amend or modify any Contract with an Affiliate or any of its Affiliates’ directors, officers or employees; or
(q) authorize any of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.
(3) Nothing contained in this Agreement is intended to give Parent or the Company, directly or indirectly, the right to control or direct such other party’s or their respective Subsidiaries’ respective operations prior to the Effective Time. Prior to the Effective Time, Parent, on the one hand, and the Company, on the other hand, shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their and their respective Subsidiaries’ respective operations.
Section ii.. No Solicitation by the Company; Change in Recommendation.
(1) Except as permitted by this Section 5.02, from and after the date hereof, the Company shall, and shall cause each of its Subsidiaries, directors, executive officers and employees to, and shall direct its other Representatives to, (i) cease any discussions or negotiations with any Persons that may be ongoing with respect to a Company Alternative Proposal (and shall promptly require any such Person to return or destroy, in accordance with the terms of the applicable confidentiality agreement, any information furnished by or on behalf of the Company and shall take commercially reasonable action to secure its rights and ensure the performance of any such Person’s obligations under any applicable confidentiality agreement) and (ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (A) solicit, initiate, induce or knowingly facilitate the
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making of any proposal that constitutes, or would reasonably be likely to lead to, a Company Alternative Proposal or (B) engage in or otherwise participate in any discussions or negotiations with any other Person regarding, or furnish to any other Person any material non-public information for the purpose of facilitating, a Company Alternative Proposal. The Company shall promptly terminate access by any Person to any physical or electronic data rooms relating to any Company Alternative Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.02 and shall be liable for any action taken by any Subsidiary, director, executive officer or employee of the Company that, if taken by the Company, would constitute a breach of this Section 5.02.
(2) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary, if at any time following the date hereof and prior to the Company obtaining the Company Shareholder Approval the Company receives a Company Alternative Proposal, which Company Alternative Proposal did not result from a breach of this Section 5.02, then (i) the Company and its Representatives may contact such Person or group of Persons making the Company Alternative Proposal to clarify the terms and conditions thereof or to request that any Company Alternative Proposal made orally be made in writing and (ii) if the Company Board determines, in good faith after consultation with its financial advisors and outside legal counsel, that such Company Alternative Proposal constitutes or would reasonably be likely to lead to a Company Superior Proposal, then the Company and its Representatives may (x) furnish information with respect to the Company and its Subsidiaries to the Person or group of Persons making such Company Alternative Proposal; provided that the Company will not furnish any non-public information regarding the Company or its Subsidiaries to such Person or group of Persons without first entering into an Acceptable Company Confidentiality Agreement with the Person or group of Persons making the Company Alternative Proposal; provided, further, that the Company shall promptly provide to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided to any Person to the extent access to such information was not previously provided to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Company Alternative Proposal. In no event may the Company or any of its Subsidiaries or any of their Representatives directly or indirectly reimburse or pay, or agree to reimburse or pay, the fees, costs or expenses of, or provide or agree to provide any compensation to, any Person or group of Persons (or any of its or their Representatives or potential financing sources) making a Company Alternative Proposal, unless such payment or reimbursement is pursuant to a Contract in effect as of the date of this Agreement.
(3) The Company shall as promptly as practicable (and in any event within twenty-four (24) hours), notify Parent in the event that the Company or any of its Subsidiaries or its or their Representatives receives a Company Alternative Proposal and shall disclose to Parent the material terms and conditions of any such Company Alternative Proposal (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and the name of the Person or group of Persons making such Company Alternative Proposal. The Company shall provide all information as is reasonably necessary to keep Parent informed on a current basis of any material developments with respect to, and the status and terms of, any such Company Alternative Proposal (including any material changes thereto). For the avoidance
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of doubt, all information provided to Parent pursuant to this Section 5.02 will be subject to the terms of the Confidentiality Agreement.
(4) Neither the Company Board nor any committee thereof shall (i) (A) qualify, withhold or withdraw (or modify in a manner adverse to Parent) the Company Board Recommendation or fail to include the Company Board Recommendation in the Joint Proxy Statement, (B) if a Company Alternative Proposal has been publicly disclosed, fail to publicly recommend against such Company Alternative Proposal or fail to reaffirm the Company Board Recommendation within ten (10) Business Days of the request of Parent to take such action or (C) approve, adopt or recommend any Company Alternative Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) authorize, cause or permit the Company or any of its Subsidiaries to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, amalgamation agreement or other similar agreement related to any Company Alternative Proposal, other than any Acceptable Company Confidentiality Agreement pursuant to Section 5.02(b) (each, a “Company Acquisition Agreement”). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to the time the Company Shareholder Approval is obtained, the Company Board may, if the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, if the Company has received a Company Superior Proposal, make a Company Adverse Recommendation Change; provided that (x) the Company delivers to Parent a written notice (a “Company Notice”) advising Parent that the Company intends to take such action and specifying the reasons therefor, including the material terms and conditions of such Company Alternative Proposal and (y) at or after 5:00 p.m., Bermuda time, on the third Business Day following the day on which the Company delivered the Company Notice, during which such period the Company shall have negotiated, and caused any of its applicable Representatives to negotiate, in good faith with Parent with respect to any changes to the terms of this Agreement proposed by Parent, the Company Board, determines in good faith (after consultation with its outside legal counsel and financial advisor) that such Company Alternative Proposal continues to constitute a Company Superior Proposal (it being understood and agreed that any change in the financial terms or any other material amendment to the terms and conditions of such Company Superior Proposal will require a new Company Notice and a new two (2) Business Day period). In determining whether to make a Company Adverse Recommendation Change, the parties acknowledge and agree that Company Board will take into account any changes to the terms of this Agreement committed to in writing, and not withdrawn, by Parent by 5:00 p.m., Bermuda time, on the last day of the three (3) Business Day period or two (2) Business Day period, as applicable, following a Company Notice.
(5) Other than in connection with a Company Superior Proposal (which shall be subject to Section 5.02(d) and shall not be subject to this Section 5.02(e)), nothing in this Agreement shall prohibit or restrict the Company Board, prior to the time the Company Shareholder Approval is obtained, from making a Company Adverse Recommendation Change if there has been an Intervening Event and if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure of the Company
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Board to effect a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that:
(a) the Company shall give Parent a written notice of its intention to take such action (it being agreed that neither the delivery of such notice by the Company nor any public announcement that the Company Board is considering making a Company Adverse Recommendation Change under applicable Law shall constitute a Company Adverse Recommendation Change) and providing a reasonably detailed description of such Intervening Event;
(b) the Company shall give Parent at least three (3) Business Days following receipt by Parent of such notice to propose revisions to the terms of this Agreement (or make another proposal) and shall negotiate in good faith with Parent with respect to such proposed revisions or other proposal, if any, during such three (3)-Business Day period; and
(c) following expiration of such three (3) Business Day period, the Company Board again makes the determination set forth in Section 5.02(e).
(6) Nothing contained in this Section 5.02 or elsewhere in this Agreement shall prohibit the Company or the Company Board or any committee thereof from (i) taking and disclosing to shareholders of the Company a position or communication contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (it being understood that any such communication to the shareholders of the Company shall not be deemed to be a Company Adverse Recommendation Change) or (ii) making any disclosure or communication to shareholders of the Company if the Company Board determines in good faith, based on the written advice of its outside legal counsel, that the failure to make such disclosure or communication would be inconsistent with the directors’ fiduciary duties under applicable Law.
(7) As used in this Agreement, “Acceptable Company Confidentiality Agreement” shall mean any confidentiality agreement entered into by the Company from and after the date of this Agreement that contains terms that are not less favorable in all matters to the Company than those contained in the Confidentiality Agreement and does not prohibit the Company from complying with its obligations set forth in this Section 5.02.
(8) As used in this Agreement, “Company Alternative Proposal” shall mean, other than the Transactions, any inquiry, proposal (whether or not in writing) or offer from any Person or group (other than Parent and its Subsidiaries) relating to, in a single transaction or series of related transactions, any direct or indirect (i) acquisition (including any reinsurance or retrocession transaction, or transaction that has similar risk transfer effects) that, if consummated, would result in any Person or group (other than the Existing Shareholder) owning (x) 100% of the Company Reserves, revenues or net income of the Company and its Subsidiaries, taken as a whole, or (y) 15% or more of the consolidated assets (based on the fair market value thereof, as determined in good faith by the Company Board) of the Company and its Subsidiaries, taken as a whole, (ii) acquisition of Company Shares representing 15% or more of the outstanding
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Company Shares (other than by the Existing Shareholder), (iii) merger, amalgamation, consolidation, share exchange, share purchase, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries pursuant to which such Person or group (or the shareholders of any Person) (other than the Existing Shareholder) would acquire, directly or indirectly, 15% or more of the aggregate voting power of the Company or of the surviving entity in such transaction or the resulting direct or indirect parent of the Company or such surviving entity or (iv) any combination of the foregoing, whether in a single transaction or a series of related transactions; provided, however, that “Company Alternative Proposal” shall not include any inquiry, proposal (whether or not in writing) or offer (x) with respect to any restructuring, reorganization or recapitalization of CMB or other similar transaction involving CMB or its securityholders that does not result in a sale of capital stock, assets or businesses of the Company or (y) made mutually by Parent, CMB and the Company, or by the Company with the consent of Parent and CMB, as part of or in connection with, the negotiation or settlement of any claims brought Series B Preferred Shareholders with respect to the rights or obligations of the Series B Preferred Shareholders or the Company relating to the Company Preference Shares.
(9) As used in this Agreement, “Company Superior Proposal” shall mean any bona fide written Company Alternative Proposal that did not result from a breach of Section 5.02 and that the Company Board has determined in its good faith judgment, after consultation with its financial advisors and outside legal counsel, and taking into account all relevant (in the view of the Company Board) legal, regulatory, financial and other aspects of such proposal (including the conditionality and the timing and the likelihood of consummation of such proposal), would be more favorable to the Company and its shareholders than the Merger; provided that, for purposes of the definition of “Company Superior Proposal”, the references to “15%” in the definition of Company Alternative Proposal shall be deemed to be references to “50%”.
(10) As used in this Agreement, “Intervening Event” shall mean any event, occurrence, fact, condition or change occurring or arising after the date of this Agreement that (i) was not known to, or reasonably foreseeable by, the Company Board prior to the execution of this Agreement, which event, occurrence, fact, condition or change becomes known to the Company prior to the receipt of the Company Shareholder Approval and (ii) does not relate to (A) a Company Alternative Proposal or (B) any (x) changes in the market price or trading volume of the Company’s securities or (y) the Company meeting, failing to meet or exceeding published or unpublished revenue or earnings projections, in each case in and of itself (it being understood that the facts or occurrences giving rise or contributing to such change or event may be taken into account when determining whether an Intervening Event has occurred).
(11) As used in this Section 5.02, Section 5.03 and Section 5.04, “group” has the meaning ascribed to it in Rule 13d-5 promulgated under the Exchange Act.
Section iii.. No Solicitation by Parent; Change in Recommendation.
(1) Except as permitted by this Section 5.03, from and after the date hereof, Parent shall, and shall cause each of its Subsidiaries, directors, executive officers and employees to, and shall direct its other Representatives to, (i) cease any discussions or negotiations with any
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Persons that may be ongoing with respect to a Parent Alternative Proposal (and shall promptly require any such Person to return or destroy, in accordance with the terms of the applicable confidentiality agreement, any information furnished by or on behalf of Parent and shall take all commercially reasonable action to secure its rights and ensure the performance of any such Person’s obligations under any applicable confidentiality agreement) and (ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (A) solicit, initiate, induce or knowingly facilitate the making of any proposal that constitutes, or would reasonably be likely to lead to, a Parent Alternative Proposal or (B) engage in or otherwise participate in any discussions or negotiations with any other Person regarding, or furnish to any other Person any material non-public information for the purpose of facilitating, a Parent Alternative Proposal. Parent shall promptly terminate access by any Person to any physical or electronic data rooms relating to any Parent Alternative Proposal. Parent shall promptly inform its Representatives of Parent’s obligations under this Section 5.03 and shall be liable for any action taken by any Subsidiary, director, executive officer or employee of Parent that, if taken by Parent, would constitute a breach of this Section 5.03.
(2) Notwithstanding anything contained in Section 5.03(a) or any other provision of this Agreement to the contrary, if at any time following the date hereof and prior to Parent obtaining the Parent Shareholder Approval Parent receives a Parent Alternative Proposal, which Parent Alternative Proposal did not result from a breach of this Section 5.03, then (i) Parent and its Representatives may contact such Person or group of Persons making the Parent Alternative Proposal to clarify the terms and conditions thereof or to request that any Parent Alternative Proposal made orally be made in writing and (ii) if the Parent Board determines, in good faith after consultation with its financial advisors and outside legal counsel, that such Parent Alternative Proposal constitutes or would reasonably be likely to lead to a Parent Superior Proposal, then Parent and its Representatives may (x) furnish information with respect to Parent and its Subsidiaries to the Person or group of Persons making such Parent Alternative Proposal; provided that Parent will not furnish any non-public information regarding Parent or its Subsidiaries to such Person or group of Persons without first entering into an Acceptable Parent Confidentiality Agreement with the Person or group of Persons making the Parent Alternative Proposal; provided, further, that Parent shall promptly provide to the Company any material non-public information concerning Parent or any of its Subsidiaries that is provided to any Person to the extent access to such information was not previously provided to the Company or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Parent Alternative Proposal. In no event may Parent or any of its Subsidiaries or any of their Representatives directly or indirectly reimburse or pay, or agree to reimburse or pay, the fees, costs or expenses of, or provide or agree to provide any compensation to, any Person or group of Persons (or any of its or their Representatives or potential financing sources) making a Parent Alternative Proposal, unless such payment or reimbursement is pursuant to a Contract in effect as of the date of this Agreement.
(3) Parent shall as promptly as practicable (and in any event within twenty-four (24) hours) notify the Company in the event that Parent or any of its Subsidiaries or its or their Representatives receives a Parent Alternative Proposal and shall disclose to the Company the material terms and conditions of any such Parent Alternative Proposal (including, if applicable,
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copies of any written requests, proposals or offers, including proposed agreements) and the name of the Person or group of Persons making such Parent Alternative Proposal. Parent shall provide all information as is reasonably necessary to keep the Company informed on a current basis of any material developments with respect to, and the status and terms of, any such Parent Alternative Proposal (including any material changes thereto). For the avoidance of doubt, all information provided to the Company pursuant to this Section 5.03 will be subject to the terms of the Confidentiality Agreement.
(4) Neither the Parent Board nor any committee thereof shall (i) (A) qualify, withhold or withdraw (or modify in a manner adverse to the Company) the Parent Board Recommendation or fail to include the Parent Board Recommendation in the Joint Proxy Statement, (B) if a Parent Alternative Proposal has been publicly disclosed, fail to publicly recommend against such Parent Alternative Proposal or fail to reaffirm the Parent Board Recommendation within ten (10) Business Days of the request of the Company to take such action or (C) approve, adopt or recommend any Parent Alternative Proposal (any action described in this clause (i) being referred to as a “Parent Adverse Recommendation Change”) or (ii) authorize, cause or permit Parent or any of its Subsidiaries to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, amalgamation agreement or other similar agreement related to any Parent Alternative Proposal, other than any Acceptable Parent Confidentiality Agreement pursuant to Section 5.03(b) (each, a “Parent Acquisition Agreement”). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to the time the Parent Shareholder Approval is obtained, the Parent Board may, if the Parent Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, if Parent has received a Parent Superior Proposal, make a Parent Adverse Recommendation Change; provided that (x) Parent delivers to the Company a written notice (a “Parent Notice”) advising the Company that Parent intends to take such action and specifying the reasons therefor, including the material terms and conditions of such Parent Alternative Proposal and (y) at or after 5:00 p.m., Bermuda time, on the third Business Day following the day on which Parent delivered the Parent Notice, during which such period Parent shall have negotiated, and caused any of its applicable Representatives to negotiate, in good faith with the Company with respect to any changes to the terms of this Agreement proposed by the Company, the Parent Board, determines in good faith (after consultation with its outside legal counsel and financial advisor) that such Parent Alternative Proposal continues to constitute a Parent Superior Proposal (it being understood and agreed that any change in the financial terms or any other material amendment to the terms and conditions of such Parent Superior Proposal will require a new Parent Notice and a new two (2) Business Day period). In determining whether to make a Parent Adverse Recommendation Change, the Parent Board will take into account any changes to the terms of this Agreement committed to in writing, and not withdrawn, by the Company by 5:00 p.m., Bermuda time, on the last day of the three (3) Business Day period or two (2) Business Day period, as applicable, following a Parent Notice.
(5) Nothing contained in this Section 5.03 or elsewhere in this Agreement shall prohibit Parent or the Parent Board or any committee thereof from (i) taking and disclosing to shareholders of Parent a position or communication contemplated by Rule 14e-2(a), Rule 14d-9
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or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (it being understood that any such communication to the shareholders of Parent shall not be deemed to be a Parent Adverse Recommendation Change) or (ii) making any disclosure or communication to shareholders of Parent if the Parent Board determines in good faith, based on the written advice of its outside legal counsel, that the failure to make such disclosure or communication would be inconsistent with the directors’ fiduciary duties under applicable Law.
(6) As used in this Agreement, “Acceptable Parent Confidentiality Agreement” shall mean any confidentiality agreement entered into by Parent from and after the date of this Agreement that contains terms that are not less favorable in all matters to Parent than those contained in the Confidentiality Agreement and does not prohibit Parent from complying with its obligations set forth in this Section 5.03.
(7) As used in this Agreement, “Parent Alternative Proposal” shall mean, other than the Transactions, any inquiry, proposal (whether or not in writing) or offer from any Person or group (other than the Company and its Subsidiaries) relating to, in a single transaction or series of related transactions, any direct or indirect (i) acquisition (including any reinsurance or retrocession transaction, or transaction that has similar risk transfer effects) that, if consummated, would result in any Person or group owning (x) 100% of the Parent Reserves, revenues or net income of Parent and its Subsidiaries, taken as a whole, or (y) 15% or more of the consolidated assets (based on the fair market value thereof, as determined in good faith by the Parent Board) of Parent and its Subsidiaries, taken as a whole, (ii) acquisition of Parent Shares representing 15% or more of the outstanding Parent Shares, (iii) merger, amalgamation, consolidation, share exchange, share purchase, business combination, recapitalization, liquidation, dissolution or similar transaction involving Parent or any of its Subsidiaries pursuant to which such Person or group (or the shareholders of any Person) would acquire, directly or indirectly, 15% or more of the aggregate voting power of Parent or of the surviving entity in such transaction or the resulting direct or indirect parent of Parent or such surviving entity or (iv) any combination of the foregoing, whether in a single transaction or a series of related transactions.
(8) As used in this Agreement, “Parent Superior Proposal” shall mean any bona fide written Parent Alternative Proposal that did not result from a breach of Section 5.03 and that the Parent Board has determined in its good faith judgment, after consultation with its financial advisors and outside legal counsel, and taking into account all relevant (in the view of the Parent Board) legal, regulatory, financial and other aspects of such proposal (including the conditionality and the timing and the likelihood of consummation of such proposal), would be more favorable to Parent and its shareholders than the Merger; provided that, for purposes of the definition of “Parent Superior Proposal”, the references to “15%” in the definition of Parent Alternative Proposal shall be deemed to be references to “50%”.
Section iv.. Preparation of the Joint Proxy Statement and Registration Statement; Shareholders Meetings.
(1) As promptly as reasonably practicable after the date of this Agreement, and in any event within 30 Business Days following the date of this Agreement, (i) the Company and Parent shall jointly prepare the Joint Proxy Statement and file it with the SEC and (ii) Parent (with the
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assistance and cooperation of the Company) shall prepare the Registration Statement, in which the Joint Proxy Statement will be included as a prospectus, and file it with the SEC. Each of Parent and the Company shall use its reasonable best efforts to (A) have the Registration Statement declared effective under the Securities Act and (B) have the Joint Proxy Statement cleared by the SEC, in each case as promptly as practicable after such filing, and to keep the Registration Statement effective as long as is necessary to consummate the Merger. Subject to Section 5.02, the Company Board shall make the Company Board Recommendation to the holders of Company Shares and shall include such Company Board Recommendation in the Joint Proxy Statement. Subject to Section 5.03, the Parent Board shall make the Parent Board Recommendation to the holders of Parent Shares and shall include such recommendation in the Joint Proxy Statement. Each of Parent and the Company shall provide to the other all information concerning it and its Subsidiaries as may be reasonably requested by the other party in connection with the preparation of the Joint Proxy Statement and the Registration Statement and shall otherwise assist and cooperate with the other party in the preparation of the Joint Proxy Statement and the Registration Statement and the resolution of any comments thereto received from the SEC. Each of the Company, Parent and Merger Sub shall promptly correct any information provided by it for use in the Joint Proxy Statement or the Registration Statement if and to the extent such information shall have become false or misleading in any material respect. Each of Parent and the Company shall notify the other promptly of the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Joint Proxy Statement or the Registration Statement or for additional information and shall supply the other party with copies of all written correspondence between such party and the SEC with respect to the Joint Proxy Statement or the Registration Statement, as the case may be. Each of Parent and the Company shall (1) to the extent reasonably practicable, provide the other with a reasonable opportunity to review and comment on the Joint Proxy Statement and the Registration Statement, as applicable, and any amendment or supplement thereto, and any written communications with the SEC (including any responses to any comments of the SEC) prior to disseminating the Joint Proxy Statement to their respective shareholders or filing the Registration Statement with the SEC, (2) consider in good faith any comments on the Joint Proxy Statement or the Registration Statement or such other document or written communication with the SEC, as applicable, reasonably proposed by the other party and (3) not disseminate the Joint Proxy Statement to their respective shareholders or file the Registration Statement with the SEC prior to receiving the approval of the other (such approval not to be unreasonably withheld, conditioned or delayed); provided that with respect to documents filed by a party that are incorporated by reference in the Registration Statement or Joint Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or the combined entity; provided, further, that this approval right shall not apply with respect to information relating to a Company Adverse Recommendation Change or a Parent Adverse Recommendation Change. If, at any time prior to the Company Shareholders Meeting or the Parent Shareholders Meeting, as the case may be, any information relating to the Company, Parent or Merger Sub, or any of their respective Affiliates, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Joint Proxy Statement or the Registration Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under
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which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the Company or Parent, as applicable, shall file with the SEC an appropriate amendment or supplement describing such information as promptly as practicable after the other party has had a reasonable opportunity to review and comment thereon, and, to the extent an amendment or supplement to the Joint Proxy Statement is filed, to the extent required by applicable Law, Parent and the Company shall disseminate such amendment or supplement to their respective shareholders.
(2) Subject to Section 5.04(a), the Company shall take all necessary actions in accordance with applicable Law, the Company Organizational Documents and the rules of NASDAQ to establish a record date for, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, reconvening or postponement thereof, the “Company Shareholders Meeting”) as promptly as reasonably practicable (and in no event later than thirty (30) days) following effectiveness of the Registration Statement for the purpose of obtaining the Company Shareholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company may, in its sole discretion, adjourn, reconvene or postpone the Company Shareholders Meeting or change the record date with respect thereto if the Company reasonably believes that, after consultation with Parent, (i) such adjournment, reconvening, postponement or change of the record date is necessary to ensure that any required supplement or amendment to the Joint Proxy Statement is provided to the holders of Company Shares within a reasonable amount of time in advance of the Company Shareholders Meeting, (ii) as of the time for which the Company Shareholders Meeting is originally scheduled (as set forth in the Joint Proxy Statement), (A) there will be an insufficient number of Company Shares present (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Shareholders Meeting or (B) there will be an insufficient number of proxies to obtain the Company Shareholder Approval (provided that the Company Shareholders Meeting is not postponed or adjourned by more than an aggregate of fifteen days in connection with any postponements or adjournments in reliance on this clause (ii)) or (iii) such adjournment, reconvening, postponement or change of the record date is required by Law or a court or other Governmental Authority of competent jurisdiction in connection with any Actions in connection with this Agreement or the Transactions or has been requested by the SEC or its staff. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement shall have been earlier terminated, the obligation of the Company to call, give notice of, convene and hold the Company Shareholders Meeting and to hold a vote of its shareholders for purposes of obtaining the Company Shareholder Approval shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Company Alternative Proposal (whether or not a Company Superior Proposal), by an Intervening Event or by a Company Adverse Recommendation Change made by it; provided, however, that if the public announcement of a Company Adverse Recommendation Change or the delivery of a Company Notice or a notice contemplated by Section 5.02(e)(i) is less than ten (10) Business Days prior to the Company Shareholders Meeting, the Company shall be entitled to postpone the Company Shareholders Meeting to a date not more than ten (10) Business Days after such event. If the Company makes a Company Adverse Recommendation Change, (x) the Company shall nevertheless submit the matters contemplated by the Company Shareholder Approval to a vote of its shareholders and (y) the Joint Proxy Statement and any and all accompanying materials may
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include appropriate disclosure with respect to such Company Adverse Recommendation Change in accordance with applicable Law.
(3) Subject to Section 5.04(a), Parent shall take all necessary actions in accordance with applicable Law, the Parent Organizational Documents and the rules of the NYSE to establish a record date for, duly call, give notice of, convene and hold a meeting of its shareholders (including any adjournment, reconvening or postponement thereof, the “Parent Shareholders Meeting”) as promptly as reasonably practicable (and in no event later than thirty (30) days) following effectiveness of the Registration Statement for the purpose of obtaining the Parent Shareholder Approval. Notwithstanding anything to the contrary contained in this Agreement, Parent may, in its sole discretion, adjourn, reconvene or postpone the Parent Shareholders Meeting or change the record date with respect thereto if Parent reasonably believes that, after consultation with the Company, (i) such adjournment, reconvening, postponement or change of the record date is necessary to ensure that any required supplement or amendment to the Joint Proxy Statement is provided to the holders of Parent Shares within a reasonable amount of time in advance of the Parent Shareholders Meeting, (ii) as of the time for which the Parent Shareholders Meeting is originally scheduled (as set forth in the Joint Proxy Statement), (A) there will be an insufficient number of Parent Shares present (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Parent Shareholders Meeting or (B) there will be an insufficient number of proxies to obtain the Parent Shareholder Approval (provided that the Parent Shareholders Meeting is not postponed or adjourned by more than an aggregate of fifteen days in connection with any postponements or adjournments in reliance on this clause (ii)) or (iii) such adjournment, reconvening, postponement or change of the record date is required by Law or a court or other Governmental Authority of competent jurisdiction in connection with any Actions in connection with this Agreement or the Transactions or has been requested by the SEC or its staff. Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement shall have been earlier terminated, the obligation of Parent to call, give notice of, convene and hold the Parent Shareholders Meeting and to hold a vote of its shareholders for purposes of obtaining the Parent Shareholder Approval shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Parent Alternative Proposal (whether or not a Parent Superior Proposal) or by a Parent Adverse Recommendation Change made by it; provided, however, that if the public announcement of a Parent Adverse Recommendation Change or the delivery of a Parent Notice is less than ten (10) Business Days prior to the Parent Shareholders Meeting, Parent shall be entitled to postpone the Parent Shareholders Meeting to a date not more than ten (10) Business Days after such event. If Parent makes a Parent Adverse Recommendation Change, (x) Parent shall nevertheless submit the matters contemplated by the Parent Shareholder Approval to a vote of its shareholders and (y) the Joint Proxy Statement and any and all accompanying materials may include appropriate disclosure with respect to such Parent Adverse Recommendation Change in accordance with applicable Law.
(4) Each of the Company and Parent shall use reasonable best efforts to hold the Company Shareholders Meeting and the Parent Shareholders Meeting, respectively, at the same time and on the same date as the other party.
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Section v.. Reasonable Best Efforts.
(1) Upon the terms and subject to the conditions set forth in this Agreement, each of Parent, Merger Sub and the Company agrees to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to fulfill all conditions to Closing applicable to such party pursuant to this Agreement and to consummate and make effective, in the most expeditious manner reasonably practicable, the Merger and the other Transactions, including (i) using reasonable best efforts to obtain all necessary, proper or advisable actions or nonactions, consents, approvals, authorizations, waivers and qualifications from Governmental Authorities and making all necessary, proper or advisable registrations, filings and notices and using reasonable best efforts to take all steps as may be necessary to obtain a consent, approval, authorization, waiver or exemption from any Governmental Authority (including under Insurance Laws and the HSR Act) and (ii) executing and delivering any additional agreements, documents or instruments necessary, proper or advisable to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.
(2) Parent shall not, and shall cause its Subsidiaries not to, directly or indirectly (whether by merger, amalgamation, consolidation or otherwise), acquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, if doing so would reasonably be likely to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, consents, approvals, authorizations or waivers of Governmental Authorities necessary, proper or advisable to consummate the transactions contemplated by this Agreement and secure the expiration or termination of any applicable waiting period under the HSR Act; (ii) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise; or (iv) otherwise impair or delay the ability of Parent to perform its material obligations under this Agreement; provided that nothing in this Section 5.05(b) shall prohibit Parent and its Subsidiaries from acquiring or investing in managing general underwriters or managing general agents or taking the actions described in Section 5.05(b) of the Parent Disclosure Letter.
(3) In furtherance and without limiting the foregoing, (i) Parent shall file a “Form A” Acquisition of Control, together with all exhibits, affidavits and certificates, with the New York Department of Financial Services and the Tennessee Department of Commerce & Insurance, within thirty (30) calendar days after the date hereof, (ii) Parent shall make all SFSA Filings, U.K. Filings and the BMA Filing within thirty (30) calendar days after the date hereof, (iii) each of Parent and the Company shall file a notification and report form pursuant to the HSR Act with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice with respect to the Merger and the other transactions contemplated hereby and requesting early termination of the waiting period under the HSR Act, as soon as reasonably practicable after the date hereof (but in any event within thirty (30) calendar days after the date hereof), and (iv) Parent and the Company, as applicable, shall make any and all necessary filings or notices
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with the applicable Governmental Authorities, including with respect to those Governmental Approvals set forth in Schedule 6.01(b) as soon as reasonably practicable after the date hereof (but in any event within thirty (30) calendar days after the date hereof). All filing fees payable in connection with the foregoing shall be borne by Parent. Subject to Section 5.08, Parent and the Company agree to promptly provide, or cause to be provided, all agreements, documents, instruments or information that may be required or requested by any Governmental Authority relating to Parent or its Affiliates, on the one hand, or the Company or its Affiliates, or its or their respect structure, ownership, businesses, operations, regulatory and legal compliance, assets, liabilities, financing, financial condition or results of operations, or any of its or their directors, officers, employees, partners, members or shareholders.
(4) Each of the Company, Parent and Merger Sub agrees that it shall consult with one another with respect to the obtaining of all consents, approvals, authorizations or waivers of Governmental Authorities necessary, proper or advisable to consummate the transactions contemplated by this Agreement and each of the Company, Parent and Merger Sub shall keep the other reasonably apprised on a prompt basis of the status of matters relating to such consents, approvals, authorizations or waivers. Parent and the Company shall have the right to review in advance and, to the extent practicable, and subject to any restrictions under applicable Law, each shall consult the other on, any filing made with, or written materials submitted to, any Governmental Authority or any third party in connection with the transactions contemplated by this Agreement and each party agrees to in good faith consider and reasonably accept comments of the other parties thereon. Parent and the Company shall promptly furnish to each other copies of all such filings and written materials after their filing or submission, in each case subject to applicable Laws.
(5) Parent and the Company shall promptly advise each other upon receiving any communication from any Governmental Authority whose consent, approval, authorization or waiver is required for consummation of the transactions contemplated by this Agreement, including promptly furnishing each other copies of any written or electronic communications, and shall promptly advise each other when any such communication causes such party to believe that there is a reasonable likelihood that any such consent, approval, authorization or waiver will not be obtained or that the receipt of any such consent, approval, authorization or waiver will be materially delayed or conditioned.
(6) None of Parent, Merger Sub and the Company shall, and shall cause their respective controlled Affiliates not to, permit any of their respective directors, officers, employees, partners, members, shareholders or any other Representatives to participate in any live or telephonic meeting with any Governmental Authority in respect of any filings, investigation or other inquiry relating to the transactions contemplated by this Agreement unless it consults with the other in advance and, to the extent permitted by applicable Law and by such Governmental Authority, gives the other party the opportunity to attend and participate in such meeting.
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(7) Notwithstanding anything in this Agreement to the contrary, in no event shall a party to this Agreement or any of its controlled Affiliates be required to agree to take or enter into any action which would be required to be taken if the Closing does not occur.
(8) Parent’s or the Company’s breach of any of its obligations in this Section 5.05 that results in a failure of the Closing to occur shall constitute an intentional and material breach of this Agreement.
Section vi.. Transfer Taxes. All share transfer, real estate transfer, documentary, stamp, recording and other similar Taxes (including interest, penalties and additions to any such Taxes) (“Transfer Taxes”) incurred in connection with the Transactions shall be paid by Parent or the Surviving Company, and, prior to the Effective Time, the Company shall cooperate with Parent in preparing, executing and filing any applicable Tax Returns with respect to such Transfer Taxes.
Section vii.. Public Announcements. The Company and Parent shall consult with each other and with CM Bermuda Limited (together with its Affiliates, as applicable, “CMB”) before issuing any press release or otherwise making any public statements (including scheduling of a press conference or conference call with investors or analysts) with respect to this Agreement or any of the transactions contemplated hereby and shall not issue any such press release or make any such public statement without the prior consent of the other party (which, for the avoidance of doubt, shall refer to the Company or Parent, as the case may be, and not CMB), which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that a party may, without the prior consent of any other party, issue such press release or make such public statement (a) as may be required by Law or Order, the applicable rules of NASDAQ or the NYSE or any listing agreement with NASDAQ the NYSE or (b) to enforce its rights and remedies under this Agreement. The Company shall not make any internal announcements or other communications to its employees or other constituents with respect to this Agreement or the Transactions without providing Parent a reasonable opportunity to review and provide comments on such announcement or communication, which the Company shall consider in good faith. Notwithstanding the foregoing, Parent and the Company may make any oral or written public announcements, releases or statements without complying with the foregoing requirements if the substance of such announcements, releases or statements, was publicly disclosed and previously subject to the foregoing requirements.
Section viii.. Access to Information; Confidentiality. Subject to applicable Law, from the date of this Agreement to the Effective Time, each of Parent and the Company shall, and shall cause each of its Subsidiaries to: (a) provide to the other party and their respective Representatives reasonable access during normal business hours in such a manner as not to unduly interfere with the operation of any business conducted by such party or any or its Subsidiaries, upon prior written notice to such party, to the officers, employees, properties, offices and other facilities of such party and its Subsidiaries and to the books and records thereof; and (b) furnish promptly such information concerning the business, properties, Contracts, assets and liabilities of such party and its Subsidiaries as Parent or the Company, as applicable, or their respective Representatives may reasonably request; provided, however, that neither Parent nor the
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Company shall be required to (or to cause any their respective Subsidiaries to) afford such access or furnish such information to the extent that the Company or Parent, as applicable, believes in good faith that doing so would: (i) result in the loss of attorney-client privilege, the work product immunity or any other legal privilege or similar doctrine (provided that the applicable party shall use its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of such privilege or doctrine); (ii) violate any confidentiality obligations of such party or any of its Subsidiaries to any third person or otherwise breach, contravene or violate any then effective Contract to which such party or any of its Subsidiaries is party; (iii) result in a competitor of such party or any of its Subsidiaries receiving information that is competitively sensitive; (iv) require such party or its Subsidiaries to provide any personnel file, medical file or related records of any Company Employee or employee of Parent, or (v) breach, contravene or violate any applicable Law (including any Antitrust Law) or Order. During any visit by the Company or Parent to the business or property sites of the other party or any of its respective Subsidiaries, the Company or Parent, as applicable, shall, and shall cause their respective Representatives accessing such properties to, comply with all applicable Laws and all of the other party’s and its respective Subsidiaries’, as applicable, safety and security procedures, including those related to a Contagion Event. Notwithstanding anything to the contrary contained in this Section 5.08, from the date of this Agreement to the Effective Time, none of Parent, the Company or any of their respective Affiliates shall conduct, without the prior written consent of the other party, any environmental investigation at any real property owned or leased by such other party or any of its Affiliates, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Each of Parent and the Company shall, and shall cause each of their respective Subsidiaries (including, with respect to Parent, Merger Sub) and its and their respective Representatives to, hold all information provided or furnished by the other party pursuant to this Section 5.08 confidential in accordance with the terms of the Confidentiality Agreement; provided that, notwithstanding anything to the contrary contained in this Section 5.08 or the Confidentiality Agreement, the Company shall be permitted to disclose any information furnished to it or any of its Representatives pursuant to clause (b) of this Section 5.08 to the Existing Shareholder.
Section ix.. Indemnification and Insurance.
(1) From and after the Effective Time, the Surviving Company shall, and Parent shall cause the Surviving Company to, to the fullest extent permitted by applicable Law, (i) indemnify and hold harmless each individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of the Company or of a Subsidiary of the Company (each, together with such Person’s heirs, executors and administrators, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a director or officer of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director or officer of the Company or such Subsidiary or taken at the request of the Company or such
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Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions or relating to the enforcement of this provision or any other indemnification or advancement right of any Indemnitee), to the fullest extent permitted under applicable Law and (ii) assume all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company Organizational Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement (as may be amended, modified or supplemented after the date of this Agreement to expand the scope of indemnification and exculpation regarding the rights and obligations of the Strategic Review Committee, the Original SRC Members and the Independent Shareholder Representatives under Section 8.02) providing for indemnification between the Company and any Indemnitee. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause, to the fullest extent permitted under applicable Law, the memorandum of association and bye-laws of the Surviving Company to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Organizational Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from the Effective Time, Parent shall cause the Surviving Company to, advance the reasonable and documented expenses (including reasonable and documented fees and expenses of legal counsel) of any Indemnitee under this Section 5.09 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.09) as incurred to the fullest extent permitted under applicable Law; provided that the individual to whom expenses are advanced provides an undertaking to repay such advances if it shall be finally determined in a non-appealable judgment or order by a court of competent jurisdiction that such Person is not entitled to be indemnified pursuant to this Section 5.09(a).
(2) None of Parent or the Surviving Company shall settle, compromise or consent to the entry of any judgment in any threatened or actual Action relating to any acts or omissions covered under this Section 5.09 (each, a “Claim”) for which indemnification has been sought by an Indemnitee hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnitee from all liability arising out of such Claim without admission of fault, guilt or wrongdoing, or such Indemnitee otherwise consents in writing to such settlement, compromise or consent. Each of Parent, the Surviving Company and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(3) For the six (6) year period commencing immediately after the Effective Time, the Surviving Company shall maintain in effect the current directors’ and officers’ liability insurance of the Company and its Subsidiaries covering acts or omissions occurring at or prior to the
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Effective Time with respect to those individuals who are currently (and any additional individuals who prior to the Effective Time become) covered by the directors’ and officers’ liability insurance policies of the Company and its Subsidiaries on terms and scope with respect to such coverage, and in amount, no less favorable to such individuals than those of such policies in effect on the date of this Agreement (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters existing or occurring prior to the Effective Time, including a “tail” policy). The Company may prior to the Effective Time purchase a prepaid “tail” policy on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company and its Subsidiaries with respect to matters existing or occurring prior to the Effective Time, including the Transactions; provided that the premium for such “tail” policy shall not exceed 300% of the aggregate annual amounts currently paid by the Company to maintain its existing directors’ and officers’ liability insurance policy. If such prepaid “tail” policy has been obtained by the Company, it shall be deemed to satisfy all obligations to obtain insurance pursuant to this Section 5.09(c) and the Surviving Company shall use its reasonable best efforts to cause such policy to be maintained in full force and effect, for its full term, and to honor all of its obligations thereunder.
(4) The provisions of this Section 5.09 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee and his or her heirs and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Organizational Documents, by contract or otherwise. The obligations of Parent and the Surviving Company under this Section 5.09 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 5.09 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.09 applies shall be third-party beneficiaries of this Section 5.09).
(5) In the event that Parent, the Surviving Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation, amalgamation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company shall assume all of the obligations thereof set forth in this Section 5.09.
(6) Nothing contained in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.09 is not prior to or in substitution for any such claims under such policies.
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Section x.. Rule 16b-3. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be permitted to take such actions as may be reasonably necessary or advisable to ensure that the dispositions of equity securities of the Company (including derivative securities) by any officer or director of the Company who is subject to Section 16 of the Exchange Act pursuant to the transactions contemplated by this Agreement are exempt under Rule 16b-3 promulgated under the Exchange Act.
Section xi.. Employee Matters.
(1) From the Effective Time though December 31, 2021 or, if longer, the time required by applicable law (the “Continuation Period”), Parent shall provide, or shall cause the Surviving Company (or in the case of a transfer of all or substantially all the assets and business of the Surviving Company, its successors and assigns) to provide, each individual who is employed by the Company or any of its Subsidiaries immediately prior to the Effective Time and who continues as an employee of the Company or any of its Subsidiaries at the Effective Time (each, a “Company Employee”), with (i) base salary, wage rate and short-term incentive opportunity that in each case is no less favorable than that provided to such Company Employee by the Company and any of its Subsidiaries immediately prior to the Effective Time and (ii) employee benefits that are substantially comparable in the aggregate to those provided to such Company Employee by the Company and any of its Subsidiaries immediately prior to the Effective Time.
(2) Without limiting the generality of Section 5.11(a), from and after the Effective Time, Parent shall, or shall cause the Surviving Company to, assume, honor and continue during the Continuation Period (or such longer period as required by applicable Law or the terms of the Company Plan) all of the Company Plans, including, for the avoidance of doubt, the Company Severance Plan, in each case, as in effect at the Effective Time and in accordance with their terms.
(3) With respect to any current year accrued but unused paid time off to which any Company Employee is entitled pursuant to the paid time off policy or individual agreement or other arrangement applicable to such Company Employee immediately prior to the Effective Time (the “Paid Time Off Policy”), Parent shall, or shall cause the Surviving Company to, (i) allow such Company Employee to use such accrued but unused paid time off and (ii) if any Company Employee’s employment terminates during the Continuation Period, pay the Company Employee, in cash, an amount equal to the value of the current year accrued but unused paid time off to the same extent that the Company Employee would have received a cash payment therefor under the Paid Time Off Policy as in effect as of immediately prior to the Effective Time.
(4) With respect to all employee benefit plans of the Surviving Company and its Subsidiaries in which the Company Employees commence to participate following the Effective Time, including any “employee benefit plan” (as defined in Section 3(3) of ERISA) (including any paid time off and severance plans), (i) for purposes of determining eligibility to participate and vesting and (ii) for purposes of calculating paid time off and severance pay, each Company Employee’s service with the Company or any of its Subsidiaries (as well as service with any predecessor employer of the Company or any such Subsidiary, to the extent service with the
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predecessor employer was recognized by the Company or such Subsidiary) shall be treated as service with the Surviving Company or any of its Subsidiaries (or in the case of a transfer of all or substantially all the assets and business of the Surviving Company, its successors and assigns) to the same extent such service was credited before the Effective Time under the Company Plan that provided the same or substantially similar benefit; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits for the same period of service.
(5) Without limiting the generality of Section 5.11(a), Parent shall, or shall cause the Surviving Company to (i) waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by the Surviving Company or any of its Subsidiaries in which Company Employees (and their eligible dependents) commence to participate from and after the Effective Time, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Plan immediately prior to such commencement of participation and (ii) honor any co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which such commencement of participation occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which they will be eligible to participate from and after the Effective Time.
(6) For the avoidance of doubt, for purposes of any Company Plan containing a definition of “change in control” or “change of control” (or term of similar import), the occurrence of the Closing shall be deemed to constitute a “change in control” or “change of control” (or such term of similar import) under such Company Plan.
(7) The provisions of this Section 5.11 are solely for the benefit of the parties to this Agreement, and no provision of this Section 5.11 is intended to, or shall, (i) constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise, including any Company Plan, (ii) prevent the amendment or termination of any Company Plan or interference with the right or obligation of Parent or its Subsidiaries to make such changes as are necessary to conform with applicable Law or (iii) alter or limit Parent’s or any of its Subsidiaries’ (including the Surviving Company and its Subsidiaries, following the Closing) ability to terminate the employment of any Employee.
(8) Except as otherwise explicitly provided for in this Agreement, no current or former employee or any other individual associated therewith shall be regarded for any purpose as a third party beneficiary of this Agreement or have the right to enforce the provisions hereof.
Section xii.. Notification of Certain Matters; Shareholder Litigation; Series B Claims. Prior to the Effective Time, Parent shall give prompt notice to the Company, and the Company shall give prompt notice to Parent, of any Actions commenced or, to such party’s Knowledge, threatened against such party which relate to this Agreement, the Statutory Merger Agreement or the Transactions. Subject to applicable Law, the Company shall give Parent the opportunity to participate, at Parent’s sole cost and expense, in the defense and settlement of any shareholder
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litigation against the Company or its directors relating to this Agreement, the Statutory Merger Agreement or the Transactions, and shall not settle any such Action without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that such consent shall not be required with respect to any settlement (a) that would not impose equitable relief on, and would not provide for the admission of wrongdoing by, the Company or any of its directors, as the case may be, and (b) the monetary portion of which has been reserved for by the Company or is covered by insurance policies of the Company or its directors within applicable limits and deductibles. Prior to the Effective Time, the Company shall and shall cause its Representatives to (i) give prompt notice to Parent of any substantive information that comes to its attention, or any material communication received, regarding the Series B Claims, in each case from the Series B Preferred Shareholders, (ii) not make any admission of liability with respect to the Series B Claims and (iii) not settle the Series B Claims without Parent’s prior consent.
Section xiii.. Merger Sub Shareholder Approval. Immediately following the execution of this Agreement, Parent shall execute and deliver, in accordance with Section 106 of the Bermuda Companies Act and in its capacity as the sole shareholder of Merger Sub, a written consent approving the Merger, this Agreement and the Statutory Merger Agreement (the “Merger Sub Shareholder Approval”).
Section xiv.. Financing.
(1) Parent shall use its reasonable best efforts to arrange and to consummate the Financing as soon as reasonably practicable after the date of this Agreement, but on or prior to the Closing Date, on the terms and conditions described in the Commitment Letters and the Fee Letter, which reasonable best efforts shall include (i) entering into definitive agreements with respect to the Financing on or prior to the Closing Date on terms and conditions no less favorable to Parent than those contained in the Commitment Letters after giving effect to the “market flex” provisions under the Fee Letter (the “Financing Agreements”), (ii) satisfying on a timely basis or obtaining the waiver of all conditions in the Commitment Letters and the Financing Agreements, (iii) consummating the Financing at or prior to the time upon which Closing is required to occur pursuant to the terms of this Agreement (it being understood that, it is not a condition to Closing under this Agreement for Parent to obtain the Financing) and (iv) enforcing its rights under the Commitment Letters and the Financing Agreements, except, in the case of clauses (i) through (iv) above, to the extent (and solely to the extent) Parent or one or more of its Subsidiaries has (x) issued in one or more offerings any debt or equity securities in lieu of the Debt Financing on or prior to the Closing Date (any such offering, a “Securities Offering” and collectively, the “Securities Offerings”) and/or (y) obtained financing in the form of loans (including under a revolving line of credit), notes or other similar instruments in lieu of the Debt Financing on or prior to the Closing Date (collectively with any Securities Offerings, the “Other Financing Arrangements”) that provides sufficient proceeds, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, to pay the Required Cash Amount. Other than as set forth in Section 5.14(b) and Section 5.14(c), Parent shall use its reasonable best efforts to maintain in effect each Commitment Letter, except to the extent (and solely to the extent) Parent or one or more of its
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Subsidiaries has closed one or more Other Financing Arrangements that provides sufficient proceeds, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, to pay the Required Cash Amount. Parent must, upon the reasonable request by the Company, (A) keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and any Other Financing Arrangements and (B) provide the Company with copies of all definitive agreements and other material documents related to the Debt Financing and any Other Financing Arrangement in connection with its satisfaction of obligations pursuant to clause (d) below. Parent shall give the Company written notice as promptly as practicable (and in any event, within two (2) Business Days) (x) of any material breach or default by any party to any of the Financing Commitments or definitive agreements related to the Financing or any documentation governing any Other Financing Arrangement of which Parent becomes aware, and/or (y) of the receipt of any (1) written notice or (2) other written communication, in each case from any Lender or Equity Investor with respect to (I) any actual breach or default, or any termination or repudiation, in each case in any material respect, by any party to any of the Commitment Letters or definitive agreements related to the Financing of any provisions of any Financing or definitive agreements related to the Financing or (II) dispute or disagreement between or among the parties to any of the Commitment Letters or definitive agreements related to the Financing or any documentation governing any Other Financing Arrangement with respect to the obligation to fund the Financing or such Other Financing Arrangement or the amount of the Financing to be funded at the Closing that would reasonably be expected to (A) make the funding of the Financing or such Other Financing Arrangement less likely to occur or (B) materially delay or prevent the Closing, or (y) reduce the aggregate amount available under the Commitment Letters (including as a result of the imposition of any “flex” terms in the Fee Letter) below an amount that, when combined with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of any Other Financing Arrangements, is sufficient to pay the Required Cash Amount (but excluding in each case, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive agreement with respect thereto). Parent must provide any information reasonably requested by the Company relating to any of the circumstances referred to in the previous sentence as soon as reasonably practical (but in any event within two (2) Business Days) after the date that the Company delivers a written request therefor to Parent.
(2) If, prior to the earliest of (x) the Closing, (y) the consummation of Other Financing Arrangements that provide sufficient proceeds, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, to pay the Required Cash Amount and (z) the amount of available and unrestricted cash on Parent’s balance sheet being sufficient, together with the proceeds of the Equity Financing, to pay the Required Cash Amount (such earliest date, the “Satisfaction Date”), any portion of the Debt Financing becomes unavailable, or Parent becomes aware of any event or circumstance that makes any portion of the Debt Financing unavailable, on the terms and conditions (including any “flex” provisions in the Fee Letter) contemplated in the Debt Commitment Letter, Parent will promptly notify the Company in writing (but in any event within two (2) Business Days after the occurrence or discovery thereof) and Parent will use reasonable best efforts to obtain, as promptly as reasonably practicable, financing from the same or
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alternative sources on terms not less favorable to Parent than those contained in the Debt Commitment Letter and the related Fee Letter, containing conditions to draw, conditions to Closing and other terms that would reasonably be likely to affect the availability thereof that (A) are not more onerous in any material respect than those conditions and terms contained in the Debt Commitment Letter, (B) would not reasonably be likely to materially delay the Closing or make the Closing materially less likely to occur, and (C) in an amount at least equal to the Debt Financing or such unavailable portion thereof (the “Alternative Financing”) and to obtain (and, when obtained, to provide the Company with a copy of) a new financing commitment for the Alternative Financing (the “Alternative Financing Commitment Letter”), which new letter shall replace the existing Debt Commitment Letter in whole or in part. In the event that any Alternative Financing Commitment Letters are obtained, (A) any reference in this Agreement to the “Commitment Letters” or the “Debt Commitment Letter” will be deemed to include the Debt Commitment Letter to the extent not superseded by an Alternative Financing Commitment Letter at the time in question and any Alternative Financing Commitment Letters to the extent then in effect and (B) any reference in this Agreement to the “Financing” or the “Debt Financing” means the debt financing contemplated by the Debt Commitment Letter as modified pursuant to the foregoing.
(3) Other than as set forth in Section 5.14(b), prior to the occurrence of the Satisfaction Date, Parent shall not, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), replace, amend, modify, supplement or waive any provision of the Debt Commitment Letter to the extent such replacement, amendment, supplement, modification or waiver (individually or in the aggregate with any other replacements, amendments, supplements, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount thereof) to an amount that would not, together with available and unrestricted cash on hand of Parent and its Subsidiaries and the proceeds of the Equity Financing, be sufficient to pay the Required Cash Amount, or (y) impose any new or additional condition, or otherwise replace, amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Closing, or (II) adversely impact the ability of Parent or Merger Sub to enforce its rights against any other party under the Debt Commitment Letter (collectively, the “Restricted Debt Commitment Letter Amendments”); provided that, subject to the limitations set forth in this Section 5.14(c), the Parent may replace, amend, supplement, modify or waive the Debt Commitment Letter (to the extent not prohibited by this Section 5.14(c)) (including to add additional agents, co-agents, lenders, lead arrangers, managers or similar entities that have not executed the Debt Commitment Letter as of the date hereof, together with any conforming or ministerial changes related thereto, but only if the addition of such parties, individually or in the aggregate, would not result in the occurrence of a Restricted Debt Commitment Letter Amendment). Upon any such replacement, amendment, supplement or other modification of, or waiver under, the Debt Commitment Letters in accordance with this Section 5.14(c), the term “Debt Commitment Letter” shall mean the Debt Commitment Letter as so replaced, amended, modified or waived and the term “Debt Financing” as used in this Agreement shall be deemed to include any Debt Financing contemplated by any such Debt Commitment Letter as so replaced, amended, supplemented, modified or waived. Buyer shall
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promptly deliver to the Company true and correct copies of any such replacement, amendment, restatement, modification, supplement, waiver or substitution of the Debt Commitment Letters.
(4) From the date hereof and until the Satisfaction Date, the Company shall, and shall use reasonable best efforts to cause its Subsidiaries and its and their respective Representatives to, use reasonable best efforts to provide all reasonable cooperation as is customary for financings of this type requested by Parent in connection with the Debt Financing or the Other Financing Arrangements, including using reasonable best efforts to:
(a) furnish, as promptly as reasonably practicable, such historical financial and other pertinent information (including such information that is reasonably necessary for Parent’s preparation of pro forma financial statements) regarding the Company and its Subsidiaries as may be reasonably requested by Parent or the Financing Sources in connection with the Debt Financing or the Other Financing Arrangements;
(b) cause senior management of the Company to participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as underwriters, initial purchasers, lead arrangers, bookrunners or agents for, and prospective Financing Sources for, for the Debt Financing or the Other Financing Arrangements), presentations, road shows, sessions with rating agencies, and due diligence sessions in connection with the Debt Financing or the Other Financing Arrangements;
(c) (A) provide customary assistance with the preparation of materials for rating agency presentations, bank information memoranda, bridge teasers, syndication memoranda, lender presentations, offering memoranda, prospectuses and other customary marketing materials (collectively, the “Offering Materials”) required in connection with the Debt Financing or the Other Financing Arrangements, including furnishing (y) records, data or other information necessary to support any statistical information or claims relating to the Company or the Company Subsidiaries appearing in the aforementioned materials and (z) customary certificates of the chief financial officer (or other comparable officer) of the Company with respect to financial information (including pro forma financial information); (B) provide reasonable cooperation with the due diligence efforts of the Financing Sources to the extent reasonable and customary (and, to the extent applicable, subject to the limitations contained in this Agreement) and (C) provide customary authorization letters with respect to the Company or its Subsidiaries authorizing the distribution of information to prospective lenders or investors (including, solely as to the Company and its Subsidiaries, customary 10b-5 and material non-public information representations);
(d) promptly, and in any event no later than three (3) Business Days prior to Closing, provide all documentation and other information that any underwriter, initial purchaser, arranger or bookrunner of, or agent, trustee, depositary or Financing Source for, any Debt Financing or Other Financing Arrangements has requested in connection with such Debt Financing or Other Financing Arrangements under applicable “know-your-customer” and anti-money laundering rules and regulations relating to the Company or any of the Company Subsidiaries, in each case as requested at least eight (8) Business Days prior to the Closing Date;
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(e) assist in the preparation, execution and delivery of definitive financing documents, including guarantee documents, customary closing certificates and documents, and customary back-up therefor, as may be required by the Debt Financing or the Other Financing Arrangements and other customary documents as may reasonably be requested by Parent or the Financing Sources, but, except as set forth in clause (d)(iii) above, in no event shall (A) any of the items described in the foregoing be effective until as of or after the Closing or (B) the Company or any of its Subsidiaries be required to execute or delivery any solvency certificate or similar certification;
(f) assist Parent in benefitting from the existing lending and investor relationships of the Company and the Company Subsidiaries;
(g) cooperate with Parent and Parent’s efforts to obtain corporate and facilities ratings and legal opinions from Parent’s legal counsel, as reasonably requested by Parent;
(h) take all corporate, limited liability company, partnership or other similar actions reasonably requested by Parent or any Financing Source to permit the consummation of the Debt Financing; provided that no such actions shall be required to be effective prior to Closing, and no such actions shall be required to be taken by any Person who is not continuing in such capacity after the Closing; and
(i) cause the Company’s independent auditors to furnish to Parent and the Financing Sources promptly with drafts of customary comfort letters (including “negative assurance” comfort and change period comfort) that the independent auditors of the Company are prepared to deliver upon “pricing” and “closing” of any Securities Offerings and the Company’s independent auditors to deliver such comfort letters upon the “pricing” and “closing” of any such Securities Offerings, and cause the Company’s independent auditors to provide customary auditor consents (including consents with respect to inclusion of the Company’s financial statements and any audit opinions in respect thereof in any Current Report on Form 8-K, registration statement, prospectus or offering memorandum or similar documents for any portion of the Debt Financing or any Securities Offerings).
In no event shall the Company, its Subsidiaries or any of their respective Representatives have any obligations under this Section 5.14(d), other than to cause the Company, its Subsidiaries or any of their respective Representatives to comply with its obligations under this Section 5.14(d). The foregoing notwithstanding, neither the Company, its Subsidiaries nor any of their Representatives be required to take or permit the taking of any action pursuant to this Section 5.14(d) that would (i) require the Company, its Subsidiaries or any Persons who are officers or directors (or similar positions) of the Company or any of its Subsidiaries to pass resolutions or consents to approve or authorize the execution of the Debt Financing or any Other Financing Arrangements or enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement, in each case, that is not contingent upon the occurrence of the Closing or that would be effective prior to the Closing Date (except (I) the authorization letters set forth in clause (d)(iii)(C) above, (II) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (d)(ix) above and (III) any
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certificate of the chief financial officer of the Company reasonably requested by Parent’s counsel in connection with the delivery of any legal opinions such counsel may be required to deliver (including the certificate set forth in clauses (d)(iii) above)), (ii) cause any representation or warranty in this Agreement to be breached by the Company, (iii) require the Company to pay any commitment or other similar fee or incur any other expense, liability or obligation in connection with the Debt Financing or any Other Financing Arrangements prior to the Closing (except to the extent such expenses, liabilities or other obligations are subject to the expense reimbursement or indemnity provisions set forth in the final two sentences of this clause (d) below) or have any obligation of the Company under any agreement, certificate, document or instrument be effective until the Closing (other than information provided pursuant to any applicable “know-your-customer” and anti-money laundering rules and regulations), (iv) cause any director, officer or employee or stockholder of the Company or any of its Subsidiaries to incur any personal liability, (v) unreasonably interfere with the conduct of the business of the Company, (vi) require the waiver or amendment of any terms of this Agreement or the payment of any fees or reimbursement of any expenses prior to the Closing (except to the extent such fees or expenses are subject to the expense reimbursement or indemnity provisions set forth in the final two sentences of this clause (d) below), (vii) require delivery of any legal opinions from legal counsel to the Company or its Subsidiaries or (viii) neither the Company nor any of its Subsidiaries shall be responsible for the preparation of any pro forma financial statements or any adjustments to any pro forma financial information required to be provided in accordance with the Debt Financing or any Other Financing Arrangements. Nothing contained in this Section 5.14(d) or otherwise shall require the Company, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing or any Other Financing Arrangements. Parent shall, promptly upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company its Subsidiaries or any of their respective Representatives in connection with any actions taken in connection with the Debt Financing or any Other Financing Arrangements or otherwise pursuant to this Section 5.14(d). Parent shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing or any Other Financing Arrangements, any action taken pursuant to this Section 5.14(d) and any information used in connection with the foregoing (other than information provided in writing by the Company, its Subsidiaries or any of their respective Representatives specifically in connection with its obligations pursuant to this Section 5.14(d)), except to the extent that any of the foregoing is determined in a final, non-appealable judgment of a court of competent jurisdiction to arise from (x) the bad faith, gross negligence or willful misconduct of the Company, its Affiliates or any of their respective Representatives or (y) information provided by the Company, its Subsidiaries or any of their respective Representatives in writing expressly for use in connection with the Debt Financing or any Other Financing Arrangements containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding anything to the contrary in this Agreement, this Section 5.14(d) shall be deemed satisfied for purposes of Section 6.02(b) unless the failure to consummate the Debt Financing is directly and primarily the result of the Company’s breach of its obligations under this Section 5.14 in respect of the Debt Financing.
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(5) The Company hereby consents to the use of its and the Company Subsidiaries’ logos in connection with the Debt Financing or the Other Financing Arrangements; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries.
(6) At the request of Parent in connection with any Securities Offering, the Company shall use reasonable best efforts to file a Form 8-K with the SEC disclosing information identified by Parent relating to the Company and its Subsidiaries for purposes of permitting such information to be included in the Offering Materials to be provided to potential investors who do not wish to receive material nonpublic information with respect to any of Parent, the Company, any of their respective Subsidiaries or any of their respective securities; provided that in no event shall the Company be required to file a Form 8-K with the SEC to the extent that the Company reasonably objects to such disclosure (including as a result of a determination by the Company that making such disclosure would be detrimental to the business or operations of the Company or any of its Subsidiaries).
Section xv.. Company Guarantees. From the date hereof until the Closing Date (or, if earlier, the date of termination of this Agreement in accordance with Article VIII), Parent and the Company shall use their reasonable best efforts and cooperate in good faith to either (a) obtain any requisite consent to the Transactions from each third-party counterparty to a Company Guarantee, including, as applicable, a waiver of any objections or rights such third party may have under the applicable Company Guarantee or (b) terminate and replace such Company Guarantee with a similar guarantee which is mutually agreeable to the Company, Parent and such third party.
Section xvi.. Credit Agreement. If requested by Parent, between the date hereof and the Closing Date (or, if earlier, the date of termination of this Agreement in accordance with Article VII), the Company shall use its reasonable best efforts to, and Parent shall use its reasonable best efforts to assist the Company to, obtain (a) any requisite consent to the transactions contemplated hereby from each third-party counterparty to the Credit Agreement, including, as applicable, a waiver of any objections or rights such third party may have under the Credit Agreement and (b) (i) an amendment to extend the maturity of the Credit Agreement and (ii) such other amendments as Parent may reasonably request in connection with the transactions contemplated hereby; provided that, at the option of the Company, any such amendments requested under this clause (b)(ii) shall only be effective on and after the Closing Date; provided further that, in the event the consent and waiver described in the foregoing clause (a) cannot be obtained on or prior to the Closing Date after the Company has used its reasonable best efforts to do so, the Company shall deliver notice of its election to terminate the Credit Agreement pursuant to, and in accordance with, the Credit Agreement, with such termination being effective as of, and conditioned upon, the Closing. Notwithstanding the foregoing, in no event shall this Section 5.16, except with respect to the fees, costs and expenses of external counsel, require the Company or any of its Subsidiaries to (i) agree to or to pay any fees, incur or reimburse any costs or expenses, or make any payment, prior to the occurrence of the Closing or otherwise incur any liability relating to any such action of the type described in the foregoing clauses (a) or (b), in each case to the extent Parent does not agree to reimburse such amounts or (ii) execute or deliver any
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certificate, document, instrument or Contract that is effective prior to the Closing (or that would be effective if the Closing does not occur), other than customary payoff letters.
Section xvii.. Takeover Statutes. In connection with and without limiting the foregoing, the Company and Parent shall (a) take all reasonable action necessary to ensure that no Takeover Law is or becomes applicable to this Agreement or any of the transactions contemplated hereby and (b) if any Takeover Law becomes applicable to this Agreement or any of the transactions contemplated hereby, take all reasonable action necessary to ensure that such transactions may be consummated as promptly as practicable on the terms required by, or provided for, in this Agreement and otherwise to eliminate or minimize the effect of such Takeover Law on the Merger and the other transactions contemplated by this Agreement.
Section xviii.. Stock Exchange Listing, De-listing and De-registration.
(1) Parent shall use reasonable best efforts to (i) cause the Parent Shares to be issued in connection with the Merger to be listed on the NYSE as of the Effective Time, subject to official notice of issuance, at Parent’s sole expense and (ii) (A) procure, or cause to be procured, as of the Effective Time, at its sole expense, the listing of each of the CVRs and the Merger Consideration Warrants (and the Parent Shares issuable upon exercise of such Merger Consideration Warrants) to be issued in connection with the Merger on the NYSE or (B) with respect to the CVRs and the Merger Consideration Warrants, if unable to be listed on the NYSE, cause each of the CVRs and the Merger Consideration Warrants (and the Parent Shares issuable upon exercise of such Merger Consideration Warrants) to be listed on the OTCQX market as of the Effective Time, in each case subject to official notice of issuance and to the extent the CVRs and the Merger Consideration Warrants meet all of the applicable exchange’s listing requirements, including the minimum holder requirement.
(2) The Company shall take all actions necessary to permit the Company Shares and any other security issued by the Company or one of its Subsidiaries and listed on NASDAQ to be de-listed from NASDAQ and de-registered under the Exchange Act as soon as possible following the Effective Time.
Section xix.. Investment Management Agreement. Following the date of this Agreement, the Company shall, and shall cause its Subsidiaries to, reasonably cooperate with Parent to achieve liquidity for illiquid assets owned by the Company and its Subsidiaries such that the resulting liquid assets may be invested under the Investment Management Agreement.
Section xx.. Change of Name. As promptly as reasonably practicable after the Closing Date, Parent shall make any required filings or notices with any Governmental Authorities, and take all such other actions as may be reasonably necessary, in order to effect a change in its name to “SiriusPoint Ltd.”.
Section xxi.. Parent Board. Parent shall take all necessary action to add the individuals listed on Schedule 5.21 as members of the Parent Board in the classes listed therein as of the Effective Time. From and after the Effective Time, each individual listed on Schedule 5.21 shall
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hold office hold office until his or her successor is duly elected or appointed and qualified or until his or her earlier death, resignation or removal.
Section xxii.. Additional Agreements. At the Closing, each of Parent and the Company shall, and shall cause their respective Affiliates (other than, in the case of the Company, CMB, China Minsheng Investment Group Corp., Ltd., CMIG International Holding Pte. Ltd. and any other direct or indirect parent companies of CMB or Subsidiaries of China Minsheng Investment Group Corp., Ltd.) to, duly execute and deliver each of the Investor Rights Agreement, the Registration Rights Agreement, the CVR Agreement, the Parent Warrant Agreement and the Parent Certificate of Designation in order for each to be in full force and effect as of the Effective Time. In the event that the Upside Rights or the CVRs are required to be qualified under the Trust Indenture Act of 1939, as amended, each of Parent and the Company shall take any actions required for such qualification.
Article VI.

Conditions Precedent
Section i.. Conditions to Each Party’s Obligation To Effect the Merger. The respective obligations of the Company, Parent and Merger Sub to effect the Merger shall be subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:
(1) Shareholder Approval. The Company Shareholder Approval and the Parent Shareholder Approval shall have been obtained.
(2) Other Approvals. The Governmental Approvals set forth in Schedule 6.01(b) shall have been made or obtained and shall be in full force and effect. The applicable waiting periods, together with any extensions thereof, under the HSR Act shall have expired or been terminated.
(3) No Order. No Law or Order (whether temporary, preliminary or permanent) shall have been enacted, issued or enforced by any court or other Governmental Authority of competent jurisdiction that is in effect and that prevents or prohibits consummation of the Merger.
(4) NYSE Listing. The Parent Shares issuable in connection with the Merger shall have been approved for listing on the NYSE, subject to official notice of issuance.
(5) Registration Statement. The Registration Statement shall have been declared effective by the SEC under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened.
(6) Additional Agreements. Each of the Investment Management Agreement, the Investor Rights Agreement, the Registration Rights Agreement, the CVR Agreement, the Parent
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Warrant Agreement and the Parent Certificate of Designation shall have been duly executed by each of the parties thereto and shall be in full force and effect.
Section ii.. Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:
(1) Representations and Warranties. The representations and warranties of the Company (i) set forth in Sections 3.02(a), 3.02(b) and 3.06(b) shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date, (ii) set forth in Sections 3.01(a), 3.03(a), 3.03(b), 3.03(d), 3.14 and 3.21 shall be true and correct in all material respects (without regard to any materiality qualifiers specified therein) as of the date of this Agreement and as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date) and (iii) set forth in this Agreement, other than those Sections specifically identified in clauses (i) or (ii) of this Section 6.02(a), shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein, other than Section 3.15(b) and any use of the defined term “Company Material Contract”) as of the date of this Agreement and as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect.
(2) Performance of Obligations and Agreements of the Company. The Company shall have performed or complied in all material respects with the obligations and agreements required to be performed or complied with by it under this Agreement at or prior to the Effective Time, and Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect.
(3) Company Material Adverse Effect. Since the date hereof, there shall not have occurred any event, change, effect, development, condition or occurrence that, individually or in the aggregate, has had or would reasonably be likely to have a Company Material Adverse Effect.
Section iii.. Conditions to Obligations of the Company. The obligations of the Company to effect the Merger are further subject to the satisfaction (or waiver, if permissible under applicable Law) on or prior to the Closing Date of the following conditions:
(1) Representations and Warranties. The representations and warranties of Parent and Merger Sub (i) set forth in Sections 4.02(a), 4.02(b) and 4.06(b) shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date as though made as of the Closing Date, (ii) set forth in Sections 4.01(a), 4.03(a), 4.03(b), 4.03(d), 4.14 and 4.23 shall be true and correct in all material respects (without regard to
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any materiality qualifiers specified therein) as of the date of this Agreement and as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date) and (iii) set forth in this Agreement, other than those Sections specifically identified in clauses (i) or (ii) of this Section 6.03(a), shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Parent Material Adverse Effect” and words of similar import set forth therein other than Section 4.15(b) and any use of the defined term “Parent Material Contract”) as of the date of this Agreement and as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, in the case of this clause (iii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect. The Company shall have received a certificate signed on behalf of Parent and Merger Sub by an executive officer of Parent to such effect.
(2) Performance of Obligations and Agreements of Parent and Merger Sub. Parent and Merger Sub shall have performed or complied in all material respects with the obligations and agreements required to be performed or complied with by them under this Agreement at or prior to the Effective Time, and the Company shall have received a certificate signed on behalf of Parent and Merger Sub by an executive officer of Parent to such effect.
(3) Parent Material Adverse Effect. Since the date hereof, there shall not have occurred any event, change, effect, development, condition or occurrence that, individually or in the aggregate, has had or would reasonably be likely to have a Parent Material Adverse Effect.
Article VII.

Termination
Section i.. Termination. This Agreement may be terminated and the Transactions abandoned at any time prior to the Effective Time, whether before or after receipt of the Company Shareholder Approval or Parent Shareholder Approval (except as otherwise expressly noted):
(1) by the mutual written consent of the Company and Parent duly authorized by each of the Company Board and the Parent Board;
(2) by either of the Company or Parent:
(a) if the Merger shall not have been consummated on or prior to May 6, 2021 (as such date may be extended pursuant to this Section 7.01(b)(i), the “Walk-Away Date”); provided that the right to terminate this Agreement under this Section 7.01(b)(i) shall not be available to any party if the breach by such party of its representations and warranties set forth in this Agreement or the failure of such party to perform any of its obligations under this Agreement, its failure to act in good faith or its failure to use its reasonable best efforts to consummate the Transactions, including to the extent required by and subject to Section 5.05, has been a principal cause of the failure of the Merger to be consummated on or prior to such date (it being understood that Parent and Merger Sub shall be deemed a single party for
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purposes of the foregoing proviso); provided, further, that, if on a date that would have been the Walk-Away Date the conditions set forth in Section 6.01(b) or Section 6.01(c) (as a result of an Order relating to Antitrust Laws) are the only conditions in Article VI (other than those conditions that by their nature are to be satisfied at the Closing) that shall not have been satisfied or waived on or before such date, the Company or Parent may unilaterally extend the Walk-Away Date to August 6, 2021 if the Company or Parent, as applicable, notifies the other party on or prior to May 6, 2021 of its intention to extend the Walk-Away Date, in which case the Walk-Away Date shall be deemed for all purposes to be such later date;
(b) if any Governmental Authority of competent jurisdiction shall have issued or entered an Order permanently preventing or prohibiting the Merger, and such Order shall have become final and nonappealable; provided, however, that the right to terminate this Agreement under this clause (ii) shall not be available to any party (A) that has failed to use its reasonable best efforts to remove, contest, resolve or lift, as applicable, such Order or (B) if such party has failed to fulfill its obligations pursuant to Section 5.05;
(c) if the Company Shareholder Approval shall not have been obtained at the Company Shareholders Meeting duly convened therefor or at any adjournment or postponement thereof; or
(d) if the Parent Shareholder Approval shall not have been obtained at the Parent Shareholders Meeting duly convened therefor or at any adjournment or postponement thereof;
(3) by Parent if the Company shall have breached any of its representations or warranties or failed to perform any of its obligations or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.02(a) or 6.02(b) and (ii) is not reasonably capable of being cured prior to the Walk-Away Date, or if reasonably capable of being cured, shall not have been cured by the earlier of the Walk-Away Date and thirty (30) calendar days following receipt by the Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.01(c) and the basis for such termination (or in any event has not been cured by the Walk-Away Date); provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.01(c) if Parent or Merger Sub is then in breach of any of its representations, warranties, obligations or agreements hereunder, which breach would give rise to a failure of a condition set forth in Section 6.03(a) or 6.03(b);
(4) by the Company:
(a) if Parent or Merger Sub shall have breached any of its representations or warranties or failed to perform any of its obligations or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.03(a) or 6.03(b) and (B) is not reasonably capable of being cured prior to the Walk-Away Date, or if reasonably capable of being cured, shall not have been cured by the earlier of the Walk-Away Date and thirty (30) calendar days following receipt by Parent or Merger Sub of written notice of such breach or failure to perform from the Company stating the Company’s
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intention to terminate this Agreement pursuant to this Section 7.01(d)(i) and the basis for such termination (or in any event has not been cured by the Walk-Away Date); provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.01(d)(i) if the Company is then in breach of any of its representations, warranties, obligations or agreements hereunder, which breach would give rise to a failure of a condition set forth in Section 6.02(a) or 6.02(b); or
(b) prior to receipt of the Parent Shareholder Approval, if the Parent Board shall have effected a Parent Adverse Recommendation Change.
Section ii.. Effect of Termination. In the event of the termination of this Agreement as provided in Section 7.01, written notice thereof shall be given to the other party or parties hereto, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void (other than Sections 7.02 and 7.03, Article VIII, the Confidentiality Agreement and the last sentence of Section 5.08, all of which shall survive termination of this Agreement), and there shall be no liability on the part of Parent, Merger Sub, the Company or their respective directors, officers and Affiliates, except (a) as liability may exist pursuant to the provisions specified in the immediately preceding parenthetical that survive such termination and (b) that no such termination shall relieve any party from liability for fraud on the part of such party or any willful and material breach by such party of any representation, warranty, obligation or agreement set forth in this Agreement or fraud.
Section iii.. Termination Fee.
(1) In the event that this Agreement is terminated:
(a) by the Company pursuant to Section 7.01(d)(ii), then Parent shall pay to the Company or its designee, within two (2) Business Days following the date of such termination by the Company, the Parent Termination Fee;
(b) by either Parent or the Company pursuant to Section 7.01(b)(iii) prior to obtaining the Company Shareholder Approval, then the Company shall pay to Parent or its designee, within two (2) Business Days after the date of such termination by Parent or the Company, as the case may be, the Company Termination Fee; or
(c) by either Parent or the Company pursuant to Section 7.01(b)(iv) prior to obtaining the Parent Shareholder Approval, then Parent shall pay to the Company or its designee, within two (2) Business Days after the date of such termination by Parent or the Company, as the case may be, the Parent Termination Fee.
(2) The parties hereby acknowledge and agree that, (i) except in the case of an intentional and material breach of this Agreement or the Company Voting Agreement, in the event that the Company Termination Fee is paid by the Company pursuant to Section 7.03(a), the Company Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub for any and all losses or damages suffered or incurred by Parent, Merger Sub, or any of their respective Affiliates or any other Person in connection with this Agreement (and the termination
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of this Agreement), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub, any of their respective Affiliates or any other Person shall be entitled to bring or maintain any Action against the Company or any of its Subsidiaries or any of their respective former, current or future officers, directors, partners, shareholders, managers, members or Affiliates arising out of or in connection with this Agreement, any of the Transactions or any matters forming the basis for such termination and (ii) except in the case of an intentional and material breach of this Agreement or the Parent Voting Agreement, in the event that the Parent Termination Fee is paid by Parent pursuant to Section 7.03(a), the Parent Termination Fee shall be the sole and exclusive remedy of the Company for any and all losses or damages suffered or incurred by the Company or any of its Affiliates or any other Person in connection with this Agreement (and the termination of this Agreement), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of the Company or any of its Affiliates or any other Person shall be entitled to bring or maintain any Action against Parent, Merger Sub or any of their respective partners, shareholders, managers, members or Affiliates arising out of or in connection with this Agreement, any of the Transactions or any matters forming the basis for such termination.
(3) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 7.03 are an integral part of the Transactions and (ii) without these agreements, Parent, Merger Sub and the Company would not enter into this Agreement. In no event shall the Company or Parent be required to pay to the other party more than one Company Termination Fee or Parent Termination Fee, as the case may be, pursuant to Section 7.03(a).
Article VIII.

Miscellaneous
Section i.. No Survival of Representations and Warranties. This Article VIII and the agreements of the Company, Parent and Merger Sub contained in Article II and in Sections 5.09 and 5.11 shall survive the Effective Time. No other representations, warranties, obligations or agreements in this Agreement, or in any instrument delivered pursuant to this Agreement, shall survive the Effective Time.
Section ii.. Waivers and Amendment. This Agreement may be changed, modified or amended, and the provisions and terms hereof may be waived, or the time for its performance extended, only by instrument in writing signed by each of the parties hereto, or, in the case of a waiver, by the party waiving compliance with such provision or term; provided that any such change, modification, amendment, waiver or extension of any of the terms or provisions of this Agreement that would have the effect of (a) adversely and disproportionately affecting the rights under this Agreement of any holder of Company Shares making a Cash Election or a Share & CVR Election in comparison to other holders of Company Shares (disregarding for this purpose any effect contemplated by clause (b)) or (b) reducing the amount of consideration, or modifying the form of consideration, to be received by holders of Company Shares in respect of any Cash Electing Company Share or Share & CVR Electing Company Share shall require the Required
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Approval; provided, further, that any change, modification, amendment or waiver of any term or provision of this sentence shall also require the Required Approval. Any change or modification to this Agreement shall be null and void, unless made in accordance with the first sentence of this Section 8.02 and by written amendment to this Agreement and signed by each of the parties hereto. Notwithstanding the foregoing, if, following receipt of the Company Shareholder Approval, any change, modification to, or waiver of any provision of this Agreement would result in the termination of the Company Voting Agreement if the prior written consent of CMB or CMIG International Holdings Pte. Ltd under Section 13(a) of the Voting Agreement was not obtained with respect to such change, modification or waiver, such change, modification or waiver, as applicable, shall be null and void unless such proposed change, modification or waiver, as applicable, is consented to in writing by CMB or CMIG International Holding Pte. Ltd. in accordance with Section 13(a) of the Company Voting Agreement. Any waiver of any provision or term of this Agreement, or any extension in time for performance of such provision or term, shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party, it is authorized in writing by an authorized Representative of such party and otherwise effected in accordance with the first sentence of this Section 8.02. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.
Section iii.. Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of, and be enforceable by and against, the parties to this Agreement and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party without the prior written consent of the other party, and any attempted assignment without the prior written consent of the other party shall be void and have no effect.
Section iv.. Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which will be deemed to constitute an original, but all of which shall constitute one and the same agreement, and may be delivered by email or other electronic means intended to preserve the original graphic or pictorial appearance of a document, such delivery by email or other electronic means to be deemed as effective as delivery of a manually executed counterpart of this Agreement.
Section v.. Entire Agreement; No Third-Party Beneficiaries. This Agreement, together with the Exhibits and Schedules attached hereto, the Company Disclosure Letter, the Parent Disclosure Letter, the Confidentiality Agreement, the Company Voting Agreement, the Parent Voting Agreement and the Transaction Matters Agreement (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter hereof and thereof and (b) except for: (i) if the Effective Time occurs, (A) the right of the holders of Company Shares to receive the Merger Consideration payable in accordance with Article II, and (B) the right of the holders of Company Awards to receive the consideration payable in
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accordance with Article II, (ii) Section 5.07 (solely with respect to CMB), (iii) the provisions set forth in Section 5.09 and Section 5.14(d) of this Agreement and (iv) Section 8.02 (solely with respect to the Independent Shareholder Representatives), are not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.
Section vi.. Governing Law; Jurisdiction.
(1) This Agreement, and all Actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction, except to the extent the provisions of the laws of Bermuda are mandatorily applicable to the Merger.
(2) All Actions arising out of or relating to the interpretation and enforcement of the provisions of this Agreement and in respect of the Transactions (except to the extent any such proceeding mandatorily must be brought in Bermuda) shall be heard and determined in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. The parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 8.06(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any Action arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 8.09 of this Agreement. The parties hereto agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
Section vii.. Specific Enforcement. The parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties hereto fail to take any action required of them hereunder to consummate this Agreement, subject to the terms and conditions of this Agreement. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction or
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injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including, for the avoidance of doubt, the right of the Company to cause the Merger to be consummated on the terms and subject to the conditions set forth in this Agreement) in the courts described in Section 8.06(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right to specific enforcement is an integral part of the Transactions and without that right, neither the Company nor Parent would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 8.07 shall not be required to provide any bond or other security in connection with any such order or injunction.
Section viii.. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 8.08.
Section ix.. Notices. All notices, requests, consents, claims, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (a) when personally delivered, (b) when transmitted via e-mail (except if not a Business Day then the next Business Day) to the e-mail address set out below, (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, requests, consents, claims, demands and other communications, in each case to the respective party, will be sent to the applicable address set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.09):
If to Parent or Merger Sub, to it at:
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Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda
Attention: Janice R. Weidenborner
Email:  Janice.Weidenborner@thirdpointre.com
with a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
Email:  nfpotter@debevoise.com
If to the Company, to:
Sirius International Insurance Group, Ltd.
14 Wesley Street, 5th Floor
Hamilton HM11 Bermuda
Attention:   Gene Boxer
E-mail:         Gene.Boxer@siriusgroup.com
with copies (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Sean M. Keyvan
Jonathan A. Blackburn
E-mail:   skeyvan@sidley.com
         jblackburn@sidley.com
and
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attention: Todd E. Freed
         Jon A. Hlafter
E-mail:   todd.freed@skadden.com
jon.hlafter@skadden.com
Section x.. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
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long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. If any provision of this Agreement is so broad as to be unenforceable, that provision shall be interpreted to be only so broad as is enforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
Section xi.. Definitions.
(1) As used in this Agreement, the following terms have the meanings ascribed thereto below:
“2013 Omnibus Incentive Plan” means the Third Point Reinsurance Ltd. 2013 Omnibus Incentive Plan.
“2016 LTIP” means the Sirius Group Long Term Incentive Plan.
“Action” means any legal or administrative claim, proceeding, suit, investigation, arbitration or action.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.
“Antitrust Laws” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, all applicable non-U.S. antitrust Laws and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Applicable SAP” means, with respect to any Company Insurance Subsidiary, the applicable statutory accounting principles (or local equivalents in the applicable jurisdiction) prescribed or permitted by the applicable Insurance Regulator under the Insurance Law of the domiciliary jurisdiction of such Company Insurance Subsidiary as in effect at the relevant time, including, where applicable, the requirements of the Insurance Accounts Directive (Lloyd’s Syndicate and Aggregate Accounts) Regulations 2008 and the Syndicate Accounting Byelaw (No. 8 of 2005).
“Average Parent Share Price” means the volume weighted average price of the Parent Shares on NYSE (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source mutually selected by the Company and Parent) measured on a cumulative
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basis over the fifteen (15) consecutive Trading Days ending on (and including) the Trading Day that is three (3) Trading Days prior to the Effective Time.
“Business Day” means any day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York, New York or Hamilton, Bermuda are authorized or required by Law to be closed.
“Company Award” means a Company RSU Award, Company Performance Share Award, Company Restricted Share Award, Company Option or Company LTIP Award, as applicable, including, for the avoidance of doubt, any award that is denominated in shares and settled in cash.
“Company Bye-Laws” means the Company’s Amended and Restated Bye-Laws, as amended to the date of this Agreement.
“Company Certificate of Designation” means the certificate of designation of the Company Preference Shares, adopted by the Company Board pursuant to duly authorized resolutions of the Company Board adopted on June 22, 2018, August 3, 2018 and August 23, 2018, as may be amended, restated or supplemented in accordance with the terms thereof from time to time.
“Company Charter” means the Company’s Memorandum of Association, as amended to the date of this Agreement.
“Company Guarantees” means any form of guarantee, undertaking, letter of credit, letter of comfort or other obligations or commitments by the Company or any of its Subsidiaries securing the obligations or liabilities of the Company or any of its Subsidiaries.
“Company Intellectual Property” means any Intellectual Property owned or purported to be owned by the Company or any of its Subsidiaries.
“Company IT Systems” means any and all hardware, software, data, databases, data communication lines, network and telecommunications equipment, Internet-related information technology infrastructure, wide area network and other information technology and communications equipment, owned or leased by or licensed to Company or any of its Subsidiaries.
“Company Lease” means any lease, sublease, license or other agreement under which the Company or any of its Subsidiaries leases, subleases, licenses, uses or occupies (in each case, whether as landlord, tenant, sublandlord, subtenant or by other occupancy arrangement) or has the right to use or occupy, now or in the future, any real property.
“Company LTIP Award” means each award of performance shares granted under the 2016 LTIP.
“Company Material Adverse Effect” means any event, change, circumstance, effect, development or state of facts that has, or would reasonably be likely to have, a material
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adverse effect on the business, assets, properties, financial condition or results of operation of the Company and its Subsidiaries, taken as a whole; provided, however, that Company Material Adverse Effect shall not include (except to the extent contemplated by the proviso at the end of this definition) the effect of any event, change, circumstance, effect, development or state of facts to the extent it results from or arises out of (i) general political or economic conditions (including changes in interest rates or exchange rates) or securities, credit, financial or capital markets conditions, in each case in the United States or any foreign jurisdiction, (ii) changes or conditions generally affecting the industries or businesses, or segments thereof, in which the Company and its Subsidiaries operate or in which products or services of the Company and its Subsidiaries are used or distributed, (iii) any change in applicable Law, GAAP or Applicable SAP (or authoritative interpretation of any of the foregoing) or the enforcement thereof, (iv) the negotiation, execution, announcement, pendency or performance of this Agreement, the Transactions or the terms hereof or the consummation of the Transactions and the identity of, or any other facts or circumstances specifically and particularly relating to, Parent or its Affiliates, including (A) effects relating to compliance with covenants contained herein or the failure to take any action as a result of any restrictions or prohibitions set forth herein and (B) any adverse effect caused by (I) the impact on the relationships of the Company and its Subsidiaries with customers, suppliers, distributors, partners, Governmental Authorities or employees or (II) shortfalls or declines in revenue, margins or profitability, (v) any acts of war, armed hostilities, sabotage, cyber-attacks or terrorism, or any escalation or worsening of any acts of war, armed hostilities, sabotage or terrorism, (vi) earthquakes, wildfires, tornados, hurricanes, floods or other natural disasters, (vii) any Contagion Event, or any worsening of a Contagion Event or related matters existing as of the date of this Agreement, or any declaration of martial law, quarantine or similar directive, policy or guidance or other action by any Governmental Authority in response thereto, (viii) any failure by the Company and its Subsidiaries to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the event, change, circumstance, effect, development or state of facts giving rise or contributing to such failure that are not otherwise excluded pursuant to another clause of this definition may be deemed to constitute or be taken into account in determining whether there has been or would reasonably be likely to be a Company Material Adverse Effect), (ix) the credit, financial strength, claims paying or other ratings (other than the facts underlying any such ratings) of the Company or any of its controlled Affiliates (it being understood that the event, change, circumstance, effect, development or state of facts giving rise or contributing to such ratings that are not otherwise excluded pursuant to another clause of this definition may be deemed to constitute or be taken into account in determining whether there has been or would reasonably be likely to be a Company Material Adverse Effect), (x) any matter set forth in the Company Disclosure Letter or (xi) any action taken or omitted to be taken by the Company at the request of Parent; except, in the case of the foregoing clauses (i), (ii), (iii), (v), (vi) and (vii), to the extent that such event, change, circumstance, effect, development or state of facts (x) affects the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner when compared to the effect of such event, change, circumstance, effect, development or state of facts on other businesses engaged in the industries in which the Company and its Subsidiaries operate and (y) with respect to the foregoing clause (vii) only, relates solely to insurance policies written after April 1, 2020.
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“Company Option” means each option granted under the Company’s 2018 Omnibus Incentive Plan.
“Company Organizational Documents” means the Company Charter and the Company Bye-Laws.
“Company Pension Plan” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA covering current or former employees, directors, officers or other service providers of the Company or any of its Subsidiaries.
“Company Performance Share Award” means each performance-based award granted under the Company’s 2018 Omnibus Incentive Plan.
“Company Plan” means each plan, program, policy, agreement or other arrangement (whether written or unwritten) covering current or former employees, directors, officers or other service providers of the Company or any of its Subsidiaries, that is (i) an employee welfare plan within the meaning of Section 3(1) of ERISA, (ii) a Company Pension Plan, (iii) a share option, share purchase, share appreciation right or other share-based compensation agreement, program or plan, (iv) an individual employment, consulting, severance, transaction, retention or other similar agreement between such Person and the Company or any of its Subsidiaries or (v) a bonus, incentive, deferred compensation, profit-sharing, retirement, post-retirement, life insurance, paid time off, severance or termination pay, benefit or fringe-benefit plan, program, policy, agreement or other arrangement, in each case that is sponsored, maintained or contributed to by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or is obligated to contribute to or with respect to which the Company or any of its Subsidiaries has any liability, directly or indirectly, contingent or otherwise, other than, in each case, any such plan, program, policy, agreement or other arrangement sponsored by a Governmental Authority.
“Company Restricted Share Award” means each award of restricted Company Shares granted under the Company’s 2018 Omnibus Incentive Plan.
“Company Rights” means, all options, warrants, rights or other commitments or agreements to acquire from the Company, or that obligate the company to issue, any Company Shares or other equity or voting interests in the Company.
“Company RSU Award” means each restricted share unit award in respect of Company Shares granted under the Company’s 2018 Omnibus Incentive Plan that is subject solely to service-based vesting requirements and not performance-based vesting requirements.
“Company Severance Plan” means the Sirius Group Severance and Change in Control Plan, as in effect on the date of this Agreement.
“Company Share Plans” means the 2016 LTIP and the Sirius International Insurance Group, Ltd. 2018 Omnibus Incentive Plan, as applicable, in each case as may be amended or restated from time to time.
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“Company Subsidiary Stock Rights” means any options, warrants, convertible securities, subscriptions, stock appreciation rights, phantom stock plans or stock equivalents or other rights, agreements, arrangements or commitments (contingent or otherwise) of any character issued or authorized by the Company or any Subsidiary of the Company obligating the Company or any of its Subsidiaries to issue or sell any shares of capital stock of, or options, warrants, convertible securities, subscriptions or other equity interests in, any Subsidiary of the Company.
“Company Termination Fee” means an amount in cash equal to $50,000,000.
“Confidentiality Agreement” means that certain confidentiality agreement, by and between the Company and Parent, dated as of April 1, 2020.
“Consent” means any consent, waiver, approval, license, Permit, order, non-objection or authorization.
“Contagion Event” means the outbreak and ongoing effects of contagious disease, epidemic or pandemic (including COVID-19).
“Contract” means any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, sublease, license, contract or other binding agreement.
“Credit Agreement” means that certain Credit Agreement, dated as of February 8, 2018, by and among the Company, Sirius International Group, Ltd., the Other Subsidiaries (as defined therein) party thereto, the Lenders (as defined therein), Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, JPMorgan Chase Bank, N.A. (as Joint Lead Arrangers and Joint Bookrunners), and JPMorgan Chase Bank, N.A. (as Syndication Agent), as may be amended, supplemented or modified from time to time.
“CVR Restricted Share” means each restricted share in respect of Parent Shares to be issued at the Effective Time in accordance with the Waiver Agreements entered into as of immediately prior to the Effective Time.
“Debt Financing Parties” means the Lenders and their respective Affiliates and their and their respective Affiliates’ officers, directors, employees, agents and representatives and their respective successors and assigns.
“Dissenting Shares” means Company Shares held by a holder of Company Shares who (a) did not vote in favor of the Merger, (b) complied with all of the provisions of the Bermuda Companies Act concerning the right of holders of Company Shares to require appraisal of their Company Shares pursuant to the Bermuda Companies Act and (c) did not fail to perfect such right to appraisal or deliver an Appraisal Withdrawal.
“Equity Award Exchange Ratio” means (a) $13.00 divided by (b) the Average Parent Share Price.
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“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“FCA” means the U.K. Financial Conduct Authority.
“Financing Sources” means the Persons that have committed to provide, or have otherwise entered into agreements in connection with, the Debt Financing, any Other Financing Arrangements or any Alternative Financing in connection with the transactions contemplated hereby, together with their respective Affiliates, and the respective officers, directors, employees, partners, trustees, shareholders, controlling persons, agents and representatives of the foregoing, and their respective successors and assigns.
“GAAP” means generally accepted accounting principles in the United States, consistently applied.
“Governmental Approval” means any consent, approval, license, permit, order, qualification or waiver from, or filing, notification or registration with, or other action by or authorization of any Governmental Authority.
“Governmental Authority” means any government, court, regulatory or administrative agency, commission or authority or other legislative, executive or judicial governmental entity, whether federal, national, provincial, state, local or multinational, including, for the avoidance of doubt, Lloyd’s.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Indebtedness” means, with respect to any Person, any indebtedness for borrowed money, any issuance or sale of any debt securities or warrants or other rights to acquire any debt securities of such Person or any of its Subsidiaries, any guarantee of any such indebtedness or any debt securities of another Person or entry into any “keep well” or other agreement to maintain any financial statement condition of another Person.
“Independent Shareholder Representatives” means the individuals set forth on Schedule 8.11(a).
“Insurance Law” means all Laws applicable to the business of insurance or reinsurance or the regulation of insurance or reinsurance companies, whether federal, national, provincial, state, local or multinational, and all applicable orders, directives of, and market conduct recommendations resulting from market conduct examinations of, Insurance Regulators.
“Insurance Regulators” means all Governmental Authorities regulating the business of insurance or reinsurance, or regulating insurance or reinsurance companies, under Insurance Laws.
“Intellectual Property” means all intellectual property and other similar rights in any jurisdiction, whether registered or unregistered, including such rights in and to: any patent
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(including all reissues, divisions, continuations, continuations-in-part and extensions thereof) and patent application; any trademark, trademark registration, trademark application, servicemark, trade name, business name and brand name, including any and all goodwill associated therewith; any copyright, copyright registration, copyright application, software and database rights; any internet domain name; and any trade secret, know-how and other information of a confidential nature.
“Investor Rights Agreement” means that certain Investor Rights Agreement, to be entered into by and between Parent and the Existing Shareholder substantially in the form attached hereto as Exhibit G.
“IRS” means the U.S. Internal Revenue Service.
“Knowledge” means, (i) with respect to the Company, the actual knowledge, as of the date of this Agreement, of the individuals listed on Section 8.11 of the Company Disclosure Letter and (ii) with respect to Parent or Merger Sub, the actual knowledge, as of the date of this Agreement, of the individuals listed on Section 8.11 of the Parent Disclosure Letter.
“Liens” means any pledges, liens, charges, mortgages, encumbrances, leases, licenses, hypothecations or security interests of any kind or nature.
“Lloyd’s” means the Society and Corporation of Lloyd’s incorporated under the Lloyd’s Acts 1871 to 1982 (including the council constituted by the Lloyd’s Act 1982 and any delegate or person through whom the council is authorized to act).
“Malware” means any virus, Trojan horse, time bomb, key lock, spyware, worm, malicious code or other software program designed to, without the knowledge and authorization of the Company or any its Subsidiaries, disrupt, disable, harm, interfere with the operation of or install itself within or on any software, computer data, network memory or hardware.
“Measurement Price” means the closing price of the Parent Shares on NYSE (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source mutually selected by the Company and Parent) on the Trading Day that is immediately prior to the Closing Date.
“Mixed Election Common Shares Exchange Ratio” means the following: (i) if the Average Parent Share Price is greater than $8.56, 0.496; (ii) if the Average Parent Share Price is greater than or equal to $7.74 but less than or equal to $8.56, the amount equal to the quotient obtained (rounded to three (3) decimal places) by dividing (x) $4.245 by (y) the Average Parent Share Price; or (iii) if the Average Parent Share Price is less than $7.74, 0.548.
“Mixed Election Preference Shares Exchange Ratio” means the following: (i) if the Average Parent Share Price is greater than $8.56, 0.106; (ii) if the Average Parent Share Price is greater than or equal to $7.74 but less than or equal to $8.56, the amount equal to the quotient obtained (rounded to three (3) decimal places) by dividing (x) $0.905 by (y) the Average Parent Share Price; or (iii) if the Average Parent Share Price is less than $7.74, 0.117.
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“NASDAQ” means the NASDAQ stock market.
“NYSE” means the New York Stock Exchange.
“Order” means any injunction, order, judgment, ruling, decree or writ, in each case, by or before any Governmental Authority.
“Original SRC Members” means the members of the Strategic Review Committee set forth on Schedule 8.11(b).
“Parent Award” means a Parent Performance Restricted Share Award, Parent Restricted Share Award and Parent Option, as applicable, including, for the avoidance of doubt, any award that is denominated in shares and settled in cash.
“Parent Bye-Laws” means Parent’s Amended and Restated Bye-Laws adopted July 31, 2018.
“Parent Charter” means the Parent’s Memorandum of Association, as amended to the date of this Agreement.
“Parent IT Systems” means any and all hardware, software, data, databases, data communication lines, network and telecommunications equipment, Internet-related information technology infrastructure, wide area network and other information technology and communications equipment, owned or leased by or licensed to Parent or any of its Subsidiaries.
“Parent Lease” means any lease, sublease, license or other agreement under which Parent or any of its Subsidiaries leases, subleases, licenses, uses or occupies (in each case, whether as landlord, tenant, sublandlord, subtenant or by other occupancy arrangement) or has the right to use or occupy, now or in the future, any real property.
“Parent Material Adverse Effect” means any event, change, circumstance, effect, development or state of facts that has, or would reasonably be likely to have, a material adverse effect on the business, assets, properties, financial condition or results of operation of Parent and its Subsidiaries, taken as a whole; provided, however, that Parent Material Adverse Effect shall not include (except to the extent contemplated by the proviso at the end of this definition) the effect of any event, change, circumstance, effect, development or state of facts to the extent it results from or arises out of (i) general political or economic conditions (including changes in interest rates or exchange rates) or securities, credit, financial or capital markets conditions, in each case in the United States or any foreign jurisdiction, (ii) changes or conditions generally affecting the industries or businesses, or segments thereof, in which Parent and its Subsidiaries operate or in which products or services of Parent and its Subsidiaries are used or distributed, (iii) any change in applicable Law, GAAP or Applicable SAP (or authoritative interpretation of any of the foregoing) or the enforcement thereof, (iv) the negotiation, execution, announcement, pendency or performance of this Agreement, the Transactions or the terms hereof or the consummation of the Transactions and the identity of, or any other facts or circumstances specifically and particularly relating to, the Company or its Affiliates, including (A) effects
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relating to compliance with covenants contained herein or the failure to take any action as a result of any restrictions or prohibitions set forth herein and (B) any adverse effect caused by (I) the impact on the relationships of Parent and its Subsidiaries with customers, suppliers, distributors, partners, Governmental Authorities or employees or (II) shortfalls or declines in revenue, margins or profitability, (v) any acts of war, armed hostilities, sabotage, cyber-attacks or terrorism, or any escalation or worsening of any acts of war, armed hostilities, sabotage or terrorism, (vi) earthquakes, wildfires, tornados, hurricanes, floods or other natural disasters, (vii) any Contagion Event, or any worsening of a Contagion Event or related matters existing as of the date of this Agreement, or any declaration of martial law, quarantine or similar directive, policy or guidance or other action by any Governmental Authority in response thereto, (viii) any failure by Parent and its Subsidiaries to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the event, change, circumstance, effect, development or state of facts giving rise or contributing to such failure that are not otherwise excluded pursuant to another clause of this definition may be deemed to constitute or be taken into account in determining whether there has been or would reasonably be likely to be a Parent Material Adverse Effect), (ix) the credit, financial strength, claims paying or other ratings (other than the facts underlying any such ratings) of Parent or any of its controlled Affiliates (it being understood that the event, change, circumstance, effect, development or state of facts giving rise or contributing to such ratings that are not otherwise excluded pursuant to another clause of this definition may be deemed to constitute or be taken into account in determining whether there has been or would reasonably be likely to be a Parent Material Adverse Effect), (x) any matter set forth in the Parent Disclosure Letter or (xi) any action taken or omitted to be taken by Parent at the request of the Company; except, in the case of the foregoing clauses (i), (ii), (iii), (v), (vi) and (vii), to the extent that such event, change, circumstance, effect, development or state of facts (x) affects Parent and its Subsidiaries, taken as a whole, in a materially disproportionate manner when compared to the effect of such event, change, circumstance, effect, development or state of facts on other businesses engaged in the industries in which Parent and its Subsidiaries operate and (y) with respect to the foregoing clause (vii) only, relates solely to insurance policies written after April 1, 2020.
“Parent Option” means each share option granted under Parent’s Share Incentive Plan and 2013 Omnibus Incentive Plan, as applicable.
“Parent Organizational Documents” means the Parent Charter and the Parent Bye-Laws.
“Parent Pension Plan” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA covering current or former employees, directors, officers or other service providers of Parent or any of its Subsidiaries.
“Parent Performance Restricted Share Award” means each award of performance-based restricted shares granted under the 2013 Omnibus Incentive Plan.
“Parent Plan” means each plan, program, policy, agreement or other arrangement (whether written or unwritten) covering current or former employees, directors, officers or other
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service providers of Parent or any of its Subsidiaries, that is (i) an employee welfare plan within the meaning of Section 3(1) of ERISA, (ii) a Parent Pension Plan, (iii) a share option, share purchase, share appreciation right or other share-based compensation agreement, program or plan, (iv) an individual employment, consulting, severance, transaction, retention or other similar agreement between such Person and Parent or any of its Subsidiaries or (v) a bonus, incentive, deferred compensation, profit-sharing, retirement, post-retirement, life insurance, paid time off, severance or termination pay, benefit or fringe-benefit plan, program, policy, agreement or other arrangement, in each case that is sponsored, maintained or contributed to by Parent or any of its Subsidiaries or to which Parent or any of its Subsidiaries contributes or is obligated to contribute to or with respect to which Parent or any of its Subsidiaries has any liability, directly or indirectly, contingent or otherwise, other than, in each case, any such plan, program, policy, agreement or other arrangement sponsored by a Governmental Authority.
“Parent Restricted Share Award” means each award of restricted shares granted under the 2013 Omnibus Incentive Plan that is subject solely to service-based vesting requirements and not performance-based vesting requirements.
“Parent Rights” means, all options, warrants, rights or other commitments or agreements to acquire from Parent, or that obligate the company to issue, any Parent Shares or other equity or voting interests in Parent.
“Parent Share Plans” means the Share Incentive Plan and 2013 Omnibus Incentive Plan, as applicable, in each case as may be amended or restated from time to time.
“Parent Subsidiary Stock Rights” means any options, warrants, convertible securities, subscriptions, stock appreciation rights, phantom stock plans or stock equivalents or other rights, agreements, arrangements or commitments (contingent or otherwise) of any character issued or authorized by Parent or any Subsidiary of Parent obligating Parent or any of its Subsidiaries to issue or sell any shares of capital stock of, or options, warrants, convertible securities, subscriptions or other equity interests in, any Subsidiary of Parent.
“Parent Termination Fee” means (i) if this Agreement is terminated by the Company pursuant to Section 7.01(d)(ii), $50,000,000 or (ii) if this Agreement is terminated by the Company or Parent pursuant to Section 7.01(b)(iv), $40,000,000.
“Parent Warrants” means the warrants exercisable for Parent Shares issued pursuant to that certain Warrant Subscription Agreement, dated as of December 22, 2011, by and among Parent and each of the signatories thereto.
“Permits” means, with respect to any Person, all material licenses, franchises, permits, certificates, approvals, authorizations and registrations from Governmental Authorities necessary for the lawful conduct of such Person’s business.
“Permitted Liens” with respect to any Person means (i) statutory Liens for Taxes, assessments or other charges by Governmental Authorities not yet due and payable or the amount or validity of which is being contested in good faith and by appropriate proceedings,
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(ii) mechanics’, materialmen’s, carriers’, workmen’s, warehouseman’s, repairmen’s, landlords’ and similar Liens granted or which arise in the ordinary course of business, (iii) Liens securing payment, or any obligation, of such Person or its Subsidiaries with respect to outstanding Indebtedness so long as there is no default under such Indebtedness, (iv) Liens granted in connection with the insurance or reinsurance business of such Person or its Subsidiaries on cash and cash equivalent instruments or other investments, including Liens granted (A) in connection with (1) pledges of such instruments or investments to collateralize letters of credit delivered by such Person or its Subsidiaries, (2) the creation of trust funds for the benefit of ceding companies, (3) underwriting activities of such Person or its Subsidiaries, (4) deposit liabilities, and (5) statutory deposits and (B) with respect to investment securities held in the name of a nominee, custodian, depository, clearinghouse or other record owner, (v) pledges or deposits by such Person or any of its Subsidiaries under workmen’s compensation Laws, unemployment insurance Laws or similar legislation, or good faith deposits in connection with bids, tenders, Contracts (other than for the payment of Indebtedness) or leases to which such entity is a party, or deposits to secure public or statutory obligations of such entity or to secure surety or appeal bonds to which such entity is a party, or deposits as security for contested Taxes, in each case incurred or made in the ordinary course of business, (vi) gaps in the chain of title evident from the records of the relevant Governmental Authority maintaining such records, (vii) Liens that have been placed by a third party on the fee title of real property constituting or real property over which the such Person has easement rights, (viii) Liens created by or through the actions of Parent or any of its Affiliates, with respect to Liens applicable to the Company, or the Company or any of its Affiliates, with respect to Liens applicable to Parent, (ix) Liens discharged at or prior to the Effective Time, (x) Liens incurred in the ordinary course of business securing obligations or liabilities that are not individually or in the aggregate material to the relevant asset or property, respectively, (xi) any set of facts an accurate up-to-date survey would show; provided that such facts do not materially interfere with the present use of any real property, (xii) Liens incurred in the ordinary course of business since the most recent Company Financial Statements, with respect to the Company, or Parent Financial Statements, with respect to Parent, (xiii) Liens created in connection with investment transactions, including broker liens, securities lending transactions and repurchase transactions, (xiv) transfer restrictions imposed by Law, and (xv) such other Liens or imperfections that are not material in amount or do not materially detract from the value of or materially impair the existing use of the property affected by such Lien or imperfection.
“Person” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a Governmental Authority.
“Personal Information” means all information, in any form, that, alone or in combination with other information, regards or is capable of being associated with an individual person or device, including an individual’s combined first and last names, home address, telephone number, email address, social security number, driver’s license number, passport number and credit card or other financial information.
“PRA” means the U.K. Prudential Regulation Authority.
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“Privacy Laws” means all laws regarding the Processing of Personal Information, including but not limited to laws, regulations, guidelines and codes of practice relating to data protection, information security, cybercrime, use of electronic data and privacy matters in any applicable jurisdictions.
“Private Warrants” means the warrants exercisable for Company Shares and issued to certain holders of the Company Preference Shares, in each case, pursuant to the applicable subscription agreement between the Company and the applicable holder of such Company Preference Shares.
“Process” or “Processing” means the collection, use, storage, processing, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).
“Public Warrants” means the warrants issued pursuant to that certain Warrant Agreement, dated as of July 29, 2015, by and between Easterly Acquisition Corp. and Continental Stock Transfer & Trust Company, and converted into warrants exercisable for Company Shares pursuant to that certain Assignment, Assumption and Amendment Agreement, dated November 5, 2018, by and among Easterly Acquisition Corp., Continental Stock Transfer & Trust Company and the Company.
“Representatives” means, with respect to any Person, its officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other advisors.
“Registration Rights Agreement” means that certain Registration Rights Agreement, to be entered into by and between Parent and the Existing Shareholder substantially in the form attached hereto as Exhibit H.
“Required Approval” means the affirmative approval of a majority of the Original SRC Members that remain members of the Strategic Review Committee as of the time of a given proposed change, modification, amendment, waiver or extension; provided that if, as of such time, (a) less than three but more than zero Original SRC Members remain members of the Strategic Review Committee, the “Required Approval” shall mean the affirmative approval of all such remaining Original SRC Members or (b) zero Original SRC Members remain members of the Strategic Review Committee, or if the Strategic Review Committee shall have been dissolved or disbanded, the “Required Approval” shall mean either (i) the affirmative vote of at least seventy-five percent (75%) of the voting power of the Company Shares and the Company Preference Shares (in all cases excluding any Company Shares or Company Preference Shares held by any of CMB, China Minsheng Investment Group Corp., Ltd., CMIG International Holding Pte. Ltd. or any other direct or indirect parent companies of CMB or Subsidiaries of China Minsheng Investment Group Corp., Ltd. or any of their respective transferees), voting together as a single class, that are present (in person or by proxy) at a meeting of the shareholders of the Company held for such purpose at which at least two Persons holding or representing by
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proxy more than fifty percent (50%) of the voting power represented by the Company Shares that are entitled to vote thereat or (ii) the majority of the Independent Shareholder Representatives.
“Solvent” means, when used with respect to a Person, that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person exceeds the amount that will be required to pay such Person’s probable liability on its existing “debts” as they mature; (b) the assets of such Person at a “fair valuation” exceed its “debts” (including contingent liabilities); (c) to the extent that such Person is the Surviving Company, the excess of the “fair value” of the assets of such Person over its “liabilities” (including contingent and other liabilities) exceed such Person’s capital, (d) such Person will not have an unreasonably small amount of assets or capital for the operation of the businesses in which it is engaged or intends to engage, and (e) such Person will be able to pay its liabilities, including contingent and other liabilities, as they mature. For purposes of this definition, (x) the quoted terms shall be defined as generally determined in accordance with applicable Laws governing determination of the insolvency of debtors and (y) “not have an unreasonably small amount of assets or capital for the operation of the businesses in which it is engaged or intends to engage” and “able to pay its liabilities, including contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations (including contingent and other liabilities) as they become due in the ordinary course.
“Statutory Merger Agreement” means the Statutory Merger Agreement in the form attached hereto as Exhibit A to be executed and delivered by the Company, Parent and Merger Sub as contemplated by the terms hereof.
“Strategic Review Committee” means the committee of independent directors of the Company Board, in existence as of the date of this Agreement, formed to conduct a review of strategic alternatives to the Company, including the Merger.
“Subsidiary” when used with respect to any party, means any corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as of such date, owned by such party or one or more Subsidiaries of such party or by such party and one or more Subsidiaries of such party.
“Tax” means all federal, national, provincial, state, local or foreign taxes, charges, levies or other similar assessments or liabilities in the nature of taxes, including income, gross receipts, capital, sales, use, recording, profits, share capital, license, payroll, social security, unemployment, premium, severance, stamp, documentary, occupation, windfall profits, disability, highway use, alternative or add-on minimum, ad valorem, value-added, excise, real property, personal property, sales, use, transfer, withholding, employment, payroll and franchise taxes imposed and collected by a Governmental Authority, together with any interest, penalties, fines, surcharges, assessments or additions to tax imposed with respect to such amounts.
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“Tax Returns” means all reports, returns, declarations, statements or other information required to be supplied to a Governmental Authority relating to Taxes or any amendment thereof.
“Trading Day” means any day on which the Parent Shares are traded on NASDAQ.
“Transactions” means, collectively, the transactions contemplated by this Agreement, the Statutory Merger Agreement, the Company Voting Agreement, the Parent Voting Agreement and the Transaction Matters Agreement, including the Merger.
“Waiver Agreements” means those Waiver Agreements, by and among Parent, the Company and employees of the Company substantially in the form attached hereto as Exhibit I.
(2) The following terms are defined in the section of this Agreement set forth after such term below:
Terms Not Defined in Section 8.11(a) Section
Acceptable Company Confidentiality Agreement Section 5.02(g)
Acceptable Parent Confidentiality Agreement Section 5.03(f)
Agreement Preamble
Alternative Financing Section 5.14(b)
Alternative Financing Commitment Letter Section 5.14(b)
Appraisal Withdrawal Section 2.06(b)
Appraised Fair Value Section 2.06(a)
Assumed Option Section 2.05(a)
Assumed RSU Award Section 2.05(b)
Bankruptcy and Equity Exception Section 3.03(a)
Bermuda Companies Act Section 1.01
BMA Filing Section 4.04
Book-Entry Share Section 2.01(c)(iii)
Cash Electing Company Share Section 2.01(c)(i)(A)
Cash Election Section 2.01(c)(i)(A)
Certificate Section 2.01(c)(iii)
Certificate of Merger Section 1.02
Claim Section 5.09(b)
Closing Section 1.06
Closing Date Section 1.06
CMB Section 5.07
Code Section 2.02(i)
Commitment Letters Section 4.21(b)
Company Preamble
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Company Acquisition Agreement Section 5.02(d)
Company Adverse Recommendation Change Section 5.02(d)
Company Alternative Proposal Section 5.02(h)
Company Board Recitals
Company Board Recommendation Section 3.03(b)
Company Capitalization Date Section 3.02(a)
Company Disclosure Letter Article III
Company Employee Section 5.11(a)
Company Financial Statements Section 3.05(c)
Company Insurance Approvals Section 3.04
Company Insurance Policies Section 3.16(c)
Company Insurance Subsidiary Section 3.01(b)
Company Investment Assets Section 3.12(a)
Company Investment Guidelines Section 3.13 (b)(iv)
Company Material Contract Section 3.15(b)
Company Notice Section 5.02(d)
Company Preference Shares Section 2.01
Company Reinsurance Contracts Section 3.18(a)
Company Relevant Persons Section 3.22(a)
Company Reserves Section 3.19
Company SEC Documents Section 3.05(a)
Company Shareholder Approval Section 3.03(d)
Company Shareholders Meeting Section 5.04(b)
Company Shares Section 2.01
Company Statutory Statements Section 3.17(a)
Company Superior Proposal Section 5.02(i)
Company Voting Agreement Recitals
Company Warrants Section 2.04(b)
Continuation Period Section 5.11(a)
CVR Section 2.01(c)(i)(B)
CVR Agreement Section 2.01(c)(i)(B)
Debt Commitment Letter Section 4.21(a)
Debt Financing Section 4.21(a)
Effective Time Section 1.02
Election Deadline Section 2.03(c)
Employee Matters Section 3.11(b)
Equity Commitment Letter Section 4.21(b)
Equity Financing Section 4.21(b)
Equity Investor Section 4.21(b)
Exchange Act Section 3.04
Exchange Fund Section 2.02(a)
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Existing Shareholder Recitals
Fee Letter Section 4.21(a)
SFSA Filings Section 4.04
Financing Section 4.21(b)
Financing Agreements Section 5.14(a)
Form of Election Section 2.03(b)
Indemnitee Section 5.09(a)
Indemnitees Section 5.09(a)
Investment Management Agreement Recitals
Joint Proxy Statement Section 2.03(b)
Laws Section 3.08(a)
Lenders Section 4.21(a)
Lloyd’s Regulations Section 3.16(f)
Merger Recitals
Merger Application Section 1.02
Merger Consideration Section 2.01(c)(ii)
Merger Consideration Preference Shares Section 2.01(c)(i)(C)
Merger Consideration Warrant Section 2.01(c)(i)(C)
Merger Sub Preamble
Merger Sub Board Recitals
Merger Sub Shareholder Approval Section 5.13
Merger Sub Shares Section 2.01
Mixed Election Section 2.01(c)(i)(C)
Non-Electing Company Share Section 2.03(b)
Non-U.S. Company Plan Section 3.10(e)
Non-U.S. Parent Plan Section 4.10(e)
OFAC Section 3.22(b)
Other Financing Arrangements Section 5.14(a)
Paid Time Off Policy Section 5.11(c)
Parent Preamble
Parent Acquisition Agreement Section 5.03(d)
Parent Adverse Recommendation Change Section 5.03(d)
Parent Alternative Proposal Section 5.03(g)
Parent Board Recitals
Parent Board Recommendation Section 4.03(b)
Parent Capitalization Date Section 4.02(a)
Parent Certificate of Designation Section 2.01(c)(i)(C)
Parent Disclosure Letter Article IV
Parent Financial Statements Section 4.05(c)
Parent Insurance Approvals Section 4.04
Parent Insurance Policies Section 4.16(c)
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Parent Insurance Subsidiary Section 4.16(a)
Parent Investment Assets Section 4.12(a)
Parent Investment Guidelines Section 4.15(b)(iv)
Parent Material Contract Section 4.15(b)
Parent Notice Section 5.03(d)
Parent Preference Shares Section 4.02(a)
Parent Reinsurance Contracts Section 4.18(a)
Parent Relevant Persons Section 4.27(a)
Parent Reserves Section 4.19
Parent SEC Documents Section 4.05(a)
Parent Shareholder Approval Section 4.03(d)
Parent Shareholders Recitals
Parent Shareholders Meeting Section 5.04(c)
Parent Shares Section 4.02(a)
Parent Statutory Statements Section 4.17(a)
Parent Superior Proposal Section 5.03(h)
Parent Voting Agreement Recitals
Parent Warrant Agreement Section 2.01(c)(i)(C)
Paying Agent Section 2.02(a)
Registrar Section 1.02
Registration Statement Section 2.03(b)
Required Cash Amount Section 4.21(c)
Rights Agent Section 2.01(c)(i)(B)
Sarbanes-Oxley Act Section 3.05(a)
Satisfaction Date Section 5.14(b)
SEC Section 3.04
Securities Act Section 3.05(a)
Securities Offerings Section 5.14(a)
Series B Claims Section 3.07(b)
Series B Preferred Shareholders Section 3.07(b)
Share & CVR Electing Company Share Section 2.01(c)(i)(B)
Share & CVR Election Section 2.01(c)(i)(B)
Share & CVR Election Exchange Ratio Section 2.01(c)(i)(B)
Share Issuance Section 4.03(b)
Surviving Company Section 1.01
Surviving Company Shares Section 2.01(a)
Takeover Law Section 3.14
Transaction Matters Agreement Recitals
Transfer Taxes Section 5.06
Upside Right Instrument Section 2.01(c)(i)(C)
Upside Rights Section 2.01(c)(i)(C)
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U.K. Filings Section 4.04
Walk-Away Date Section 7.01(b)(i)
Section xii.. Fees and Expenses. Except as otherwise provided in this Agreement, regardless of whether any or all of the transactions contemplated by this Agreement are consummated, each party shall bear its and its controlled Affiliates’ respective direct and indirect fees, costs and expenses incurred in connection with the negotiation and preparation of this Agreement, or any document delivered pursuant to this Agreement, and the consummation of the transactions contemplated hereby or thereby, including, all such fees, costs and expenses of its and its controlled Affiliates’ respective Representatives.
Section xiii.. Interpretation.
(1) Interpretation of this Agreement shall be governed by the following rules of construction: (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to Articles, Sections, paragraphs, Exhibits and Schedules are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) references to “$” shall mean United States dollars; (iv) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation” unless otherwise specified; (v) the table of contents, articles, titles and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (vi) this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted; (vii) the Schedules and Exhibits referred to herein shall be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein; (viii) any document shall be determined to have been “delivered,” “furnished,” “provided” or “made available” to a Person if such document has been uploaded to the electronic data rooms established by the Company at Datasite entitled Project Yoga or electronically delivered to such Person or its Representatives at least two Business Days prior to the date of this Agreement or is otherwise set forth in Section 8.13(a) of the Company Disclosure Letter or the Parent Disclosure Letter, as applicable; (ix) unless the context otherwise requires, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (x) all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein; (xi) any agreement or instrument defined or referred to herein or any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent, and references to all attachments thereto and instruments incorporated therein; and (xii) any statute or regulation referred to herein means such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, includes any rules and regulations promulgated under such statute), and references to any section of any statute or regulation include any successor to such section.
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(2) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.
Section xiv.. Debt Financing. Notwithstanding anything in this Agreement to the contrary, the Company on behalf of itself, its Subsidiaries and each of its Affiliates hereby: (a) agrees that any action, suit or proceeding of any kind or description, whether in contract or in tort or otherwise, involving the Debt Financing Parties, arising out of or relating to this Agreement, the Debt Commitment Letter or the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such action, suit or proceeding to the exclusive jurisdiction of such court; (b) agrees that any such action, suit or proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise provided in any applicable Debt Commitment Letters or other applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support or permit any of its Subsidiaries to bring or support any action, suit or proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Party in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letters or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (d) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding in any such court; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable law trial by jury in any action, suit or proceeding brought against the Debt Financing Parties in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letters or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that none of the Debt Financing Parties will have any liability to the Company or any of its Subsidiaries or any of their respective Affiliates or representatives relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letters or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise, (g) agrees that (and each other party hereto agrees that) the Debt Financing Parties are express third party beneficiaries of, and may enforce any of the provisions of this Section 8.14, and (h) agrees that the provisions of this Section 8.14 and the definitions of “Lenders” and “Debt Financing Parties” (and any other provisions of this Agreement to the extent a modification thereof would affect the substance of any of the foregoing) shall not be amended in any way materially adverse to the Debt Financing Parties without the prior written consent of the Lenders. Notwithstanding the foregoing, nothing in this Section 8.14 shall in any way limit or modify the rights and obligations of the Parent or Merger Sub under this Agreement or any Lender’s obligations to
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Parent or Merger Sub under the Debt Commitment Letters or Parent or Merger Sub, (and following the Closing Date, the Company or any of its Subsidiaries) under the definitive agreements governing the Debt Financing. This Section 8.14 shall, with respect to the matters referenced herein, supersede any provision of this Agreement to the contrary.
[signature page follows]


129


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.
SIRIUS INTERNATIONAL INSURANCE GROUP, LTD.


by /s/ Kernan V. Oberting
        Name: Kernan V. Oberting
        Title: President & CEO
THIRD POINT REINSURANCE LTD.


by /s/ Sid Sankaran
        Name: Sid Sankaran
        Title: Director
YOGA MERGER SUB LIMITED


by /s/ Janice Weidenborner
        Name: Janice Weidenborner
        Title: Group General Counsel


[Signature Page to Agreement and Plan of Merger]
EXHIBIT A
THIS STATUTORY MERGER AGREEMENT is dated [●], 2020 (this “Agreement”).
BETWEEN:
(1) Sirius International Insurance Group, Ltd., an exempted company limited by shares incorporated under the laws of Bermuda having its registered office at [Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda] (hereinafter called the “Company”);
(2) Third Point Reinsurance Ltd., an exempted company limited by shares incorporated under the laws of Bermuda having its principal office at [●] (hereinafter called “Parent”); and
(3) Yoga Merger Sub Limited, an exempted company limited by shares incorporated under the laws of Bermuda having its registered office at [●] (hereinafter called “Merger Sub”).
WHEREAS:
(A) Merger Sub is a wholly-owned subsidiary of Parent;
(B) This Agreement is the Statutory Merger Agreement referred to in the Agreement and Plan of Merger among Parent, Merger Sub and the Company, dated August 6, 2020 (the “Agreement and Plan of Merger”); and
(C) Parent, Merger Sub and the Company have agreed that Merger Sub will, subject to the terms and conditions set forth herein and in the Agreement and Plan of Merger, merge with and into the Company, with the Company continuing as the Surviving Company, in accordance with the provisions of the Companies Act 1981 of Bermuda, as amended (the “Companies Act”).
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. DEFINITIONS
Unless otherwise defined herein, capitalized terms have the same meaning as used and defined in the Agreement and Plan of Merger.
2. EFFECTIVENESS OF MERGER
(a) The parties to this Agreement agree that, on the terms and subject to the conditions of this Agreement and the Agreement and Plan of Merger and in accordance with the Companies Act, at the Effective Time, Merger Sub shall be merged with and into the Company, with the Company surviving such Merger and continuing as the Surviving Company.
Ex. A - 1
1006030882v13

(b) The Merger shall be conditional on the satisfaction on or prior to the Closing Date of each of the conditions to the Merger identified in Article VI of the Agreement and Plan of Merger.
(c) The Merger shall become effective at the Effective Time.
3. NAME OF SURVIVING COMPANY
The Surviving Company shall be Sirius International Insurance Group, Ltd.
4. MEMORANDUM OF ASSOCIATION
The memorandum of association of the Company shall, at the Effective Time, by virtue of the Merger and without any further action, be amended and restated to read in its entirety as set forth on Exhibit B and, as so amended and restated, shall be the memorandum of association of the Surviving Company until thereafter changed or amended as provided therein or by applicable Law.
5. BYE-LAWS
The bye-laws of the Surviving Company shall, at the Effective Time, by virtue of the Merger and without any further action, be amended and restated to be in the form of the bye-laws of Merger Sub as in effect immediately prior to the Effective Time until thereafter changed or amended as provided therein or by applicable Law, except that references to the name of Merger Sub shall be replaced by references to the name of the Surviving Company.
6. DIRECTORS AND OFFICERS
The directors of Merger Sub in office immediately prior to the Effective Time shall be the directors of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be. The officers of the Company in office immediately prior to the Effective Time shall be the officers of the Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.
7. CONVERSION OF SECURITIES
At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any share capital of Merger Sub or the Company:
(a) each common share, par value $1.00 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) duly authorized, validly issued, fully paid and nonassessable common share, par value $1.00 per share, of the Surviving Company;
Ex. A - 2
1006030882v13

(b) all Company Shares that are owned by the Company as treasury shares and any Company Shares issued and outstanding immediately prior to the Effective Time and owned by the Company, Parent, Merger Sub or any other direct or indirect wholly owned Subsidiary of the Company or Parent immediately prior to the Effective Time shall automatically be canceled and shall cease to exist and be outstanding and no consideration shall be delivered in exchange therefor;
(c) subject to paragraphs (b) and (d), each Company Share that is issued and outstanding immediately prior to the Effective Time, other than any Company Share that is subject to any Company Award, shall automatically be canceled and converted into and shall thereafter represent the right to receive the Merger Consideration; all such Company Shares shall no longer be issued and outstanding and shall automatically be canceled and shall cease to exist, and each holder of a Certificate or a Book-Entry Share shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration and other payments as set out in the Agreement and Plan of Merger; and
(d) notwithstanding anything in this Agreement to the contrary, any Dissenting Shares shall automatically be cancelled and, unless otherwise required by applicable Law, converted into the right to receive the Merger Consideration as set out in the Agreement and Plan of Merger and, in the event that the fair value of a Dissenting Share as appraised by the Supreme Court of Bermuda under Section 106(6) of the Companies Act is greater than the Merger Consideration, any holder of Dissenting Shares shall be entitled to receive such difference from the Surviving Company by payment made within 30 days after such fair value is finally determined pursuant to such appraisal procedure.
8. EXECUTION IN COUNTERPARTS
This Agreement may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.
9. NOTICES
All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, facsimiled (which is confirmed), emailed (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses:
IF TO PARENT OR MERGER SUB, TO:
[●]
Facsimile: [●]
Attention: [●]
Ex. A - 3
1006030882v13

with a copy to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
Email:  nfpotter@debevoise.com
IF TO THE COMPANY, TO:
Sirius International Insurance Group, Ltd.
14 Wesley Street, 5th Floor
Hamilton HM11 Bermuda
Attention:   Gene Boxer
E-mail:         Gene.Boxer@siriusgroup.com
with copies to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Sean M. Keyvan
Jonathan A. Blackburn
E-mail:   skeyvan@sidley.com
jblackburn@sidley.com 
or such other address, email address or facsimile number as such party may hereafter specify by like notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of actual receipt by the recipient thereof if received prior to 5:00 p.m. local time in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Bermuda and the parties hereto submit to the exclusive jurisdiction of the courts of Bermuda.
Signature Page Follows


Ex. A - 4
1006030882v13

IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first written above.
SIGNED for and on behalf of
THIRD POINT REINSURANCE LTD.
By:  
Name:  
Title:  
Witnessed:
By:  
SIGNED for and on behalf of
YOGA MERGER SUB LIMITED
By:  
Name:  
Title:  
Witnessed:
By:  
SIGNED for and on behalf of
SIRIUS INTERNATIONAL INSURANCE GROUP, LTD.
By:  
Name:  
Title:  
Witnessed:
By:  

[Signature Page to Statutory Merger Agreement]
EXHIBIT 3.1
CERTIFICATE OF DESIGNATION
OF
SERIES A PREFERENCE SHARES
OF
[SIRIUSPOINT LTD.]
         [SiriusPoint Ltd.] (formerly known as Third Point Reinsurance Ltd.), a Bermuda exempted company limited by shares (the “Company”), hereby certifies that, pursuant to duly authorized resolutions of the Board of Directors of the Company adopted on [•], 202[•], the creation of the Series A Preference Shares, with a par value of US$0.10 per share (the “Preference Shares”), was authorized and the terms, including designation, powers, preferences, rights, qualifications, limitations and restrictions of the Preference Shares, in addition to those set forth in the Memorandum of Association and Bye-Laws of the Company, were fixed as follows:
Section 1.Designation; Amount of Shares. The designation of this series of Preference Shares shall be “Series A Preference Shares”, and the number of shares constituting this series shall be [•]1. Each Preference Share shall be identical in all respects to every other Preference Share. Any Preference Shares cancelled by purchase or redemption, or otherwise acquired by the Company, will have the status of authorized but unissued Preference Shares and may be reissued as part of the same class or series or may be reclassified and reissued by the Board of Directors in the same manner as any other authorized and unissued shares and shall not be taken to have reduced the amount of the Company’s authorized share capital. The number of authorized Preference Shares may be reduced (but not, other than pursuant to Section 5 hereof, below the number of Preference Shares then issued and outstanding) by further resolutions duly adopted by (i) the Board of Directors and (ii) the holders of Preference Shares and Common Shares voting together as a single class. No such reduction shall affect the due authorization of any issued and outstanding Preference Shares.
Section 2.Definitions. As used herein with respect to the Preference Shares:
(a)“Accounting Principles Election” has the meaning assigned to such term in Section 11(b)(iii)(A).
(b)“Actual Liquidation” has the meaning assigned to such term in Section 4(a).
(c)“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation any general partner, managing member, officer or director of such Person now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.
1  To be determined at Closing based on final preferred stock exchange ratio and number of Sirius common shares electing option 3.


(d)“Applicable Policies” means (i) Policies that were issued, bound, renewed, agreed or written by the Sirius Insurance Subsidiaries prior to April 1, 2020 or (ii) Policies that were issued, bound, renewed, agreed or written by the TPRE Insurance Subsidiaries prior to April 1, 2020, as applicable, in each case, pursuant to the terms thereof in effect as of April 1, 2020.
(e)“Board of Directors” means the Board of Directors of the Company or, with respect to any action to be taken by the Board of Directors, any committee of the Board of Directors duly authorized to take such action.
(f)“Business Day” means any day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York, New York or Hamilton, Bermuda are authorized or required by applicable law to be closed.
(g)“Bye-Laws” means the [amended and restated] bye-laws of the Company, as they may be amended from time to time.
(h)“Certificate of Designation” means this Certificate of Designation relating to the Preference Shares, as it may be amended from time to time.
(i)“CM Bermuda” means CM Bermuda Ltd., a Bermuda exempted company, and its successors.
(j)“CMIG International” means CMIG International Holding Pte. Ltd., a Singapore holding company, and its successors.
(k)“Commission” means the U.S. Securities and Exchange Commission.
(l)“Common Shares” means the common shares, par value US$0.10 per share, of the Company, or any other class of shares resulting from successive changes or reclassifications of such common shares consisting solely of changes in par value, or as a result of a subdivision, combination, merger, amalgamation, consolidation or similar transaction in which the Company is a constituent company.
(m)“Company” has the meaning assigned to such term in the preamble.
(n)“Conversion Date” has the meaning assigned to such term in Section 6(a).
(o)“Conversion Ratio” has the meaning assigned to such term in Section 6(a).
(p)“Conversion Shares” means at any applicable time the Common Shares issuable upon conversion of the Preference Shares in accordance with the terms hereof.
(q)“COVID-19” means novel severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and any illness caused by such coronavirus.
930637.03-NYCSR05A - MSW
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(r)“COVID-19 Effect” means the effect of laws, regulations, orders, directions, judicial decisions, decisions of arbitrators, or other measures enacted, issued or ordered by a Governmental Authority to control, address or otherwise manage the transmission of COVID-19.
(s)“COVID-19 Losses” means Losses that are (i) Reported COVID-19 Losses or (ii) Determined COVID-19 Losses identified pursuant to the procedures set forth in Section 5(b)(ii); provided, that any ex gratia payment made by a Sirius Insurance Subsidiary or a TPRE Insurance Subsidiary after the Issue Date under any Applicable Policy shall not be included in the calculation of COVID-19 Losses, other than ex gratia payments that are paid in good faith as a component of losses assumed under assumed reinsurance.
(t) “COVID-19 Loss Determination” has the meaning assigned to such term in Section 5(b)(ii).
(u)“Deadline Date” has the meaning assigned to such term in Section 5(b)(i).
(v)“Determined COVID-19 Losses” has the meaning assigned to such term in Section 5(b)(ii).
(w)“Dividends” has the meaning assigned to such term in Section 3.
(x)“Effective Date” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.
(y)“Excess Loss Amount” means the lesser of (i) the Sirius Net COVID Loss minus the TPRE Net COVID Loss and (ii) $100 million.
(z)“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(aa)“Extra-Contractual Obligations” means, with respect to the Applicable Policies, all liabilities and obligations for consequential, extra-contractual, exemplary, punitive, special or similar damages or any other amounts due or alleged to be due (other than those arising under the express terms and conditions of such Applicable Policies) which arise from any real or alleged act, error or omission, whether or not intentional, in bad faith or otherwise, relating to: (i) the marketing, underwriting, production, issuance, cancellation or administration of the Applicable Policies; (ii) the handling of claims or disputes in connection with the Applicable Policies; or (iii) the failure to pay or the delay in payment of benefits or claims, under or in connection with the Applicable Policies.
(ab)“Final Adjustment Determination Date” has the meaning assigned to such term in Section 5(b)(ix)(A).
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(ac)“Final Sirius Total Experience” has the meaning assigned to such term in Section 5(b)(viii).
(ad)“Final TPRE Total Experience” has the meaning assigned to such term in Section 5(b)(viii).
(ae)“Forfeited Preference Shares” has the meaning assigned to such term in Section 5(b)(ix)(D).
(af)“Fundamental Transaction” has the meaning assigned to such term in Section 6(e)(iii).
(ag)“Governmental Authority” means any United States or non-United States federal, state or local or any supra-national, political subdivision, governmental, legislative, tax, regulatory or administrative authority, instrumentality, agency, body or commission, self-regulatory organization or any court, tribunal, or judicial or arbitral body.
(ah)“IFRS” has the meaning assigned to such term in Section 11(b)(iii)(A).
(ai)“Independent Actuarial Team” means an independent actuarial team from Milliman, Willis Towers Watson, Oliver Wyman or, if no such teams are available, another independent actuarial firm of international recognition with experience in the property and casualty insurance and reinsurance industry, the members of which team have not performed services for either of the Company or CMIG International or their respective Affiliates (including, in the case of the Company, the Sirius Insurance Subsidiaries) within one (1) year prior to its engagement.
(aj)“Initiation Date” has the meaning assigned to such term in Section 5(b)(vi).
(ak)“Investor Rights Agreement” means that certain Investor Rights Agreement dated [•], 202[•] among the Company and CM Bermuda.
(al)“Issue Date” means [•], 202[•].
(am)“Issued Common Shares” has the meaning assigned to such term in Section 5(b)(ix)(D).
(an)“Last Reported Sale Price” of the Common Shares on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Shares are traded. If the Common Shares are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Shares in the over-
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the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Shares are not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
(ao)“Liquidation Notice” has the meaning assigned to such term in Section 4(b).
(ap)“Losses” means, under any and all Applicable Policies, any loss, damage, occurrence, claim, settlement, interest, bond, fine, penalty, or other similar amount, including related allocated loss adjustment expenses and Extra-Contractual Obligations, as applicable, less all reinsurance recoverables and salvage or subrogation or other recoveries relating to such Applicable Policies.
(aq)“Mandatory Conversion Event” has the meaning assigned to such term in Section 6(a).
(ar)“Mandatory Conversion Notice” has the meaning assigned to such term in Section 6(b).
(as)“Market Disruption Event” means (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Shares or in any options contracts or futures contracts traded on any U.S. exchange relating to the Common Shares.
(at)“Memorandum of Association” means the memorandum of association of the Company, as it may be amended from time to time.
(au) “Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture, association or other similar entity, whether or not a legal entity.
(av)“Policy” means:
(i)in the case of the Sirius Insurance Subsidiaries, any cover note, treaty, slip, facultative certificate, binder, policy or contract of insurance or reinsurance, written, issued, bound, renewed or agreed by or on behalf of
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one or more of the Sirius Insurance Subsidiaries, any agreement of assumed reinsurance entered into by one or more of the Sirius Insurance Subsidiaries and all legally binding addenda, endorsements, alterations, amendments and ancillary agreements in connection therewith of whatever nature, in each case, that were issued, bound, renewed, agreed or written by Sirius Insurance Subsidiaries; and
(ii)in the case of the TPRE Insurance Subsidiaries, any cover note, treaty, slip, facultative certificate, binder, policy or contract of insurance or reinsurance, written, issued, bound, renewed or agreed by or on behalf of one or more of the TPRE Insurance Subsidiaries, any agreement of assumed reinsurance entered into by one or more of the TPRE Insurance Subsidiaries and all legally binding addenda, endorsements, alterations, amendments and ancillary agreements in connection therewith of whatever nature, in each case, that were issued, bound, renewed, agreed or written by the TPRE Insurance Subsidiaries.
(aw)“Preference Shares” has the meaning assigned to such term in the preamble.
(ax)“Report” has the meaning assigned to such term in Section 5(c)(ii).
(ay)“Reported COVID-19 Losses” means Losses reasonably identified by an insured or cedant in a written claim notice as having as their most significant causation factor either (i) COVID-19 or (ii) any COVID-19 Effect.
(az)“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading. If the Common Shares are not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
(ba)“Selected Actuarial Team” has the meaning assigned to such term in Section 5(b)(i).
(bb)“Sirius Insurance Subsidiaries” means Alstead Reinsurance Ltd., Cedar Insurance Company, Empire Insurance Company, Lloyds Syndicate 1945, Oakwood Insurance Company, Sirius America Insurance Company, Sirius Bermuda Insurance Company Ltd. and Sirius International Insurance Corporation; and “Sirius Insurance Subsidiaries” shall be deemed to include any successor entities thereof or any Affiliate of any such entity that assumes (by operation of law, by contract, or otherwise) any of the Applicable Policies written or otherwise assumed by any of the foregoing.
(bc)“Sirius Total Experience” means, in respect of the Sirius Insurance Subsidiaries, the Total COVID-19 Losses.
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(bd)“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be a, or control any, managing director or general partner of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.
(be)“Supporting Documentation” has the meaning assigned to such term in Section 5(b)(ii).
(bf)“Third Anniversary Date” means [•]2.
(bg)“Third Year Calculation” has the meaning assigned to such term in Section 5(b)(iv).
(bh)“Total COVID-19 Losses” means, for the Sirius Insurance Subsidiaries or TPRE Insurance Subsidiaries, as applicable, the aggregate amount of COVID-19 Losses paid or for which reserves (including reserves for allocated loss adjustment expenses and reserves for losses incurred but not reported (IBNR)) have been or should be established (applying reserving methods, practices and principles consistent with those utilized as of April 1, 2020 by the Sirius Insurance Subsidiaries or TPRE Insurance Subsidiaries, as applicable, generally within their businesses in order to establish such components of reserves).
(bi)“TPRE Insurance Subsidiaries” means Third Point Reinsurance Company Ltd. and Third Point Reinsurance (USA) Ltd.; and “TPRE Insurance Subsidiaries” shall be deemed to include any successor entities thereof or any Affiliate of any such entity that assumes (by operation of law, by contract, or otherwise) any of the Applicable Policies written or otherwise assumed by any of the foregoing
(bj)“TPRE Total Experience” means, in respect of the TPRE Insurance Subsidiaries, the Total COVID-19 Losses.
2 Date will be the third anniversary of the Closing Date.
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(bk)“Trading Day” means, except for determining the VWAP as set forth below, a day on which (i) trading in the Common Shares (or other security for which a closing sale price must be determined) generally occurs on the principal U.S. national or regional securities exchange on which the Common Shares (or such other security) are then listed or, if the Common Shares are (or such other security is) not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are (or such other security is) then traded and (ii) a Last Reported Sale Price for the Common Shares (or closing sale price for such other security) is available on such securities exchange or market; provided that if the Common Shares are (or such other security is) not so listed or traded, “Trading Day” means a Business Day; provided, further, that for purposes of determining the VWAP only, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Shares generally occurs on the principal other U.S. national or regional securities exchange on which the Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are then listed or admitted for trading, except that if the Common Shares are not so listed or admitted for trading, “Trading Day” means a Business Day.
(bl)“UK GAAP” has the meaning assigned to such term in Section 11(b)(iii)(A).
(bm)“Valuation Period” has the meaning assigned to such term in Section 6(e)(ii).
(bn)“VWAP” means, for any Trading Day or Trading Day period, the “volume weighted average price” of the Common Shares for such day or period (as reported by Bloomberg L.P. or, if not reported therein, as reported by another authoritative source selected by the Company in its commercially reasonable discretion); provided, however, that in no circumstance shall such calculation take into account after-hours trading or other trading outside of regular trading sessions.
Section 3.Ranking; Dividends. The Preference Shares will rank pari passu with the Common Shares with respect to the payment of dividends or distributions, whether payable in cash, securities, options or other property, and with respect to issuance, grant or sale of any rights to purchase stock, warrants, securities or other property (collectively, the “Dividends”) on a pro rata basis with the Common Shares determined on an as-converted basis assuming all shares had been converted pursuant to Section 6 as of immediately prior to the record date of the applicable Dividend (or if no record date is fixed, the date as of which the record holders of Common Shares entitled to such Dividends are to be determined). Accordingly, the holders of record of Preference Shares will be entitled to receive as, when, and if declared by the Board of Directors, Dividends in the same per share amount as paid on the number of Common Shares with respect to the number of Common Shares into which the Preference Shares would be converted, and no Dividends will be payable on the Common Shares or any other class or series of capital stock ranking with respect to Dividends pari passu with the
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Common Shares unless a Dividend identical to that paid on the Common Shares is payable at the same time on the Preference Shares in an amount per share of Preference Shares equal to the product of (a) the per share Dividend declared and paid in respect of each Common Shares and (b) the number of Common Shares into which such Preference Share is then convertible. Dividends that are payable on Preference Shares will be payable to the holders of record of Preference Shares as they appear on the stock register of the Company on the applicable record date, as determined by the Board of Directors, which record date will be the same as the record date for the equivalent Dividend of the Common Shares. In the event that the Board of Directors does not declare or pay any Dividends with respect to shares of Common Shares, then the holders of Preference Shares will have no right to receive any Dividends.
Section 4.Liquidation Rights.
(a)Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the Company as a result of any bankruptcy, reorganization, or similar proceeding, or any foreclosure by creditors of the Company on all or substantially all assets of the Company, whether voluntary or involuntary (an “Actual Liquidation”), then the holders of the Preference Shares then outstanding shall be entitled to receive an amount equal to a pro rata portion (pro rata with the Common Shares determined on a per share as-converted basis assuming all Preference Shares had been converted pursuant to Section 6), of any assets and funds of the Company available for distribution.
(b)Notice of Liquidation. In the event of an Actual Liquidation, the Company shall, within ten (10) days after the date the Board of Directors approves such Actual Liquidation, or no later than twenty (20) days after any shareholders’ meeting called to approve such Actual Liquidation, or within twenty (20) days after the commencement of any involuntary proceeding in respect of an Actual Liquidation, whichever is earlier, deliver to each holder of Preference Shares written notice of the proposed Actual Liquidation (a “Liquidation Notice”), which written notice shall describe the material terms and conditions of such Actual Liquidation, including a description of the equity securities, cash and property to be received by the holders of Preference Shares upon consummation of the proposed Actual Liquidation and the date of delivery thereof. If any material change in the facts set forth in the Liquidation Notice shall occur, the Company shall promptly deliver written notice of such material change to each holder of Preference Shares.
Section 5.Redemption; Adjustment of Outstanding Number of Preference Shares.
(a)General. Except as set forth in Section 5(b), the Preference Shares shall not be redeemable.
(b)Information Regarding COVID-19 Losses.
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(i)In connection with CMIG International’s review of Sirius Total Experience and TPRE Total Experience, the Company shall cooperate with and provide to, and shall cause the Sirius Insurance Subsidiaries and the TPRE Insurance Subsidiaries to cooperate with and provide to, CMIG International, reasonable access to the books and records of the Company, the Sirius Insurance Subsidiaries and the TPRE Insurance Subsidiaries, including the personnel of the Company, the Sirius Insurance Subsidiaries and the TPRE Insurance Subsidiaries, along with such other information as CMIG International may reasonably request in connection therewith (including any Supporting Documentation and any material correspondence related to the collection thereof) and shall provide CMIG International with information or access provided to the Selected Actuarial Team on a concurrent basis. None of the Company or CMIH International shall, and they shall cause their respective controlled Affiliates not to, permit any of their respective directors, officers, employees, partners, members, shareholders or any other Representatives to participate in any live or telephonic meeting with the Selected Actuarial Team in respect of the review of any Report unless it consults with the other in advance and gives the other party the opportunity to attend and participate in such meeting. All information provided to a Receiving Party pursuant to this Section 5(b)(iii) shall be maintained in confidence by the Receiving Parties, shall not be disclosed to any third party, and shall not be publicly disclosed.
(ii)Until the Final Adjustment Determination Date, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees or any other Representatives to retain all books and records that are relevant in any material respect to the calculation of the Sirius Total Experience and the TPRE Total Experience in accordance with this Certificate of Designation including without limitation all written communications with the Selected Actuarial Team, all documentation used to prepare a Report, and all supporting Documentation and related correspondence used for purposes of establishing reserves with respect to COVID-19 Losses.
(c)Interim Expert Review of COVID-19 Losses.
(i)In each consecutive twelve (12) month period from the date this Certificate of Designation was adopted by the Board of Directors of the Company, CMIG International shall have the right (which for the avoidance of doubt may only be exercised once during the applicable twelve (12) month period) to request an independent expert review of the Company’s determination of Sirius Total Experience and TPRE Total Experience in accordance with the terms of this Certificate of Designation. Within thirty (30) days of such request, the Company and CMIG International shall jointly engage an Independent Actuarial Team mutually acceptable to them (the “Selected Actuarial Team”) which team shall be re-engaged pursuant to this Section 5(c)(i) in the event CMIG International exercises it right to request an independent expert review pursuant to this Section 5(c) to monitor the Company’s determination of Sirius Total Experience and TPRE Total Experience (provided, that if the Company and CMIG International cannot agree upon an Independent Actuarial Team within thirty (30) days following the Issue Date, then upon application of the Company or CMIG International, the American Arbitration Association shall nominate an Independent Actuarial Team and within the ten (10) Business Days following such nomination the Company and CMIG International shall jointly
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engage such Person as the Selected Actuarial Team). The reasonable fees and expenses of the Selected Actuarial Team shall be borne equally between the Company and CMIG International. The Company and CMIG International shall enter into a customary engagement letter with the Selected Actuarial Team.
(ii)By no later than sixty (60) days following the date on which the Selected Actuarial Team was engaged by the Company and CMIG International, the Company shall deliver to CMIG International and the Selected Actuarial Team a report prepared using a level of professionalism and diligence consistent with the Company’s reporting obligations under applicable securities laws and certified by a senior officer of the Company with appropriate knowledge that sets forth in reasonably specific detail, including supporting calculations and all Supporting Documentation (as defined below), the Company’s good faith estimate of the Sirius Total Experience and the TPRE Total Experience as of the end of the period requested by CMIG International (the “Report”). The Report shall include within the Sirius Total Experience and TPRE Total Experience Losses which are not Reported COVID-19 Losses, but only to the extent that either (A) the Company has obtained from the cedant or insured under the Applicable Policy written evidence that supports a reasonable determination that the most significant causation factor in such Losses is COVID-19 or any COVID-19 Effect (“Supporting Documentation”) or (B) if the Company has made a written request to the cedant or insured for Supporting Documentation and no such Supporting Documentation has been provided by the relevant cedant or insured, then the Company shall have made a reasonable determination, based on all evidence available at the time (and not inferred from the absence of evidence to the contrary) that such Losses are COVID-19 Losses (any such Losses, in clause (A) or (B), “Determined COVID-19 Losses”).
(iii)To the extent that CMIG International disagrees with any identification or estimate of Reported COVID-19 Losses or Determined COVID-19 Losses in the Report, it shall provide written notice to the Company by no later than (10) Business Days following the delivery of the Report. In the ten (10) Business Days following delivery of such notification, the Company and CMIG International shall use their respective reasonable best efforts to resolve such disagreement. If the Company and CMIG International are unable to resolve such disagreement by no later than forty-five (45) days following the end of such ten (10) Business Day period, then any such unresolved matters shall be submitted to the Selected Actuarial Firm for their non-binding review and assessment. For purposes of undertaking is non-binding review and assessment hereunder, the Selected Actuarial Team shall have the same inspection and other rights of the Company as set forth in Section 5(b)(i) hereto.
(d)Final Review and Determination of COVID-19 Losses.
(i)No later than thirty (30) calendar days following the Third Anniversary Date (the “Initiation Date”), the Company shall prepare and deliver to CMIG International a final calculation of Sirius Total Experience and TPRE Total Experience in reasonably specific detail, including supporting calculations and all Supporting Documentation (the “Third Year Calculation”). The determination of COVID-19 Losses in the Third Year Calculation shall be fully consistent with all prior COVID-19 Loss Determinations.
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(ii)To the extent that CMIG International disagrees with any identification or estimate of Reported COVID-19 Losses or Determined COVID-19 Losses in the Third Year Calculation, it shall provide written notice to the Company by no later than forty-five (45) Business Days following the delivery of the Third Year Calculation. In the ten (10) Business Days following delivery of such notification, the Company and CMIG International shall use their respective reasonable best efforts to resolve such disagreement. If the Company and CMIG International are unable to resolve such disagreement by no later than fifteen (15) days following the end of such ten (10) Business Day period, CMIG International and the Company shall jointly engage the an Independent Actuarial Team Mutually acceptable to them (the “Final Actuarial Team¨) which Final Actuarial Team shall be the same Selected Actuarial Team (if any) that was retained pursuant to Section 5(b)(ii); (provided, that if the Company and CMIG International cannot agree upon an Independent Actuarial Team within ten (10) Business days where no Select Acturial Team was previously retained, then upon application of the Company or CMIG International, the American Arbitration Association shall nominate an Independent Actuarial Team and within and within ten (1) Business Days following such nomination the Company and CMIG International shall jointly engage such Person as the Final Actuarial Team) and shall each submit to the Selected Actuarial Team (and simultaneously therewith a copy to the other) their respective identifications and estimates of Reported COVID-19 Losses and Determined COVID-19 Losses together with supporting calculations and documentation (which submission in the case of the Company shall be consistent with the Third Year Calculation except in the case of any item in respect of which CMIG International agrees). The Selected Actuarial Firm shall then be instructed to make a final determination by no later than thirty (30) days following the date on which the last submission was delivered of the calculation and identification of each Reported COVID-19 Losses or Determined COVID-19 Loss in respect of which CMIG International and the Company disagree (a “COVID-19 Loss Determination”) in each case in accordance with the terms of this Certificate of Designation and that such determination shall be made by the Selected Actuarial Team in its capacity as an expert and not as an actuary or accountant. Any COVID-19 Loss Determination shall be set forth in writing and be conclusive and binding upon all the parties for all purposes hereunder. For purposes of making its final determination hereunder, the Selected Actuarial Team shall have the same inspection and other rights of the Company as set forth in Section 5(b)(i) hereto and shall, if applicable, be entitled to reference the conclusions of any non-binding review provided for in Section 5(c)(ii).
(iii)The Company’s calculation of Sirius Total Experience and TPRE Total Experience, as modified by any determination of the Final Actuarial Team, shall be the “Final Sirius Total Experience” and “Final TPRE Total Experience”, as applicable.
(iv)Forfeiture of Preference Shares; Issuance of Common Shares.
(1)The adjustments and settlements set forth in this Section 5(b)(ix)(A) shall be made no later than five (5) Business Days following the calculation of the Final Sirius Total Experience and the Final TPRE Total Experience (the date such adjustments and settlements are made, the “Final Adjustment Determination Date”).
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(2)If the Final Sirius Total Experience is greater than $150 million, then an amount equal to (i) the Final Sirius Total Experience minus (ii) $150 million shall be the “Sirius Net COVID Loss”. If the Final Sirius Total Experience is less than $150 million, then the “Sirius Net COVID Loss” shall be equal to $0.
(3)If the Final TPRE Total Experience is greater than $51.1 million, then an amount equal to (i) the Final TPRE Total Experience minus (ii) $51.1 million shall be the “TPRE Net COVID Loss”. If the Final TPRE Total Experience is less than $51.1 million, then the “TPRE Net COVID Loss” shall be equal to $0.
(4)If the Sirius Net COVID Loss is greater than the TPRE Net COVID Loss, then a number of Preference Shares equal to (x) the Excess Loss Amount divided by (y) the VWAP measured over the thirty (30) Trading Day period prior to the Final Adjustment Determination Date divided by (z) the Conversion Ratio as of the Final Adjustment Determination Date (the “Forfeited Preference Shares”) will be promptly (and in any event no later than two (2) Business Days after the Final Adjustment Determination Date) forfeited by the record holders of Preference Shares, on a pro rata basis, and will be delivered to the Company without any further action being required on the part of such record holders. The number of Forfeited Preference Shares forfeited by each record holder of Preference Shares as of the Settlement Date shall be calculated on a pro rata basis based upon (1) the total number of Preference Shares held by such holder and (2) the total outstanding number of Preference Shares; provided that in no case shall any such holder be required to forfeit, or have any liability to the Company, in excess of the number of Preference Shares actually held by such holder. The forfeiture of the Preference Shares will be automatic and will be executed by a notation made in the share register of the Company.
(5)If the TPRE Net COVID Loss is greater than the Sirius Net COVID Loss, then a number of Common Shares equal to (x) the dollar amount of such excess divided by (y) the VWAP measured over the thirty (30) Trading Day period prior to Final Adjustment Determination Date (the “Issued Common Shares”) will be promptly (and in any event no later than two (2) Business Days after the Final Adjustment Determination Date) issued to holders of Preference Shares. The actual number of Issued Common Shares issued to each record holder of Preference Shares as of the Settlement Date shall be calculated on a pro rata basis based upon (1) the total number of Preference Shares held by such holder and (2) the total outstanding number of Preference Shares.
Section 6.Conversion.
(a)Mandatory Conversion. On the Business Day immediately following the Final Adjustment Determination Date and, if applicable, the forfeiture of Forfeited Preference Shares pursuant to Section 5(b)(ix)(D) by the record holders thereof (such Business Day, the “Conversion Date”), each outstanding Preference Share shall automatically convert into one (1) Common Share, subject to adjustment as provided in Section 6(e) below (the “Conversion Ratio”), without any further action on the part of any holder (a “Mandatory Conversion Event”).
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(b)Procedures for Mandatory Conversion. Promptly, and in any event within three (3) Business Days after the Final Adjustment Determination Date, the Company shall send each holder of Preference Shares written notice of such event (the “Mandatory Conversion Notice”) providing instructions for the surrender to the Company of certificates for Preference Shares and the issuance of Common Shares into which the Preference Shares have been converted pursuant to Section 6(a).
(c)Rights Subsequent to Conversion. All Preference Shares converted to Common Shares as provided in this Section 6, regardless of whether certificate(s) and accompanying materials have been surrendered pursuant to Section 6(b), shall no longer be deemed outstanding as of the effective time of the applicable conversion and all rights with respect to such Preference Shares shall immediately cease and terminate as of such time, other than (i) the right of the holder to receive Common Shares and payment in lieu of any fraction of a Common Share in exchange therefor and (ii) the rights attaching to the Common Shares upon conversion of the Preference Shares.
(d)No Charge or Payment. The issuance of certificates for Common Shares upon conversion of Preference Shares pursuant to this Section 6 shall be made without payment of additional consideration by, or other charge to, the holder thereof.
(e)Adjustment to Number of Conversion Shares. In order to prevent dilution of the conversion rights granted under this Section 6, the Conversion Ratio and the number of Conversion Shares issuable upon the conversion of the Preference Shares shall be subject to adjustment from time to time as provided in this Section 6(e).
(i)If the Company shall, at any time or from time to time after the Issue Date, subdivide (by any share split, recapitalization or otherwise) its outstanding Common Shares into a greater number of shares, then the Conversion Ratio shall be adjusted such that the number of Conversion Shares issuable upon conversion of the Preference Shares shall be proportionately increased. If the Company at any time combines (by combination, reverse share split or otherwise) its outstanding Common Shares into a smaller number of shares, then the Conversion Ratio shall be adjusted such that the number of Conversion Shares issuable upon conversion of the Preference Shares shall be proportionately decreased. Any adjustment under this Section 6(e) shall be calculated in good faith based on the formula below by the Company and become effective at the close of business on the date the applicable event becomes effective.
CR1 = CR0 ×
OS1
OS0
where,
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CR0 = the Conversion Ratio in effect immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
CR1 = the Conversion Ratio in effect immediately after the open of business on such Effective Date;
OS0 = the number of the Common Shares outstanding immediately prior to the open of business on such Effective Date (before giving effect to any such share split or share combination); and
OS1 = the number of the Common Shares outstanding immediately after giving effect to such share split or share combination.
If any share split or share combination of the type described in this Section 6(e) is declared or announced, but not so made, then the Conversion Ratio will be readjusted, effective as of the date the Board of Directors determines not to effect such share split or share combination, to the Conversion Ratio that would then be in effect had such share split or share combination not been declared or announced.
(ii)If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period (the “Valuation Period”) commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Ratio shall be adjusted such the number of Conversion Shares issuable upon conversion of each Preference Share shall be increased based on the following formula.
CR1 = CR0 ×
AC + (SP1 × OS1)
OS0 × SP1
where:
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CR0
= the Conversion Ratio in effect immediately prior to the close of business on the last Trading Day of the Valuation Period;
CR1
= the Conversion Ratio in effect immediately after the close of business on the last Trading Day of the Valuation Period;
     
AC =
the aggregate value of all cash and any other consideration (as determined by the Board of Directors in good faith and in a commercially reasonably manner) paid or payable for Common Shares purchased in such tender or exchange offer;
     
OS0
= the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer);
     
OS1
= the number of Common Shares outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); and
     
SP1
= the average of the Last Reported Sale Prices over the Valuation Period.
The adjustment to the Conversion Ratio under this Section 6(e)(ii) shall occur as of the close of business on the last day of the Valuation Period; provided that if the Conversion Date occurs during the Valuation Period, for the purposes of determining the Conversion Ratio, a reference to “10” in this Section 6(e)(ii) shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the first day of the Valuation Period to, and including, the Conversion Date. To the extent such tender or exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Common Shares in such tender or exchange offer are rescinded, the Conversion Ratio will be readjusted to the Conversion Ratio that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of Common Shares, if any, actually made, and not rescinded, in such tender or exchange offer.
(iii)In the event of any of the following events (A) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company or any of its subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of Common Shares representing more than 50% of the voting power of the Common Shares or the Company otherwise becomes aware of such ownership; (B) the consummation of any share exchange, merger, consolidation or similar business combination transaction of the Company with or into another Person or (C) the sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of the Company’s voting stock), to any “person” or “group” within the meaning of Section 13(d) of the Exchange Act, of all or substantially all of the assets of the Company (each, a “Fundamental Transaction”), in each case, as a result of which the Common Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert each Preference
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Share shall be changed into a right to convert such Preference Share into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of Common Shares equal to the Conversion Ratio immediately prior to such Merger Event would have owned or been entitled to receive upon such Merger Event (such shares of stock, other securities or other property or assets, the “Alternate Consideration” with each “unit of Alternate Consideration” meaning the kind and amount of stock, other securities or other property or assets that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided that if the holders of the Common Shares have a right of election as to the kind or amount of consideration receivable upon consummation of such Merger Event, then the unit of Alternate Consideration shall be deemed to be the weighted average of the kind and amount stock, other securities, other property or assets received in such Merger Event per Common Share by the holders of the Common Shares that affirmatively make such election. Upon the occurrence of any such Fundamental Transaction, the successor entity, if other than the Company, shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate of Designation referring to the “Company” shall refer instead to such successor entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Certificate of Designation with the same effect as if such successor entity had been named as the Company herein. To the extent necessary to effectuate the foregoing provisions, any successor to the Company or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions modified to be consistent with the foregoing provisions and issue to the holders of the Preference Shares new preference shares consistent with the foregoing provisions and evidencing such holders’ right to convert such preference shares into the Alternate Consideration. The provisions of this Section 6(e)(iii) shall similarly apply to successive Fundamental Transactions.
(iv)Notwithstanding anything to the contrary in this Certificate of Designation, whenever any provision of this Certificate of Designation requires the Company to calculate the Last Reported Sale Prices or the VWAP over a span of multiple days, the Company shall make appropriate adjustments in good faith and in a commercially reasonable manner to each to account for any event requiring an adjustment pursuant to this Section 6(e) that occurs at any time during the period when Company is required to calculate the Last Reported Sale Prices or the VWAP over a span of multiple days.
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(f)Notice of Adjustment. As promptly as reasonably practicable following any adjustment of the Conversion Ratio permitted hereunder, but in no event later than five (5) Business Days thereafter, the Company shall furnish to each holder of record of Preference Shares at the address specified for such holder in the books and records of the Company (or at such other address as may be provided to the Company in writing by such holder) a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying to the accuracy of the calculation thereof.
(g)All Common Shares delivered upon conversion of the Preference Shares shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all liens, claims, security interests, charges and other encumbrances.
(h)Other Notices. In the event: (i) that the Company shall take a record of the holders of its Common Shares (or other shares or securities at the time issuable upon conversion of the Preference Shares) for the purpose of entitling or enabling them to receive any Dividend or other distribution upon the Common Shares payable in Common Shares or any other equity or equity equivalent securities of the Company, to vote at a meeting (or by written consent) or to receive any right to subscribe for or purchase any shares of any class or any other securities or (ii) of any Fundamental Transaction, the Company shall send or cause to be sent to each holder of record of Preference Shares in the books and records of the Company (or at such other address as may be provided to the Company in writing by such holder) at least thirty (30) days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such Dividend, distribution, meeting or consent or other right or action, and a description of such Dividend, distribution or right or action to be taken at such meeting or by written consent or (B) the effective date on which such Fundamental Transaction is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Shares (or such other capital stock or securities at the time issuable upon conversion of the Preference Shares) shall be entitled to exchange their Common Shares (or such other capital stock or securities) for securities or other property deliverable upon such Fundamental Transaction, and the amount per share and character of such exchange applicable to the Preference Shares and the Conversion Shares.
Section 7.Voting Rights. Subject to any applicable voting cutback provisions in respect of the Preference Shares, each Preference Share shall have voting power equal to the number of Common Shares into which it is then convertible pursuant to Section 6 as of the record date of such vote or written consent or, if there is no specified record date, as of the date of such vote or written consent, and, except as otherwise provided herein or required by law, the Preference Shares and Common Shares shall vote together as a single class with respect to any and all matters presented to the shareholders of the Company for their action or
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consideration (whether at a meeting of shareholders of the Company, by written resolutions of shareholders of the Company in lieu of a meeting, or otherwise).
Section 8.Amendments or Modifications; Waiver.
(a)Except as provided in Section 8(b), the Company shall not (including by means of merger, consolidation, amalgamation or otherwise), without the prior affirmative vote or written consent of the holders of at least a majority of the outstanding Preference Shares voting separately as a single class with one vote per Preference Share, amend, alter or repeal this Certificate of Designation or the Memorandum of Association or Bye-Laws in a manner that would have the effect of amending, altering or repealing any provision of this Certificate of Designation or that would adversely affect the rights, preferences and powers of the holders of the Preference Shares; provided that no such amendment, alteration or appear shall, without the consent of the holder of each outstanding Preference Share affected by such amendment, alteration or repeal: (i) reduce the Conversion Ratio then in effect, (ii) increase or decrease the authorized number of Preference Shares; (iii) change the percentage of the Preference Shares whose holders must approve any amendment, alteration or repeal; or (iv) impair the right to institute suit for the enforcement of this Certificate of Designation.
(b)To the extent permitted by applicable law, the Board of Directors may modify the terms of this Certificate of Designation without the consent of any holder of Preference Shares for any of the following purposes:
(i)to evidence the succession of another person to the Company’s obligations hereunder in a Fundamental Transaction;
(ii)to add to the covenants for the benefit of the holders of the Preference Shares or to surrender any of the Company’s rights or powers under the Preference Shares; or
(iii)to cure any ambiguity to correct or supplement any provisions that may be inconsistent; provided, that such action shall not adversely affect the interest of the holders of the Preference Shares.
Section 9.Reservation of Shares; Status of Shares; Fractional Shares.
(a)Reservation of Shares. The Company shall at all times when any Preference Shares are outstanding (i) reserve and keep available out of its authorized but unissued shares, solely for the purpose of (A) issuance upon the conversion of the Preference Shares, such number of Common Shares that may be issuable from time to time upon the conversion of all outstanding Preference Shares pursuant to Section 6 and (B) issuance of Common Shares contemplated by Section 5(b)(iii)(E) and (ii) authorize for issuance and take all actions necessary to cause the issuance of any such Common Shares issuable pursuant to Section 5(B)(iii) E)
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Section 6. The Company shall take all such actions (including but not limited to receiving any permissions or declarations of no objection from the Bermuda Monetary Authority) as may be necessary to assure that all such Common Shares may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which Common Shares may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).
(b)Status of Shares. All Common Shares issued hereunder by the Company shall be duly and validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof (other than those arising under state or federal securities laws).
(c)Fractional Shares. No fractional Common Shares will be issued hereunder. In lieu of any fractional shares that would otherwise be issuable, the Company shall pay the holder an amount of cash equal to the product of such fraction multiplied by the Last Reported Sale Price on the Trading Day immediately prior to the Mandatory Conversion Event.
Section 10.Preemptive and Other Rights.
(a)Holders of the Preference Shares shall not have any rights of preemption whatsoever as to any securities of the Company, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
(b)In addition to the rights granted to the Preference Shares and the holders thereof pursuant to this Certificate of Designation, the Preference Shares shall be entitled to the benefits of any rights attaching to the Common Shares generally, including, without limitation, the right to participate in any rights offerings.
Section 11.Miscellaneous.
(a)Limitations on Transfer and Ownership. The Preference Shares shall not be transferrable and attempted transfer of Preference Shares shall be null and void ab initio, and the Company shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register or other books and records of the Company; provided that (i) CM Bermuda may transfer Preference Shares to its Affiliates (and such Affiliates may transfer Preference Shares to other Affiliates of CM Bermuda) with the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) and (ii) the Preference Shares may also be assigned, transferred or pledged as security to any lender of CMIG International, CM Bermuda or any of their respective Affiliates.
(b)Information Rights; Recordkeeping.
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(i)Within ten (10) days following the filing by the Company of any Form 10-K with the Commission, the Company shall deliver to each holder of Preference Shares its then-current calculation of the Conversion Ratio.
(ii)At the request of any holder of Preference Shares (which each holder may make up to two times per calendar year), the Company shall, within five (5) days of receipt of any such request, provide such holder with the calculation most recently delivered pursuant to Section 11(b)(i).
(iii)In the event the Common Shares are delisted from a securities exchange on which the Common Shares were then listed and the Company has not listed or applied to list the Common Shares on any other securities exchange and is not otherwise voluntarily making filings with the Commission that would otherwise be required by Section 13(a) or 15(d) under the Exchange Act as if it were subject thereto, and for so long as the Common Shares are not then listed on a securities exchange, then the Company shall provide to each holder of Preference Shares:
(1)Within 60 days (or, with respect to the first three fiscal quarters after which the Company has elected (an “Accounting Principles Election”) to prepare and deliver financial statements in conformity with International Financial Reporting Standards (“IFRS”) or generally accepted accounting principles in the United Kingdom (“UK GAAP”), within 75 days) after the end of the first three fiscal quarters of each fiscal year, an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the close of such fiscal quarter and unaudited consolidated statements of income, retained earnings and cash flows, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding fiscal year and prepared by the Company in accordance with generally accepted accounting principles in the United States (or, following an Accounting Principles Election, IFRS or UK GAAP);
(2)Within 120 days (or, with respect to the first fiscal year with respect to which an Accounting Principles Election is made, within 150 days) after the end of each fiscal year, an audited consolidated balance sheet of the Company and its Subsidiaries as of the close of such fiscal year and audited consolidated statements of income, retained earnings and cash flows, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding fiscal year and prepared by the Company in accordance with generally accepted accounting principles in the United States (or, following an Accounting Principles Election, IFRS or UK GAAP); such annual financial statements shall be audited by an independent certified public accounting firm of recognized national standing, and accompanied by a report and opinion thereon by such certified public accountants prepared in accordance with generally accepted auditing standards that is not subject to any “going concern” or similar qualification or exception or any qualification as to the scope of such audit; and
(3)If a holder of Preference Shares requests in writing information about the Company or its Subsidiaries in order to comply with disclosure
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requirements under laws and regulations applicable to such holder, the Company shall use its commercially reasonable efforts to provide such additional information to such holder as soon as practicable after such written request has been received.
(iv)The Company shall maintain records relating to the Policies in accordance with industry standards of insurance recordkeeping and in a manner that allows for the calculation of the Sirius Total Experience and the TPRE Total Experience (and the components thereof) as required to effect the intent of this Certificate of Designation, including after any merger or reorganization of the Sirius Insurance Subsidiaries or the TPRE Insurance Subsidiaries.
(c)Other Rights. The Preference Shares shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions other than as set forth in this Certificate of Designation, the Memorandum of Association, the Bye-laws, the Investor Rights Agreement or applicable law.
(d)Reinsurance. Any reinsurance coverage in place as of [•], 202[•]3 in respect of Applicable Policies of the Sirius Insurance Subsidiaries or the TPRE Insurance Subsidiaries shall be deemed to be in full force and effect and collectable in full and any lapse, termination or commutation of, or inability to collect under, such reinsurance coverage shall be disregarded (and, for the avoidance of doubt, such reinsurance shall be deemed fully collected) for purposes of calculating COVID-19 Losses hereunder, regardless of (among other things): (i) the insolvency of the reinsurer, (ii) the commutation or settlement of any ceded claim for less than the full amount thereof, (iii) the failure of any Sirius Insurance Subsidiary or TPRE Insurance Subsidiary to cede a claim for which reinsurance coverage was reasonably available or (iv) the failure of the reinsurer to make a payment in respect of such reinsurance coverage for any reason (including a good faith dispute on the part of such reinsurer or judgement that all or any part of such reinsurance is not due to any Sirius Insurance Subsidiary).
(e)Anti-Avoidance. The Company shall not, without the prior written consent of Holders of a majority of the Preference Shares, take any voluntary action, by amendment to this Certificate of Designation or Bye-Laws or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, that would prohibit the Company from performing or that would conflict with the performance of any of the terms to be observed or performed hereunder by the Company, including with respect to Section 4, Section 5 and Section 6.
(f)Record Holders. To the fullest extent permitted by applicable law, the Company may deem and treat the record holder of any Preference Shares as the true
3  Date to be the Closing Date.
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beneficial owner thereof for all purposes, and the Company shall not be affected by any notice to the contrary.
(g)Calculation in Respect of Preference Shares. The Company will be responsible for making all calculations called for in respect of the Preference Shares, including, but not limited to, the determination of the Conversion Ratio. Any calculations made in good faith and without mathematical or manifest error will be final and binding on holders of the Preference Shares. At the request of any holder of Preference Shares, the Company shall provide the basis of any such calculation prepared in respect of the Preference Shares.
(h)Other Adjustments. The Company may, but shall not be required to, make such increases in the number of Conversion Shares, in addition to those required hereunder, as the Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of Preference Shares or Common Shares resulting from any Dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reason.
(i)Severability. In the event any provision of this Certificate of Designation shall be invalid, unenforceable or illegal, then, to the fullest extent permitted by applicable law, the validity, enforceability and legality of the remaining provisions shall not in any way be affected or impaired thereby.
(j)Dispute Resolution. NOTWITHSTANDING THE PLACE WHERE THIS CERTIFICATE OF DESIGNATION MAY BE EXECUTED OR DELIVERED, THE COMPANY AND EACH HOLDER OF PREFERENCE SHARES EXPRESSLY AGREE THAT THIS CERTIFICATE OF DESIGNATION AND THE PREFERENCE SHARES SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION. Any and all suits, legal actions or proceedings arising out of this Certificate of Designation, the Preference Shares or the transactions contemplated hereby shall be brought in the courts of the State of New York or the United States District Court for the Southern District of New York and the Company and each holder hereby submit to and accept the exclusive jurisdiction of such courts for the purpose of such suits, legal actions or proceedings. In any such suit, legal action or proceeding, the Company and each holder waive personal service of any summons, complaint or other process and agree that service thereof may be made by certified or registered mail directed to it pursuant to Section 11(l). To the fullest extent permitted by law, the Company and each holder hereby irrevocably waive any objection which it may now or hereafter have to the laying of venue or any such suit, legal action or proceeding in any
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such court and hereby further waive any claim that any such suit, legal action or proceeding brought in any such court has been brought in an inconvenient forum. THE COMPANY AND EACH HOLDER (ON BEHALF OF ITSELF AND ITS SUBSIDIARIES) HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS CERTIFICATE OF DESIGNATION, THE PREFERENCE SHARES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k)Specific Performance. The parties agree that irreparable damage will occur and that the parties will not have an adequate remedy at law in the event that any of the provisions of this Certificate of Designation is not performed in accordance with its specific term or is otherwise breached or threatened to be breached. It is accordingly agreed that the parties shall be entitled to injunctive relief, including, but not limited to, a temporary restraining order, preliminary injunction or permanent injunction, to prevent any breach or threatened breach of any payment obligation pursuant to this Certificate of Designation or to enforce specifically the terms and provisions of any payment obligation arising under this Certificate of Designation, this being in addition and without prejudice to any other remedy to which they are entitled at law or in equity. Each party in advance agrees to waive any requirement for the securing of such remedy, including but not limited to the posting of a bond.
(l)Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile (followed by reputable overnight courier service), e-mail (followed by reputable overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the other parties as follows:
(i)if to a holder of Preference Shares, to the address of such holder set forth in the Register of Members of the Company.
(ii)if to the Company, to:
c/o [SiriusPoint Ltd.]
[•]
[•] Bermuda
Attention: [•]
E-mail: [•]
or to such other address(es) as shall be furnished in writing by any such party to the other party hereto in accordance with the provisions of this Section 11(l).
(m)Legend. Certificates representing the Preference Shares, the Redemption Shares and the Conversion Shares shall initially contain the following legends: “THESE
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SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES OR BLUE SKY LAWS, PURSUANT TO REGISTRATION OR QUALIFICATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS. THE SECURITIES ARE SUBJECT TO AND HAVE NOT RECEIVED APPROVAL FROM EITHER THE BERMUDA MONETARY AUTHORITY OR THE REGISTRAR OF COMPANIES IN BERMUDA AND NO STATEMENT TO THE CONTRARY, EXPLICIT OR IMPLICIT IS AUTHORISED TO BE MADE IN THIS REGARD. THE SECURITIES MAY BE OFFERED OR SOLD IN BERMUDA ONLY IN COMPLIANCE WITH THE PROVISIONS OF THE INVESTMENT BUSINESS ACT 2003 OF BERMUDA AND THE EXCHANGE CONTROL ACT 1972 OF BERMUDA AND REGULATIONS THEREUNDER. IN ADDITION TO THE FOREGOING, NON-BERMUDIAN PERSONS MAY NOT CARRY ON OR ENGAGE IN ANY TRADE OR BUSINESS IN BERMUDA UNLESS SUCH PERSONS ARE AUTHORIZED TO DO SO UNDER APPLICABLE BERMUDA LEGISLATION. ENGAGING IN THE ACTIVITY OF DISTRIBUTING OR MARKETING THIS DOCUMENT IN BERMUDA TO PERSONS IN BERMUDA MAY BE DEEMED TO BE CARRYING ON BUSINESS IN BERMUDA.
THESE SECURITIES ARE SUBJECT TO FORFEITURE UPON THE OCCURRENCE OF CERTAIN EVENTS AS SPECIFIED IN THE CERTIFICATE OF DESIGNATIONS”
(n)Certification. The Preference Shares and the Conversion Shares may be issued in certificated form or in book-entry form. To the extent that any Preference Shares or Conversion Shares are issued in book-entry form, references herein to “certificates” shall instead refer to the book-entry notation relating to such shares, and references herein to any delivery of such certificates shall be disregarded.
* * *


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         IN WITNESS WHEREOF, [SiriusPoint Ltd.], a Bermuda exempted company, has caused this Certificate of Designation to be signed by [•], its [•], and attested by [•], its [Assistant] Secretary, this [•] [day of [•], 202[•].
             
By:


Attested:
             
By:

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EXHIBIT 4.1
WARRANT AGREEMENT
Dated as of [●]
THIS WARRANT AGREEMENT (this “Agreement”), dated as of [●], is by and between [SiriusPoint Ltd.], a Bermuda exempted company limited by shares (the “Company”) (f/k/a Third Point Reinsurance Ltd.), and [●] as warrant agent (in such capacity, the “Warrant Agent). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement (as defined below).
WHEREAS, the Company, Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares, and Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and wholly owned subsidiary of the Company, entered into that certain Agreement and Plan of Merger, dated as of August [●], 2020 (the “Merger Agreement”);
WHEREAS, pursuant to the terms and conditions set forth in the Merger Agreement, as of the closing of the Merger, each holder of Company Shares that effectively made and did not revoke a Mixed Election was entitled to [0.190] of a warrant issued by Company (the “Warrants”) in exchange for each Company Share subject to the Mixed Election;
WHEREAS, subject to the terms and conditions set forth herein, each whole Warrant entitles the holder thereof to purchase from the Company one common share of the Company, par value $0.10 per share (the “Common Shares”), for $11.00 per share (the “Exercise Price”), subject to adjustment as described herein;
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) registration statement No. [●] on [Form S4] for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Warrants [and the shares issuable upon exercise of the Warrants];
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and



countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1.Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2.Warrants.
a.Form of Warrant. Each Warrant shall be issued in registered form only and shall be in the form of Exhibit A hereto (with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement), the provisions of which are incorporated herein and shall be signed by, or bear the manual or electronic signature of, the President, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the person whose signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
b.Effect of Countersignature. Unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
c.Registration.
i..Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. Ownership of beneficial interests in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with The Depository Trust Company (the “Depository”).
If the Depository subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no longer necessary to have the Warrants available in, book-entry
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form, the Warrant Agent shall provide written instructions to the Depository to deliver to the Warrant Agent for cancellation each book-entry Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depository definitive certificates in physical form evidencing such Warrants which shall be in the form annexed hereto as Exhibit A with appropriate insertions, modifications and omissions, as provided above (including for the avoidance of doubt the deletion of the legend set forth on the face of the form annexed hereto as Exhibit A).
CM Bermuda Limited shall have the right to hold its Warrants in certificated form and upon delivery of a written request to the Company to hold its Warrants in certificated form, the Company shall cause such Registered Holders book-entry Warrants to be cancelled and in exchange therefor receive definitive certificates in physical form evidencing such Warrants which shall be in the form annexed hereto as Exhibit A with appropriate insertions, modifications and omissions, as provided above (including for the avoidance of doubt the deletion of the legend set forth on the face of the form annexed hereto as Exhibit A).
ii..Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby, for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
d.Fractional Warrants. Warrants may be issued in fractional increments of 0.01. For the avoidance of doubt, any fraction of a Warrant shall entitle the holder of such fraction of a Warrant to a proportional fraction of a Common Share, prior to the application of Section 4.7.
3.Terms and Exercise of Warrants.
a.Exercise Price. Each whole Warrant shall, when countersigned by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company one Common Share at the Exercise Price per Common Share, subject to the adjustments provided in Section 4. The term “Exercise Price” as used in this Agreement shall mean the price per Common Share at which Common Shares may be purchased at the time a Warrant is exercised.
b.Duration of Warrants. A Warrant shall be exercisable by the Registered Holder thereof at any time and from time to time after the date hereof to and including the date that is five (5) years following the date hereof (such date, the “Expiration Date,” and such five (5) year period, the “Exercise Period”); provided, however, that the exercise of
3


any Warrant shall be subject to the terms and conditions of such Warrant and this Agreement. At 5:00 p.m., New York City time, on the Expiration Date, any Warrants not exercised prior to such time shall be and become void and of no value. The Company may not call or redeem all or any portion of any Warrant without the prior written consent of the Registered Holder thereof.
c.Exercise of Warrants.
i..Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the Registered Holder thereof by surrendering, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, (i) an election to purchase form electing to exercise such Warrants, and (ii) payment in full of the Exercise Price for each full Common Share as to which the Warrant is exercised and any transfer taxes due in connection with the transfer of the Warrant to another holder, as follows:
(1)in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent; or
(2)as provided in Section 3.3.2 hereof.
ii..Issuance of Common Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Exercise Price (if payment is pursuant to Section 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of full Common Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares as to which such Warrant shall not have been exercised. The holders of Warrants shall be entitled to settle the Warrant on a “cashless basis”, by exchanging the Warrants for that number of Common Shares equal to the quotient obtained by dividing (x) the product of the number of Common Shares underlying the Warrants, multiplied by the difference between the Exercise Price and the Average VWAP (as defined below) by (y) the Average VWAP. Solely for purposes of this Section 3.3.2, “Average VWAP” shall mean the volume weighted average price of the Common Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in good faith and a commercially reasonable manner) during the ten (10) Trading Day period ending on the Trading Day prior to the date that notice of “cashless” exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of “cashless exercise” is received by the Warrant Agent shall be conclusively determined by the Warrant Agent.
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iii..Subject to Section 4.7, a Registered Holder of Warrants may exercise its Warrants only for a whole number of Common Shares. If, by reason of any exercise of warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a Common Share, the Company shall pay cash in lieu of a fractional interest as provided in Section 4.7.
iv..Valid Issuance. All Common Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
v..Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Common Shares is issued shall for all purposes be deemed to have become the holder of record of such Common Shares on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the share transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.
vi..Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.6; provided that no holder of a Warrant shall be subject to this Section 3.3.6 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 4.9% or 9.8% (as specified by the holder) (the “Maximum Percentage”) of the Common Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Common Shares beneficially owned by such person and its affiliates shall include the number of Common Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Common Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the
5


“Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Common Shares, the holder may rely on the number of outstanding Common Shares as reflected in (1) the Company’s most recent annual report on Form 10K, quarterly report on Form 10-Q, current report on Form 8K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or [●] (in such capacity, the “Transfer Agent”) setting forth the number of Common Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall use its commercially reasonable efforts to, within two (2) Business Days, confirm orally and in writing to such holder the number of Common Shares then-outstanding. In any case, the number of outstanding Common Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding Common Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
4.Adjustments.
a.Share Dividends.
i..Split-Ups. If after the date hereof, and subject to the provisions of Section 4.7 below, the number of outstanding Common Shares is increased by a share dividend or distribution payable in Common Shares, or if the Company effects a split-up of Common Shares or other similar event, then, on the effective date of such share dividend, split-up or similar event, the Exercise Price shall be decreased based on the following formula below:
EP1 = EP0 ×
OS0
OS1
where,
EP0 = the Exercise Price in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split;
EP1 = the Exercise Price in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
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OS0 = the number of the Common Shares outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution or share split); and
OS1 = the number of the Common Shares outstanding immediately after giving effect to such dividend, distribution or share split.
Any adjustment made under this ‎Section 4.1.1 shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split.
ii..Rights Offerings. If after the date hereof the Company issues to all or substantially all holders of the Common Shares any rights, options or warrants entitling them, for a period of not more than 60 calendar days after the announcement date of such issuance, to subscribe for or purchase the Common Shares at a price per share that is less than the average of the Last Reported Sale Prices of the Common Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Exercise Price shall be adjusted based on the following formula:
EP1 = EP0 ×
OS0 + Y
OS0 + X


where,
EP0 = the Exercise Price in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
EP1 = the Exercise Price in effect immediately after the open of business on such Ex-Dividend Date;
OS0 = the number of Common Shares outstanding immediately prior to the open of business on such Ex-Dividend Date;
X = the total number of Common Shares issuable pursuant to such rights, options or warrants; and
Y = the number of Common Shares equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sales Prices over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such rights, options or warrants.
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        For the purposes of this Section 4.1.2, (i) if the rights offering is for securities convertible into or exercisable for Common Shares, in determining the price payable for Common Shares, there shall be taken into account any consideration received by the Company for such rights, options or warrants as well as any additional amount payable upon exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company (the “Board”) in good faith and in a commercially reasonable manner.
iii..Other Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or distribution in cash or payable in assets or securities other than Common Shares, then the Exercise Price shall be decreased, effective immediately after the payment date of such dividend or distribution, by the amount of cash and/or the fair market value (as determined by the Board in good faith and a commercially reasonable manner) of any securities or other assets paid on each Common Share in respect of such dividend or distribution.
b.Tender and Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period (the “Valuation Period”) commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exercise Price shall be decreased based on the following formula:
EP1 = EP0 ×
OS0 × SP1
AC + (SP1 × OS1)


where,
EP0 = the Exercise Price in effect immediately prior to the close of business on the last Trading Day of the Valuation Period;
EP1 = the Exercise Price in effect immediately after the close of business on the last Trading Day of the Valuation Period;
AC = the aggregate value of all cash and any other consideration (as determined by the Board in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer;
OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase
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of all Common Shares accepted for purchase or exchange in such tender or exchange offer);
OS1 = the number of Common Shares outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); and
SP1 = the average of the Last Reported Sales Prices over the Valuation Period.
        The adjustment under this Section 4.2 shall be effective as of the close of business on the last day of the Valuation Period; provided that if the Expiration Date occurs during the Valuation Period, for the purposes of determining the Exercise Price, references to “10” in this Section 4.2 shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the first day of the Valuation Period to, and including, the Expiration Date.
c.Aggregation of Shares. If after the date hereof the number of outstanding Common Shares is decreased by a consolidation, combination, reverse share split or reclassification of Common Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the Exercise Price shall be increased in the inverse proportion to such decrease in the outstanding Common Shares.
d.Adjustments of Shares Issuable. Whenever the Exercise Price is adjusted, as provided in Section 4.1 or Section 4.3, the number of Common Shares purchasable upon the exercise of each Warrant shall be adjusted (to the nearest share) by multiplying such number of Common Shares purchasable upon the exercise of each Warrant immediately prior to such adjustment by a fraction (x) the numerator of which shall be the Exercise Price in effect immediately prior to such adjustment and (y) the denominator of which shall be the Exercise Price in effect immediately thereafter.
Notwithstanding anything to the contrary in this Agreement, whenever any provision of this Agreement requires the Company to calculate an average of the Last Reported Sales Prices or a volume-weighted average price of the Common Shares over a span of multiple days, the Company shall make appropriate adjustments as determined by the Board in good faith and in a commercially reasonable manner to each Warrant, in order to account for any event requiring an adjustment pursuant to this Section 4 that occurs at any time during the period when the Company is required to calculate an average of the Last Reported Sales Prices or a volume-weighted average price of the Common Shares over a span of multiple days.
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e.Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Common Shares (other than a change under Section 4.1, Section 4.2 Section 4.3 hereof or that solely affects the par value of such Common Shares), or in the case of any merger or consolidation of the Company with or into another corporation or entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Common Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Common Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that (i) if the holders of the Common Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Shares in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Common Shares under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the outstanding Common Shares, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Common Shares held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided, further, that if less than 70% of the consideration receivable by the holders of the Common Shares in the applicable event is payable in the form of common shares or
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shares of common stock in the successor entity that are listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or are to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8K filed with the SEC, the Exercise Price shall be reduced by an amount (in dollars) equal to the difference (but in no event less than zero) of (i) the Exercise Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (“Bloomberg”). For purposes of calculating such amount, (1) the price of each Common Share shall be the volume weighted average price of the Common Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in good faith and in a commercially reasonable manner) during the ten (10) Trading Day period ending on the Trading Day prior to the effective date of the applicable event, (2) the assumed volatility shall be the ninety (90) day volatility obtained from the HVT function on Bloomberg determined as of the Trading Day immediately prior to the day of the announcement of the applicable event, and (3) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the Common Shares consists exclusively of cash, the amount of such cash per Common Share, and (ii) in all other cases, the volume weighted average price of the Common Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in good faith and in a commercially reasonable manner) during the ten (10) Trading Day period ending on the Trading Day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in the Common Shares covered by Sections 4.1, 4.2, 4.3 or 4.4 then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3 or 4.4 (as applicable) and this Section 4.5. The provisions of this Section 4.5 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Exercise Price be reduced pursuant to any provision of this Agreement to less than the par value per share issuable upon exercise of such Warrant.
f.Notices of Changes in Warrant. Upon every adjustment of the Exercise Price, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Exercise Price resulting from such adjustment, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Section 4.1, Section 4.2, Section 4.3 or Section 4.4, the Company shall give written notice of the occurrence of such event to each Registered Holder of a Warrant, at the last address set forth for such holder in the
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Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
g.No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4 or as a result of a holder holding a fraction of a Warrant, the holder of any Warrant would be entitled, upon the exercise of such Warrant or fraction of a Warrant, to receive a fractional interest in a share, the Company shall pay an amount in cash equal to the Last Reported Sales Price of the Common Shares, as determined on the date the Warrant is presented for exercise, multiplied by such fraction, computed to the nearest whole U.S. cent. The Warrant Agent may request funding to cover fractional payments. The Warrant Agent shall have no obligation to make fractional payments unless the Company shall have provided the necessary funds to pay in full all amounts due and payable with respect thereto.
h.Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Exercise Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
i.Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
j.Other Adjustments. The Company may, but shall not be required to, make such increases in the number of Common Shares issuable on exercise of each Warrant, in addition to those required by this Section 4, as the Board considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Shares resulting from any dividend or distribution of stock or issuance of rights or warrants to
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purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reason.
5.Transfer and Exchange of Warrants.
a.Registration of Transfer. The Warrants and all rights under the Warrant Certificate may be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, by the Registered Holder or by duly authorized attorney, subject to any applicable law, rule or regulation of any applicable governmental authority (including any rules or regulations promulgated by the Commission or any applicable national securities exchange) [and Section 4 of that certain Investor Rights Agreement, by and among the Company, CM Bermuda Ltd., and any other Person that may thereafter become a party thereto in the capacity as a shareholder of the Company in accordance with the terms and provisions thereof, dated as of [•]]1. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
b.Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided that, except as otherwise provided herein, each Warrant may be transferred only in whole.
c.Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
d.Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
1 To be included for CM Bermuda.
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6.Other Provisions Relating to Rights of Holders of Warrants.
a.No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends or other distributions, exercise any preemptive rights, vote, to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
b.Lost, Stolen, Mutilated, or Destroyed Warrant Certificates. If any Warrant Certificate is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant Certificate, include the surrender thereof), issue a new Warrant Certificate of like denomination, tenor, and date as the Warrant Certificate so lost, stolen, mutilated, or destroyed. Any such new Warrant Certificate shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant Certificate shall be at any time enforceable by anyone.
c.Reservation of Common Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Common Shares that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
d.Registration of the Common Shares. The Company shall use its reasonable best efforts to procure, or cause to be procured, at its sole expense, the listing of the Common Shares issuable upon exercise of such Warrants, subject to issuance or notice of issuance, on the New York Stock Exchange (or the principal stock exchange on which such Common Shares are then listed or traded) promptly after such Common Shares are eligible for listing thereon. For the avoidance of any doubt, unless and until all of the Warrants have been exercised, the Company shall continue to be obligated to comply with its registration obligations under the first sentence of this Section 6.4.
7.Concerning the Warrant Agent and Other Matters.
a.Payment of Taxes. The Company shall be obligated to pay any stamp tax, transfer taxes and similar taxes in respect of the issuance and exercise of the Warrants and the issuance of the Common Shares upon the exercise of a Warrant (in each case to the extent they are imposed by a Bermuda taxing authority), other than any transfer tax with respect to the issuance of Common Shares to any person other than the registered holder of the Warrant, which shall be paid by the holder thereof.
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b.Resignation, Removal, Consolidation, or Merger of Warrant Agent.
i..Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. The Company may remove the Warrant Agent or any successor Warrant Agent upon thirty (30) days’ notice in writing to the Warrant Agent. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation, removal or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.2
ii..Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Shares not later than the effective date of any such appointment.
iii..Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall
2 To confirm Warrant Agent.
15


be a party shall be the successor Warrant Agent under this Agreement without any further act.
c.Fees and Expenses of Warrant Agent.
i..Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
ii..Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
d.Liability of Warrant Agent.
i..Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the President, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
ii..Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.
iii..Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts
16


that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Common Shares shall, when issued, be valid and fully paid and nonassessable.
e.Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase Common Shares through the exercise of the Warrants.
8.Miscellaneous Provisions.
a.Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
b.Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
[SiriusPoint]
[●]
[●]
Attention: [●]
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
[●]
c.Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the
17


application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
d.Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
e.Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit his, her or its Warrant for inspection by it.
f.Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
g.Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
h.Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders. All other modifications or amendments, including any amendment to increase the Exercise Price (except as set forth herein) or shorten the Exercise Period, shall require the vote or written consent of the Registered Holders of [65]% of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Exercise Price or extend the duration of the Exercise Period pursuant to Section 3.2 without the consent of the Registered Holders.
18


i.Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
j.Certain Definitions. The terms defined in this Section 8.10 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Agreement shall have the respective means specified in this Section 8.10.
“Business Day” means any day except a Saturday, a Sunday or other day on which the Commission or the banks in the City of New York, New York or Hamilton, Bermuda are authorized or required by law to be closed.
“Effective Date” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.
“Ex-Dividend Date” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the Common Shares on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Last Reported Sale Price” on any date means the closing sale price per Common Share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Shares are traded. If the Common Shares are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Shares in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Shares are not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
19


“Market Disruption Event” means (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Shares or in any options contracts or futures contracts traded on any U.S. exchange relating to the Common Shares.
“Market Price” of the Common Shares on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Shares are traded. If the Common Shares are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Market Price” shall be the last quoted bid price for the Common Shares in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Shares are not so quoted, the “Market Price” shall be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Market Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading. If the Common Shares are not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
“Trading Day” means, except for purposes of determining any volume weighted average price as reported during any specified period as set forth below, a day on which (i) trading in the Common Shares (or other security for which a closing sale price must be determined) generally occurs on the principal U.S. national or regional securities exchange on which the Common Shares (or such other security) are then listed or, if the Common Shares are (or such other security is) not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are (or such other security is) then traded and (ii) a Market Price for the Common Shares (or closing sale price for such other security) is available on such securities exchange or market; provided that if the Common Shares are (or such other security is) not so listed or traded, “Trading Day” means a Business Day; provided, further, that for purposes only of determining any volume weighted average price as reported during any specified period,
20


“Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Shares generally occurs on the principal other U.S. national or regional securities exchange on which the Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are then listed or admitted for trading, except that if the Common Shares are not so listed or admitted for trading, “Trading Day” means a Business Day.
Exhibit A Legend — Form of Warrant Certificate
[Signature page follows]


21


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
[SIRIUS POINT]
By  
        Name:
        Title:
[●], as Warrant Agent
By  
        Name:
        Title:


[Signature Page to Warrant Agreement]
1006103892v9

EXHIBIT A
THIS WARRANT IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR COMMON SHARES, THIS WARRANT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[FACE]
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
[SIRIUSPOINT]
Incorporated Under the Laws of Bermuda
CUSIP [•]
Warrant Certificate
This Warrant Certificate certifies that [___], or registered assigns, is the registered holder of warrant(s) (the “Warrants” and each, a “Warrant”) to purchase
Ex. A - 1
1006103892v9

common shares, $0.10 par value (the “Common Shares”), of [SIRIUSPOINT], a Bermuda exempted company limited by shares (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable Common Shares as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each whole Warrant is initially exercisable for one fully paid and non-assessable Common Share. The number of Common Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Exercise Price per Common Share for any Warrant is equal to $11.00. Only whole Warrants are exercisable. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.

Ex. A - 2
1006103892v9

[SIRIUSPOINT]
By:  
        Name:
        Title:
[●], as Warrant Agent
By:  
        Name:
        Title:


Ex. A - 3
1006103892v9

[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive Common Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of [___] (the “Warrant Agreement”), duly executed and delivered by the Company to [___], a [___], as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a Common Share, the Company shall pay cash in lieu of such fractional interest pursuant to Section 4.7 of the Warrant Agreement.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Ex. A - 4
1006103892v9

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge due under the Warrant Agreement.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.


Ex. A - 5
1006103892v9

Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive Common Shares and herewith tenders payment for such shares to the order of [SIRIUSPOINT] (the “Company”) in the amount of $[___] in accordance with the terms hereof. The undersigned requests that a book-entry position (or certificate if the undersigned so requests) for such Common Shares be registered in the name of [___], whose address is [___]. If said number of Common Shares is less than all of the Common Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of [___], whose address is [___], and that such Warrant Certificate be delivered to [___], whose address is [___].
[In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through “cashless exercise” (i) the number of Common Shares that this Warrant is exercisable for would be determined in accordance with Section 3.3.2 of the Warrant Agreement which allows for such “cashless exercise” and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the “cashless exercise” provisions of the Warrant Agreement, to receive Common Shares. If said number of Common Shares is less than all of the Common Shares purchasable hereunder (after giving effect to the “cashless exercise”), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of, whose address is, and that such Warrant Certificate be delivered to, whose address is.]3
Date: [___] (Signature)
(Address)
         
(Tax Identification Number)
3  To be included if holder is exercising this Warrant through a “cashless exercise”.
Ex. A - 6
1006103892v9

Signature Guaranteed:
         
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).
Ex. A - 7
1006103892v9
EXHIBIT 4.2
FORM OF CONTINGENT VALUE RIGHTS AGREEMENT
By and Between
Third Point Reinsurance Ltd.
and
[RIGHTS AGENT]
Dated as of [●]

1006108252v8

TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
1
SECTION 1.1 Definitions
1
SECTION 1.2 Compliance and Opinions
7
SECTION 1.3 Form of Documents Delivered to Trustee
7
SECTION 1.4 Acts of Holders
8
SECTION 1.5 Notices, etc., to Trustee and Company
8
SECTION 1.6 Notice to Holders; Waiver
9
SECTION 1.7 Conflict with the Trust Indenture Act
9
SECTION 1.8 Effect of Headings and Table of Contents
9
SECTION 1.9 Benefits of Agreement; No Assignment
9
SECTION 1.10 Governing Law; Jurisdiction
10
SECTION 1.11 Legal Holidays
10
SECTION 1.12 Separability Clause
10
SECTION 1.13 Counterparts
11
SECTION 1.14 Acceptance of Trust
11
SECTION 1.15 Calculations
11
ARTICLE 2 CVR REGISTER
11
SECTION 2.1 No Certificate; Authentication
11
SECTION 2.2 CVR Register
11
ARTICLE 3 THE CVRS
11
SECTION 3.1 Title and Payment Terms
11
SECTION 3.2 Registrable Form
14
SECTION 3.3 Registration; Registration of Transfer
14
SECTION 3.4 Payments with Respect to CVRs
14
SECTION 3.5 Persons Deemed Owners
14
SECTION 3.6 CUSIP Numbers
14
ARTICLE 4 THE TRUSTEE
15
SECTION 4.1 Certain Duties and Responsibilities
15
SECTION 4.2 Certain Rights of Trustee
15
SECTION 4.3 Notice of Breach
17
SECTION 4.4 Not Responsible for Recitals or Issuance of CVRs
17
SECTION 4.5 May Hold CVRs
17
SECTION 4.6 Money Held in Trust
17
SECTION 4.7 Compensation and Reimbursement
18
SECTION 4.8 Disqualification; Conflicting Interests
18
SECTION 4.9 Corporate Trustee Required; Eligibility
19
SECTION 4.10 Resignation and Removal; Appointment of Successor
19
1006108252v8

SECTION 4.11 Acceptance of Appointment of Successor
20
SECTION 4.12 Merger, Conversion, Consolidation or Succession to Business
21
SECTION 4.13 Preferential Collection of Claims Against Company
21
ARTICLE 5 REPORTS BY THE TRUSTEE AND COMPANY
21
SECTION 5.1 Communications to Holders
21
SECTION 5.2 Reports by Trustee
21
SECTION 5.3 Reports by Company
21
ARTICLE 6 AMENDMENTS
22
SECTION 6.1 Amendments without Consent of Holders
22
SECTION 6.2 Amendments with Consent of Holders
23
SECTION 6.3 Execution of Amendments
23
SECTION 6.4 Effect of Amendments; Notice to Holders
24
SECTION 6.5 Conformity with Trust Indenture Act
24
ARTICLE 7 COVENANTS
24
SECTION 7.1 Payment of Amounts, if any, to Holders
24
SECTION 7.2 Maintenance of Office or Agency
24
SECTION 7.3 Money for CVR Payments to Be Held in Trust
24
SECTION 7.4 Certain Purchases and Sales
25
SECTION 7.5 Listing of CVRs
26
ARTICLE 8 REMEDIES OF THE TRUSTEE AND HOLDERS IN THE EVENT OF BREACH
26
SECTION 8.1 Breach Defined; Waiver of Breach
26
SECTION 8.2 Collection by the Trustee; the Trustee May Prove Payment Obligations
27
SECTION 8.3 Application of Proceeds
29
SECTION 8.4 Suits for Enforcement
29
SECTION 8.5 Restoration of Rights on Abandonment of Proceedings
29
SECTION 8.6 Limitations on Suits by Holders
30
SECTION 8.7 Unconditional Right of Holders to Receive Payment
30
SECTION 8.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Breach
30
SECTION 8.9 Control by Holders
31
SECTION 8.10 Waiver of Past Breaches
31
SECTION 8.11 Right of Court to Require Filing of Undertaking to Pay Costs
31

2
1006108252v8


THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [●] (this “CVR Agreement”), by and between Third Point Reinsurance Ltd., a Bermuda exempted company limited by shares (the “Company”), and [●], as rights agent (the “Rights Agent”), in favor of each person who from time to time holds one or more Contingent Value Rights (the “CVRs” and, each individually, a “CVR”) to receive cash payments in the amounts and subject to the terms and conditions set forth herein.
W I T N E S S E T H:
WHEREAS, this CVR Agreement is entered into pursuant to the Agreement and Plan of Merger, dated as of August 6, 2020 (the “Merger Agreement”), by and among the Company, Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (the “Target”), and Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a wholly owned Subsidiary of the Company (“Merger Sub”);
WHEREAS, pursuant to the terms and conditions set forth in the Merger Agreement and the Statutory Merger Agreement (as such term is defined in the Merger Agreement), Merger Sub merged with and into the Target, with the Target surviving such merger (the “Merger”), so that immediately following the Merger, the Target was a wholly owned Subsidiary of the Company;
WHEREAS, the CVRs shall be issued in accordance with and pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, a registration statement on Form S4 (No. 333-[●]) (the “Registration Statement”) with respect to the CVRs, among other things, has been prepared and filed by the Company with the SEC (as defined below) and has become effective in accordance with the Securities Act of 1933, as amended; and
WHEREAS, all things necessary have been done to make the CVRs, when authenticated hereunder, the valid obligations of the Company and to make this CVR Agreement and valid agreement of the Company, in accordance with their and its terms.
NOW, THEREFORE, in consideration of the foregoing premises and the consummation of the transactions contemplated by the Merger Agreement, it is covenanted and agreed, for the equal and proportionate benefit of all Holders (as defined below), as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION a.Definitions. For all purposes of this CVR Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i)the terms defined in this Article 1 have the meanings assigned to them in this Article, and include the plural as well as the singular;
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(ii)all capitalized terms used in this CVR Agreement without definition shall have the respective meanings ascribed to them in the Merger Agreement; and
(iii)the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this CVR Agreement as a whole and not to any particular Article, Section or other subdivision.
“Acceleration Payment” means an amount equal to (i) $13.73 minus (ii) (A) the volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company) measured over the Acceleration Valuation Period multiplied by (B) 0.743.
“Acceleration Payment Date” shall have the meaning set forth in Section 8.1.
“Acceleration Valuation Period” means the fourteen (14) consecutive Trading Day period immediately following the Breach Declaration Date.
“Act” shall have the meaning set forth in Section 1.4(a).
“Acting Holders” means, at any applicable time of determination, Holders of at least twenty-five percent (25%) of the then Outstanding CVRs.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.
“Automatic Extinguishment” shall have the meaning set forth in Section 3.1(j).
“Board of Directors” means the board of directors of the Company or any duly authorized committee of that board.
“Board Resolution” means a copy of a resolution certified by a duly authorized officer of the Company to have been duly adopted by the Board of Directors or a written consent signed by the requisite directors serving on the Board of Directors and, in either case, that is in full force and effect on the date of such certification, and delivered to the Rights Agent.
“Breach” shall have the meaning set forth in Section 8.1.
“Breach Declaration Date” shall have the meaning set forth in Section 8.1.
“Breach Interest Rate” means 4% per annum.
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“Business Day” means any day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York, New York or Hamilton, Bermuda are authorized or required by Law to be closed.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Company” means the Person named as the “Company” in the first paragraph of this CVR Agreement, until a successor Person shall have become such pursuant to the applicable provisions of this CVR Agreement, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by a duly authorized officer of the Company, and delivered to the Rights Agent.
“Corporate Trust Office” means the office of the Rights Agent at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this CVR Agreement is located at [●].
“CVR” shall have the meaning set forth in the Preamble of this CVR Agreement.
“CVR Agreement” means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the applicable provisions hereof.
“CVR Payment Amount” means any Maturity Payment, Redemption Payment or Acceleration Payment, as the case may be.
“CVR Payment Date” means the earliest to occur of the Maturity Payment Date, the Redemption Date and the Acceleration Payment Date.
“CVR Register” shall have the meaning set forth in Section 2.2.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Fundamental Event” means any of the following events: (i) the consummation of any merger, consolidation or other similar business combination transaction the result of which is that (x) any “person” or “group” within the meaning of Section 13(d) of the Exchange Act is, or as a result of such transaction becomes, the beneficial owner, directly or indirectly, of more than 50% of the total voting power of the voting stock of the Company and (y) the beneficial owners of more than 50% of the total voting power of the voting stock of the Company as of immediately prior to such transaction, individually or in the aggregate, do not beneficially own, directly or indirectly, a larger percentage of the total voting power of such voting stock than such other “person” or “group”, or (ii) the sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of the Company’s voting stock), to any “person” or “group” within the meaning of Section 13(d) of the Exchange Act, of all or substantially all of the assets of the Company.
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“Governmental Authority” means any government, court, regulatory or administrative agency, commission or authority or other legislative, executive or judicial governmental entity, whether federal, national, provincial, state, local or multinational, including, for the avoidance of doubt, Lloyd’s.
“Holder” means a Person in whose name a CVR is registered in the CVR Register.
“Law” means any federal, national, provincial, state, local or multinational law, statute, code, rule, regulation, injunction, order, judgment, ruling, decree or writ of any Governmental Authority.
“Lloyd’s” means the Society and Corporation of Lloyd’s incorporated under the Lloyd’s Acts 1871 to 1982 (including the council constituted by the Lloyd’s Act 1982 and any delegate or person through whom the council is authorized to act).
“Majority Holders” means, at the time of determination, Holders of at least a majority of the Outstanding CVRs.
“Market Disruption Event” means (a) a failure by the primary U.S. national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Trading Day for the Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options contracts or futures contracts traded on any U.S. exchange relating to the Shares.
“Maturity Date” means the date that is twenty-four (24) months from the Effective Time.
“Maturity Payment” means an amount equal to (i) $13.73 minus (ii) (A) the volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company) measured over the Maturity Valuation Period multiplied by (B) 0.743.
“Maturity Payment Date” shall have the meaning set forth in Section 3.1(c).
“Maturity Valuation Period” means the fourteen (14) consecutive Trading Day period immediately preceding the Maturity Date.
“Merger” shall have the meaning set forth in the Recitals of this CVR Agreement.
“Merger Agreement” shall have the meaning set forth in the Recitals of this CVR Agreement.
“Merger Sub” shall have the meaning set forth in the Recitals of this CVR Agreement.
“NYSE” means the New York Stock Exchange.
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“Officer’s Certificate” when used with respect to the Company means a certificate signed by a duly authorized officer of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be General Counsel for the Company.
“Outstanding”, when used with respect to CVRs (“Outstanding CVRs”), means, as of the date of determination, all CVRs theretofore authenticated, issued and outstanding under this CVR Agreement, except: (i) CVRs theretofore cancelled by the Rights Agent; and (ii) from and after the CVR Payment Date, CVRs, or portions thereof, for whose payment in cash in the necessary amount has been theretofore deposited by or on behalf of the Company with the Rights Agent or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders; provided, however, that in determining whether the Holders of the requisite Outstanding CVRs have given any request, demand, authorization, direction, consent, waiver or other action hereunder, CVRs owned by the Company or any Affiliate of the Company, whether held as treasury securities or otherwise, shall be disregarded and deemed not to be Outstanding, except that for the purposes of determining whether the Rights Agent shall be protected in relying on any such request, demand, authorization, direction, consent, waiver or other action, only CVRs that a Responsible Officer of the Rights Agent actually knows are so owned shall be so disregarded.
“Party” shall mean the Rights Agent and the Company, as applicable.
“Paying Agent” means any Person authorized by the Company to pay the amounts determined pursuant to Section 3.1, if any, on any CVRs on behalf of the Company, which shall initially be [●].
“Person” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a Governmental Authority.
“Redemption Date” means the date that is the fifth (5th) Business Day immediately following the last day of the Redemption Valuation Period.
“Redemption Notice” shall have the meaning set forth in Section 3.1(d).
“Redemption Payment” means an amount equal to (i) the discounted present value (using a 2.75% annual discount rate applied consistently for the relevant period) of $13.73, discounted from the Maturity Date to the last day of the Redemption Valuation Period, minus (ii) (A) the volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company) measured over the Redemption Valuation Period multiplied by (B) 0.743.
“Redemption Valuation Period” means the fourteen (14) consecutive Trading Day period immediately following the date of the Redemption Notice.
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“Registrar” shall have the meaning set forth in Section 2.2.
“Registration Statement” shall have the meaning set forth in the Recitals of this CVR Agreement.
“Responsible Officer” when used with respect to the Rights Agent means any officer assigned to the Corporate Trust Office and also means, with respect to any particular corporate trust matter, any other officer of the Rights Agent to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Rights Agent” means the Person named as the “Rights Agent” in the first paragraph of this CVR Agreement, until a successor Rights Agent shall have become such pursuant to the applicable provisions of this CVR Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.
“SEC” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act.
“Shares” means the Common Shares, $0.10 par value per share, of the Company.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as of such date, owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
“Trading Day” means, except for purposes of determining any volume weighted average price as reported during any specified period as set forth below, a day on which (i) trading in the Shares (or other security for which a closing sale price must be determined) generally occurs on the principal U.S. national or regional securities exchange on which the Shares (or such other security) are then listed or, if the Shares are (or such other security is) not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Shares are (or such other security is) then traded and (ii) a Market Price for the Shares (or closing sale price for such other security) is available on such securities exchange or market; provided that if the Shares are (or such other security is) not so listed or traded, “Trading Day” means a Business Day; and provided, further, that for purposes only of determining any volume weighted average price as reported during any specified period, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Shares generally occurs on the principal other U.S. national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading, except that if the Shares are not so listed or admitted for trading, “Trading Day” means a Business Day.
“Voting Securities” means securities or other interests having voting power, or the right, to elect or appoint directors, or any Persons performing similar functions, irrespective of whether
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or not stock or other interests of any other class or classes shall have or might have voting power or any right by reason of the happening of any contingency.
SECTION b.Compliance and Opinions.
(i)Upon any application or request by the Company to the Rights Agent to take any action under any provision of this CVR Agreement, if requested by the Rights Agent, the Company shall furnish to the Rights Agent (i) an Officer’s Certificate stating that, in the opinion of the signor, all conditions precedent, if any, provided for in this CVR Agreement relating to the proposed action have been complied with and (ii) an Opinion of Counsel stating, subject to customary exceptions, that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this CVR Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.
(ii)Every certificate or opinion with respect to compliance with a condition or covenant provided for in this CVR Agreement shall include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION c.Form of Documents Delivered to Rights Agent.
(i)In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(ii)Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
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(iii)Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this CVR Agreement, they may, but need not, be consolidated and form one instrument.
SECTION d.Acts of Holders.
(i)Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this CVR Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Rights Agent and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this CVR Agreement and (subject to Section 4.1) conclusive in favor of the Rights Agent and the Company, if made in the manner provided in this Section 1.4. The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this CVR Agreement, which date shall be no greater than sixty (60) days and no less than ten (10) days prior to the date of such vote or consent to any action by vote or consent authorized or permitted by this CVR Agreement.
(ii)The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Rights Agent deems sufficient.
(iii)The ownership of CVRs shall be proved by the CVR Register. Neither the Company nor the Rights Agent nor any agent of the Company or the Rights Agent shall be affected by any notice to the contrary.
(iv)At any time prior to (but not after) the evidencing to the Rights Agent, as provided in this Section 1.4, of the taking of any action by the Holders of the CVRs specified in this CVR Agreement in connection with such action, any Holder of a CVR may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Section 1.4, revoke such action so far as concerns such CVR. Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any CVR shall bind every future Holder of the same CVR or the Holder of every CVR issued upon the registration of transfer thereof in respect of anything done, suffered or omitted to be done by the Rights Agent, any Paying Agent or the Company in reliance thereon.
SECTION e.Notices, etc., to Rights Agent and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document
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provided or permitted by this CVR Agreement to be made upon, given or furnished to, or filed with:
(i)the Rights Agent by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed, in writing, to or with the Rights Agent at its Corporate Trust Office; or
(ii)the Company by the Rights Agent or by any Holder shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Company addressed to it at [ADDRESS], or at any other address previously furnished in writing to the Rights Agent by the Company.
SECTION f.Notice to Holders; Waiver.
(i)Where this CVR Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the Holder’s address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this CVR Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Rights Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(ii)In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event as required by any provision of this CVR Agreement, then any method of giving such notice as shall be satisfactory to the Rights Agent shall be deemed to be a sufficient giving of such notice.
SECTION g.Effect of Headings and Table of Contents. The Article and Section headings herein, and the Table of Contents, are for convenience only and shall not affect the construction hereof.
SECTION h.Benefits of Agreement; No Assignment. Nothing in this CVR Agreement, express or implied, shall give to any Person (other than the Parties hereto and their successors and permitted assigns and, subject to Section 3.1(e) and 8.6, the Holders) any benefit or any legal or equitable right, remedy or claim under this CVR Agreement or under any covenant or provision herein contained. All covenants, provisions and agreements in this CVR Agreement by or for the benefit of the Company, the Rights Agent or the Holders shall bind and inure to the benefit of their respective successors, assigns, heirs and personal representatives, whether so expressed or not. Neither this CVR Agreement nor any of the rights, interests or
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obligations hereunder shall be assigned, in whole or in part, by either of the Parties without the prior written consent of the other Party.
SECTION i.Governing Law; Jurisdiction.1
(i)This CVR Agreement and the CVRs shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction.
(ii)All causes of action arising out of or relating to the interpretation and enforcement of the provisions of this CVR Agreement and the CVRs (except to the extent any such proceeding mandatorily must be brought in Bermuda) shall be heard and determined in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. The Parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such action. The consents to jurisdiction and venue set forth in this Section 1.10(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the Parties. Each Party agrees that service of process upon such Party in any cause of action arising out of or relating to this CVR Agreement shall be effective if served upon them by any manner authorized by the Laws of the State of Delaware. The Parties agree that a final judgment in any such cause of action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any Party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
SECTION j.Legal Holidays. In the event that the CVR Payment Date shall not be a Business Day, then (notwithstanding any provision of this CVR Agreement to the contrary) payment on the CVRs need not be made on such date, but may be made, without the accrual of any interest thereon, on the next succeeding Business Day with the same force and effect as if made on the CVR Payment Date.
SECTION k.Separability Clause. In the event any provision in this CVR Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1 Note to Draft: Rights Agent to confirm Delaware law is acceptable. To the extent possible, governing law to be consistent across merger consideration security instruments.
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SECTION l.Counterparts. This CVR Agreement shall be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this CVR Agreement.
SECTION m.Calculations. All calculations or determinations made under this CVR Agreement by the Company or the Board of Directions shall be reasonably computed or made by the Company or the Board of Directors, as the case may be, in good faith.
ARTICLE 2.
CVR REGISTER
SECTION a.No Certificate; Authentication.
(i)The CVRs shall not be evidenced by a certificate or other physical instrument.
(ii)No CVR shall be entitled to any benefit under this CVR Agreement or be valid or obligatory for any purposes unless it shall have been authenticated by the Rights Agent. At any time and from time to time after the execution and delivery of this CVR Agreement, the Company may instruct the Rights Agent, pursuant to a Company Order, to authenticate additional CVRs under this CVR Agreement in accordance with the terms of this CVR Agreement and such Company Order.2
SECTION b.CVR Register. The Rights Agent shall keep at the Corporate Trust Office a register (the register maintained in such office and in any other office or agency designated pursuant to Section 7.2 being herein sometimes referred to as the “CVR Register”) for purposes of identifying the Holders of CVRs and in which, subject to such reasonable procedures and requirements as it may prescribe, the Rights Agent shall provide for the registration of CVRs and of transfers of CVRs on its books and records in book-entry form. The Rights Agent is hereby initially appointed “Registrar” for the purpose of registering CVRs and transfers of CVRs as herein provided.
ARTICLE 3.
THE CVRS
SECTION a.Title and Payment Terms.
(i)The aggregate number of CVRs that may be Outstanding under this CVR Agreement is limited to a number equal to [●]. CVRs may be issued in fractional increments of 0.01. From and after the Effective Time, the Company shall not be permitted to issue any CVRs, except as provided and in accordance with the terms and conditions of the Merger Agreement or as otherwise expressly permitted by this CVR Agreement.
2 Note to Draft: Rights Agent to confirm process for authentication.
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(ii)The CVRs shall be known and designated as the “Series A Contingent Value Rights” of the Company and shall rank equally with all unsecured debt obligations of the Company and, for the avoidance of doubt, rank senior to the Shares and any other equity securities (including any preference shares) of the Company, in each case as to the distribution of assets on any winding up or liquidation of the Company by operation of Law or contract.
(iii)On the fifth (5th) Business Day following the Maturity Date (the “Maturity Payment Date”), the Company shall (i) deposit with the Rights Agent an amount in cash equal to the Maturity Payment multiplied by the number of Outstanding CVRs and (ii) cause the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held by such Holder, an amount equal to the Maturity Payment. All determinations with respect to the calculation of the Maturity Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Maturity Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) cause the Rights Agent to mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register.
(iv)The Company (i) may, at its option, and (ii) shall, in connection with a Fundamental Event, redeem all, but not less than all, of the then Outstanding CVRs by causing the Rights Agent to pay to each Holder, in cash, for each Outstanding CVR held by such Holder, an amount, as determined by the Company, equal to the Redemption Payment, payable to such Holder on the Redemption Date (which, in the case of a redemption in connection with a Fundamental Event, shall in no event be later than the date of consummation of such Fundamental Event). The Company shall cause the Rights Agent to give notice of any such redemption (the “Redemption Notice”), by first-class mail, postage prepaid, to all Holders of CVRs as their names and addresses appear in the CVR Register, which Redemption Notice shall specify the Redemption Date. Concurrently with the delivery of any such Redemption Notice, other than in the case of a redemption in connection with a Fundamental Event, the Company shall also make a public announcement with respect to any such redemption and shall, if required by Law, file a Current Report on Form 8-K with respect to such redemption. All determinations with respect to the calculation of the Redemption Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Redemption Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) cause the Rights Agent to mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register.
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(v)The Holders, by acceptance of CVRs, agree that no joint venture, partnership or other fiduciary relationship is created hereby or by the CVRs.
(vi)Other than in the case of interest on amounts due and payable after the occurrence of a Breach, no interest or dividends shall accrue on any amounts payable in respect of the CVRs.
(vii)The Parties hereto agree to treat the CVRs issued pursuant to this CVR Agreement in connection with the Merger Agreement for all income tax purposes as (i) consideration for the shares of Target that is received in a closed transaction as of the time of the closing of the Merger based on the fair market value of the CVRs as of that date, (ii) as a financial instrument that does not constitute indebtedness, and (iii) no Party hereto will take any position to the contrary on any tax return or for other tax purposes except as required by applicable Law.
(viii)No Holder shall, solely by virtue of holding CVRs, be entitled to any rights of a holder of any Voting Securities or other equity security or other ownership interest of the Company, in any constituent company to the Merger or in any of such companies’ Affiliates or other subsidiaries, either at Law or in equity.
(ix)Except as provided in this CVR Agreement, none of the Company or any of its Affiliates shall have any right to set off any amounts owed or claimed to be owed by any Holder to any of them against such Holder’s CVRs or any CVR Payment Amount or other amount payable to such Holder in respect of such CVRs.
(x)In the event that (i) (A) all of the CVRs shall have become due and payable pursuant to the terms hereof, (B) all disputes with respect to amounts payable to the Holders brought pursuant to the terms and conditions of this CVR Agreement have been resolved, and (C) the Company has paid or caused to be paid or deposited with the Rights Agent all amounts payable to the Holders under this CVR Agreement or (ii) the volume weighted average price of the Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in its sole discretion) is greater than $18.50 per Share over any fourteen (14) consecutive Trading Day period after the Effective Time and prior to the CVR Payment Date (such event described in this clause (ii), the “Automatic Extinguishment”), then this CVR Agreement shall cease to be of further effect and shall be deemed satisfied and discharged. Notwithstanding the satisfaction and discharge of this CVR Agreement, the obligations of the Company under Section 4.7(c) shall survive.
(xi)Notwithstanding anything else to the contrary herein, the Company and the Paying Agent shall be entitled to deduct and withhold from any amount payable pursuant to this CVR Agreement such amounts as they reasonably determine may be required to be deducted and withheld under applicable tax law. Amounts withheld pursuant to this Section 3.1(k) and timely paid to the appropriate tax authority shall be treated for all purposes of this CVR Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
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SECTION b.Registrable Form. The CVRs shall be issuable only in registered form.
SECTION c.Registration; Registration of Transfer.
(i)Every notice of transfer delivered by a Holder to the Registrar to transfer a CVR must be in writing and accompanied by a written instrument of transfer and other documentation in form reasonably satisfactory to the Registrar, duly executed by such Holder or a duly appointed legal representative, personal representative or survivor of such Holder. Upon receipt of such written notice, the Registrar shall register the transfer of the CVRs subject to such notice in the CVR Register on its books and records in book-entry form.
(ii)All duly transferred CVRs registered in the CVR Register shall be the valid obligations of the Company, evidencing the same rights, and shall entitle the transferee to the same benefits under this CVR Agreement, as those held by the transferor.
(iii)No service charge shall be made for any registration of transfer of CVRs, but the Company may require payment of a sum sufficient to cover any documentary, stamp or similar tax or other similar governmental charge payable in connection with any registration of transfer of CVRs.
SECTION d.Payments with Respect to CVRs. Payment of any amounts pursuant to the CVRs shall be made in such coin or currency of the United States of America as at the time is legal tender for the payment of public and private debts. The Rights Agent may, at its option, pay such amounts by wire transfer or check payable in such money.
SECTION e.Persons Deemed Owners. Prior to the time of any notice of transfer is delivered pursuant to Section 3.3(a) with respect to any CVR, the Company, the Rights Agent, the Registrar and any of their respective agents may treat the Person in whose name any CVR is registered in the CVR Register as the owner of such CVR for the purpose of receiving payment on such CVR and for all other purposes whatsoever, whether or not such CVR be overdue, and none of the Company, the Rights Agent, the Registrar nor any of their respective agents shall be affected by any other notice to the contrary.
SECTION f.CUSIP Numbers. The Company in issuing the CVRs may use “CUSIP” numbers (if then generally in use), and, if so, the Rights Agent shall use “CUSIP” numbers in any notice provided for in this CVR Agreement as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers as contained in any such notice, and any such notice shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Rights Agent in writing of any change in the “CUSIP” numbers.
ARTICLE 4.
THE RIGHTS AGENT
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SECTION a.Certain Duties and Responsibilities.
(i)With respect to the Holders, the Rights Agent, prior to the occurrence of a Breach with respect to the CVRs and after the curing or waiving of all Breaches which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this CVR Agreement and no implied covenants shall be read into this CVR Agreement against the Rights Agent. In case a Breach has occurred (which has not been cured or waived), the Rights Agent shall exercise such of the rights and powers vested in it by this CVR Agreement, and use the same degree of care and skill in their exercise, as a reasonably prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(ii)In the absence of gross negligence, bad faith or willful misconduct on its part, prior to the occurrence of a Breach and after the curing or waiving of all such Breaches which may have occurred, the Rights Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Rights Agent which conform to the requirements of this CVR Agreement; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Rights Agent, the Rights Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this CVR Agreement.
(iii)No provision of this CVR Agreement shall be construed to relieve the Rights Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that (i) this Subsection (c) shall not be construed to limit the effect of Subsections (a) and (b) of this Section 4.1; (ii) the Rights Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Rights Agent was negligent in ascertaining the pertinent facts; and (iii) the Rights Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 8.9 relating to the time, method and place of conducting any proceeding for any remedy available to the Rights Agent, or exercising any power conferred upon the Rights Agent, under this CVR Agreement.
(iv)Whether or not therein expressly so provided, every provision of this CVR Agreement relating to the conduct or affecting the liability of or affording protection to the Rights Agent shall be subject to the provisions of this Section 4.1.
SECTION b.Certain Rights of Rights Agent. Subject to the provisions of Section 4.1, including without limitation, the duty of care that the Rights Agent is required to exercise upon the occurrence of a Breach:
(i)the Rights Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
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or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii)any request or direction or order of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(iii)whenever in the administration of this CVR Agreement the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Rights Agent (unless other evidence be herein specifically prescribed) may, in the absence of gross negligence, bad faith or willful misconduct on its part, rely upon an Officer’s Certificate or an Opinion of Counsel;
(iv)the Rights Agent may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith reliance on and in accordance with such advice or Opinion of Counsel;
(v)the Rights Agent shall be under no obligation to exercise any of the rights or powers vested in it by this CVR Agreement at the request or direction of any of the Holders pursuant to this CVR Agreement, unless such Holders shall have offered to the Rights Agent reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(vi)the Rights Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document absent gross negligence, willful misconduct or manifest error, unless requested in writing to do so by the Acting Holders, but the Rights Agent in its discretion may also make such further inquiry or investigation into such facts or matters as it may see fit, and if the Rights Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, as necessary for such inquiry or investigation at the sole cost of the Company and shall incur no liability of any kind by reason of such inquiry or investigation other than as a result of Rights Agent’s gross negligence, bad faith or willful misconduct;
(vii)the Rights Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Rights Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(viii)the rights, privileges, protections, immunities and benefits given to the Rights Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Paying Agent, the Registrar, the Rights Agent in each of its
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capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(ix)certain of the Rights Agent’s duties hereunder may be performed by the Paying Agent or Registrar;
(x)except for a Breach under Section 8.1(a), the Rights Agent shall not be deemed to have notice of any Breach or other breach under this CVR Agreement unless a Responsible Officer of the Rights Agent has actual knowledge of any event or condition that is, or after notice or lapse of time or both would become, a Breach;
(xi)the Rights Agent shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and
(xii)the permissive rights of the Rights Agent enumerated in this CVR Agreement shall not be construed as duties hereunder and the Rights Agent shall be liable for its gross negligence, bad faith or willful misconduct.
SECTION c.Notice of Breach. If a breach occurs hereunder with respect to the CVRs, the Rights Agent shall give the Holders notice of any such breach known to it as and to the extent applicable within thirty (30) days after the occurrence of such breach, unless such breaches shall have been cured before the giving of such notice (the term “breach” for the purposes of this Section 4.3 being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, a Breach); provided that, except in the case of a failure to pay the amounts payable in respect of any of the CVRs, the Rights Agent shall be protected in withholding such notice if and so long as the board of directors, the executive committee and/or Responsible Officers of the Rights Agent in good faith reasonably determines that the withholding of such notice is in the best interests of the Holders.
SECTION d.Not Responsible for Recitals or Issuance of CVRs. The Rights Agent shall not be accountable for the Company’s use of the CVRs. The recitals contained herein and in the CVRs shall be taken as the statements of the Company, and the Rights Agent assumes no responsibility for their correctness. The Rights Agent makes no representations as to the validity or sufficiency of this CVR Agreement or of the CVRs.
SECTION e.May Hold CVRs. The Rights Agent, any Paying Agent, Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of CVRs, and, subject to Sections 4.1, 4.8 and 4.13, may otherwise deal with the Company with the same rights it would have if it were not Rights Agent, Paying Agent, Registrar or such other agent.
SECTION f.Money Held in Trust. Except as expressly provided in this CVR Agreement, money held by the Rights Agent in trust hereunder need not be segregated from other funds except to the extent required by Law. The Rights Agent shall be under no liability for interest on any money received by it hereunder, except as otherwise agreed by the Rights Agent in writing with the Company.
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SECTION g.Compensation and Reimbursement. The Company agrees:
(i)to pay to the Rights Agent from time to time reasonable compensation for all services rendered by it hereunder in such amount as the Company and the Rights Agent shall agree from time to time;
(ii)except as otherwise expressly provided herein, to reimburse the Rights Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Rights Agent in accordance with any provision of this CVR Agreement (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Rights Agent’s gross negligence, bad faith or willful misconduct; and
(iii)to indemnify the Rights Agent and any predecessor Rights Agent and each of their respective agents, officers, directors and employees for, and to hold them harmless against, any loss, liability or expense (including attorneys’ fees and expenses) incurred without gross negligence, bad faith or willful misconduct on its part, arising out of or in connection with the performance of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Company’s payment obligations pursuant to this Section 4.7 shall survive the termination of this CVR Agreement. When the Rights Agent incurs expenses after the occurrence of a Breach specified in Section 8.1(c) or 8.1(d) with respect to the Company, the expenses are intended to constitute expenses of administration under bankruptcy Laws.
SECTION h.Disqualification; Conflicting Interests.
(i)If applicable, to the extent that the Rights Agent or the Company determines that the Rights Agent has a conflicting interest, the Rights Agent shall immediately notify the Company of such conflict and, within ninety (90) days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign to the extent and in the manner provided by, and subject to the provisions of, this CVR Agreement. The Company shall take prompt steps to have a successor appointed in the manner provided in this CVR Agreement.
(ii)In the event the Rights Agent shall fail to comply with the foregoing Section 4.8(a), the Rights Agent shall, within ten (10) days of the expiration of such ninety (90) day period, transmit a notice of such failure to the Holders in the manner and to the extent provided in this CVR Agreement.
(iii)In the event the Rights Agent shall fail to comply with the foregoing Section 4.8(a) after written request therefor by the Company or any Holder, any Holder of any CVR who has been a bona fide Holder for at least six (6) months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Rights Agent and the appointment of a successor Rights Agent.
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SECTION i.Corporate Rights Agent Required; Eligibility. There shall at all times be a Rights Agent hereunder which has a combined capital and surplus of at least fifty million dollars ($50,000,000). If such corporation publishes reports of condition at least annually, pursuant to Law or to the requirements of a supervising or examining authority, then for the purposes of this Section 4.9, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Rights Agent shall cease to be eligible in accordance with the provisions of this Section 4.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 4.
SECTION j.Resignation and Removal; Appointment of Successor.
(i)No resignation or removal of the Rights Agent and no appointment of a successor Rights Agent pursuant to this Article 4 shall become effective until the acceptance of appointment by the successor Rights Agent under Section 4.11.
(ii)The Rights Agent, or any rights agent or rights agents hereafter appointed, may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Rights Agent shall not have been delivered to the Rights Agent within thirty (30) days after the giving of such notice of resignation, the resigning Rights Agent may petition any court of competent jurisdiction for the appointment of a successor Rights Agent.
(iii)The Rights Agent may be removed at any time by an Act of the Majority Holders delivered to the Rights Agent and to the Company.
(iv)If at any time:
(1)the Rights Agent shall fail to comply with Section 4.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a CVR for at least six (6) months; or
(2)the Rights Agent shall cease to be eligible under Section 4.9 and shall fail to resign after written request therefor by the Company or by any such Holder; or
(3)the Rights Agent shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the Rights Agent or of its property shall be appointed, or any public officer shall take charge or control of the Rights Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any case, (A) the Company, by a Board Resolution or action of the Chief Executive Officer, may remove the Rights Agent, or (B) the Holder of any CVR who has been a bona fide Holder of a CVR for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Rights Agent and the appointment of a successor Rights Agent.
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(v)If the Rights Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Rights Agent for any cause, the Company, by a Board Resolution and/or action of the Chief Executive Officer, shall promptly appoint a successor Rights Agent. If no successor Rights Agent shall have been so appointed by the Company or the Holders of the CVRs and accepted appointment within sixty (60) days after the retiring Rights Agent tenders its resignation or is removed, the retiring Rights Agent may, or, the Holder of any CVR who has been a bona fide Holder for at least six (6) months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Rights Agent. If, within one (1) year after any such resignation, removal or incapability, or the occurrence of such vacancy, a successor Rights Agent shall be appointed by Act of the Majority Holders delivered to the Company and the retiring Rights Agent, the successor Rights Agent so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 4.11, become the successor Rights Agent and supersede the successor Rights Agent previously appointed by the Company, the retiring Rights Agent or court, as the case may be, pursuant to this Section 4.11(e).
(vi)The Company shall give notice of each resignation and each removal of the Rights Agent and each appointment of a successor Rights Agent by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of CVRs as their names and addresses appear in the CVR Register. Each notice shall include the name of the successor Rights Agent and the address of its Corporate Trust Office. If the Company fails to send such notice within ten (10) days after acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at the expense of the Company.
SECTION k.Acceptance of Appointment of Successor.
(i)Every successor Rights Agent appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Rights Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Rights Agent shall become effective and such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, and duties of the retiring Rights Agent; but, upon request of the Company or the successor Rights Agent, such retiring Rights Agent shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Rights Agent all the rights, powers and duties of the retiring Rights Agent, and shall duly assign, transfer and deliver to such successor Rights Agent all property and money held by such retiring Rights Agent hereunder. Upon request of any such successor Rights Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Rights Agent all such rights, powers and duties.
(ii)No successor Rights Agent shall accept its appointment unless at the time of such acceptance such successor Rights Agent shall be qualified and eligible under this Article 4.
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SECTION l.Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Rights Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Rights Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Rights Agent, by sale or otherwise shall be the successor of the Rights Agent hereunder, provided such corporation shall be otherwise qualified and eligible under this Article 4, without the execution or filing of any paper or any further act on the part of any of the Parties hereto.
ARTICLE 5.
REPORTS BY THE RIGHTS AGENT AND COMPANY
SECTION a.Communications to Holders.
(i)The rights of the Holders to communicate with other Holders with respect to their rights under this CVR Agreement and the corresponding rights and privileges of the Rights Agent shall be as provided by Section 312(b) of the Trust Indenture Act.
(ii)Every Holder of CVRs, by receiving and holding the same, agrees with the Company and the Rights Agent that neither the Company nor the Rights Agent shall be held accountable under this CVR Agreement by reason of the disclosure of any such information as to the names and addresses of the Holders made in accordance with Section 5.1(a) regardless of the source from which such information was derived.
SECTION b.Reports by Rights Agent.
(i)Within sixty (60) days after December 31 of each year commencing with the December 31 following the date of this CVR Agreement, the Rights Agent shall transmit to all Holders such reports concerning the Rights Agent and its actions under this CVR Agreement as may be required pursuant to the Trust Indenture Act to the extent and in the manner provided pursuant thereto. The Rights Agent shall also comply with Section 313(b)(2) of the Trust Indenture Act, if applicable. The Rights Agent shall also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act, if applicable.
(ii)A copy of each such report shall, at the time of such transmission to the Holders, be filed by the Rights Agent with each stock exchange, if any, upon which the CVRs are listed, with the SEC and also with the Company. The Company shall promptly notify the Rights Agent when the CVRs are listed on any stock exchange.
SECTION c.Reports by Company. The Company shall:
(i)file with the Rights Agent, (i) within fifteen (15) days after the Company files the same with the SEC, copies of the annual reports filed on Form 10K and quarterly reports filed on Form 10-Q and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by
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rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act and (ii) if the Company does not file such annual reports on Form 10K or quarterly reports on Form 10-Q with the SEC, within forty-five (45) days after the end of first three fiscal quarters of each fiscal year, quarterly information, and, within ninety (90) days after each fiscal year, annual financial information, in each case calculated in accordance with Accounting Standards applied consistently with the application of such standards in either the Company’s prior quarterly reports on Form 10-Q or annual reports on Form 10K, as applicable;
(ii)file with the Rights Agent and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this CVR Agreement as may be required from time to time by the rules and regulations of the SEC; and
(iii)make available to the Holders on the Company’s website as of an even date with the filing of such materials with the Rights Agent, the information, documents and reports required to be filed by the Company pursuant to subsections (a) or (b) of this Section 5.3. If the Company has timely electronically filed with the SEC’s Next-Generation EDGAR system (or any successor system) the reports described above, the Company shall be deemed to have satisfied the requirements of this Section 5.3.
ARTICLE 6.
AMENDMENTS
SECTION a.Amendments without Consent of Holders. Without the consent of any Holders, the Company (when authorized by a Board Resolution) and the Rights Agent, at any time and from time to time, may enter into one or more amendments hereto, for any of the following purposes:
(i)to convey, transfer, assign, mortgage or pledge to the Rights Agent as security for the CVRs any property or assets;
(ii)to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company herein;
(iii)to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Board of Directors and the Rights Agent shall consider in good faith to be for the protection of the Holders of CVRs, and to make the occurrence, or the occurrence and continuance, of a breach of any such additional covenants, restrictions, conditions or provisions a Breach permitting the enforcement of all or any of the several remedies provided in this CVR Agreement as herein set forth;
(iv)to cure any ambiguity, or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; provided that, in each case, such amendment does not adversely affect the interests of the Holders; or
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(v)to make any other provisions with respect to matters or questions arising under this CVR Agreement; provided that such provisions do not adversely affect the interests of the Holders.
SECTION b.Amendments with Consent of Holders. With the consent of not less than the Majority Holders, by Act of said Holders delivered to the Company and the Rights Agent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the CVRs), the Company (when authorized by a Board Resolution) and the Rights Agent may enter into one or more amendments hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this CVR Agreement or of modifying in any manner the rights of the Holders under this CVR Agreement; provided, however, that no such amendment shall, without the consent of the Holder of each Outstanding CVR affected thereby:
(i)modify the definition of Acceleration Payment, Acceleration Payment Date, Acceleration Valuation Period, Automatic Extinguishment, Breach Interest Rate, CVR Payment Amount, CVR Payment Date, Fundamental Event, Maturity Date, Maturity Payment, Maturity Payment Date, Maturity Valuation Period, Redemption Date, Redemption Payment, Redemption Valuation Period, Acting Holders or Majority Holders;
(ii)without limiting the foregoing clause (a) of this Section 6.2, modify in a manner that would be adverse to the Holders (i) any provision contained herein with respect to the termination of this CVR Agreement or the CVRs or (ii) otherwise extend the time for payment of the CVRs or reduce the amounts payable in respect of the CVRs or modify any other payment term or requisite time for payment hereunder;
(iii)reduce the number of Outstanding CVRs, the consent of whose Holders is required for any such amendment; or
(iv)modify any of the provisions of this Section 6.2, except to increase the percentage of Holders from whom consent is required or to provide that certain other provisions of this CVR Agreement cannot be modified or waived without the consent of the Holder of each CVR affected thereby, or, except as in accordance with Section 6.1(c), modify any of the provisions of Sections 7.4, 8.1 or 8.10.
SECTION c.Execution of Amendments. In executing any amendment permitted by this Article 6, the Rights Agent shall be entitled to receive and (subject to Section 4.1) shall be fully protected in relying upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this CVR Agreement. The Rights Agent shall execute any amendment authorized pursuant to this Article 6 if the amendment does not adversely affect the Rights Agent’s own rights, duties or immunities under this CVR Agreement or otherwise. Otherwise, the Rights Agent may, but need not, execute such amendment.
SECTION d.Effect of Amendments; Notice to Holders.
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(i)Upon the execution of any amendment in accordance with this Article 6, this CVR Agreement shall be modified in accordance therewith, and such amendment shall form a part of this CVR Agreement for all purposes; and every Holder of CVRs theretofore Outstanding hereunder shall be bound thereby.
(ii)Promptly after the execution by the Company and the Rights Agent of any amendment pursuant to the provisions of this Article 6, the Company shall mail a notice thereof by first-class mail to the Holders of CVRs at their addresses as they shall appear on the CVR Register, setting forth in general terms the substance of such amendment. Any failure of the Company to mail such notice, or any defect therein, shall not, by itself, however, in any way impair or affect the validity of any such amendment.
ARTICLE 7.
COVENANTS
SECTION a.Payment of Amounts, if any, to Holders. The Company shall duly and punctually pay or cause to be paid the amounts, if any, on the CVRs in accordance with the terms of this CVR Agreement.
SECTION b.Maintenance of Office or Agency. As long as any of the CVRs remain Outstanding, the Company shall maintain in [CITY/JURISDICTION] an office or agency solely for purposes of where notices and demands to or upon the Company in respect of the CVRs and this CVR Agreement may be served. The Company hereby initially designates the Corporate Trust Office as such office or agency of the Company, unless the Company shall hereafter designate and maintain some other office or agency for one or more of such purposes. The Company may act as its own Paying Agent; provided that it shall take appropriate actions to avoid the commingling of funds with respect to any amounts payable hereunder. The Company shall give prompt written notice to the Rights Agent of any change in the location of any such office or agency. If at any time the Company shall fail to furnish the Rights Agent with the address thereof, such notices and demands may be made or served at the Corporate Trust Office of the Rights Agent, and the Company hereby appoints the Rights Agent as its agent to receive all such notices and demands.
SECTION c.Money for CVR Payments to Be Held in Trust.
(i)If the Company shall at any time act as the Paying Agent, it shall, on or before the CVR Payment Date, segregate and hold in trust for the benefit of the Holders all sums held by such Paying Agent for payment on the CVRs until such sums shall be paid to the Holders as herein provided and shall promptly notify the Rights Agent of any failure of the Company to so act.
(ii)Whenever the Company shall have one or more Paying Agents for the CVRs, it shall, on or before the CVR Payment Date, deposit with a Paying Agent a sum in same day funds sufficient to pay the amount, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such amount.
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(iii)The Company shall cause each Paying Agent other than the Rights Agent to execute and deliver to the Rights Agent an instrument in which such Paying Agent shall agree with the Rights Agent, subject to the provisions of this Section 7.3, that (i) such Paying Agent shall hold all sums held by it for the payment of any amount payable on CVRs in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall notify the Rights Agent of the sums so held and (ii) that it shall give the Rights Agent notice of any failure by the Company (or by any other obligor on the CVRs) to make any payment on the CVRs when the same shall be due and payable.
(iv)Any money deposited with the Rights Agent or any Paying Agent, or then held by the Company, in trust for the payment on any CVRs and remaining unclaimed for one (1) year after the CVR Payment Date shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such CVR shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Rights Agent or such Paying Agent with respect to such trust money shall thereupon cease.
SECTION d.Certain Purchases and Sales. The Company shall not, and shall not permit any of its Subsidiaries or Affiliates, on any day during (a) the period commencing ten (10) Trading Days before the start of the Maturity Valuation Period and ending on the Maturity Date or (b) the Redemption Valuation Period or the Acceleration Valuation Period: (i) offer to purchase, purchase, contract to purchase, purchase any option or contract to sell, sell any option or contract to purchase, grant any option, right or warrant to sell, or otherwise acquire or purchase, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares, or (ii) enter into any swap or other arrangement that acquires from another, in whole or in part, any of the economic consequences of ownership of the Shares, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Shares or such other securities, in cash or otherwise. The foregoing restrictions are expressly agreed to preclude the Company and its Subsidiaries and Affiliates during the applicable periods from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a purchase or acquisition of Shares even if such Shares would be acquired by someone other than the Company or any of its Subsidiaries or Affiliates. Such prohibited hedging or other transactions would include without limitation any purchase or any purchase, sale or grant of any right (including without limitation any put option or put equivalent position or call option or call equivalent position) with respect to any of the Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares.
SECTION e.Listing of CVRs. The Company shall use its reasonable best efforts to (i) procure, or cause to be procured, at its sole expense, the listing of the CVRs on the NYSE(or, if unable to be listed on the NYSE, on the OTCQX market) as of the Effective Time, to the extent the CVRs meet all of the applicable exchange’s listing requirements, including the minimum holder requirement, and (ii) maintain a listing for trading on the NYSE for so long as any CVRs remain Outstanding, or, if unable to be listed on the NYSE, on the OTCQX market, in
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each case, to the extent the CVRs meet all of the applicable exchange’s listing requirements, including the minimum holder requirement.
ARTICLE 8.
REMEDIES OF THE RIGHTS AGENT AND HOLDERS IN THE EVENT OF BREACH
SECTION a.Breach Defined; Waiver of Breach. “Breach” with respect to the CVRs, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Breach and whether it shall be voluntary or involuntary or be effected by operation of Law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(i)failure to pay all or any part of any CVR Payment Amount as and when such CVR Payment Amount shall become due and payable as provided in this CVR Agreement;
(ii)material breach in the performance, or breach in any material respect, of any covenant or warranty of the Company under Section 6.1 or 6.2 or Article 7 and continuance of such breach for a period of thirty (30) days after there has been given, by registered or certified mail, to the Company by the Rights Agent or to the Company and the Rights Agent by the Acting Holders, a written notice specifying such breach and requiring it to be remedied and stating that such notice is a “Notice of Breach” hereunder;
(iii)a court of competent jurisdiction shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar Law now or hereafter in effect, or shall appoint a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) for the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of thirty (30) consecutive days; or
(iv)the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar Law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any substantial part of its property, or make any general assignment for the benefit of creditors.
If a Breach described above occurs and is continuing, then, unless all of the CVRs shall have already become due and payable, either the Rights Agent may, by notice in writing to the Company, or the Rights Agent shall, upon the written request of the Acting Holders by notice in writing to the Company and to the Rights Agent, declare the CVRs to be due and payable immediately (such date of declaration, the “Breach Declaration Date”), and on the first (1st) calendar day immediately following the last day of the Acceleration Valuation Period (the “Acceleration Payment Date”), the Acceleration Payment shall become immediately due and payable to each Holder for each of such Holder’s Outstanding CVRs and shall thereafter bear
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interest at the Breach Interest Rate. All determinations with respect to the calculation of the Acceleration Payment shall be reasonably made by the Company in good faith, and such determinations shall be binding on the Holders absent gross negligence, willful misconduct or manifest error. Not later than the third (3rd) Business Day after the Acceleration Payment Date, the Company shall (x) prepare and file with the Rights Agent a certificate setting forth such determinations and facts accounting for such determinations and (y) mail such certificate to the Holders, by first-class mail, postage prepaid, as their names and addresses appear in the CVR Register.
In the event of a Breach described in Section 8.1(a) in respect of any Maturity Payment or Redemption Payment, the amount of such Maturity Payment or Redemption Payment unpaid following the Maturity Date or Redemption Date, as the case may be, shall bear interest from and after the Maturity Date or the Redemption Date, as applicable, at the Breach Interest Rate.
The foregoing provisions, however, are subject to the condition that if, at any time after the CVRs shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Rights Agent a sum sufficient to pay all amounts which shall have become due and payable (with interest upon any such overdue amount at the Breach Interest Rate to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Rights Agent, its agents, attorneys and counsel, and all other expenses and liabilities incurred and all advances made, by the Rights Agent, except as a result of gross negligence, willful misconduct or bad faith of the Rights Agent, and if any and all Breaches under this CVR Agreement, other than the nonpayment of the amounts which shall have become due, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Majority Holders, by written notice to the Company and to the Rights Agent, may waive all such Breaches and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent breach or shall impair any right consequent thereof.
SECTION b.Collection by the Rights Agent; the Rights Agent May Prove Payment Obligations. The Company covenants that in the case of any failure to pay all or any part of the CVRs when the same shall have become due and payable, then upon demand of the Rights Agent, the Company shall pay to the Rights Agent for the benefit of the Holders of the CVRs the whole amount that then shall have become due and payable on all CVRs (with interest from the date due and payable to the date of such payment upon the overdue amount at the Breach Interest Rate); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Rights Agent and each predecessor Rights Agent, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Rights Agent and each predecessor Rights Agent, except as a result of its gross negligence, willful misconduct or bad faith.
The Rights Agent may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Rights Agent shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
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covenant or agreement in this CVR Agreement or in aid of the exercise of any power granted herein, or to enforce any other remedy.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Rights Agent shall be entitled and empowered to institute any action or proceedings at Law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company or other obligor upon such CVRs and collect in the manner provided by Law out of the property of the Company or other obligor upon such CVRs, wherever situated, the moneys adjudged or decreed to be payable.
In any judicial proceedings relative to the Company or other obligor upon the CVRs, irrespective of whether any amount is then due and payable with respect to the CVRs, the Rights Agent is authorized:
(i)to file and prove a claim or claims for the whole amount owing and unpaid in respect of the CVRs, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Rights Agent (including any claim for reasonable compensation to the Rights Agent and each predecessor Rights Agent, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Rights Agent and each predecessor Rights Agent, except as a result of gross negligence, willful misconduct or bad faith) and of the Holders allowed in any judicial proceedings relative to the Company or other obligor upon the CVRs, or to their respective property;
(ii)unless prohibited by and only to the extent required by applicable Law, to vote on behalf of the Holders in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or Person performing similar functions in comparable proceedings; and
(iii)to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Holders and of the Rights Agent on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Holders to make payments to the Rights Agent, and, in the event that the Rights Agent shall consent to the making of payments directly to the Holders, to pay to the Rights Agent such amounts as shall be sufficient to cover reasonable compensation to the Rights Agent, each predecessor Rights Agent and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Rights Agent and each predecessor Rights Agent, except as a result of its gross negligence, willful misconduct or bad faith, and all other amounts due to the Rights Agent or any predecessor Rights Agent pursuant to Section 4.7. To the extent that such payment of reasonable compensation, expenses, disbursements, advances and other amounts out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, moneys, securities and other property which the Holders may be entitled to receive in such proceedings,
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whether in liquidation or under any plan of reorganization or safeguard arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Rights Agent to authorize or consent to or vote for or accept or adopt on behalf of any Holder any plan of reorganization, safeguard arrangement, adjustment or composition affecting the CVRs, or the rights of any Holder thereof, or to authorize the Rights Agent to vote in respect of the claim of any Holder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this CVR Agreement may be enforced by the Rights Agent without the possession of any of the CVRs and any trial or other proceedings instituted by the Rights Agent shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Rights Agent, each predecessor Rights Agent and their respective agents and attorneys, shall be for the ratable benefit of the Holders.
In any proceedings brought by the Rights Agent (and also any proceedings involving the interpretation of any provision of this CVR Agreement to which the Rights Agent shall be a party) the Rights Agent shall be held to represent all the Holders, and it shall not be necessary to make any Holders of such CVRs parties to any such proceedings (unless required by applicable Law).
SECTION c.Application of Proceeds. Any monies collected by the Rights Agent pursuant to this Article 8 in respect of any CVRs shall be applied in the following order at the date or dates fixed by the Rights Agent in respect of which monies have been collected:
FIRST: To the payment of costs and expenses in respect of which monies have been collected, including reasonable compensation to the Rights Agent and each predecessor Rights Agent and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Rights Agent and each predecessor Rights Agent, except as a result of its gross negligence, willful misconduct or bad faith, and all other amounts due to the Rights Agent or any predecessor Rights Agent pursuant to Section 4.7;
SECOND: To the payment of the whole amount then owing and unpaid upon all the CVRs, with interest at the Breach Interest Rate on all such amounts, and, in case such monies shall be insufficient to pay in full the whole amount so due and unpaid upon the CVRs, then to the payment of such amounts without preference or priority of any security over any other CVR, ratably to the aggregate of such amounts due and payable; and
THIRD: To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
SECTION d.Suits for Enforcement. In case a Breach has occurred, has not been waived and is continuing, the Rights Agent may in its discretion (subject to Section 1.10) proceed to protect and enforce the rights vested in it by this CVR Agreement by such appropriate
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judicial proceedings as the Rights Agent shall deem most effectual to protect and enforce any of such rights (unless authorization and/or appearance of each of the Holders is required by applicable Law), either at Law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this CVR Agreement or in aid of the exercise of any power granted in this CVR Agreement or to enforce any other legal or equitable right vested in the Rights Agent by this CVR Agreement or by Law.
SECTION e.Restoration of Rights on Abandonment of Proceedings. In case the Rights Agent or any Holder shall have proceeded to enforce any right under this CVR Agreement and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Rights Agent or to such Holder, then and in every such case the Company and the Rights Agent and the Holders shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Rights Agent and the Holders shall continue as though no such proceedings had been taken.
SECTION f.Limitations on Suits by Holders. Subject to the rights of the Holders under Section 8.7, no Holder of any CVR shall have any right by virtue or by availing itself of any provision of this CVR Agreement to institute any action or proceeding at Law or in equity or in bankruptcy or otherwise upon or under or with respect to this CVR Agreement, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless the Acting Holders previously shall have given to the Rights Agent written notice of breach and of the continuance thereof, as hereinbefore provided, and unless also the Acting Holders shall have made written request upon the Rights Agent to institute such action or proceedings in its own name as rights agent hereunder and shall have offered to the Rights Agent such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Rights Agent for thirty (30) days after its receipt of such notice and request shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Rights Agent pursuant to Section 8.9; it being understood and intended, and being expressly covenanted by the taker and Holder of every CVR with every other taker and Holder and the Rights Agent, that no one or more Holders of CVRs shall have any right in any manner whatever by virtue or by availing itself of any provision of this CVR Agreement to effect, disturb or prejudice the rights of any other such Holder of CVRs, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this CVR Agreement, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of CVRs. For the protection and enforcement of the provisions of this Section 8.6, each and every Holder and the Rights Agent shall be entitled to such relief as can be given either at Law or in equity.
SECTION g.Unconditional Right of Holders to Receive Payment. Notwithstanding any other provision in this CVR Agreement and any provision of any CVR, the right of any Holder of any CVR to receive payment of the amounts payable in respect of such CVR on or after the respective due dates expressed in such CVR, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
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SECTION h.Powers and Remedies Cumulative; Delay or Omission Not Waiver of Breach.
(i)Except as provided in Section 8.6, no right or remedy herein conferred upon or reserved to the Rights Agent or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by Law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
(ii)No delay or omission of the Rights Agent or of any Holder to exercise any right or power accruing upon any Breach occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Breach or an acquiescence therein; and, subject to Section 8.6, every power and remedy given by this CVR Agreement or by Law to the Rights Agent or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Rights Agent or by the Holders.
SECTION i.Control by Holders.
(i)The Majority Holders shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Rights Agent, or exercising any power conferred on the Rights Agent with respect to the CVRs by this CVR Agreement; provided that such direction shall not be otherwise than in accordance with Law and the provisions of this CVR Agreement; and provided, further, that (subject to the provisions of Section 4.1) the Rights Agent shall have the right to decline to follow any such direction if the Rights Agent, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Rights Agent in good faith by its board of directors, the executive committee, or a committee of directors or Responsible Officers of the Rights Agent shall determine that the action or proceedings so directed would involve the Rights Agent in personal liability or if the Rights Agent in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the CVRs not joining in the giving of said direction.
(ii)Nothing in this CVR Agreement shall impair the right of the Rights Agent in its discretion to take any action deemed proper by the Rights Agent and which is not inconsistent with such direction or directions by Holders.
SECTION j.Waiver of Past Breaches.
(i)In the case of a breach or a Breach specified in clause (b), (c) or (d) of Section 8.1, the Majority Holders may waive any such Breach, and its consequences, except a breach in respect of a covenant or provisions hereof which cannot be modified or amended without the consent of the Holder of each CVR affected. In the case of any
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such waiver, the Company, the Rights Agent and the Holders of the CVRs shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other breach or impair any right consequent thereon.
(ii)Upon any such waiver, such breach shall cease to exist and be deemed to have been cured and not to have occurred, and any Breach arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this CVR Agreement; but no such waiver shall extend to any subsequent or other Breach or other breach of any kind or impair any right consequent thereon.
SECTION k.Right of Court to Require Filing of Undertaking to Pay Costs. All Parties to this CVR Agreement agree, and each Holder of any CVR by receiving or holding the same shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this CVR Agreement or in any suit against the Rights Agent for any action taken, suffered or omitted by it as the Rights Agent, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 8.11 shall not apply to any suit instituted by the Rights Agent, to any suit instituted by any Holder or group of Holders holding in the aggregate more than ten percent (10%) of the Outstanding CVRs or to any suit instituted by any Holder for the enforcement of the payment of any CVR on or after the due date expressed in such CVR.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Parties hereto have caused this CVR Agreement to be duly executed, all as of the day and year first above written.
THIRD POINT REINSURANCE LTD.

By: ___________________________________
        Name: 
        Title: 

[RIGHTS AGENT],
as the Rights Agent
By: ___________________________________
        Name: 
        Title:


EXHIBIT 4.3

FORM OF UPSIDE RIGHT
$[●]1 [●], 202[●]
FOR VALUE RECEIVED, the undersigned, [SiriusPoint Ltd.], a Bermuda exempted company limited by shares (formerly known as Third Point Reinsurance Ltd., the “Company”), hereby unconditionally promises to pay to [●]2 (the “Holder”), in the manner set forth in Section 5, the aggregate principal amount of $[●], in the amount, at the times, in the manner and subject to the terms and conditions set forth in this Upside Right (this “Upside Right”). This Upside Right is issued in accordance with that certain Agreement and Plan of Merger, dated as of August 6, 2020, by and among Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares, the Company and Yoga Merger Sub Limited (the “Merger Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Merger Agreement.
1.Maturity. If the Upside Event (as defined below) occurs, the stated principal amount of this Upside Right will be due and payable in full in the manner set forth in Section 5. This Upside Right shall terminate, and the Company shall have no further liability hereunder, if the Upside Event has not occurred on or prior to [●], 202[●] (the “Outside Date”)3; provided, that, if the Company enters into a definitive agreement to consummate a Qualifying Change of Control Transaction, the Outside Date shall be extended to the earlier of: (i) the termination of such agreement and the abandonment of the transactions contemplated thereto and (ii) the consummation of such Qualifying Change of Control Transaction.
2.Interest. Except as provided in Section 6, no interest shall accrue on this Upside Right.
3.Upside Event.
(a)(i) If the Last Reported Sale Price exceeds the Target Price for each Trading Day of any thirty (30) consecutive Trading Day period prior to the Outside Date or (ii) if the Company consummates a Qualifying Change of Control Transaction on or prior to the Outside Date (each of (i) and (ii), an “Upside Event”), the principal amount of this Upside Right will become immediately due and payable in full, in the manner set forth in Section 5, on the date that is three (3) Business Days following the occurrence of the Upside Event described in clause (i) or upon the consummation of the Qualifying Change of Control Transaction (the “Upside Right Settlement Date”).
(b)For purposes of this Upside Right, “Target Price” shall mean $20.00, subject to adjustment in accordance with Section 4.
1  Note to Draft: Amount equal to $0.905*the number of Company Shares surrendered by Holder in accordance with the Merger Agreement and from whom a Mixed Election was received.
2  Note to Draft: Each holder of Company Shares from whom a Mixed Election was received.
3  Note to Draft: Date to be the 1st anniversary of the Closing.
1006107100v8

4.Certain Adjustments and Notices.
(a)Stock Dividends and Splits. If the Company issues Common Shares as a dividend or distribution on the Common Shares, or if the Company effects a share split or share combination of the Common Shares, the Target Price shall be adjusted based on the following formula:
TP1 = TP0 ×
OS0
OS1
where,
TP0 = the Target Price in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
TP1 = the Target Price in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
OS0 = the number of the Common Shares outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, share split or share combination); and
OS1 = the number of the Common Shares outstanding immediately after giving effect to such dividend, distribution, share split or share combination.
Any adjustment made under this Section 4(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend, distribution, share split or share combination of the type described in this Section 4(a) is declared or announced, but not so paid or made, then the Target Price shall be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or not to effect such share split or share combination, to the Target Price that would then be in effect had such dividend, distribution, share split or share combination not been declared or announced.
(b)Certain Rights, Options or Warrants. If the Company distributes to all or substantially all holders of the Common Shares any rights, options or warrants entitling them, for a period of not more than 60 calendar days after the announcement date of such issuance, to subscribe for or purchase the Common Shares at a price per share that is less than the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Target Price shall be decreased based on the following formula:
TP1 = TP0 ×
OS0 + Y
OS0 + X
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where,
TP0 = the Target Price in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
TP1 = the Target Price in effect immediately after the open of business on such Ex-Dividend Date;
OS0 = the number of Common Shares outstanding immediately prior to the open of business on such Ex-Dividend Date;
X = the total number of Common Shares issuable pursuant to such rights, options or warrants; and
Y = the number of Common Shares equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such rights, options or warrants.
Any decrease made under this Section 4(b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. To the extent that Common Shares are not delivered after the expiration of such rights, options or warrants, the Target Price shall be increased to the Target Price that would then be in effect had the decrease with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Common Shares actually delivered. If such rights, options or warrants are not so distributed, the Target Price will be readjusted to the Target Price that would then be in effect had the Ex-Dividend Date for the distribution of such rights, options or warrants not occurred.
For purposes of this Section 4(b), in determining whether any rights, options or warrants entitle the holders of Common Shares to subscribe for or purchase the Common Shares at less than such average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors in good faith and in a commercially reasonable manner.
(c)Other Distributions and Spin-Offs. If the Company distributes its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities of the Company, to all or substantially all holders of the Common Shares, excluding (i) dividends, distributions or issuances as to which an adjustment is required pursuant to Section 4(a) or Section 4(b), (ii) dividends or distributions paid exclusively in cash as to which an adjustment is required pursuant to Section 4(d), (iii) Spin-
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Offs as to which the provisions set forth below in this Section 4(c) shall apply and (iv) a distribution solely pursuant to a tender offer or exchange offer for Common Shares as to which the provisions set forth in Section 4(e) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Target Price shall be decreased based on the following formula:
TP1 = TP0 ×
SP0 − FMV
SP0
        where,
TP0 = the Target Price in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
TP1 = the Target Price in effect immediately after the open of business on such Ex-Dividend Date;
SP0 = the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV = the fair market value (as determined by the Board of Directors in good faith and in a commercially reasonable manner) of the Distributed Property with respect to each outstanding Common Share on the Ex-Dividend Date for such distribution.
Any decrease made under the portion of this Section 4(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. In the case of any distribution of rights, options or warrants, to the extent such rights, options or warrants expire unexercised, the applicable Target Price shall be immediately readjusted to the applicable Target Price that would then be in effect had the decrease made for the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Common Shares actually delivered upon the exercise of such rights, options or warrants. If such distribution is not so paid or made, then the Target Price will be readjusted to the Target Price that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), Section 4(g) shall apply and the terms of any adjustment shall be determined in accordance with Section 4(g) and not this Section 4(c).
With respect to an adjustment pursuant to this Section 4(c) where there has been a payment of a dividend or other distribution on the Common Shares of Capital Stock of any class or series, or similar equity interest, of or relating to any Subsidiary or other business unit of the Company to all holders of Common Shares (other than solely pursuant to a tender offer or exchange offer for Common Shares, as to which Section 4(e) shall apply), that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Target Price shall be decreased based on the following formula:
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TP1 = TP0 ×
MP0
FMV0 + MP0
where,
TP0 = the Target Price in effect immediately prior to the open of business on the first Trading Day of the Valuation Period;
TP1 = the Target Price in effect immediately after the open of business on the first Trading Day of the Valuation Period;
FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Shares applicable to one share of the Common Shares (determined by reference to the definition of Last Reported Sale Price as set forth in Section 15 as if references therein to Common Shares were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
The adjustment to the Target Price under the preceding paragraph shall be effective as of the open of business on the first Trading Day of the Valuation Period; provided that if the Outside Date occurs during the Valuation Period, for the purposes of determining the Target Price, references to “10” in the portion of this Section 4(c) related to Spin-Offs shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the Outside Date. If such dividend is not so paid or made, then the Target Price will be readjusted to the Target Price that would then be in effect if such dividend had not been declared.
If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Upside Right, are amended or are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to such amended or new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).
For purposes of Section 4(a), Section 4(b) and this Section 4(c), if any dividend or distribution to which this Section 4(c) is applicable also includes one or both of:
(A) a dividend or distribution of Common Shares to which Section 4(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 4(b) is applicable (the “Clause B Distribution”),
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then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 4(c) is applicable (the “Clause C Distribution”) and any Target Price adjustment required by this Section 4(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Target Price adjustment required by Section 4(a) and Section 4(b) with respect thereto shall then be made, except that (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any Common Shares included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 4(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 4(b).
(d)Cash Dividends. If any cash dividend or distribution is made to all or substantially all holders of the Common Shares, the Target Price shall be decreased based on the following formula:
TP1 = TP0 ×
SP0 − C
SP0
where,
TP0 = the Target Price in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
TP1 = the Target Price in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP0 = the Last Reported Sale Price on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
C = the amount in cash per share the Company distributes to all or substantially all holders of the Common Shares.
Any decrease pursuant to this Section 4(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid or made, then the Target Price will be readjusted to the Target Price that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), Section 4(g) shall apply and the terms of any adjustment shall be determined in accordance with Section 4(g) and not this Section 4(d).
(e)Tender and Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the average of the Last Reported Sale Prices of the Common Shares over the 10 consecutive Trading Day period (the “TO Valuation Period”) commencing on, and including, the Trading
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Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Target Price shall be decreased based on the following formula:
TP1 = TP0 ×
OS0 × SP1
AC + (SP1 × OS1)
where,
TP0 = the Target Price in effect immediately prior to the open of business on the first Trading Day of the TO Valuation Period;
TP1 = the Target Price in effect immediately after the open of business on the first Trading Day of the TO Valuation Period;
AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors in good faith and in a commercially reasonable manner) paid or payable for Common Shares purchased in such tender or exchange offer;
OS0 = the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer);
OS1 = the number of Common Shares outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all Common Shares accepted for purchase or exchange in such tender or exchange offer); and
SP1 = the average of the Last Reported Sale Prices over the TO Valuation Period.
The adjustment to the Target Price under this Section 4(e) shall occur at the close of business on the last day of the TO Valuation Period; provided that if the Outside Date occurs during the TO Valuation Period, for the purposes of determining the Target Price, a reference to “10” in this Section 4(e) shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the first day of the TO Valuation Period to, and including, the Outside Date. To the extent such tender or exchange offer is announced but not consummated (including as a result of being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Common Shares in such tender or exchange offer are rescinded, the Target Price will be readjusted to the Target Price that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of Common Shares, if any, actually made, and not rescinded, in such tender or exchange offer.
(f)Fundamental Transaction. In the event of any: (i) capital reorganization of the Company; (ii) reclassification of the Common Shares (other than a change in par value or as a result of a share dividend or subdivision, split-up or combination of shares); (iii) consolidation, amalgamation or merger of the Company with or into another Person; or (iv) other similar transaction (other than in the case of each of the foregoing clauses, any such transaction covered by Section 4(a), Section 4(b), Section 4(c), Section 4(d), Section 4(e) or a Change of Control Transaction) (each, a “Fundamental Transaction”), then the Board of Directors acting in good
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faith and in a commercially reasonable manner shall make appropriate adjustment to this Upside Right, including to Target Price, the definition of “Common Shares” and the provisions set forth in Section 5, to ensure that the Holder shall be entitled to receive the same value upon satisfaction of an equivalent condition to the Upside Event. The provisions of this Section 4(f) shall similarly apply to successive Fundamental Transactions. The Company shall not effect any Fundamental Transaction unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such Fundamental Transaction shall assume, by written instrument substantially similar in form and substance to this Upside Right, the obligations of the Company under this Upside Right.
(g)Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of this Upside Right in order to (i) avoid an adverse impact on this Upside Right and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by this Upside Right is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of this Upside Right in a manner that is consistent with any adjustment recommended in such opinion. The Company shall cause any definitive agreement providing for the consummation of a Qualifying Change of Control Transaction that it enters into prior to the Outside Date to provide that the Holder shall receive the consideration described in Section 5(a) in the event an Upside Event related to a Qualifying Change of Control Transaction occurs.
(h)Notice of Adjustment. As promptly as reasonably practicable following any adjustment pursuant to this Section 4, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof. As promptly as reasonably practicable following the receipt by the Company of a written request by Holder, but in any event not later than the earlier of ten (10) Business Days thereafter and one (1) Business Day prior to the Outside Date, the Company shall furnish to the Holder a certificate of an executive officer certifying the Target Price then in effect; provided that the Holder shall not make more than one request per fiscal quarter.
(i)Adjustments of Prices. Notwithstanding anything to the contrary in this Upside Right, (i) whenever any provision of this Upside Right requires the Company to calculate the Last Reported Sale Price or the Company’s Average Share Price over a span of multiple Trading Days, the Company shall make appropriate adjustments as determined in good faith by the Board of Directors and in a commercially reasonable manner to each, in order to account for any adjustment to the Target Price that becomes effective, or any event requiring an adjustment to the Target Price where the Ex-Dividend Date, Effective Date or expiration date of the event occurs, at any time during the period when Company is required to so calculate the Last Reported Sale Price or the Company’s Average Share Price; and (ii) the Upside Right Settlement Date may be postponed solely to the extent necessary to make calculations required by this Section 4(i).
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5.Settlement of Upside Right.
(a)The Company shall, if an Upside Event occurs, issue the Upside Right Settlement Shares (as defined below) to satisfy its obligation to pay the principal amount of this Upside Right; provided, that if an Upside Event related to a Change of Control Transaction occurs, the Holder shall instead receive the consideration to which it would have been entitled had it held the Upside Right Settlement Shares immediately prior to the consummation of the Change of Control Transaction; provided, further, however, that (i) if the holders of the Common Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable in the event the Change of Control Transaction occurs, then the kind and amount of securities, cash or other assets constituting the consideration to which each Common Share shall be entitled to receive shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Shares in such Change of Control Transaction that affirmatively make such election, and (ii) if such Change of Control Transaction occurs as a result of a tender, exchange or redemption offer, then the Holder shall be entitled to receive per Common Share the highest amount of cash, securities or other property to which such Holder would actually have been entitled as a shareholder if it had held the Upside Right Settlement Shares immediately prior to the expiration of such tender or exchange offer, accepted such offer and all of the Common Shares held by such Holder had been purchased pursuant to such tender or exchange offer. The Company shall deliver or cause to be delivered the Upside Right Settlement Shares or, in the event an Upside Event related to a Change of Control Transaction occurs, the consideration to which the Holder would be entitled pursuant to this Section 5(a), as applicable, to the Holder on the Upside Right Settlement Date. No fractional Common Shares will be issued hereunder. In lieu of any fractional shares that would otherwise be issuable as Upside Right Settlement Shares, the Company shall pay the Holder an amount of cash equal to the product of such fraction multiplied by the Company’s Average Share Price.
(b)The Company shall at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved Common Shares, solely for the purpose of enabling it to issue Upside Right Settlement Shares pursuant to this Section 5, a number of Common Shares with a value equal to the maximum number of Upside Right Settlement Shares that would be issuable pursuant to this Upside Right. The Company represents and warrants that all Upside Right Settlement Shares issuable and deliverable pursuant to this Section 5 shall, upon issuance be validly issued, fully paid and non-assessable and free and clear of any encumbrances, preemptive rights or restrictions (other than as provided in this Upside Right[[,]/[and]] any restrictions on transfer generally imposed under applicable securities Laws [, the Investor Rights Agreement by and among the Company, CM Bermuda Limited, and any other Person that may thereafter become a party thereto in the capacity as a shareholder of the Company in accordance with the terms and provisions thereof, dated as of [•], and the Registration Rights Agreement by and among the Company and CM Bermuda Limited, dated as of [•]]4).
(c)The Company shall use its reasonable best efforts to maintain the effectiveness of the registration statement on which this Upside Right and the Upside Right Settlement Shares (to the extent issued pursuant hereto) were registered, and a current prospectus relating thereto until
4  Note to Draft: To be included for CM Bermuda.
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the earlier of (x) the Outside Date (provided, that the Upside Event does not occur prior to such date) and (y) the Upside Right Settlement Date (provided, that the Upside Event occurs prior to the Outside Date) (the “Expiration Date”). The Company shall use its reasonable best efforts to procure, or cause to be procured, at its sole expense, the listing of the Upside Right Settlement Shares to the extent issued pursuant hereto, subject to issuance or notice of issuance, on the New York Stock Exchange (or the principal stock exchange on which such Common Shares are then listed or traded) promptly after such Common Shares are eligible for listing thereon.
6.Default. Each of the following events shall be an “Event of Default” hereunder:
(a)the Company fails to pay timely any principal amount due under this Upside Right on the date the same becomes due and payable; or
(b)the Company commences a voluntary case or other proceeding seeking liquidation, reorganization, moratorium or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or substantially all of its assets, or consents to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or makes a general assignment for the benefit of creditors, or fails generally to pay its debts as they become due, or takes any corporate action to authorize any of the foregoing.
Upon the occurrence of an Event of Default hereunder: (A) the Upside Event shall be deemed to have occurred; (B) all unpaid principal and other amounts owing hereunder shall be immediately due and payable and collectible by the Holder, subject to applicable Law, and the Holder may exercise any and all rights and remedies available to it under applicable Law and equity; and (C) all unpaid principal and other amounts owing hereunder, shall accrue interest at a rate per annum, compounded quarterly, equal to four percent (4%) in excess of the then-applicable U.S. prime rate (or other similar index) for commercial loans as announced in The Wall Street Journal.
7.Successors and Assigns; Transfer. The provisions of this Upside Right shall be binding upon and inure to the benefit of the Company and the Holder and their respective successors and assigns; provided, that neither the Company nor the Holder may assign or transfer any of its rights or obligations under this Upside Right without the prior written consent of the other party, which, in the case of the consent of the Company, shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, the Holder shall be permitted to assign, transfer or pledge this Upside Right as collateral to any of its or its Affiliates’ existing or future lenders.
8.Waiver. The Company hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement hereof and consents that no such extension or other indulgence, and no discharge or release of any other party primarily or secondarily liable hereof, shall discharge or otherwise affect the liability of the Company.
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9.No Impairment. The Company will not, and the Company will cause its Subsidiaries not to, intentionally avoid or seek to avoid the observance of performance of any of the terms to be observed or performed by the Company under this Agreement, including, but not limited to (a) agreeing to a Per Share Consideration or other consideration or transaction structure; (b) delaying entry into an agreement to consummate a Change of Control Transaction until following the Outside Date; (c) delaying the consummation of a Change of Control Transaction until following the Outside Date; or (d) terminating an agreement to consummate a Change of Control Transaction, in each case, to intentionally avoid the triggering of an Upside Event.
10.Headings. Section and subsection headings in this Upside Right are included herein for convenience of reference only and shall not constitute a part of this Upside Right for any other purpose or given any substantive effect.
11.Severability. Whenever possible, each provision of this Upside Right shall be interpreted in such a manner as to be valid, legal and enforceable under the applicable Law of any jurisdiction. Without limiting the generality of the foregoing sentence, in case any provision of this Upside Right shall be invalid, illegal or unenforceable under the applicable Law of any jurisdiction, the validity, legality and enforceability of the remaining provisions, or of such provision in any other jurisdiction, shall not in any way be affected or impaired thereby.
12.Amendments and Waivers. No amendment, modification, forbearance or waiver of any provision of this Upside Right, and no consent with respect to any departure by the Company therefrom, shall be effective unless the same shall be in writing and signed by the Holder and the Company.
13.Replacement. Upon the loss, theft, destruction or mutilation of this Upside Right, the Company shall execute and deliver, in lieu thereof, a new Upside Right representing the same rights represented by such lost, stolen, destroyed or mutilated Upside Right.
14.Governing Law; Consent to Jurisdiction. This Upside Right, and all Actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Upside Right, or the negotiation, execution or performance of this Upside Right (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Upside Right or as an inducement to enter into this Upside Right), shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of New York applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction, except to the extent the provisions of the Laws of Bermuda are mandatorily applicable to this Upside Right.
All Actions arising out of or relating to the interpretation and enforcement of the provisions of this Upside Right (except to the extent any such proceeding mandatorily must be brought in Bermuda) shall be heard and determined in the Courts of the State of New York sitting in the County of New York, the United States District Court for the Southern District of
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New York and, in each case, any appellate court therefrom. The Company, and the Holder by acceptance of this Upside Right, hereby irrevocably submits to the exclusive jurisdiction and venue of such courts in any such Actions and irrevocably waives the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 13 shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the Company and the Holder. The Company, and the Holder by acceptance of this Upside Right, agrees that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
15.Waiver of Jury Trial. THE COMPANY, AND THE HOLDER BY ACCEPTANCE OF THIS UPSIDE RIGHT, ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS UPSIDE RIGHT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS UPSIDE RIGHT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE COMPANY, AND THE HOLDER BY ACCEPTANCE OF THIS UPSIDE RIGHT, CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 14.
16.Certain Definitions. The terms defined in this Section 15 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Upside Right shall have the respective meanings specified in this Section 15. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Upside Right as a whole and not to any particular Section or other subdivision. The terms defined in this Section 15 include the plural as well as the singular.
“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“Business Day” means any day except a Saturday, a Sunday or other day on which the Commission or the banks in the City of New York, New York or Hamilton, Bermuda are authorized or required by law to be closed.
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“Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.
“Change of Control Consideration” has the meaning assigned to such term in Section 5(a).
“Change of Control Transaction” means any of the following events: (a) the consummation of any merger, consolidation or other similar business combination the result of which is that (i) any “person” or “group” within the meaning of Section 13(d) of the Exchange Act is, or as a result of such transaction becomes, the beneficial owner, directly or indirectly, of more than 50% of the total voting power of the voting stock of the Company and (ii) the beneficial owners of more than 50% of the total voting power of the voting stock of the Company as of the date immediately prior to such transaction, individually or in the aggregate, do not beneficially own, directly or indirectly, a larger percentage of the total voting power of such voting stock than such other “person” or “group”; or (b) the sale, transfer, conveyance or other disposition (other than by way of merger, consolidation or transfer of the Company’s voting stock), to any “person” or “group” within the meaning of Section 13(d) of the Exchange Act, of all or substantially all of the assets of the Company.
“Clause A Distribution” has the meaning assigned to such term in Section 4(c).
“Clause B Distribution” has the meaning assigned to such term in Section 4(c).
“Clause C Distribution” has the meaning assigned to such term in Section 4(c).
“Commission” means the U.S. Securities and Exchange Commission.
“Common Shares” means the common shares of the Company, par value [$0.10] per share, at the date of this Upside Right, subject to Section 4(f).
“Company” has the meaning assigned to such term in the preamble.
“Company’s Average Share Price” means the volume weighted average price of the Common Shares (as reported by Bloomberg L.P. or, if not reported therein, in another authoritative source selected by the Company in good faith and in a commercially reasonable manner) measured over the thirty (30) consecutive Trading Days ending on (and including) the Trading Day that is Upside Right Settlement Date. The Company’s Average Share Price shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
“Distributed Property” has the meaning assigned to such term in Section 4(c).
“Effective Date” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.
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“Event of Default” has the meaning assigned to such term in Section 6.
“Ex-Dividend Date” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the Common Shares on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Exchange Act” means the Securities Exchange Act of 1934 (as amended).
“Expiration Date” has the meaning assigned to such term in Section 5(c).
“Fundamental Transaction” has the meaning assigned to such term in Section 4(f).
“Holder” has the meaning assigned to such term in the preamble.
“Last Reported Sale Price” of the Common Shares on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Shares are traded. If the Common Shares are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Shares in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Shares are not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
“Market Disruption Event” means (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Shares or in any options contracts or futures contracts traded on any U.S. exchange relating to the Common Shares.
“Merger Agreement” has the meaning assigned to such term in the preamble.
“Outside Date” has the meaning assigned to such term in Section 1.
“Per Share Consideration” means with respect to a Change of Control Transaction: (a) if the consideration to be paid to holders of the Common Shares consists exclusively of cash, the amount of cash per Common Share, and (b) in all other cases, the volume weighted average price
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of the Common Shares (as reported by Bloomberg L.P. or, if no reported therein, in another authoritative source selected by the Company in good faith and in a commercially reasonable manner) during the ten (10) Trading Day period ending on the Trading Day prior to the effective date of the consummation of the Change of Control Transaction.
“Qualifying Change of Control Transaction” means a Change of Control Transaction in which the Per Share Consideration exceeds the Target Price.
“Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading. If the Common Shares are not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
“Spin-Off” has the meaning assigned to such term in Section 4(c).
“Target Price” has the meaning assigned to such term in Section 3(b).
“TO Valuation Period” has the meaning assigned to such term in Section 4(e).
“Trading Day” means, except for determining the Company’s Average Share Price as set forth below, a day on which (i) trading in the Common Shares (or other security for which a closing sale price must be determined) generally occurs on the principal U.S. national or regional securities exchange on which the Common Shares (or such other security) are then listed or, if the Common Shares are (or such other security is) not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are (or such other security is) then traded and (ii) a Last Reported Sale Price for the Common Shares (or closing sale price for such other security) is available on such securities exchange or market; provided, that if the Common Shares are (or such other security is) not so listed or traded, “Trading Day” means a Business Day; and provided, further, that for purposes of determining the Company’s Average Share Price only, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Shares generally occurs on the principal other U.S. national or regional securities exchange on which the Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are then listed or admitted for trading, except that if the Common Shares are not so listed or admitted for trading, “Trading Day” means a Business Day.
“Upside Event” has the meaning assigned to such term in Section 3(a).
“Upside Right” has the meaning assigned to such term in the preamble.
“Upside Right Settlement Date” has the meaning assigned to such term in Section 3(a).
“Upside Right Settlement Shares” means (a) in the case of an Upside Event contemplated by Section 3(a)(i), the number of Common Shares equal to (i) $100 million divided by (ii) the Company’s Average Share Price; or (b) in the case of an Upside Event contemplated by
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Section 3(a)(ii), the number of Common Shares equal to (i) $100 million divided by (ii) the lesser of the Per Share Consideration and the Company’s Average Share Price.
“Valuation Period” has the meaning assigned to such term in Section 4(c).
[Signatures to follow.]
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IN WITNESS WHEREOF, the Company has caused this Upside Right to be duly executed and delivered as of the date first written above.
[COMPANY]

By:  __________________________________
        Name:
        Title:




[Signature Page to Upside Right]

EXHIBIT 4.4

FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of [●], 2020 (the “Agreement”), by and among [●], a Bermuda exempted company limited by shares (formerly known as Third Point Reinsurance Ltd., the “Company”), and CM Bermuda Ltd., a Bermuda holding company (“CM Bermuda”) (together with its successors and assigns, the “Investor”). The Investor and any other party that may become a party hereto in accordance with Section 9(d) are referred to collectively as the “Shareholders” and individually each as a “Shareholder”.
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of August 6, 2020, by and among Sirius International Insurance Group, Ltd. (“Sirius”), the Company, and Yoga Merger Sub Limited (“Merger Sub”), as of the Effective Time (as defined in the Merger Agreement), Merger Sub merged with and into Sirius (the “Merger”), with Sirius being the surviving entity in the Merger as a wholly owned subsidiary of the Company;
WHEREAS, in accordance with the terms of the Merger Agreement and immediately following the Effective Time, Investor beneficially owned [●] Common Shares (as defined below), [●] Preference Shares (as defined below), which may convert into Common Shares, [●] warrants to purchase Common Shares (the “Warrants”) and $[●] aggregate principal amount of that certain right issued by the Company as Merger Consideration (as defined in the Merger Agreement) (the “Upside Right”), which may convert into Common Shares;
WHEREAS, the Company and the Investor are parties to the Investor Rights Agreement, dated as of [●], 2020 (as amended from time to time, the “Investor Rights Agreement”), governing the rights and obligations of the Investor with respect to its investment in the Company;
WHEREAS, as a condition to the obligations of the Company and the Investor under the Merger Agreement, the Company and the Investor are entering into this Agreement for the purpose of granting certain registration and other rights to the Shareholders.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the receipt and sufficiency of which consideration are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1.Definitions. As used in this Agreement, the following capitalized terms shall have the following respective meanings:
“Adverse Disclosure” means public disclosure of material non-public information that the Board of Directors of the Company has determined in good faith: (i) would be required to be made in any Registration Statement or report filed with the SEC by the Company so that
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such Registration Statement would not be materially misleading; (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement; and (iii) the Company has a bona fide business purpose for not disclosing publicly.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” (including its correlative meanings, “controlling”, “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.
“Business Day” means any day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York or Bermuda are authorized or required by law to be closed.
“Common Shares” means the common shares of the Company with a par value of $[0.10] per share.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor statute thereto and the rules and regulations of the SEC promulgated thereunder.
“FINRA” means the Financial Industry Regulatory Authority.
“Holdback Period” means, with respect to any registered offering of Common Shares pursuant to a Registration Statement that is not a Shelf Registration Statement, the period beginning 10 days before the effective date of such Registration Statement and ending 90 days after such effective date (or such shorter period as the managing underwriter(s) permit) or, in the case of a takedown from a Shelf Registration Statement, the period beginning on the date the Company has given reasonable written notice to each Holder (not to exceed 10 days before the date of the earliest prospectus supplement in connection with such takedown) and ending 90 days after the date of such final prospectus supplement (or such shorter period as the managing underwriter(s) permit); provided that the applicable Holdback Period shall terminate on such earlier date as the Company gives notice to the Investor that the Company declines to proceed with any such offering or the offering is otherwise abandoned.
“Holder” means any Shareholder holding Registrable Securities.
“Lock-Up Period” means the period from the date hereof through and including (i) the 225th day following the date hereof with respect to [●]1 Common Shares held or beneficially owned by the Investor on the date hereof (assuming the Preference Shares, Warrants and the Upside Right were fully converted, exercised or exchanged to or into Common Sh
1  1/3 of the total number of Common Shares held or beneficially owned by the Investor on the date of the Registration Rights Agreement.
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ares on the date hereof), (ii) the 365th day following the date hereof with respect to [●]2 Common Shares held or beneficially owned by the Investor on the date hereof (assuming the Preference Shares, Warrants and the Upside Right were fully converted, exercised or exchanged to or into Common Shares on the date hereof) and (iii) the 450th day following the date hereof with respect to [●]3 Common Shares held or beneficially owned by the Investor (including any remaining shares into which the Preference Shares, Warrants and Upside Right are convertible, exercisable or exchangeable); provided, that the Common Shares released during each milestone date during the Lock-Up Period shall be allocated first to outstanding Common Shares and second, to Common Shares which are issued following such date in respect of the conversion, settlement or exercise of the Preference Shares, Upside Right and Warrants, as the case may be; provided, further, that the Investor and its Affiliates may request that the Company release additional Common Shares from the applicable Lock-Up Period (such consent not to be unreasonably withheld or delayed) in order to facilitate an orderly sell-down of Common Shares by the Investor and its Affiliates.
“NYSE” means the New York Stock Exchange.
“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivisions thereof or any group comprised of two or more of the foregoing.
“Preference Shares” means the Series A Preference Shares of the Company with a par value of $[0.10] per share.
“Prospectus” means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement or any issuer free writing prospectus (as defined in Rule 433 under the Securities Act), with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus.
“register”, “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement or the automatic effectiveness of such registration statement, as applicable.
“Registrable Securities” means any Common Shares, including (without limitation) any Common Shares issuable pursuant to the Certificate of Designation of the
2  1/3 of the Common Shares held or beneficially owned by the Investor on the date of the Registration Rights Agreement.
3  The remainder of the Common Shares held or beneficially owned by the Investor on the date of the Registration Rights Agreement.
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Preference Shares, the Warrants and the Upside Right, held or beneficially owned by a Holder, including any securities acquired as a result of any reclassification, recapitalization, share split or combination, exchange or readjustment of such shares or securities, or any share dividend or share distribution in respect of such shares or securities; provided, however, that such Common Shares or securities, once issued, shall cease to be Registrable Securities when (i) they are sold pursuant to an effective Registration Statement under the Securities Act, (ii) they are sold pursuant to Rule 144 or Rule 145 (or any similar provision then in force under the Securities Act), (iii) with respect to any particular Holder, such Holder beneficially owns less than two percent (2%) of the Common Shares then outstanding (assuming the Preference Shares, Warrants and Upside Right were fully converted, exercised or exchanged to or into Common Shares on such date), (iv) they may be sold pursuant to Rule 144 without any conditions including (without limitation) volume limitations, manner of sale or current public information, (v) they shall have ceased to be outstanding or (vi) they have been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities. No Registrable Securities may be registered under more than one Registration Statement at any one time.
“Registration Statement” means any registration statement of the Company under the Securities Act which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
“Related Persons” shall have the meaning ascribed thereto in the Investor Rights Agreement.
“Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 144 Block Trade” means a sale of Registrable Securities that is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 with the assistance of a broker or dealer pursuant to Rule 144.
“SEC” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act or the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended, and any successor statute thereto and the rules and regulations of the SEC promulgated thereunder.
“Shelf Registration Statement” means a Registration Statement filed with the SEC on Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (or any successor provision) covering the offer and sale of all or any portion of the Registrable Securities.
“Subsidiary” means (i) any corporation of which a majority of the securities entitled to vote generally in the election of directors thereof, at the time as of which any
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determination is being made, are owned by another entity, either directly or indirectly, and (ii) any joint venture, general or limited partnership, limited liability company or other legal entity in which an entity is the record or beneficial owner, directly or indirectly, of a majority of the voting interests or the general partner.
2.Incidental Registrations.
(a)Right to Include Registrable Securities. If, following the expiration of the applicable Lock-Up Period, the Company proposes to register its Common Shares under the Securities Act (other than pursuant to a Registration Statement filed by the Company on Form S4 or S8, or any successor or other forms promulgated for similar purposes or filed solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan), whether or not for sale for its own account, in a manner which would permit registration of Registrable Securities for sale to the public under the Securities Act, it will, at each such time, give written notice as promptly as reasonably practicable (and in any event not less than five (5) Business Days before the anticipated date of filing of the related Registration Statement or preliminary prospectus supplement, as the case may be) to all Holders of its intention to do so and of such Holders’ rights under this Section 2. Upon the written request of any such Holder made within four (4) days after the receipt of any such notice (which request shall specify the Registrable Securities intended to be disposed of by such Holder), the Company will use commercially reasonable efforts to effect (subject to Section 2(b)) the registration under the Securities Act of all Registrable Securities which the Company has been so requested by the Holders thereof; provided that (i) if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Registration Statement filed in connection with such registration, the Company shall determine for any reason not to proceed with the proposed registration of the securities to be sold by it, the Company may, at its election, give written notice of such determination to any requesting Holder and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith), and (ii) if such registration involves an underwritten offering, all Holders requesting to be included in the Company’s registration must sell their Registrable Securities to the underwriters selected by the Company on the same terms and conditions as apply to the Company, with such differences, including any with respect to indemnification and liability insurance, as may be customary or appropriate in combined primary and secondary offerings. If a registration requested pursuant to this Section 2(a) involves an underwritten public offering, any Holder requesting to be included in such registration may elect, in writing at least two (2) Business Days prior to the effective date of the Registration Statement filed in connection with such registration, not to register such securities in connection with such registration. The Company shall not be required to maintain the effectiveness of a Registration Statement that is not a Shelf Registration Statement for a registration requested pursuant to this Section 2(a) beyond the earlier to occur of (i) 180 days after the effective date thereof and (ii) consummation of the distribution by the Company of the Registrable Securities included in such Registration Statement.
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(b)Priority in Incidental Registrations. The Company shall use commercially reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit Holders who have requested to include Registrable Securities in such offering to include in such offering all Registrable Securities so requested to be included on the same terms and conditions as any other shares, if any, of the Company included in the offering. Notwithstanding the foregoing, if the managing underwriter or underwriters of such underwritten offering have informed the Company in writing that it is their good faith opinion that the total amount of securities that such Holders and the Company intend to include in such offering is such as to adversely affect the success of such offering, then the amount of securities to be offered shall be reduced to the amount recommended by such managing underwriter or underwriters, which will be allocated in the following order of priority: (i) first, the securities to be proposed to be sold by the Company for its own account and (ii) second, the Registrable Securities of the Holders that have requested to participate in such underwritten offering and securities requested to participate in such underwritten offering by other holders, allocated pro rata among such Holders and such holders on the basis of the percentage of the Registrable Securities requested to be included in such underwritten offering by such Holders.
3.Registration on Request.
(a)Request by the Demand Party. Subject to the following paragraphs of this Section 3(a), CM Bermuda shall have the right on behalf of the Holders, by delivering a written notice to the Company, to require the Company to register, at any time following the expiration of the applicable Lock-Up Period and pursuant to the terms of this Agreement, under and in accordance with the provisions of the Securities Act, the number of Registrable Securities requested to be so registered pursuant to the terms of this Agreement (any such written notice, a “Demand Notice”, any such registration, a “Demand Registration” and any such Holder, a “Demand Party”); provided, however, that a Demand Notice may only be made if the sale of the Registrable Securities requested to be registered by such Holder is reasonably expected to result in aggregate gross cash proceeds in excess of $50,000,000 (without regard to any underwriting discount or commission); provided, further, that the Company shall not be obligated to file a Registration Statement relating to any registration request under this Section 3(a), (i) within the period (the “Quarterly Blackout Period”) commencing on the last day of any quarter or year and ending two days following the Company’s earnings release for any fiscal quarter or year or (ii) within a period of 60 days after the effective date of any other Registration Statement relating to any registration request under this Section 3(a). Following receipt of a Demand Notice for a Demand Registration in accordance with this Section 3(a), the Company shall use commercially reasonable efforts to file a Registration Statement as promptly as practicable and shall use commercially reasonable efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
Within five (5) days after receipt by the Company of a Demand Notice in accordance with this Section 3(a), the Company shall give written notice (the “Demand Follow-up Notice”) of such Demand Notice to all other Holders, if any, and shall, subject to the provisions of Section 3(b) hereof, include in such registration all Registrable Securities with
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respect to which the Company received written requests for inclusion therein within five (5) Business Days after such Demand Follow-up Notice is given by the Company to such Holders.
All requests made pursuant to this Section 3 shall specify the number of Registrable Securities to be registered and the intended methods of disposition thereof.
The Company shall be required to maintain the effectiveness of the Registration Statement with respect to any Demand Registration that is not a Shelf Registration Statement for a period of at least 180 days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the Holder refrains from selling any securities included in such Registration Statement at the request of the Company or an underwriter of the Company pursuant to the provisions of this Agreement.
(b)Priority on Demand Registration. If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter or underwriters advise the Holders of such securities in writing that in its reasonable view the total number or dollar amount of Registrable Securities proposed to be sold in such offering is such as to adversely affect the success of such offering (including, without limitation, securities proposed to be included by other Holders of securities entitled to include securities in such Registration Statement pursuant to incidental or piggyback registration rights), then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities that in the opinion of such managing underwriter or underwriters can be sold without adversely affecting such offering, and such number of Registrable Securities shall be allocated as follows:
(i)first, to the Holders requesting to include Registrable Securities in such Demand Registration (whether pursuant to a Demand Notice or pursuant to incidental or piggyback registration rights) among such Holders pro rata on the basis of the percentage of Registrable Securities owned by each such Holder relative to the number of Registrable Securities owned by all such Holders;
(ii)second, the securities for which inclusion in such Demand Registration, as the case may be, was requested by the Company; and
(iii)third, any securities of the Company requested to by other holders of such securities, on a pro rata basis or in such other manner as such other holders agree.
(c)Cancellation of a Demand Registration. Holders of a majority of the Registrable Securities which are to be registered in a particular offering pursuant to this Section 3 shall have the right prior to the effectiveness of a Registration Statement to notify the Company that they have determined that such Registration Statement be abandoned or withdrawn, in which event the Company shall abandon or withdraw such Registration Statement.
(d)Postponements in Requested Registrations. (i) If the Company shall at any time furnish to the Holders an officer’s certificate signed by its chairman of the board, chief
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executive officer, president or chief financial officer stating that the filing of a Registration Statement or conducting a Shelf Underwritten Offering would, in the good faith judgment of the Board of Directors of the Company, (i) require the Company to make an Adverse Disclosure or (ii) materially interfere with any material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction involving the Company or any of its subsidiaries then under consideration, the Company may postpone the filing (but not the preparation) of a Registration Statement or the commencement of a Shelf Underwritten Offering, as applicable, required by this Section 3; provided that the Company shall at all times in good faith use its commercially reasonable best efforts to cause any Registration Statement required by this Section 3 to be filed as soon as possible or any Shelf Underwritten Offering to be conducted as soon as possible; provided, further, that the Company shall not postpone the filing of a Registration Statement or the commencement of a Shelf Underwritten Offering pursuant to this Section 3(d) more than once in any 180day period or for a period exceeding thirty (30) days in the aggregate in any 180-day period. The Company shall promptly give the Holders requesting registration thereof or that delivered a Take-Down Notice, as applicable, pursuant to this Section 3 written notice of any postponement made in accordance with the preceding sentence. If the Company gives a Demand Party such a notice, the Demand Party requesting such registration or that delivered the Take-Down Notice shall have the right within 15 days after receipt thereof, to withdraw their request.
(e)Shelf Registration Statement. At any time following the earliest expiration of the applicable Lock-Up Period with respect to any portion of the Registrable Securities, upon the written request of the Investor, the Company shall file with the SEC a Shelf Registration Statement (to the extent permissible) covering the resale of all Registrable Securities, and any other securities desired by the Company, and shall use reasonable best efforts to cause such Shelf Registration Statement to become effective promptly. Except as provided herein, the Company shall use its commercially reasonable efforts to keep any Shelf Registration Statement filed pursuant to the provisions herein continuously effective (including by filing a successor automatic Shelf Registration Statement) under the Securities Act until the earliest of (i) the date as of which all Registrable Securities have been sold pursuant to such Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder), (ii) the date on which this Agreement terminates with respect to all Holders pursuant to the termination provisions herein and (iii) such shorter period as all Holders with respect to such Shelf Registration Statement shall agree in writing.
(f)Shelf-Take Downs. At any time that a Shelf Registration Statement covering Registrable Securities pursuant to Section 2 or Section 3 is effective, the Investor may, deliver a written notice to the Company (a “Take-Down Notice”) stating that it intends to effect an underwritten offering of all or part of its Registrable Securities included by it on the Shelf Registration Statement (a “Shelf Underwritten Offering”), then, the Company shall amend or supplement the Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Underwritten Offering (taking into account the inclusion of Registrable Securities by any other holders pursuant to Section 3(b)); provided, however that the Holders may not, without the Company’s prior written consent, (i)
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launch a Shelf Underwritten Offering the anticipated gross cash proceeds of which shall be less than $50,000,000 (unless the Holders are proposing to sell all of their remaining Registrable Securities), (ii) effect more than two (2) Shelf Underwritten Offerings within any 365-day period that require substantial marketing efforts (i.e., involving one-on-one in-person meetings with prospective purchasers of the Registrable Securities over multiple days) (each, a “Marketed Shelf Underwritten Offering”) by the Company’s management at the request of the Holders, (iii) effect more than four (4) minimally marketed or unmarketed Shelf Underwritten Offerings within any 365-day period, or (iv) launch or effect a Shelf Underwritten Offering within the Quarterly Blackout Period. In connection with any Marketed Shelf Underwritten Offering only:
(i)such proposing Holder shall also deliver the Take-Down Notice to all other Holders included on such Shelf Registration Statement and permit each Holder to include its Registrable Securities included on the Shelf Registration Statement in the Shelf Underwritten Offering if such Holder notifies the Company within two (2) Business Days after delivery of the Take-Down Notice to such Holder; and
(ii)in the event that the underwriter determines that marketing factors (including an adverse effect on the per share offering price) require a limitation on the number of shares which would otherwise be included in such take down, the underwriter may limit the number of shares which would otherwise be included in such take-down offering in the same manner as described in Section 3(b) with respect to a limitation of shares to be included in a registration.
(g)Registration Statement Form. Any registration requested pursuant to this Section 3 shall be effected by a Registration Statement on Form S3 (or any successor or similar short-form registration statement) if the Company is eligible to file a Registration Statement on Form S-3 (or successor or similar short-form registration statement). If the Company is eligible to file such, the Registration Statement shall be an automatic Shelf Registration Statement as defined in Rule 405 under the Securities Act.
(h)Selection of Underwriters. If a requested registration pursuant to this Section 3 involves an underwritten offering, the Company and the Investor shall jointly select the managing underwriter(s) and other underwriters to administer the offering.
4.Registration Procedures. If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 2 and Section 3 hereof, the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall cooperate in the sale of the securities and shall, as expeditiously as possible:
(1)prepare and file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Company in accordance with the intended method or methods of distribution thereof, and use commercially reasonable efforts to cause such Registration Statement to become effective
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and to remain effective as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall furnish or otherwise make available to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Company’s books and records, officers, accountants and other advisors. The Company shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto with respect to a Demand Registration to which the Holders of a majority of the Registrable Securities covered by such Registration Statement, if their counsel, or the managing underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Company, such filing is necessary to comply with applicable law;
(2)prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;
(3)notify each selling Holder, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 4(o) below cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the
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initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(4)use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
(5)if requested by the managing underwriters, if any, or the Holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such Holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(6)furnish or make available to each selling Holder, its counsel and each managing underwriter, if any, without charge, such number of copies as such selling Holder may reasonably request of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such Holder, counsel or underwriter);
(7)deliver to each selling Holder, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; and the Company, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and the underwriters, if any, in connection with the offering and sale of the
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Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(8)prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the selling Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders to consummate the disposition of such Registrable Securities in such jurisdiction; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so required to qualify but for this paragraph (h) or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;
(9)cooperate with the selling Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each Holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such Holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or Holders may request at least two (2) Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to issue the securities;
(10)use commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(11)upon the occurrence of any event contemplated by Section 4(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(12)prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(13)provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement;
(14)use commercially reasonable efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on the NYSE or national securities exchange on which the Common Shares are listed, prior to the effectiveness of such Registration Statement (or, if no Common Shares issued by the Company are then listed on any securities exchange, use commercially reasonable efforts to cause such Registrable Securities to be so listed on the NYSE or NASDAQ, as determined by the Company);
(15)enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested, (ii) use commercially reasonable efforts to furnish to the underwriters, if any, opinions of outside counsel to the Company and updates thereof (which opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any), addressed to the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use commercially reasonable efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain
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indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section except as otherwise agreed by the Holders and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 4(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
(16)make available for inspection by a representative of the selling Holders, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling Holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information that is not generally publicly available at the time of delivery of such information, and any notice (direct or indirect), written, oral or otherwise with respect to an Incidental Registration as described in Section 2, a Registration or Request as described in Section 3 or a Shelf Registration as described in Section 3(e) or (f) shall be kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law or applicable legal process, or (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the Company, assist the Company in seeking to prevent or limit the proposed disclosure. Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of the Company or its subsidiaries in violation of law;
(17)cause its officers to use their reasonable best efforts to support the marketing of the Registrable Securities covered by the Registration Statement (including, without limitation, participation in “road shows”) taking into account the Company’s business needs;
(18)cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
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(19)otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement will satisfy the provisions of Section 11(a) of the U.S. Securities Act and Rule 158 thereunder.
The Company may require each Holder as to which any registration is being effected to furnish to the Company in writing such information required in connection with such registration regarding such seller and the distribution of such Registrable Securities as the Company may, from time to time, reasonably request in writing and the Company may exclude from such registration the Registrable Securities of any Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request.
Each Holder agrees if such Holder has Registrable Securities covered by such Registration Statement that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(c)(ii), 4(c)(iii), 4(c)(iv), 4(c)(v) or 4(c)(vi) hereof, such Holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(k) hereof, or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus; provided, however, that the time periods under Section 3 with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time the Holder is required to discontinue disposition of such securities.
5.Indemnification.
(a)Indemnification by the Company. The Company shall, without limitation as to time, indemnify and hold harmless, to the fullest extent permitted by law, each Holder whose Registrable Securities are covered by a Registration Statement or Prospectus, the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each of them, each Person who controls each such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each such controlling person, each underwriter, if any, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter (each such person being referred to herein as a “Covered Person”), from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, costs of preparation and reasonable attorneys’ fees and any legal or other fees or expenses incurred by such party in connection with any investigation or proceeding), expenses, judgments, fines, penalties, charges and amounts paid in settlement (collectively, “Losses”), as incurred, arising out of or based upon any untrue statement (or alleged untrue statement) of a material fact (i) contained in any Prospectus or any Registration Statement, as defined in Rule 433(h) under the Securities Act, or
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any supplement or amendment thereto, (ii) contained in any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or Prospectuses or any amendment or supplement thereto, or (iii) caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each such Covered Person for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such Loss, provided that the Company will not be liable in any such case (x) to the extent that any such Loss arises out of or is based on any untrue statement or omission by such Covered Person, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such Prospectus, Registration Statement, Company information, or any supplement or amendment thereto, in reliance upon and in conformity with written information furnished to the Company by such Covered Person for use therein or (y) if such untrue statement or omission is completely corrected in an amendment or supplement to the Prospectus and such Holder thereafter fails to deliver such Prospectus as so amended or supplemented prior to or concurrently with the sale of Registrable Securities to the person asserting such Loss after the Company had furnished such Holder with a sufficient number of copies of the same (and the delivery thereof would have resulted in no such Loss). It is agreed that the indemnity agreement contained in this Section 5(a) shall not apply to amounts paid in settlement of any such Loss or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld).
(b)Indemnification by Holder. The Company may require, as a condition to including any Registrable Securities in any Registration Statement filed in accordance with Section 4 hereof, that the Company shall have received an undertaking reasonably satisfactory to it from the prospective seller of such Registrable Securities to indemnify, to the fullest extent permitted by law, severally and not jointly with any other Holders, the Company, its directors and officers and each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and all other prospective sellers, from and against all Losses arising out of or based on any untrue statement of a material fact (i) contained in any such Prospectus or Registration Statement, as defined in Rule 433(h) under the Securities Act, or any supplement or amendment thereto, or (ii) caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Company, such directors, officers, controlling persons and prospective sellers for any legal or any other expenses reasonably incurred in connection with investigating or defending any such Loss, in each case to the extent, but only to the extent, that such untrue statement or omission is made in such Prospectus or Registration Statement, or any supplement or amendment thereto, in reliance upon and in conformity with written information furnished to the Company by such Holder for inclusion in such Prospectus or Registration Statement, or any supplement or amendment thereto; provided, however, that the obligations of such Holder hereunder shall not apply to amounts paid in settlement of any such Losses (or actions in respect thereof) if such settlement is effected without the consent of such Holder (which consent shall not be unreasonably withheld); and provided, further, that the liability of such Holder shall be limited to the net proceeds received by such selling Holder from the sale of Registrable Securities covered by such Registration Statement.
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(c)Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt notice to the party from which such indemnity is sought (the “Indemnifying Party”) of any claim or of the commencement of any Proceeding with respect to which such Indemnified Party seeks indemnification or contribution pursuant hereto; provided, however, that the delay or failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any obligation or liability except to the extent that the Indemnifying Party has been materially prejudiced by such delay or failure. The Indemnifying Party shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such claim or Proceeding, to, unless in the Indemnified Party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, assume, at the Indemnifying Party’s expense, the defense of any such claim or Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that an Indemnified Party shall have the right to employ separate counsel in any such claim or Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) the Indemnifying Party agrees to pay such fees and expenses; or (ii) the Indemnifying Party fails promptly to assume, or in the event of a conflict of interest cannot assume, the defense of such claim or Proceeding or fails to employ counsel reasonably satisfactory to such Indemnified Party; in which case the Indemnified Party shall have the right to employ counsel and to assume the defense of such claim or proceeding at the Indemnifying Party’s expense; provided, further, however, that the Indemnifying Party shall not, in connection with any one such claim or proceeding or separate but substantially similar or related claims or proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one firm of attorneys (together with appropriate local counsel) at any time for all of the Indemnified Parties, or for fees and expenses that are not reasonable. Whether or not such defense is assumed by the Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). The Indemnifying Party shall not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release, in form and substance reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim or litigation for which such Indemnified Party would be entitled to indemnification hereunder.
(d)Contribution. If the indemnification provided for in this Section 5 is unavailable to an Indemnified Party in respect of any Losses (other than in accordance with its terms), then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party, on the one hand, and Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made (or omitted) by, or relates to
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information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), an Indemnifying Party that is a selling Holder shall not be required to contribute any amount in excess of the amount that such Indemnifying Party has otherwise been, or would otherwise be, required to pay pursuant to Section 5(b) by reason of such untrue or alleged untrue statement or omission or alleged omission and, in any case, shall not exceed the net proceeds received by such selling Holder from the sale of Registrable Securities covered by such Registration Statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are more favorable to the Holders than the foregoing provisions, the provisions in the underwriting agreement shall control.
(e)Other Indemnification. Indemnification similar to that specified in the preceding provisions of this Section 5 (with appropriate modifications) shall be given by the Company and each seller of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority other than the Securities Act.
(f)Non-Exclusivity. The obligations of the parties under this Section 5 shall be in addition to any liability which any party may otherwise have to any other party.
6.Registration Expenses. All fees and expenses incurred in connection with a Registration Statement or other actions incident to the performance of its obligations under this Agreement shall be borne by the Company, including, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with FINRA and (B) of compliance with securities or Blue Sky laws, including, without limitation, any fees and disbursements of counsel for the underwriters in connection with Blue Sky qualifications of the Registrable Securities pursuant to Section 4(h)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriters, if any, or by the Holders of a majority of the Registrable Securities included in any Registration Statement), (iii) messenger, telephone and delivery expenses of the Company, (iv) fees and disbursements of counsel for the Company, (v) expenses of the Company incurred in connection with any road show, (vi) fees and disbursements of all independent certified public accountants referred to in Section 4(o) hereof (including, without limitation, the expenses of any “cold comfort” letters required by this
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Agreement) and any other persons, including special experts retained by the Company and (vii) fees and disbursements of one counsel for the Holders whose shares are included in a Registration Statement (which counsel shall be selected as set forth in Section 8) shall be borne by the Company whether or not any Registration Statement is filed or becomes effective. In addition, the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the securities on the NYSE or such other national securities exchange on which the Common Shares are listed, rating agency fees and the fees and expenses of any Person, including special experts, retained by the Company.
The Company shall not be required to pay (i) fees and disbursements of any counsel retained by any Holder or by any underwriter, selling broker, dealer manager or similar securities industry professional (except as set forth in the preceding paragraph and Section 8), (ii) any underwriter’s fees (including underwriting discounts, commissions or fees, or any discounts, commissions or fees of selling brokers, dealer managers or similar securities industry professionals) relating to the distribution of the Registrable Securities of Holders or (iii) any other expenses of the Holders not specifically required to be paid by the Company pursuant to the first paragraph of this Section 6.
7.Rule 144.
(a)The Company covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, it will, upon the request of any Demand Party, make publicly available such information), and it will take such further commercially reasonable actions as any Holder (or, if the Company is not required to file reports as provided above, any Demand Party) may reasonably request to permit Holders to sell shares of Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. The Company shall, in connection with any request by Holder in connection with a sale, transfer or other disposition by any Holder of any Registrable Securities pursuant to Rule 144, promptly use commercially reasonable efforts to facilitate the removal of any restrictive legend or similar restriction on the Registrable Securities that may legally be removed, and, in the case of book-entry shares, use commercially reasonable efforts to request removal of any restrictive legend that may legally be removed by the transfer agent of the Common Shares for such number of Common Shares and registered in such names as the Holders may reasonably request and to provide a customary opinion of counsel (which may be internal counsel) and instruction letter reasonably required by such transfer agent for the removal of such legend to such transfer agent. Notwithstanding anything contained in this Section 7, the Company may deregister under Section 12 of the Exchange Act if it then is permitted to do so pursuant to the Exchange Act and the rules and regulations thereunder.
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(b)Upon request, the Company shall use commercially reasonable efforts to cooperate in a timely manner with reasonable requests by the Investor with respect to any Rule 144 Block Trade including taking any relevant action described in Section 4 to the extent customarily applicable to a Rule 144 Block Trade.
8.Selection of Counsel. In connection with any registration of Registrable Securities pursuant to Section 2 or 3 hereof, the Holders of a majority of the Registrable Securities covered by any such registration may select one counsel to represent all Holders covered by such registration; provided, however, that in the event that the counsel selected as provided above is also acting as counsel to the Company in connection with such registration, the remaining Holders shall be entitled to select one additional counsel at the Company’s expense to represent all such remaining Holders.
9.Miscellaneous.
(a)Holdback Agreement. In consideration for the Company agreeing to its obligations under this Agreement, the Investor and each Holder severally agree in connection with any registration of the Common Shares upon the request of the Company and the underwriters managing any underwritten offering of the Company’s securities, not to effect (other than pursuant to such registration) any public sale or distribution of Registrable Securities, including, but not limited to, any sale pursuant to Rule 144, or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Registrable Securities or any securities convertible into or exchangeable or exercisable for any Registrable Securities without the prior written consent of the Company or such underwriters, as the case may be, during the Holdback Period; provided that nothing herein will prevent any Holder that is a partnership or corporation from making a transfer to an Affiliate that is otherwise in compliance with applicable securities laws. In addition, upon request by the managing underwriter(s), each Holder shall enter into customary holdback agreements on terms consistent with the terms herein.
If any registration pursuant to Section 3 of this Agreement shall be in connection with any underwritten public offering, if requested by the managing underwriter or underwriters, the Company will not effect any public sale or distribution of any common equity (or securities convertible into or exchangeable or exercisable for common equity) other than a registration statement (i) on Form S4, Form S8 or any successor forms thereto or (ii) filed solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan) for its own account, during the Holdback Period. In addition, upon request by the managing underwriter(s), the Company shall enter into customary holdback agreements on terms consistent with the terms herein.
(b)Lock-Up Agreement. During the applicable Lock-Up Period, (and for the avoidance of doubt solely with respect to the Common Shares to which such Lock-Up Period applies), the Investor and its Affiliates shall not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, assign, encumber, pledge, hypothecate, or otherwise directly transfer or dispose of any Common Shares, Preference Shares, Warrants and Upside Right held or beneficially owned by the Investor and its Affiliates or (ii) enter into any hedge, swap, put, call,
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short sale, derivative or other arrangement with respect to any Common Shares, Preference Shares, Warrants and Upside Right held or beneficially owned by the Investor and its Affiliates whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or other securities, in cash or otherwise; provided, that Investor and its Affiliates shall be entitled to (x) collaterally assign and/or pledge its Common Shares, Warrants Upside Right and Preference Shares to any of its lenders or its Affiliates’ lenders; and (y) transfer its Common Shares, Preference Shares, Warrants and Upside Note to any of its Affiliates. For the avoidance of doubt, any securities of the Company that are subject to the foregoing lock-up agreement shall be eligible for participation in any share repurchase program conducted by the Company; provided, that any such securities are sold directly to the Company.
(c)Amendments and Waivers. This Agreement may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to such amendment, action or omission to act, of all of the Shareholders who hold Registrable Securities then outstanding. Each Holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any consent authorized by this Section 9(c), whether or not such Registrable Securities shall have been marked to indicate such consent. No amendment to this agreement may be made, no action herein prohibited may be taken and no omission to perform an action herein required to be performed may be made without the written consent of the Company.
(d)Successors, Assigns and Transferees. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns who agree in writing to be bound by the provisions of this Agreement. The provisions of this Agreement binding on the parties hereto other than the Company may not be transferred or assigned to any Person in connection with a transfer of Registrable Securities unless such Person signs a joinder agreement to this Agreement; provided, that except as expressly contemplated by this Agreement, nothing in this Agreement shall in and of itself prohibit any party to this Agreement from transferring Common Shares, Preference Shares, Warrants, or the Upside Right; provided, further that Investor shall be entitled to collaterally assign and/or pledge its rights under this Agreement to any of its lenders and/or its Affiliates’ lenders. Except as provided in Section 5 with respect to an Indemnified Party, nothing expressed or mentioned in this Agreement is intended or shall be construed to give any Person other than the parties hereto and their respective successors and permitted assigns any legal or equitable right, remedy or claim under, or in respect of this Agreement or any provision herein contained.
(e)Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, emailed (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses:
If to Company, to:

[●]
Attention: [●]
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Email: [●]
with a copy (which shall not constitute notice) to:

Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: Steven J. Slutzky
Eric T. Juergens
Email: sjslutzky@debevoise.com
etjuergens@debevoise.com
if to the Shareholders or the Investor, to the Investor at:

[●]
Attention: [●]
Email: [●]
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attention: Todd E. Freed
         Jon A. Hlafter
E-mail:   todd.freed@skadden.com
          jon.hlafter@skadden.com
or such other address or email address as such party may hereafter specify by like notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of actual receipt by the recipient thereof if received prior to 5:00 p.m. local time in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt.
(f)Descriptive Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning of terms contained herein.
(g)Severability. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law.
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(h)Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or electronic mail), each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.
(i)Governing Law; Submission to Jurisdiction. This Agreement and all legal or administrative proceedings, suits, investigations, arbitrations or actions (“Actions”) (whether at law, in equity, in contract, in tort or otherwise) based upon, arising out of or relating to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed entirely within that State, regardless of the laws that might otherwise govern under any applicable conflict of laws principles.
All Actions arising out of or relating to this Agreement shall be heard and determined in the Courts of the State of New York sitting in the County of New York, the United States District Court for the Southern District of New York, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Action and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 9(i) shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any Action arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 9(e) of this Agreement. The parties hereto agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law; provided that nothing in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
(j)Specific Performance. Each party hereto acknowledges that money damages would not be an adequate remedy in the event that any of the covenants or agreements in this Agreement are not performed in accordance with its terms, and it is therefore agreed that in addition to and without limiting any other remedy or right it may have, the non-breaching party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.
(k)Further Assurances. At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.
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(l)Termination. The provisions of this Agreement (other than Section 5) shall terminate upon the earliest to occur of (i) its termination by the written agreement of all parties hereto or their respective successors in interest, (ii) the date on which all Common Shares (assuming the Preference Shares, Warrants and Upside Right were fully converted, exercised or exchanged to or into Common Shares on such date) have ceased to be Registrable Securities; and (iii) the dissolution, liquidation or winding up of the Company. Nothing herein shall relieve any party from any liability for the breach of any of the agreements set forth in this Agreement.
(m)Confidentiality. All information provided by the Company to any Holder pursuant to this Agreement shall, except if the purpose for which such information is furnished pursuant to this Agreement contemplates such disclosure or is for disclosure in public documents of the Company, be kept strictly confidential and, unless otherwise required by applicable law or as agreed by the Company, no Holder shall disclose, and each Holder shall take all steps reasonably necessary to ensure that none of its directors, officers, employers, agents, Affiliates and representatives disclose, or make use of, except in accordance with applicable law, such information in any manner whatsoever until such information otherwise (i) becomes generally available to the public; or (ii) becomes known to Holder other than through disclosure by the Company or directly or indirectly from a person who is known by such Holder to be bound by a confidentiality agreement or other obligation not to transmit such information to such Holder; provided, however, this Section 9(m) shall not apply to information disclosed in connection with any registration statement filed in accordance with the terms of this Agreement; provided, further, each Holder shall be entitled to disclose information to (x) its auditors, financial advisors and other professional advisors who agree to hold confidential such information substantially in accordance with this Section 9(m), (y) any federal, state or foreign regulatory authority having jurisdiction over such Holder, or (z) any other person to which delivery or disclosure may be necessary or appropriate to (A) effect compliance with any law, rule, regulation or order applicable to such Holder, (B) in response to any subpoena or other legal process, or (C) in connection with any litigation to which such Holder is a party; provided that in the case (y) and (z),  each Holder will give the Company, as soon as reasonably practicable and to the extent permitted by applicable law, written notice of such request or requirement so that the Company may seek an appropriate order or other remedy protecting the information from disclosure, and such Holder will cooperate with the Company, at the Company’s expense, to obtain such protective order or other remedy, and if such order or remedy is not obtained, the Holder shall furnish only that portion of the information which, in the written opinion of its outside counsel,  the Holder is legally required to disclose to such regulatory authority or in connection with such law, rule, regulation, order, subpoena, legal process, litigation or other proceeding.


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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this Agreement to be duly executed on its behalf as of the date first written above.
[●]

By:   
        Name: [●]
        Title: [●]
         

[Signature Page to Registration Rights Agreement]


[●]

By:   
        Name: [●]
        Title: [●]





        
[Signature Page to Registration Rights Agreement]

EXHIBIT 4.5
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (this “Agreement”) dated as of [●], is by and among [SiriusPoint Ltd.], a Bermuda exempted company limited by shares (the “Company”), CM Bermuda Ltd, a Bermuda exempted company limited by shares (the “Investor”), and any other Person that may hereafter become party hereto in the capacity as a shareholder of the Company in accordance with the terms and provisions of this Agreement (all such parties other than the Company, collectively, the “Investors” and each, an “Investor”).
WHEREAS, on August 6, 2020, the Company (f/k/a Third Point Reinsurance Ltd.), Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (“Sirius Group”), and Yoga Merger Sub Limited, a Bermuda exempted company limited by shares (“Merger Sub”), entered into the Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Merger Sub was merged with and into Sirius Group (the “Merger”), with Sirius Group surviving the Merger as a wholly owned Subsidiary of the Company;
WHEREAS, upon the consummation of the Merger, the Investor received [●] Common Shares, [●] Series A Preference Shares, $0.10 par value per share of the Company (the “Preference Shares”), which may convert into Common Shares, [●] warrants to purchase Common Shares (the “Warrants”) and $[●] aggregate principal amount of certain upside rights issued by the Company as Merger Consideration (as defined in the Merger Agreement) (the “Upside Rights”), which may convert into Common Shares; and
WHEREAS, the Company and the Investor wish to specify in this Agreement the terms of their agreement as to certain matters relating to the Company and the Investor’s ownership of Common Shares (including any Common Shares received upon the exercise or conversion of the Preference Shares and the Warrants, as applicable, and satisfaction of the Upside Rights).
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.Voting Obligations.
(a)If the votes conferred by the Shares collectively beneficially owned by the Investor and its Affiliates and Related Persons would confer votes in excess of 9.9% of the votes conferred by all of the Shares issued and outstanding at any time, then the collective voting power of the Investor and its Affiliates and Related Persons shall be

1006086681v8

automatically and immediately reduced to 9.9% in the manner prescribed in Bye-Law [5.5].
(b)During the Standstill Effectiveness Period, the Investor and its Affiliates shall, and shall direct the Related Persons to, vote (including, if applicable, by delivering one or more proxies or through the execution of one or more written consents if shareholders of the Company are requested to vote through the execution of an action by written consent in lieu of any annual or special meeting of shareholders of the Company) the Common Shares and the Preference Shares owned by them or over which they have voting control, subject to the voting cut-back set forth in Section 1(a) above, to be present for quorum purposes, in favor of all those persons nominated to serve as directors of the Company by the Board or its Governance and Nominating Committee and against any nominee not so nominated.
2.Board Observer.
(a)Subject to Section 2(b), during the Standstill Effectiveness Period, the Investor shall have the right to designate one individual (such designee or its replacement pursuant to this Section 2, as applicable, the “Board Observer”) to attend in person or join telephonically all meetings of the Board in a non-voting, observer capacity; provided that, unless previously given permission by the Company, the Board Observer may not participate in any meeting of the Board while physically present in the United States unless at least one member of the Board is participating in such meeting while physically present in the United States. The Board Observer shall be given notice of all meetings of the Board in substantially the same manner and at substantially the same time as notice is sent to the members of the Board, and shall receive a copy of all notices, agendas and other material, written information distributed to all the members of the Board in substantially the same manner and at substantially the same time as sent to the members of the Board; provided that, as a condition to receiving such information, the Board Observer shall have entered into a mutually acceptable, customary confidentiality agreement with the Company with respect to all information so provided; provided, further, that the Company reserves the right to withhold any information and to exclude the Board Observer from the applicable portion of a meeting if the Board determines, in the exercise of its reasonable discretion, that access to such information or attendance at such portion of the meeting would result in (i) a loss of an attorney-client privilege or attorney work product protection or (ii) a conflict of interest (including information or meetings with respect to any action to be taken, or any determination to be made, by the Board regarding any transaction, agreement or dispute with the Investor or any of its Affiliates or any Related Persons).
(b)Notwithstanding the provisions of this Section 2, the Investor shall not be entitled to designate a particular Board Observer pursuant to Section 2(a) in the event that
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the Board reasonably determines in good faith that the designation of such individual would cause the Company to be not in compliance with applicable law or regulation. In such case described in the immediately preceding sentence, the Investor shall withdraw the designation of such proposed designee and, subject to Section 2(a), shall be permitted to designate a replacement therefor (which replacement designee shall also be subject to the requirements of this Section 2(b)).
3.Standstill.
(a)During the period beginning on the date of this Agreement and ending on the Standstill Termination Date, except as permitted by the Board in its sole discretion subject to clause (vii) below), at any time the Investor and its Affiliates and Related Persons collectively beneficially own nine and nine-tenths percent (9.9%) or more of the issued and outstanding Shares (the “Standstill Effectiveness Period”), the Investor shall not, and shall cause its controlled Affiliates and shall direct the Related Persons not to, and shall not facilitate or encourage any other Person to, directly or indirectly, in any manner:
(i)subject to Section 3(b), effect any acquisition of ownership (including by operation of law and including the acquisition of the right to vote or direct the voting of any Common Shares) of Common Shares or securities exercisable, exchangeable or convertible into Common Shares; provided, that this clause (i) shall not limit or otherwise restrict (subject to Section 5 and any restrictions on transfer applicable to the Investor, its Affiliates and Related Persons in any other agreement or instrument) the ability of the Investor or any of its Affiliates or Related Persons to dispose of any securities of the Company.
(ii)effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, any tender offer, take-over bid, amalgamation, plan of arrangement, merger, exchange offer, consolidation, business combination, recapitalization, restructuring or other similar transaction involving the Company or any of its Subsidiaries (or any of their respective assets) or take any action which would, or would reasonably be expected to, result in or require public disclosure regarding any of the types of matters set forth in this clause (ii); provided, that this clause (ii) shall not limit or otherwise restrict the ability of the Investor or any of its Affiliates or Related Persons to (A) tender or sell securities of the Company in any such transaction or (B) vote Common Shares or Preferred Shares beneficially owned by the Investor or any of its Affiliates or Related Persons in connection with any such transaction;
(iii)(A) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or otherwise participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) to vote for, or seek to
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advise or influence any Person in connection with the voting of, the election of directors not nominated by the Board, (B) solicit, encourage or facilitate, directly or indirectly, any third party to engage in any such solicitation for the election of directors not nominated by the Board, (C) make any public statement (or statement to another shareholder of the Company or statement which would, or would reasonably be expected to, result in or require public disclosure) in support of any such third-party solicitation for the election of directors not nominated by the Board or (D) seek or propose the election or appointment of any person to, or representation on, or nominate or propose the nomination of any candidate to, the Board, or seek or propose the removal of any member of the Board;
(iv)(A) call, request the calling of, or otherwise seek or assist in the calling of a meeting of the shareholders of the Company or (B) seek, propose or submit, any proposal or matter of business (whether binding or not) to be considered or voted upon at a meeting of the shareholders of the Company, including pursuant to Rule 14a-8 under the Exchange Act or submit, or participate in, any “shareholder access” proposal;
(v)publicly seek or propose to influence or control the management or policies of the Company (or take any action which would, or would reasonably be expected to, result in or require public disclosure regarding any of the types of matters set forth in this clause (v));
(vi)have or disclose any intention, plan or arrangement prohibited by, or inconsistent with the foregoing or advise, assist or encourage or enter into discussions, negotiations, agreements or arrangements with any other Persons in connection with the foregoing;
(vii)request that the Company (or its directors, officers, employees or agents), directly or indirectly, amend or waive any provision of this Section 3(a) (including this sentence), in a manner that would, or would reasonably be expected to, result in or require public disclosure of such request; or
(viii)agree or commit to any of the foregoing;
provided, that nothing in clause (i) or clause (ii) shall prohibit the Investor or any of its Affiliates or Related Persons from acquiring or offering to acquire, directly or indirectly, securities of any Person who beneficially owns Shares so long as (i) such Person owns less than 5% of the outstanding Common Shares and such Common Shares constitute less than 20% of such Person’s assets or (ii) such Person is a passive institutional investor or other passive investment vehicle or entity, with the investment in the underlying Common Shares being part of a portfolio managed on behalf of all investors in such investment.
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(b)Notwithstanding the prohibition set forth in Section 3(a)(i), in the event that the Investor’s and its Affiliates’ and Related Persons’ collective beneficial ownership of the Fully Diluted Equity Outstanding decreases below the Maximum Percentage Ownership after the date of this Agreement by reason of (x) a sale of Shares by the Investor or any of its Affiliates or Related Persons to a third party or (y) an issuance or sale of Shares by the Company in which the Investor’s and its Affiliates’ and Related Persons’ collective beneficial ownership is diluted, then the Investor and its Affiliates shall be permitted to acquire Common Shares in one or more transactions in an amount such that their collective beneficial ownership would not exceed the Maximum Percentage Ownership.
4.Reinstatement of Voting Obligations, Board Observer and Standstill.
(a)Subject to Section 4(b), if the Investor and its Affiliates and Related Persons cease to collectively beneficially own at least 9.9% of the issued and outstanding Shares, all rights and obligations pursuant to Section 1, Section 2 and Section 3 shall terminate; provided that if, (i) prior to the twelve (12) month anniversary of the date of such termination, the Investor, its Affiliates and Related Persons again collectively beneficially own at least 9.9% of the issued and outstanding Shares of the Company, all rights and obligations pursuant to Section 1, Section 2 and Section 3 shall re-apply (and this Section 4 shall re-apply in the event that the Investor and its Affiliates and Related Persons subsequently cease to collectively beneficially own at least 9.9% of the issued and outstanding Shares); and (ii) during the period ending on the twelve (12) month anniversary of the date of such termination the Investor, its Affiliates and Related Persons continue to collectively beneficially own less than 9.9% of the issued and outstanding Shares of the Company, such termination shall no longer be subject to reinstatement.
(b)On and following the Standstill Termination Date, no rights and obligations pursuant to Section 2 and Section 3 shall reapply pursuant to Section 4(a).
5.Transfers.
(a)The Investor, its Affiliates and any Related Person may transfer Common Shares at any time without restriction or condition pursuant to (i) bona fide sales made on a registered securities exchange, (ii) registered offerings pursuant to the Registration Rights Agreement or (iii) broadly distributed underwritten private block sales conducted by one or more investment banks (collectively, “Distributed Sales”), and no transferee in any Distributed Sale shall become a Related Person or subject to this Agreement as a result of such transfer.
(b)Subject to Section 5(c), Section 5(d) and Section 5(e), if the Investor, any of its Affiliates or any Related Person seeks to transfer Shares or Warrants other than
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pursuant to a Distributed Sale, the Investor or other transferor shall notify the Company in writing at least twenty (20) Business Days in advance of such proposed transfer. Within ten (10) Business Days of receipt of such notification, the Company shall notify the Investor of any information that it reasonably requires in order to ascertain whether the proposed transferee is: (i) independent from the Investor and its Affiliates and Related Persons; and (ii) does not have any agreement, arrangement or understanding with the Investor or any of its Affiliates or Related Persons with respect to the acquisition, disposition or voting of the Shares (collectively, the “Independence Criteria”). If, within ten (10) Business Days following receipt of all reasonably requested information (or all information that Investor and its Affiliates are reasonably able to provide in response to the Company’s requests):
(i)the Company makes a good faith and reasonable determination that the proposed transferee does not satisfy the Independence Criteria (a “Negative Determination”), then it shall be a condition precedent to such proposed transfer that the proposed transferee, if not already a party to this Agreement, becomes a party to this Agreement by executing and delivering a joinder agreement hereto, in form and substance reasonably acceptable to the Company, in which the proposed transferee agrees to be subject, on a several but not joint basis with the Investor and its Affiliates to all covenants and agreements of the Investor in Section 1, Section 3 and Section 5 under this Agreement (any such transferee who delivers an executed joinder agreement in accordance with this Section 5(b), a “Related Person”); or
(ii)the Company does not make a Negative Determination, then the transfer may be made to the proposed transferee without condition and the transferee shall not become a Related Person or subject to this Agreement as a result of such transfer.
(c)On or following the Restriction Expiration Date, if the Investor, any of its Affiliates or any Related Person seeks to transfer Shares or Warrants other than pursuant to a Distributed Sale, and the Last Reported Sale Price is less than the Book Value Per Share for any ten (10) Trading Days within a consecutive thirty (30) Trading Day period prior to the notification to the Company described in clause (i) below, then:
(i)Investor, its Affiliates and any Related Person shall be permitted to individually or collectively transfer to any Person Shares or Warrants without condition or restriction so long as, at least two (2) Business Days prior to entering into any definitive agreement with respect to such transfer (other than a customary confidentiality agreement), the transferor(s) delivers to the Company written notification of the number of Shares and Warrants proposed to be transferred, as applicable, the name of the proposed transferee and the price at which the securities are proposed to be transferred;
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(ii)within thirty (30) days of receipt of such notification, the Company shall have the right but not the obligation to offer to purchase, or to cause another Person to purchase on an “as is, where is” basis, all of the securities proposed to be transferred at the same price as proposed to be transferred to the proposed transferee (a “Matching Offer”) by delivering to the Investor written notification of a Matching Offer which offer shall be irrevocable for a period of fifteen (15) days following receipt by the proposed transferor(s);
(iii)if the Company delivers a Matching Offer, then the transferor(s) shall negotiate in good faith the definitive terms thereof during the fifteen (15) day period referenced in Section 5(c)(ii) and shall accept the Matching Offer unless the Company revokes or otherwise fails to adhere to the terms of the Matching Offer at the end of such period;
(iv)(A) if the Company does not deliver a Matching Offer within thirty (30) days of receipt by the Company of the notification referenced in Section 5(c)(i); or (B) if the sale to the Company is not consummated within fifteen (15) days (or any longer period required by applicable Law to consummate such sale) following acceptance by the Investor of the Matching Offer (each, a “Matching Offer Failure Date”), then the transferor(s) may thereafter sell the securities proposed to be transferred to the proposed transferee at or above the per share price which the Company was notified of pursuant to Section 5(c)(i);
(v)any sale of the securities proposed to be transferred to the proposed transferee pursuant to Section 5(c)(iv) may be made to the proposed transferee without condition and such transferee shall not become a Related Person or subject to this Agreement as a result of such transfer; and
(vi)if the sale to the proposed transferee is not agreed within six (6) months following the Matching Offer Failure Date, then the Investor, its Affiliates and any Related Person, as applicable, shall be required to again comply with the provisions of this Section 5(c) prior to another such sale; provided, that once executed within six (6) months any such transaction may be consummated after such six (6) month period subject to obtaining required regulatory approvals.
(d)Notwithstanding anything to the contrary in this Section 5, the Investor, its Affiliates, and any Related Person may transfer Shares or Warrants without condition to any Person (or any Affiliate of such Person) set forth on the Agreed List so long as such Person and its Affiliates are not, and will not become as a result of such transfer, the beneficial owner following such transfer of twenty percent (20%) or more of the Fully Diluted Equity Outstanding. No such Person or Affiliate shall become a Related Person or subject to this Agreement as a result of any such transfer.
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(e)Notwithstanding anything to the contrary in this Section 5, the Investor and its Affiliates may transfer Shares, Warrants or the Upside Rights to Investor’s Affiliates; provided that, unless the transfer proposed to be undertaken will be a Distributed Sale, it shall be a condition precedent to any such transfer that the Affiliate to which such any such securities are proposed to be transferred, if not already a party to this Agreement, becomes a party to this Agreement by executing and delivering a joinder agreement hereto, in form and substance reasonably acceptable to the Company, in which such Affiliate agrees to be subject, on a several but not joint basis with the Investor and any other Affiliates and Related Persons party thereto to all covenants and agreements of the Investor in Section 1, Section 3 and Section 5 under this Agreement.
(f)Investor and the Company agree that no Person to whom securities are permitted to be transferred pursuant to Section 5(a), Section 5(b)(ii), Section 5(c)(iv) and Section 5(d) shall be bound by the provisions of this Agreement as a result of such transfer. In the event of any transfer of certificated securities to such Persons (by the Investor or by any other Person), the Company shall promptly upon request by the Investor or upon otherwise becoming aware of such transfer remove any Investor Rights Agreement Legend from the applicable certificates and such Persons shall be entitled to receive from the Company, without expense to such Persons, the Investor or its Affiliates, a new instrument or certificate not bearing a legend stating such restriction. Neither the Investor nor any of its Affiliates shall be liable for the breach by any Related Person of any provision of this Agreement.
6.Legends; Securities Law Compliance. In the event that the Preference Shares are represented by certificates, each certificate representing the Preference Shares shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED, SOLD, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY (NOT TO BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED).
In addition, in the event that the Common Shares, Preference Shares or Warrants issued to the Investor are represented by certificates, each certificate representing such Common Shares, Preference Shares or Warrants (as the case may be) shall bear the following legend (the “Investor Rights Agreement Legend”):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO TRANSFER, VOTING AND OTHER RESTRICTIONS SET FORTH IN AN
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INVESTOR RIGHTS AGREEMENT, DATED AS OF [●] (AS IT MAY BE AMENDED), AMONG THE COMPANY AND THE OTHER PARTIES THERETO, COPIES OF WHICH ARE ON FILE WITH THE COMPANY.
7.Headings; Certain Definitions.
The headings and other captions contained in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
“Affiliate” means, with respect to any Person, any Person (i) directly or indirectly controlling, controlled by or under common control with such Person or (ii) acting in concert with such Person.
“Agreed List” means any (i) (A) U.S. or Canadian pension fund with no less than $5 billion of assets, (B) world-recognized sovereign wealth fund with recent experience (at the time of such proposed transfer) in purchasing substantial minority stakes in U.S.-publicly listed companies, (C) U.S., Canadian or European institutional investor, or (D) investment fund managed by a U.S., Canadian or European private equity fund or family office, in each case of (A) through (D), only to the extent that the potential purchaser affirms that, if it would own 5% or greater of the outstanding voting shares, it would file a Schedule 13G in respect of its ownership; and (ii) Person set forth on the list set forth on Exhibit A hereto which list may be supplemented with names of additional Person from time to time, it being understood that once a Person is included on such list, it may not be removed.
“Agreement” has the meaning set forth in the preamble.
“beneficially own” or “beneficial ownership” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act; provided that (i) the words “within 60 days” in Rule 13d-3(d)(1)(i) shall be disregarded for the purposes of this Agreement and (ii) a Person shall also be deemed to be the beneficial owner of, without duplication, (a) all Common Shares and Preference Shares which such Person has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to the exercise of any rights in connection with any securities or any agreement, arrangement or understanding (whether or not in writing), regardless of when such rights may be exercised and whether they are conditional, (b) all Common Shares and Preference Shares which such Person or any of such Person’s Affiliates has or shares the right to vote or dispose and (c) all other Common Shares and Preference Shares to which such Person has economic exposure, including through any derivative transaction that gives any such Person or any of such Person’s Affiliates the economic equivalent of ownership of an amount of Common Shares or Preference Shares due to the fact that the
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value of the derivative is explicitly determined by reference to the price or value of Common Shares or Preference Shares, or which provides such Person or any of such Person’s Affiliates an opportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase or decrease in the value of Common Shares or Preference Shares, in any case without regard to whether (x) such derivative conveys any voting rights in Common Shares or Preference Shares to such Person or any of such Person’s Affiliates, (y) the derivative is required to be, or capable of being, settled through delivery of Common Shares or Preference Shares, or (z) such Person or any of such Person’s Affiliates may have entered into other transactions that hedge the economic effect of such beneficial ownership of Common Shares or Preference Shares.
“Board” means the board of directors of the Company.
“Board Observer” has the meaning set forth in Section 2(a).
“Book Value Per Share” means at any particular time the Company’s book value per Common Share on a fully diluted basis as last publicly reported by the Company in its Annual Report on Form 10-K, its Quarterly Report on Form 10-Q or its Current Report on Form 8-K.
“Business Day” means any day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York, New York or Hamilton, Bermuda are authorized or required by law to be closed.
“Bye-Laws” means the Amended and Restated Bye-Laws of the Company.
“Common Shares” means the common shares, par value $0.10 per share, of the Company.
“Company” has the meaning set forth in the preamble.
“Distributed Sales” has the meaning set forth in Section 5(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fully Diluted Equity Outstanding” means the number of Common Shares that would be issued and outstanding upon the exercise, exchange or conversion of all securities or instruments exercisable, exchangeable or convertible into Common Shares, including all outstanding Company equity awards (including Sirius Group equity awards converted into Company equity awards), the Preference Shares, the Warrants and the Upside Rights.
“Independence Criteria” has the meaning set forth in Section 5(b).
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“Investor” has the meaning set forth in the preamble.
“Investor Rights Agreement Legend” has the meaning set forth in Section 6.
“Last Reported Sale Price” of the Common Shares on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Shares are traded. If the Common Shares are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Shares in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Shares are not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
“Matching Offer” has the meaning set forth in Section 5(c)(ii).
“Matching Offer Failure Date” has the meaning set forth in Section 5(c)(iv).
“Maximum Percentage Ownership” means the percentage derived by dividing (i) the number of Common Shares and Preference Shares beneficially owned by the Investor and its Affiliates as of the date of this Agreement by (ii) the Fully Diluted Equity Outstanding as of the date of this Agreement.
“Merger” has the meaning set forth in the recitals.
“Merger Agreement” has the meaning set forth in the recitals.
“Merger Sub” has the meaning set forth in the recitals.
“Negative Determination” has the meaning set forth in Section 5(b)(i).
“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization of any sort.
“Preference Shares” has the meaning set forth in the recitals.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date of this Agreement, by and between the Company and the Investor.
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“Related Person” has the meaning set forth in Section 5(b)(i).
“Restriction Expiration Date” means [•].1
“SEC” means the United States Securities and Exchange Commission.
“Shares” means collectively, the Common Shares and the Preference Shares.
“Sirius Group” has the meaning set forth in the recitals.
“Standstill Effectiveness Period” has the meaning set forth in Section 3(a).
“Standstill Termination Date” means the later of (i) [•];2 and (ii) the date on which the Investor or one of its Affiliates or Related Persons no longer has a representative designated by the Investor or one of its Affiliates or Related Persons serving as a director on the Board.
“Subsidiary” means, with respect to any Person, any Person of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as of such date, owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
“Trading Day” means a day on which (i) trading in the Common Shares (or other security for which a closing sale price must be determined) generally occurs on the principal U.S. national or regional securities exchange on which the Common Shares (or such other security) are then listed or, if the Common Shares are (or such other security is) not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are (or such other security is) then traded and (ii) a Last Reported Sale Price for the Common Shares (or closing sale price for such other security) is available on such securities exchange or market; provided that if the Common Shares are (or such other security is) not so listed or traded, “Trading Day” means a Business Day; and provided, further, that for purposes of determining the Company’s Average Share Price only, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Shares generally occurs on the principal other U.S. national or regional securities exchange on which the Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares
1  Note to Draft: 815 days after the date of this Agreement.
2  Note to Draft: 450 days after the date of this Agreement.
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are then listed or admitted for trading, except that if the Common Shares are not so listed or admitted for trading, “Trading Day” means a Business Day.
“Upside Rights” has the meaning set forth in the recitals.
“Warrants” has the meaning set forth in the recitals.
8.Entire Agreement; No Third-Party Beneficiaries. This Agreement and the Registration Rights Agreement (including all Schedules, Exhibits, Annexes, and other attachments to this Agreement and the Registration Rights Agreement) (a) constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties hereto with respect to such subject matter hereof and thereof and (b) are not intended to and shall not confer upon any Person other than the parties hereto (and any Person that delivers an executed joinder agreement in accordance with this Agreement) any rights or remedies hereunder.
9.Notices. All notices, requests, consents, claims, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (a) when personally delivered, (b) when transmitted via e-mail (except if not a Business Day then the next Business Day) to the e-mail address set out below, (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, requests, consents, claims, demands and other communications, in each case to the respective party, will be sent to the applicable address set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8):
If to the Company, to it at:
[●]
Attention: [●]
Email:  [●]
with a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
Email:  nfpotter@debevoise.com
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If to the Investor, to:
[●]
Attention: [●]
Email:  [●]
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attention: Todd E. Freed
         Jon A. Hlafter
E-mail:   todd.freed@skadden.com
          jon.hlafter@skadden.com
10.Specific Enforcement. The parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties hereto fail to take any action required of them hereunder to consummate this Agreement, subject to the terms and conditions of this Agreement. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 12(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right to specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, neither the Company nor the Investor would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 10 shall not be required to provide any bond or other security in connection with any such order or injunction.
11.Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by
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this Agreement is not affected in any manner materially adverse to any party. If any provision of this Agreement is so broad as to be unenforceable, that provision shall be interpreted to be only so broad as is enforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
12.Governing Law; Jurisdiction.
(a)This Agreement, and all actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, shall in all respects be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the laws of another jurisdiction.
(b)All actions arising out of or relating to the interpretation and enforcement of the provisions of this Agreement shall be heard and determined in the Courts of the State of New York sitting in the County of New York, the United States District Court for the Southern District of New York and, in each case, any appellate court therefrom. The parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such action. The consents to jurisdiction and venue set forth in this Section 12(b) shall not constitute general consents to service of process in the State of New York and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any action arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 9 of this Agreement. The parties hereto agree that a final judgment in any such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
13.Waivers and Amendment. This Agreement may be changed, modified or amended, and the provisions and terms hereof may be waived, or the time for its performance extended, only by instrument in writing signed by each of the parties hereto, or, in the case of a waiver, by the party waiving compliance with such provision or term.
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Any change or modification to this Agreement shall be null and void, unless made by written amendment to this Agreement and signed by each of the parties hereto. Any waiver of any provision or term of this Agreement, or any extension in time for performance of such provision or term, shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party, it is authorized in writing by an authorized director or officer of such party. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.
14.Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties to this Agreement in separate counterparts, each of which will be deemed to constitute an original, but all of which shall constitute one and the same agreement, and may be delivered by email or other electronic means intended to preserve the original graphic or pictorial appearance of a document, such delivery by email or other electronic means to be deemed as effective as delivery of a manually executed counterpart of this Agreement.
15.Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of, and be enforceable by and against, the parties to this Agreement and their respective successors and permitted assigns. Subject to Section 4, neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party without the prior written consent of the other party, and any attempted assignment without the prior written consent of the other party shall be void and have no effect; provided that Investor shall be entitled to collaterally assign and/or pledge its rights under this Agreement to any of its lenders and/or its Affiliates’ lenders.
16.Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS
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CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 16.
[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first above written.
[COMPANY]


by  
        Name:
        Title:
[INVESTOR]


by  
        Name:
        Title:


EXHIBIT 10.1
Third Amended and Restated

Exempted Limited Partnership Agreement

of

Third Point Enhanced LP

Dated August 6, 2020






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1006148341v2


Third Amended and Restated

Exempted Limited Partnership Agreement

of

Third Point Enhanced LP
THIS THIRD AMENDED AND RESTATED EXEMPTED LIMITED PARTNERSHIP AGREEMENT OF Third Point Enhanced LP, a Cayman Islands exempted limited partnership (the “Partnership”), is executed and delivered as a deed on August 6, 2020 and effective as of the Effective Date (other than as set forth in Section 4.1.3.6), by and among the undersigned Persons and shall hereafter govern the Partnership. Capitalized terms used in this Agreement and not otherwise defined therein are defined in Article I.
        RECITALS 
WHEREAS, Third Point Advisors L.L.C., a limited liability company formed under the laws of Delaware (the “General Partner”), and R. Mendy Haas entered into an Initial Exempted Limited Partnership Agreement of the Partnership, dated June 25, 2018 (the “Original Agreement”), and the Partnership was registered by the General Partner as an exempted limited partnership in the Cayman Islands pursuant to the Partnership Law on June 25, 2018;
WHEREAS, the Original Agreement was amended and restated in its entirety on July 31, 2018 (effective August 31, 2018) (resulting in the “First Amended and Restated Agreement”);
WHEREAS, the First Amended and Restated Agreement was amended and restated in its entirety on February 28, 2019 (effective January 1, 2019) (resulting in the “Second Amended and Restated Agreement”);
WHEREAS, as a result of certain regulatory and other business circumstances (including the Merger) the overall investment approach of the Company (as defined below) has been modified since the date of the First Amended and Restated Agreement;
WHEREAS, contemporaneously with the execution and delivery of this Agreement, Third Point Insurance Portfolio Solutions LLC and the Company are entering into the TPIPS Management Agreement to provide for the management of the Company’s investable assets that are not invested in the Partnership; and
WHEREAS, the parties hereto desire to amend and restate the Second Amended and Restated Agreement in its entirety and to enter into this Agreement to reflect such change and certain other amendments set forth herein.
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NOW, THEREFORE, the parties hereto hereby agree to amend and restate the Second Amended and Restated Agreement, which is replaced and superseded in its entirety by this Agreement, as follows:
Article I.

Definitions
The following terms shall have the following meanings when used in this Agreement:
a..“Administrator” shall mean International Fund Services (N.A.), L.L.C., or any other firm or firms as the General Partner may, in its discretion, select, at the expense of the Partnership, for the purpose of maintaining the Partnership’s financial, accounting and corporate books and records, anti-money laundering screening, and performing administrative and clerical services (which may include back-office and middle-office services) on behalf of the Partnership, including tax and accounting functions, and acting as the registrar, transfer agent and withdrawal agent for the Interests.
b..“Advisers Act” shall mean the U.S. Investment Advisers Act of 1940, as amended from time to time.
c..“Affiliate” shall mean, with respect to another Person, a Person controlling, controlled by, or under common control with such other Person.
d..“Affiliated Fund” shall mean any account, fund or investment vehicle (other than the Partnership) currently sponsored or managed by, or that in the future may be sponsored or managed by, the General Partner and/or the Investment Manager or any of their Affiliates, but excluding any family office, investment vehicle and/or account, in each case, through which the ultimate beneficial owners of the General Partner and the Investment Manager (either directly or indirectly through estate planning vehicles or otherwise) make personal investments.
e..“Agreement” shall mean this Third Amended and Restated Exempted Limited Partnership Agreement, as originally executed and as amended, modified, supplemented or restated from time to time, including any Exhibits attached hereto.
f..“Amended JV Agreements” shall mean, together, (i) the Amended and Restated Joint Venture and Investment Management Agreement, dated June 22, 2016, by and among TP Re USA, the Investment Manager and the General Partner and (ii) the Amended and Restated Joint Venture and Investment Management Agreement dated June 22, 2016, by and among TP Re Bermuda, the Investment Manager and the General Partner.
g..“BBA Rules” shall mean Subchapter C of Chapter 63 of the Code (Sections 6221 et seq.), as enacted by the U.S. Bipartisan Budget Act of 2015, as amended from
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time to time, and any Treasury Regulations and other guidance promulgated thereunder, and any similar state or local legislation, regulations or guidance.
h..“Beginning Value” shall mean, with respect to any Fiscal Period, the value of the Partnership’s Net Assets at the beginning of such Fiscal Period after deduction of the Management Fee payable as of the beginning of such Fiscal Period.
i..“Bermuda Joint Venture” shall mean that certain joint venture that was governed by the Amended and Restated Joint Venture and Investment Management Agreement, dated June 22, 2016, by and among TP Re Bermuda, the Investment Manager and the General Partner.
j..“Board” shall mean the Company’s board of directors unless applicable Law, regulation or securities exchange upon which the Company’s common shares are listed requires action to be taken by a committee of the Board composed of independent directors, in which case “Board” shall mean such committee which shall consist of all members of the Company’s board of directors that are not expressly prohibited by applicable Law, regulation or securities exchange from participating in the action to be taken by such committee.
k..“Business Day” shall mean any day, other than Saturday or Sunday, on which the New York Stock Exchange is open for trading and the banks in New York are open for business or such other day as the General Partner may determine.
l..“Capital Account” shall have the meaning as set forth in Section 4.1.1.
m..“Capital Contributions” shall have the meaning as set forth in Section 3.1.3.
n..“Cause Event” shall mean (i) a violation by the General Partner or the Investment Manager of applicable Law relating to the General Partner’s or the Investment Manager’s investment-related business; (ii) the General Partner’s or the Investment Manager’s fraud, Gross Negligence, willful misconduct or reckless disregard of any of its obligations under this Agreement or, in the case of the Investment Manager, the Investment Management Agreement or the TPIPS Management Agreement; (iii) a material breach by the General Partner of this Agreement or a material breach by the Investment Manager of the Investment Management Agreement or the TPIPS Management Agreement, which, if such breach is reasonably capable of being cured, is not cured within 15 days of written notice of such breach from the Company; (iv) the General Partner, the Investment Manager or any Key Personnel settles, or is convicted of, or enters a plea of guilty or nolo contendere to, (a) in the case of Daniel S. Loeb, a felony or crime involving moral turpitude; and (b) in the case of the General Partner, the Investment Manager or any Key Personnel, a felony or crime relating to or adversely affecting the investment-related business of the General Partner or the Investment Manager; (v) the General Partner, the Investment Manager or any Key Personnel commits any act of fraud, material misappropriation, material dishonesty, embezzlement, or similar fraud-based conduct relating to the General Partner’s or the Investment Manager’s investment-related business; or (vi) the General Partner, the Investment Manager or any Key Personnel is the subject of a formal
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administrative or other legal proceeding before the SEC, the U.S. Commodity Futures Trading Commission, FINRA, or any other U.S. or non-U.S. regulatory or self-regulatory organization, which such proceeding, upon recommendation by the Chief Executive Officer, the Investment Committee believes, in its reasonable business judgment, is likely to be resolved against the General Partner, the Investment Manager or such Key Personnel and, in the case of (i) and (vi) above, that will likely have a Material Adverse Effect on the Partnership, the Partnership’s investments, the Company or the Company’s investments managed under the TPIPS Management Agreement. Notwithstanding anything to the contrary herein, if the Company, after receiving notice from the General Partner under Section 6.1.6 regarding such Cause Event or of pertinent facts that may give rise to a Cause Event, does not exercise its withdrawal rights under Section 3.5.1.4 within 120 days after receiving such notice, then the Company shall no longer be entitled to exercise its withdrawal rights under Section 3.5.1.4 with respect to such event, unless the Company receives new, material information from the General Partner relating to such Cause Event under Section 6.1.6 or otherwise (in which case the 120-day period shall re-commence upon receipt of such new information).
o..“Change of Control” shall mean any transaction or series of transactions (which shall be deemed to include any shareholder proxy campaign, contest or battle) whereby, as a result of such transaction or series of transactions, (a) the shareholders of the Company before such transaction or series of transactions no longer hold a majority of the voting equity of the Company (or its successor) following such transaction or series of transactions or (b) the members of the board of directors of the Company before such transaction or series of transactions no longer constitute a majority of the board of directors (or equivalent) of the Company (or its successor) following such transaction or series of transactions. For the avoidance of doubt, “Change of Control” shall not include the Merger.
p..“Chief Executive Officer” shall mean the chief executive officer of the Company.
q..“Closing Day” shall mean any day as of which Capital Contributions are accepted by the Partnership (generally the first Business Day of each calendar month).
r..“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended from time to time, and the regulations issued thereunder.
s..“Company” shall mean, individually or collectively as the context requires, Third Point Reinsurance, Ltd., a Bermuda corporation, and any of its Affiliates, and any successor or assignee thereto, including any acquirer of all or a substantial portion of the assets or stock of Third Point Reinsurance, Ltd. or any of its Affiliates by merger, amalgamation, reorganization, reconstitution, business combination or otherwise.
t.. “Confidential Material” shall mean all information (oral or written) concerning the business and affairs of the Partnership, the General Partner, the Investment Manager, or any of their respective Affiliates, which information the General Partner, in its discretion, reasonably believes to be in the nature of trade secrets or any other information the disclosure of which the General Partner, in its discretion, believes is not in the best interests of
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the Partnership, the General Partner, the Investment Manager, or any of their respective Affiliates or their respective businesses, or could damage the Partnership, the General Partner, the Investment Manager, or any of their respective Affiliates or their respective businesses, or which the Partnership, the General Partner, the Investment Manager, or any of their respective Affiliates are required by Law or agreement with a third party to keep confidential, including any information relating to the Partnership’s financials, investment strategy (e.g., portfolio positions, trades and contemplated trades), valuations, the names and addresses of each of the Partners, their contact information and their initial and subsequent Capital Contributions and any details regarding any arrangement the Partnership may have with any Persons (including Other Agreements). Any and all notes, analyses, compilations, forecasts, studies or other documents prepared by a Limited Partner or its Representatives that contain, reflect, or are based on any of the foregoing shall be considered Confidential Material.
u..“CRS” shall mean the OECD Standard for Automatic Exchange of Financial Account Information in Tax Matters – The Common Reporting Standard.
v..“D&O Insurance” shall have the meaning set forth in Section 6.5.3.
w..“Disability” shall mean a physical or mental impairment that renders a person unable to perform the essential functions of such person’s position even with reasonable accommodation, and which has lasted at least 90 consecutive days. A physician reasonably selected by the Investment Committee shall make the determination of the existence of a Disability.
x..“Disability Onset” shall mean (i) the occurrence of any physical or mental impairment that has rendered Daniel S. Loeb unable to perform the essential functions of his position for 14 consecutive days, even with reasonable accommodation or (ii) the occurrence of any other physical or mental impairment, as a result of which it is reasonably likely that Daniel S. Loeb would be unable to perform the essential functions of his position for at least 90 consecutive days, even with reasonable accommodation.
y..“Disabling Conduct” shall mean, with respect to any Person, such Person’s fraud, reckless disregard, willful misconduct, Gross Negligence, a material breach of this Agreement or the Investment Management Agreement (unless, if such breach is reasonably capable of being cured, such material breach is cured within 15 days of the date on which such Person receives a notice of such material breach from a Limited Partner) or a violation of Law, as each such action is finally determined by a court of competent jurisdiction.
z..“Dissolution” shall mean a dissolution, liquidation or winding down in connection with the Company and all its subsidiaries entering into run-off and terminating its activities.
aa..“Diversification Requirement” shall have the meaning set forth in Section 3.5.1.2.
ab..“Effective Date” shall mean the date of the consummation of the Merger.
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ac..“Ending Value” shall mean, with respect to any Fiscal Period, the value of the Partnership’s Net Assets at the end of such Fiscal Period before deductions for withdrawals or distributions, if any.
ad..“Entity Taxes” shall mean any taxes (including any interest, penalties or additions to tax imposed in connection therewith or with respect thereto) imposed under the BBA Rules.
ae..“ERISA” shall mean the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time.
af..“Excluded Investors” shall mean Limited Partners that are partners, members or employees of the Investment Manager, the General Partner or their Affiliates, such persons’ family members and trusts or other entities established for the benefit of such persons or their family members and/or established by the foregoing persons for charitable purposes.
ag..“Expenses” shall have the meaning as set forth in Section 8.2.1.20.
ah..“Fair Value” shall mean, with respect to any assets and liabilities held by the Partnership, as of any time of determination hereunder, the value determined pursuant to Section 4.2.
ai..“FATCA” shall mean (i) Sections 1471 through 1474 of the Code (and any Treasury Regulations or administrative or judicial interpretations thereunder) or similar or successor provisions; (ii) the CRS; (iii) similar legislation, regulations or guidance enacted in any jurisdiction which seeks to implement similar tax reporting and/or withholding tax regimes; and (iv) any treaty, agreement with any governmental authority, or other intergovernmental agreement related to (i), (ii) or (iii) above and any legislation, regulations or guidance implemented in the Cayman Islands to give effect to the foregoing.
aj..“Final Determination” shall mean (i) with respect to U.S. federal income taxes, a “determination” (as defined in Section 1313(a) of the Code) or the execution of a settlement agreement with the Internal Revenue Service (pursuant to Form 870-AD or otherwise); and (ii) with respect to taxes other than U.S. federal income taxes, any judicial or administrative determination or settlement that is substantially similar to a Final Determination described in clause (i).
ak..“FINRA” shall mean Financial Industry Regulatory Authority, Inc.
al..“First Amended and Restated Agreement” shall have the meaning set forth in the Recitals.
am..“Fiscal Period” shall mean the period beginning on the day immediately succeeding the last day of the immediately preceding Fiscal Period (or, in the case of the Partnership’s first Fiscal Period, the date of this Agreement) and ending on the soonest occurring of the following:
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a.the last day of a calendar month;
b.the day immediately preceding the day on which a new Limited Partner is admitted to the Partnership;
c.the day immediately preceding the day on which a Partner makes an additional Capital Contribution to the Partner’s Capital Account;
d.the day as of which there is a withdrawal from a Partner’s Capital Account; and
e.the date of final winding up of the Partnership in accordance with Section 9.1.
1.“Fiscal Year” shall mean the fiscal year of the Partnership, which shall be the calendar year unless otherwise determined by the General Partner.
2.“Five-Year Anniversary Date” means the first calendar quarter-end on or immediately following the fifth anniversary of the Effective Date.
3.“Former Partner” shall mean each such Person as hereafter from time to time ceasing to be a Partner, whether voluntarily or otherwise, in accordance with the terms of this Agreement.
4.“GAAP” shall mean U.S. generally accepted accounting principles, in effect from time to time.
5.“General Partner” shall have the meaning set forth in the Recitals.
6.“Governmental Authority” shall mean (i) any U.S. or non-U.S. nation or government; (ii) any state or other political subdivision of any such nation or government; and/or (iii) any entity exercising executive, legislative, judicial, regulatory and/or administrative functions of or pertaining to a government, including any self-regulatory authority (such as a stock or option exchange or securities self-regulatory organization), governmental authority, agency, commission, department, board or instrumentality and any court or administrative tribunal, in any case, having jurisdiction over the affected Person or the subject matter at issue.
7.“GP Transaction” shall have the meaning as set forth in Section 8.5.
8.“Gross Negligence” shall have the meaning given to such term under the laws of the State of Delaware.
9.“Guidelines” shall have the meaning as set forth in Section 6.1.4.
10.“Incentive Allocation” shall have the meaning as set forth in Section 4.1.3.2.
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11.“Incentive Allocation Period” shall mean the period beginning on the day immediately following the last day of the immediately preceding Incentive Allocation Period and ending on the soonest occurring of the following:
a.the last day of a Fiscal Year;
b.if a Limited Partner withdraws all or a portion of a Capital Account on a date other than on the last day of a Fiscal Year, then, with respect to such withdrawn portion only, such withdrawal date; or
c.if the Partnership is dissolved on a date other than at the end of a Fiscal Year, the termination date.
12.“Indemnified Parties” shall have the meaning as set forth in Section 6.5.2.
13.“Interests” shall mean limited partner interests of the Partnership.
14.“Investment Committee” shall mean the investment committee of the Board of the Company.
15.“Investment Company Act” shall mean the U.S. Investment Company Act of 1940, as amended from time to time.
16.“Investment Management Agreement” shall mean the Amended and Restated Investment Management Agreement between the Investment Manager and the Partnership effective as of the Effective Date, as amended, modified, supplemented or restated from time to time, pursuant to which the Investment Manager shall provide investment management services to the Partnership.
17.“Investment Manager” shall mean Third Point LLC.
18.“Investment Period” shall mean, initially, the period commencing on the Effective Date and ending on the Five-Year Anniversary Date, and, thereafter, as may be extended pursuant to Section 3.5.1.1.
19.“investment-related” shall have the meaning ascribed to such term in the Form ADV in effect as of the date hereof.
20.“Joint Ventures” shall mean, together, the Bermuda Joint Venture and the USA Joint Venture.
21.“Key Person Event” shall mean (i) the death, Disability or retirement of Daniel S. Loeb; or (ii) the occurrence of any other circumstance in which Daniel S. Loeb is no longer (a) directing the investment program of the Investment Manager; or (b) actively involved in the day-to-day management of the Investment Manager.
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22.“Key Personnel” shall mean Daniel S. Loeb and any other member of the Investment Manager (or, if any such members are not individuals, the individuals that are the ultimate beneficial owners of such members).
23.“Law” shall mean any applicable law, statute, ordinance, rule, regulation, judgment, injunction, order, treaty and/or decree of any applicable Governmental Authority.
24.“Limited Partners” shall mean each Person admitted as a limited partner of the Partnership in accordance with this Agreement.
25.“Loss Recovery Account” shall have the meaning as set forth in Section 4.1.3.3.
26.“Losses” shall have the meaning set forth in Section 6.5.2.
27.“LP Confidential Information” shall have the meaning set forth in Section 12.2.1.
28.“Majority-in-Interest” shall mean, as of any date of determination, the Limited Partners that have in excess of 50% of the Partnership Percentages of the Limited Partners that are entitled to consent on a matter pursuant to the terms of this Agreement.
29.“Management Fee” shall have the meaning as set forth in Section 8.3.1.
30.“Managing Member” shall mean the member or members of the General Partner or the Investment Manager designated by all the members thereof, pursuant to their respective limited liability company agreements as in effect from time to time, to manage the business and affairs of the General Partner and the Investment Manager, respectively.
31.“Material Adverse Effect” shall have the meaning as such term is interpreted under the laws of the State of Delaware.
32.“Memorandum Account” shall have the meaning as set forth in Section 4.1.3.8.
33.“Merger” shall mean the transactions contemplated by that certain Agreement and Plan of Merger, dated August 6, 2020, by and among Third Point Reinsurance, Ltd., Yoga Merger Sub Limited and Sirius International Insurance Group Ltd.
34.“Minimum GP Holding Level” shall have the meaning as set forth in Section 3.1.1.
35.“Net Assets” shall mean the excess of the Partnership’s assets over its liabilities at Fair Value.
36.“Net Capital Appreciation” shall mean the excess, if any, of the Ending Value over the Beginning Value.
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37.“Net Capital Depreciation” shall mean the excess, if any, of the Beginning Value over the Ending Value.
38.“Net Decrease” shall mean, for each Limited Partner with respect to any period, the excess, if any, of (i) the Net Capital Depreciation, if any, allocated to the Limited Partner’s Capital Account for such period pursuant to Section 4.1.3.1, over (ii) the Net Capital Appreciation, if any, allocated to the Limited Partner’s Capital Account for such period pursuant to Section 4.1.3.1.
39.“Net Increase” shall mean, for each Limited Partner with respect to any period, the excess, if any, of (i) the Net Capital Appreciation, if any, allocated to the Limited Partner’s Capital Account for such period pursuant to Section 4.1.3.1, over (ii) the Net Capital Depreciation, if any, allocated to the Limited Partner’s Capital Account for such period pursuant to Section 4.1.3.1.
40.“Notice of Dissolution” shall mean a notice of dissolution signed by the General Partner or liquidator of the Partnership pursuant to the Partnership Law.
41.“Offshore Master Fund” shall mean Third Point Offshore Master Fund L.P.
42.“Original Agreement” shall have the meaning set forth in the Recitals.
43.“Other Agreements” shall mean side letters or similar separate written agreements between the General Partner and/or the Investment Manager, on the one hand, and the Company, on the other hand, the provisions of which may modify the terms of this Agreement.
44.“partial withdrawal” shall mean, with respect to the Company, a withdrawal (as permitted by Section 3.5) that is less than its entire Capital Account balance.
45.“Partners” shall mean, collectively, the Limited Partners and the General Partner, including any Persons hereafter admitted as Partners in accordance with this Agreement and excluding any Persons who cease to be Partners in accordance with this Agreement.
46.“Partnership” shall have the meaning set forth in the Recitals.
47.“Partnership Insurance” shall have the meaning set forth in Section 6.5.3.
48.“Partnership Law” shall mean the Exempted Limited Partnership Law (2018 Revision) of the Cayman Islands, as may be further amended from time to time and any successor Law thereto.
49.“Partnership Percentage” shall mean, in respect of any Fiscal Period, a percentage established for each Partner on the Partnership’s books as of the first day of such Fiscal Period. The Partnership Percentage of each Partner for a Fiscal Period shall be determined by dividing the balance of each such Partner’s Capital Account as of the beginning of the Fiscal
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Period by the sum of the balances of all of the Partners’ Capital Accounts as of the beginning of the Fiscal Period. The sum of the Partnership Percentages for each Fiscal Period shall equal 100%.
50.“Partnership Representative” shall mean for any relevant taxable year of the Partnership to which the BBA Rules apply, the General Partner acting in the capacity of the “partnership representative” (as such term is defined under the BBA Rules) or such other Person as may be so designated by the General Partner; provided that the General Partner may not designate another Person as such without the prior written consent of the Company.
51.“Person” shall mean a natural person, partnership, limited liability company, corporation, unincorporated association, joint venture, trust, state or any other entity or any governmental agency or political subdivision thereof.
52.“Purchase Price” shall have the meaning as set forth in Section 4.1.3.8.
53.“Registrar” shall mean the Cayman Islands Registrar of Exempted Limited Partnerships appointed pursuant to the Partnership Law.
54.“Representatives” shall mean a Limited Partner’s directors, officers, employees, advisers, consultants, auditors, accountants, partners, members, Affiliates, or agents, or any Affiliates of the foregoing.
55.“Risk Management Withdrawable Amount” shall mean, as of the effective date of any withdrawal made pursuant to Section 3.5.1.4:
a.20% of the sum of (x) the aggregate opening balances of the Company’s Capital Account(s) as of the Effective Date and (y) the aggregate amount of Capital Contributions credited to the Company’s Capital Account(s) during the 90-day period following the Effective Date; provided that such 90-day period may be extended with the approval of the Investment Committee in the event that there is a delay (regulatory or otherwise) in the Company’s ability to make planned and approved initial Capital Contributions to the Partnership; minus
b.the aggregate amount withdrawn by the Company pursuant to Section 3.5.1.4 prior to such withdrawal date; plus
c.the aggregate amount of Capital Contributions made by the Company (excluding amounts described in Section 1.93(i)(y) above and Section 1.93(v) below) prior to such withdrawal date; minus
d.50% of the aggregate amount withdrawn by the Company pursuant to Section 3.5.1.2 prior to such withdrawal date; plus
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e.50% of the aggregate amount of capital re-contributed by the Company as contemplated by Section  3.5.1.2 prior to such withdrawal date.
56.“SEC” shall mean the U.S. Securities and Exchange Commission.
57.“Second Amended and Restated Agreement” shall have the meaning set forth in the Recitals.
58.“Security” or “Securities” shall mean capital stock, depositary receipts, shares of investment companies and mutual funds of all types, currencies, preorganization certificates and subscriptions, interests in REITs, swaps, warrants, bonds, notes, debentures (whether subordinated, convertible or otherwise), commercial paper, certificates of deposit, bankers’ acceptances, trade acceptances, contract and other claims, executory contracts, participations therein, trust receipts, obligations of the United States, any state thereof, non-U.S. governments and instrumentalities of any of them, shares of beneficial interest, partnership interests and other securities of whatever kind or nature of any Person, corporation, government or entity whatsoever, whether or not publicly traded or readily marketable, loans, credit paper, accounts and notes receivable and payable held by trade or other creditors, any interest in any security, or any rights and options relating thereto, including put and call options and any combination thereof (written by the Partnership or others), and commodities and commodity contracts, including futures contracts and options thereon.
59.“Special Purpose Vehicle” shall have the meaning as set forth in Section 6.1.1.2.
60.“Statement” shall mean the statement of registration filed by the General Partner on behalf of the Partnership with the Registrar in the Cayman Islands pursuant to Section 7 of the Partnership Law.
61.“Subscription Agreement” shall mean the subscription agreement (including any schedule, exhibit or appendix thereto and any investor questionnaire attached to such subscription agreement as completed by each Limited Partner, together with any other information, representations, warranties, and documentation provided from time to time by the Limited Partner) between each Limited Partner and the Partnership pursuant to which such Limited Partner has subscribed for and purchased Interests.
62.“Tax Matters Partner” shall mean for any taxable year of the Partnership subject to the TEFRA Rules, the General Partner acting in the capacity of the “tax matters partner” of the Partnership (as such term was defined in Section 6231(a)(7) of the Code under the TEFRA Rules).
63.“Tax Proceeding” shall have the meaning as set forth in Section 4.1.7.2.
64.“Tax Treatment” shall have the meaning as set forth in Section 4.1.7.1.
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65.“Taxable Year” shall mean the Partnership’s taxable year for U.S. federal income tax purposes, as determined pursuant to Section 706 of the Code.
66.“TEFRA Rules” shall mean Subchapter C of Chapter 63 of the Code (Sections 6221 through 6234), as enacted by the U.S. Tax Equity and Fiscal Responsibility Act of 1982, as amended from time to time, and Treasury Regulations and other guidance promulgated thereunder, and any similar state or local legislation, regulations or guidance; provided, however, that the TEFRA Rules shall not include the BBA Rules.
67.“Termination Event” shall have the meaning as set forth in Section 7.3.
68.“Third Point Parties” shall mean the General Partner, the Investment Manager and their respective Affiliates.
69.“TP Funds” shall mean Third Point Offshore Fund, Ltd., the Offshore Master Fund, Third Point Partners L.P., Third Point Partners Qualified L.P, Third Point Ultra Onshore LP, Third Point Ultra Ltd. and Third Point Ultra Master Fund L.P., and any other current or future investment vehicle or account following the same or substantially the same investment strategy as the foregoing entities.
70.“TP Re Bermuda” shall mean Third Point Reinsurance Company Ltd., a Bermuda Class 4 insurance company.
71.“TP Re USA” shall mean Third Point Reinsurance (USA) Ltd., a Bermuda Class 4 insurance company.
72.“TPIPS Management Agreement” shall mean the Investment Management Agreement between the Company and the Investment Manager (d/b/a Third Point Insurance Portfolio Solutions), effective as of the Effective Date, as amended, modified, supplemented or restated from time to time.
73.“Trademark License Agreements” shall mean, collectively, the trademark license agreements entered into on December 22, 2011 among the Investment Manager and the Company, and the Joinder Agreement entered into on February 17, 2016 among the Company, the Investment Manager and Third Point Re (USA) Holdings Inc., as each may be amended, modified, supplemented or restated from time to time.
74.“Transaction Fees” shall have the meaning as set forth in Section 8.4.
75.“Transfer” shall mean any transaction by which a Partner may directly, indirectly or synthetically transfer, pledge, charge (or otherwise create a security interest in), assign, hypothecate, sell, convey, exchange, reference under a derivatives contract or any other arrangement or otherwise dispose of all, or any portion, of its interest, or the economic or non-economic rights in its interest, to any other beneficial owner or other Persons.
76.“Treasury Regulations” shall mean the regulations promulgated under the Code.
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77.“UCC” shall mean a committee elected by the General Partner comprised of one or more persons unaffiliated with the General Partner. Each person serving on the UCC shall be appointed until such person resigns or is otherwise removed or replaced by the General Partner in its discretion. From time to time, the General Partner may elect additional persons to serve on the UCC.
78.“Unrestricted Partner” shall have the meaning as set forth in Section 4.1.3.7.
79.“USA Joint Venture” shall mean that certain joint venture that was governed by the Amended and Restated Joint Venture and Investment Management Agreement, dated June 22, 2016, by and among TP Re USA, the Investment Manager and the General Partner.
80.“Valuation Policy” shall have the meaning as set forth in Section 4.2.1.
Article II.

Formation of Partnership
a.Formation of the Partnership
. The Partnership was formed pursuant to the Original Agreement and was registered as an exempted limited partnership under the Partnership Law by the General Partner pursuant to a Statement filed with the Registrar on June 25, 2018. Such action is hereby ratified and confirmed in all respects.
b.Partnership Name and Address
. The name of the Partnership is “Third Point Enhanced LP.” The General Partner may change the name of the Partnership with the prior written consent of the Company. The principal office of the Partnership is located at 55 Hudson Yards, New York, New York 10001, or at such other location as the General Partner in the future may designate.
c.Registered Agent and Registered Office
. The Partnership’s registered office in the Cayman Islands is located at Walkers Corporate Limited, Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands. The name of its registered agent at such address is Walkers Corporate Limited.
d.Registration as Exempted Limited Partnership
. The General Partner shall make such filings with the Registrar in the Cayman Islands as are necessary to continue the registration of the Partnership as an exempted limited partnership under the Partnership Law.
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e.Purposes
.
i.The purpose of the Partnership is to invest certain assets of the Company pursuant and subject to the Guidelines. The Partnership may engage in all activities and transactions as the General Partner may deem necessary or advisable in connection with the foregoing purpose, including to do such acts as are necessary or advisable in connection with the maintenance and administration of the Partnership. The Partnership may invest all or a portion of its investable capital through one or more Special Purpose Vehicles (which in turn will invest in Securities).
ii.The parties hereto acknowledge that they intend that each of the Joint Ventures and the Partnership, as a continuation of the Bermuda Joint Venture, be taxed as a partnership and not as an association taxable as a corporation for U.S. federal income tax purposes. No election may be made to treat the Joint Ventures or the Partnership as other than a partnership for U.S. federal income tax purposes.
f.Term of the Partnership
. The term of the Partnership shall continue until the first of the following events occurs:
i.at any time, upon the written consent of all the Limited Partners and the General Partner;
ii.within 60 days of the dissolution, entry of an order for relief or filing of a bankruptcy petition or withdrawal of the General Partner, unless within such 60 days not less than a Majority-in-Interest of the then-Limited Partners appoint a successor general partner and elect to continue the business of the Partnership; or
iii.subject to the foregoing, any other event causing the mandatory winding up and dissolution of the Partnership under the laws of the Cayman Islands.
At the end of its term, the Partnership shall be wound up and dissolved pursuant to Article IX.
g.Interests
. The Partnership, in the General Partner’s discretion, may in the future offer Interests and/or establish classes, sub-classes, series, tranches or lots, in any case, with different offering terms including with respect to, among other things, the Incentive Allocation, Management Fees, withdrawal rights, minimum and additional subscription amounts, portfolios, denomination of currencies, informational rights and other rights.
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Article III.

Contributions to and Withdrawals from Capital Accounts
h.Contributions of the Partners
.
i.The General Partner shall maintain its Capital Account with the Partnership at all times at a level equal to at least 10% of the aggregate of all Partners’ Capital Accounts (the “Minimum GP Holding Level”). Prior to or contemporaneous with accepting any Capital Contributions from prospective or existing Limited Partners as of any Closing Day, the General Partner shall make additional Capital Contributions in such amounts so that its Capital Account satisfies the Minimum GP Holding Level, as adjusted based on the expected aggregate of all Partners’ Capital Accounts after giving effect to such prospective or existing Partners’ Capital Contributions. The General Partner shall provide the Company with information concerning the balance of the General Partner’s Capital Account upon reasonable request.
ii.Subject to the requirements of Section 3.1.1, the General Partner shall have the right, but not the obligation (except as set forth in Section 3.5.6), in its discretion, to admit additional Limited Partners that are Excluded Investors to the Partnership or accept additional Capital Contributions from the Partners as of any Closing Day.
iii.Contributions to the Partnership’s capital (“Capital Contributions”) made by Limited Partners shall take the form of cash. The General Partner may, in its discretion, however, permit Limited Partners to contribute marketable Securities to the Partnership, subject to terms and conditions determined by the General Partner in its discretion. In the event that an existing Partner makes an additional Capital Contribution and/or the General Partner offers new Interests and/or create new classes, sub-classes, series, tranches or lots pursuant to Section 2.7, the General Partner may create additional Capital Accounts to properly account for such additional Capital Contributions, any new Interests offered, classes, sub-classes, series, tranches or lots created and/or for purposes of determining the terms applicable to the Interests, including terms relating to withdrawals set forth in this Agreement.
i.No Interest and No Return
. Except as provided in this Agreement or by Law, no Partner shall have any right to demand or receive the return of its Capital Contribution to the Partnership. Except as provided in this Article III, no Partner shall be entitled to interest on any Capital Contribution to the Partnership or on the Partner’s Capital Account.
j.No Required Additional Capital Contributions
. Except as required under the Partnership Law and pursuant to Section 3.8 and Section 6.7.2, no Limited Partner shall be required to make any additional capital contributions to the Partnership.
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k.Withdrawals in General
. The Interest of a Limited Partner may not be withdrawn prior to termination of the Partnership except as provided in this Article III.
l.Permitted Withdrawals from Capital Accounts
.
i.The Company may make a withdrawal from its Capital Account(s):
1.as of the end of the Investment Period, of all of the Company’s Capital Accounts in their entirety (but not less than their entirety), upon recommendation by the Chief Executive Officer, as approved by the Investment Committee, upon not less than one year’s prior written notice to the General Partner before the end of the Investment Period. If the Company does not give such prior written notice, then the Investment Period shall be extended by an additional term of two years, and, as of each successive term thereafter that the Company does not give such prior written notice (i.e., not less than one year prior to the expiration of the Investment Period, as extended in accordance with this Section 3.5.1.1), the Investment Period shall be extended for two additional years;1
2.as of any month end, only in the event (a) the Company (upon the recommendation of the Chief Executive Officer and approval of a majority of the Investment Committee) determines a withdrawal is necessary to prevent a negative credit rating action, which may include, but is not limited to, a rating downgrade, the assignment of a “Negative Outlook” or the placement of the Company “Under Review With Negative Implications” or any other similar negative rating action, or (b) the Company determines a withdrawal is necessary to diversify its assets pursuant to, or to avoid any non-compliance with or adverse consequences of, any Law, order or regulation promulgated by a Governmental Authority (any such Law, order or regulation, a “Diversification Requirement”), in each of clauses (a) and (b), only to the extent that (i) there has not been a Change in Control prior to either such determination and (ii) the Chief Executive Officer and the Investment Committee have deemed it reasonable to maintain the Company’s then-existing rating or to otherwise prevent a negative credit rating action, or take any such action considering a Diversification Requirement, as the case may be; provided that the Company shall withdraw the minimum amount necessary under (a) or (b). Withdrawals pursuant to this Section 3.5.1.2 shall be made at the end of the calendar month that is more than ten Business Days’ following the date of the prior written notice of such withdrawal to the General Partner. Any amounts withdrawn from the Partnership pursuant to this Section 3.5.1.2 shall be invested in short-term liquid securities pending a review of the Company’s other potential means to raise its capital position or otherwise satisfy the ratings agencies or regulator, as the case may be, and the Company shall instruct its officers to promptly conduct a review of all such reasonable means to raise its capital
1  For example, assuming an initial Investment Period ending on December 31, 2025, if notice is not given by December 31, 2024, then the term shall automatically be extended to December 31, 2027, and then, if notice is not given by December 31, 2026, then the term shall automatically be extended to December 31, 2029, and so on and so forth.
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position or otherwise satisfy the ratings agency or regulator, as the case may be. On a monthly basis, to the extent that amounts withdrawn pursuant to this Section 3.5.1.2 remain not invested in the Partnership, the Investment Committee shall review such means to determine whether they are preferable to maintaining an investment in the Partnership that had been in place prior to such withdrawal;
3.as of any month end prior to the occurrence of a Change of Control, of an amount no more than an amount recommended by the Chief Executive Officer that the Investment Committee agrees is appropriate, if the Partnership experiences negative net performance that, based on the reasonable determination of the Investment Committee, constitutes underperformance compared to investment funds managed by third-party managers and pursuing the same or substantially similar investment strategy as the Partnership for two or more consecutive calendar years commencing as of 2021, upon not less than 30 days’ prior written notice to the General Partner, and if, before electing to make such withdrawal, the Investment Committee engages in direct discussions with the Chief Executive Officer of Third Point to determine whether it is appropriate to adjust its allocation to the Partnership; provided that the Chief Executive Officer of Third Point makes himself available for such discussion upon the reasonable request of the Investment Committee;
4.as of any month end prior to the occurrence of a Change of Control, upon recommendation by the Chief Executive Officer, as approved by the Investment Committee, an amount no more than the amount recommended by the Chief Executive Officer as approved by the Investment Committee in order to satisfy the then-current risk management guidelines of the Company, upon not less than ten days’ prior written notice to the General Partner; provided that the amount withdrawn as of any month end pursuant to this Section 3.5.1.4 shall not be greater than the then-current Risk Management Withdrawable Amount;
5.as of any month end, of all or any of the Company’s Capital Accounts, following the occurrence of any Cause Event, upon recommendation by the Chief Executive Officer, as approved by the Investment Committee, upon not less than five days’ prior written notice to the General Partner;
6.as of any month end prior to the occurrence of a Change of Control, of all or any of the Company’s Capital Accounts, following the determination of the Company to commence a Dissolution, upon not less than 30 days’ prior written notice to the General Partner, such withdrawal to be effective no later than, and conditioned upon, the commencement of such Dissolution;
7.as of any month end, of all or any of the Company’s Capital Accounts, upon recommendation by the Chief Executive Officer, as approved by the Investment Committee, and upon not less than 90 days’ prior written notice to the General Partner (i) following the occurrence of any Key Person Event (other than a Key Person Event arising out of the Disability of Daniel S. Loeb) or (ii) following the occurrence of a Key Person Event arising out of the Disability of Daniel S. Loeb, provided that the Company submitted a withdrawal request to the General Partner following its receipt of notice of the related Disability Onset pursuant to Section 6.1.8; provided, further, that in each case of this Section 3.5.1.7(i) and
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(ii), under no circumstances shall the Company be prevented from achieving liquidity following a Key Person Event on a timeline that is slower than the liquidity provided to the investors in the TP Funds. Without limiting the foregoing, the Company shall use commercially reasonable efforts, prior to withdrawing in accordance with this Section 3.5.1.7, to grant the Investment Manager a reasonable opportunity to make a presentation to the Investment Committee regarding its capabilities to continue to manage the Partnership; or
8.as of any month end, of an amount that is no more than the amount necessary to ensure that the General Partner’s Capital Account meets the Minimum GP Holding Level, upon not less than five days’ prior written notice to the General Partner.
ii.The General Partner and Excluded Investors shall have the right to withdraw amounts from their Capital Accounts at any time; provided that the General Partner shall not withdraw any amount that would cause it to breach the requirements set forth in Section 3.1.1. The General Partner shall promptly notify the Company in writing at least five Business Days prior to making any withdrawal from the Partnership.
iii.The right of any Limited Partner to withdraw or of any Limited Partner to have distributed an amount from its Capital Account pursuant to the provisions of this Section 3.5 is subject to Section 3.7 and the provision by the General Partner for all Partnership liabilities and reserves established under Section 4.3.
iv.With respect to any amounts withdrawn, a withdrawing Limited Partner shall not share in the income, gains and losses resulting from the Partnership’s activities or have any other rights or obligations as a Limited Partner after the effective date of its withdrawal except as provided in Section 4.3, Section 6.7.2 and Section 13.2.
v.In the event that a Limited Partner shall have withdrawn from the Partnership in full pursuant to Section 3.5 (other than in connection with Section 3.5.1.2), (i) such Limited Partner shall no longer be considered a Limited Partner from and after the date of such complete withdrawal; and (ii) the provisions of this Agreement shall no longer apply to such Limited Partner (except those provisions which by their terms apply to Limited Partner following their withdrawal).
vi.In the event that the Company requests a full withdrawal from the Partnership, (i) at least one Excluded Investor shall maintain a Capital Account balance of at least $1.00 until after such time as the Company has fully withdrawn from the Partnership; or (ii) if there are no Limited Partners other than the Company at the time of the Company’s withdrawal request, then the General Partner shall cause at least one Excluded Investor to be admitted to the Partnership as a Limited Partner and cause such Excluded Investor to maintain a Capital Account balance of at least $1.00 until after such time as the Company has fully withdrawn from the Partnership.
m.Payment of Withdrawal Proceeds; Other Terms
.
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i.Withdrawal proceeds shall generally be paid to the withdrawing Limited Partner in cash by wire transfer or such other permissible method. Withdrawal proceeds in respect of any withdrawal shall be paid within 10 Business Days following the applicable withdrawal date or as soon as practicable thereafter.
ii.The General Partner shall make all reasonable efforts to make distributions in cash in connection with a Partner’s withdrawal of capital from the Partnership or otherwise. Notwithstanding the foregoing, in the unlikely event that the General Partner determines, in its discretion, that it is unable to liquidate a sufficient portion of the Partnership’s portfolio in order to satisfy any distribution to the Partners in full and in cash without materially adversely affecting the Affiliated Funds, then the General Partner may, in its discretion, make distributions in-kind and choose which Securities or other assets or liabilities of the Partnership to distribute in-kind. If the Partnership proposes to make a distribution in-kind, unless a Partner consents, and subject to Section 4.1.3.7 and Section 4.1.3.8, such distribution shall include no more of any particular Security or other asset or liability than the Partner’s share of such Security or asset or liability determined on a pro rata basis based on such Partner’s Partnership Percentage (i.e., as if determined on a “look-through” basis). Subject to Section 4.1.3.7 and Section 4.1.3.8, in the event that a Partner consents to receiving a distribution in-kind that is greater than its pro rata share of such Security or asset or liability based on such Partner’s Partnership Percentage, then such non pro rata distribution in-kind shall only be made if the Partnership is not materially adversely affected by such distribution in-kind.
iii.If a distribution is made in-kind in connection with a Partner’s withdrawal of capital from the Partnership, then on the withdrawal date, the General Partner shall (i) determine the Fair Value of such in-kind proceeds and adjust the Capital Accounts of all Partners upwards or downwards to reflect the difference between the book value and the Fair Value thereof, as if such gain or loss had been recognized upon an actual sale of such in-kind proceeds on such date and allocated pursuant to Section 4.1.3; and (ii) reduce the Capital Account of the distributee Partner by the Fair Value of such in-kind proceeds distributed (or to be distributed) to such Partner. In-kind distributions made pursuant to Section 3.6.2, this Section 3.6.3 or Section 9.1 may be comprised of, among other things, interests in trading vehicles or Special Purpose Vehicles holding the actual investment or participations in the actual investment or participation notes (or similar derivative instruments), which provide a return with respect to certain Securities or other assets or liabilities of the Partnership. The holders of interests in a Special Purpose Vehicle shall bear the expenses of such Special Purpose Vehicle.
n.Limitations on Withdrawal
.
i.No Partner may withdraw any amounts from its Capital Account in excess of the positive balance of its Capital Account.
ii.Any of the conditions relating to withdrawals pursuant to the provisions of this Article III or otherwise as set out in this Agreement (including the notice periods and lock-up periods) may, in good faith and in a manner that is not materially prejudicial to the
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Partnership, be waived or reduced by the General Partner, in its discretion, from time to time, subject to such terms and conditions deemed appropriate to the General Partner, with respect to one or more Limited Partners without notice to, or the consent of, the other Limited Partners.
o.Withholding Taxes
. The General Partner may withhold taxes from any distribution in respect of withdrawal proceeds or with respect to any allocation to any Partner or Former Partner or otherwise with respect to any Partner or Former Partner to the extent required by the Code or any other applicable Law. If the amount of such taxes is greater than such Capital Account balance and/or any such distributable amounts, then such Partner or Former Partner shall pay the amount of such excess to the Partnership. Neither the Partnership nor the General Partner shall be liable for any excess withholding tax withheld (directly or indirectly) in respect of any Partner or Former Partner, and, in the event of over-withholding, a Partner or Former Partner’s sole recourse shall be to apply for a refund from the appropriate taxing authority.
Article IV.

Capital Accounts and Allocations
p.Capital Accounts
.
i.A “Capital Account” shall be established for each Partner as of the first day of each Fiscal Period.
ii.For the Fiscal Period during which a Partner is admitted to the Partnership, the Partner’s Capital Account shall initially equal the Partner’s initial Capital Contribution. For each Fiscal Period after the Fiscal Period in which a Partner is admitted to the Partnership, the Partner’s Capital Account shall initially equal the sum of the Partner’s Capital Account as finally adjusted for the immediately preceding Fiscal Period in accordance with the provisions of this Article IV of the Agreement, increased by the amount of any additional Capital Contribution made by the Partner as of the first day of the Fiscal Period and reduced by (i) the amount of any withdrawal made by the Partner pursuant to Article III of this Agreement and (ii) the Management Fee charged to the Partner’s Capital Account. In the event that a Partner Transfers its Interest in accordance with the provisions of Section 7.4 of this Agreement, the purchaser, assignee or successorininterest shall acquire the Capital Account (or the portion of the Capital Account attributable to the Interest conveyed) regardless of whether the purchaser, assignee or successorininterest becomes a Partner.
iii.Allocation of Net Capital Appreciation or Net Capital Depreciation.
1.At the end of each Fiscal Period, the Capital Account of a Partner (including the General Partner) for such Fiscal Period shall be adjusted by crediting (in the case of Net Capital Appreciation) or debiting (in the case of Net Capital Depreciation) the
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Net Capital Appreciation or Net Capital Depreciation, as the case may be, to the Capital Accounts of all of the Partners (including the General Partner) in proportion to their respective Partnership Percentages.
2.A reallocation of the amounts allocated pursuant to Section 4.1.3.1 shall occur at the end of each Incentive Allocation Period of the Partnership so that 20% of the result of (x) the Net Increase (if any) of the Capital Account of a Limited Partner during such Incentive Allocation Period, minus (y) the Management Fee debited from such Capital Account for such Incentive Allocation Period, minus (z) such Partner’s Loss Recovery Account balance for such Incentive Allocation Period, shall be reallocated to the General Partner (the “Incentive Allocation”). The General Partner, in its discretion, may elect to reduce, waive or calculate differently the Incentive Allocation, with respect to any Limited Partner.
3.There shall be established on the books of the Partnership for the Capital Account of each Limited Partner a memorandum loss recovery account (a “Loss Recovery Account”), the opening balance of which shall initially be zero. At each date that an Incentive Allocation with respect to a Capital Account is to be determined, the balance in the Loss Recovery Account attributable to such Capital Account shall be adjusted as follows: FIRST, if, in the aggregate, Net Decrease has been allocated to such Capital Account since the immediately preceding date as of which a calculation of an Incentive Allocation was made (other than an Incentive Allocation made upon a withdrawal prior to the end of the Fiscal Year) (or if no calculation has yet been made with respect to such Capital Account, since it was established), there shall be added to such Loss Recovery Account an amount equal to such Net Decrease; and SECOND, if there is Net Increase (before any Incentive Allocation) with respect to such Capital Account during an Incentive Allocation Period, any Loss Recovery Account shall be reduced (but not below zero) by the amount of such Net Increase. Solely for purposes of this Section 4.1.3.3, in determining the Loss Recovery Account attributable to a Capital Account, Net Increase and Net Decrease for any applicable period generally shall be calculated by taking into account the amount of the Management Fee, if any, deducted from such Capital Account for such period.
4.In the event that a Limited Partner with an unrecovered balance in a Loss Recovery Account with respect to its Capital Account, withdraws all or a portion of its Capital Account, (a) with respect to the withdrawn portion of such Capital Account, the Loss Recovery Account shall equal the product of (i) the balance of such Capital Account’s Loss Recovery Account on the withdrawal date (immediately prior to the withdrawal) and (ii) a fraction, the numerator of which is the amount withdrawn and the denominator of which is the balance of such Capital Account on the withdrawal date (immediately prior to the withdrawal) and (b) with respect to the non-withdrawn portion of such Capital Account, the Loss Recovery Account shall equal the product of (i) the balance of such Capital Account’s Loss Recovery Account on the withdrawal date (immediately prior to the withdrawal) and (ii) a fraction, the numerator of which is the amount of the Capital Account that is not withdrawn and the denominator of which is the balance in such Capital Account on the withdrawal date (immediately prior to the withdrawal). After the withdrawal, the unrecovered balance of the Loss Recovery Account with respect to the withdrawn portion of such Capital Account shall be
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removed from such Capital Account. Additional Capital Contributions shall not affect any Limited Partner’s Loss Recovery Account.
5.In the event that the Company Transfers all or any portion of a Capital Account in accordance with Section 7.4 to another Affiliate of the Company, then (A) no Incentive Allocation shall be calculated and allocated in respect of the Capital Account being transferred (unless the date of the Transfer is a Fiscal Year-end); and (B) any unrecovered balance in the transferor’s Loss Recovery Account attributable to the Capital Account associated with the Transferred amount (as determined in accordance with the calculation in the first sentence of Section 4.1.3.4 as if such Transferred amount had been withdrawn) shall, in the discretion of the Investment Manager, either be: (i) preserved in the Loss Recovery Account of the Transferring Limited Partner as if such amount had not been Transferred; or (ii) transferred into the Loss Recovery Account of the transferee Limited Partner.
6.The parties agree that notwithstanding anything to the contrary in this Agreement or in the Second Amended and Restated Agreement, with respect to the Fiscal Year ending December 31, 2020 any net increase or net decrease in the net asset value of the discretionary investments mutually referred to as the “Fixed Income Portfolio Account” by the parties (which includes, without limitation, such corporate bonds, structured credit and related hedging as approved by the Investment Committee for inclusion in the Fixed Income Portfolio Account but excludes any investments that are made for purposes of collateral posting to counterparties, cash management. (e.g., treasuries/foreign treasury equivalents or money market instruments) or foreign currency hedging) of the Collateral Assets (as defined in the Second Amended and Restated Agreement) during the Fiscal Year ending December 31, 2020 shall be deemed to be Net Capital Appreciation or Net Capital Depreciation, as applicable, generated by the Partnership for all purposes, including reducing or increasing any balance in the Loss Recovery Account and the General Partner’s entitlement to Incentive Allocation. Any expenses borne by the Company in connection with the Fixed Income Portfolio Account will serve to offset the Net Capital Appreciation, or increase the Net Capital Depreciation, as the case may be, for purposes of this Section 4.1.3.6. Notwithstanding anything to the contrary herein, this Section 4.1.3.6 shall be effective on December 31, 2020.
7.In the event the General Partner determines that, based upon any tax, regulatory or other considerations as to which the General Partner and any Limited Partner agree, such Partner should not participate (or should be limited in its participation) in the Net Capital Appreciation or Net Capital Depreciation, if any, attributable to trading in any Security, type of Security or any other transaction, the General Partner may allocate such Net Capital Appreciation or Net Capital Depreciation only to the Capital Accounts of Partners to whom such considerations or reasons do not apply (or may allocate to the Capital Account to which such considerations or reasons apply, the portion of such Net Capital Appreciation or Net Capital Depreciation attributable to such Capital Account’s limited participation in such Security, type of Security or other transaction). In addition, if for any of the reasons described above, the General Partner determines that a Partner should have no interest whatsoever in a particular Security, type of Security or transaction, then, subject to such Partner’s consent (which shall not be required for a Security, type of Security or transaction that could generate income
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that is effectively connected with the conduct of a trade or business in the United States (including U.S. real estate assets) and can be specially allocated pursuant to Section 6.1.2.2), the interests in such Security, type of Security or transaction may be set forth in a separate memorandum account in which only the Partners having an interest in such Security, type of Security or transaction (any such Partner, for such Security, type of Security or transaction, being referred to as an “Unrestricted Partner”) shall have an interest and the Net Capital Appreciation and Net Capital Depreciation for each such memorandum account shall be separately calculated.
8.At the end of each Fiscal Period during which a memorandum account created pursuant to Section 4.1.3.7 (a “Memorandum Account”) was in existence (or during which an interest in particular Securities was otherwise allocated away from one or more Limited Partners), the Capital Account of each Unrestricted Partner may be debited pro rata in accordance with the Capital Accounts of all Unrestricted Partners at the opening of such Fiscal Period in an amount equal to the interest that would have accrued on the amount used to purchase the Securities attributable to the Memorandum Account (the “Purchase Price”) had the Purchase Price earned interest at the rate per annum being paid by the Partnership from time to time during the applicable Fiscal Period for borrowed funds, or, if funds have not been borrowed by the Partnership during such Fiscal Period, at the interest rate per annum that the General Partner determines would have been paid if funds had been borrowed by the Partnership during such Fiscal Period. The amount so debited shall then be credited to the Capital Accounts of all of the Partners in accordance with their Partnership Percentages.
9.The General Partner may elect to have the Incentive Allocation reallocated to it (or to any of its Affiliates) at the level of any Special Purpose Vehicle through which the investment program of the Partnership is being effectuated without receiving consent from existing Limited Partners, for so long as such election does not result in any material adverse consequences to the Limited Partners.
iv.Amendment of Incentive Allocation.
The General Partner shall have the right to amend, without the consent of the Limited Partners, Section 4.1.3 so that the Incentive Allocation therein provided conforms to any applicable requirements of the SEC and other regulatory authorities or to address any change in Law that affects the tax treatment of the Incentive Allocation or any income allocated to the General Partner, its Affiliates or any Person providing management and/or administrative services to the Partnership; provided, however, that no such amendment shall increase the Incentive Allocation that otherwise would be made with respect to a Capital Account or result in any material adverse consequences to the Limited Partners. The Partnership shall not bear any expenses related to effecting any changes to the provisions relating to the Incentive Allocation as provided in this Section 4.1.4.
v.Allocations for Tax Purposes.
1.For each fiscal year, items of income, deduction, gain, loss or credit shall be allocated for U.S. federal income tax purposes among the Partners in such manner as the General Partner, in its discretion, determines reasonably reflects amounts credited
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or debited to each Partner’s Capital Account for the current and prior fiscal years (or relevant portions thereof).
2.Notwithstanding the foregoing, the General Partner shall be entitled, in its discretion, to specially allocate items of income and gain (or loss and deduction) to Partners who withdraw all or a portion of their Capital Account during any Fiscal Year in a manner designed to ensure that each withdrawing Partner is allocated income or gain (or loss or deduction) in an amount equal to the difference between that Partner’s Capital Account balance (or portion thereof being withdrawn) at the time of the withdrawal and the tax basis for its interest in the Partnership at that time (or proportionate amount thereof), determined, in all cases, (x) with regard to deemed distributions and contributions under Section 752 of the Code; and (y) without regard to any adjustments that have been made to the tax basis of the withdrawing Partner’s interest in the Partnership as a result of any withdrawals or assignment of its interest in the Partnership prior to the withdrawal (other than the original issue of the interest in the Partnership), including by reason of death.
3.The provisions of this Section 4.1.5 are intended to comply with Treasury Regulation Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Treasury Regulation. In furtherance of the foregoing, the provisions of Section 704 and the Treasury Regulations thereunder addressing qualified income offset, minimum gain chargeback requirements and allocations of deductions attributable to nonrecourse debt and partner nonrecourse debt (as defined in Treasury Regulation Section 1.704-2(b)(4)), are hereby incorporated by reference.
vi.Certain Actions
. Notwithstanding any other provision of this Agreement, (i) each Partner shall, and shall cause each of its Affiliates and transferees to, take any action requested by the General Partner, and the General Partner may take any reasonable action, to ensure that the fair market value of any Interest that is transferred in connection with the performance of services is treated for U.S. federal income tax purposes as being equal to the “liquidation value” (within the meaning of Proposed Treasury Regulation Section 1.833(l)) of that Interest (and that each such Interest is afforded passthrough treatment for all applicable U.S. federal, state or local income tax purposes); and (ii) without limiting the generality of the foregoing, to the extent required in order to attain or ensure such treatment under any applicable Law, Treasury Regulation, IRS Revenue Procedure, IRS Revenue Ruling, IRS Notice or other guidance governing partnership interests transferred in connection with the performance of services, such action may include authorizing and directing the Partnership or the General Partner to make any election, agreeing to any condition imposed on such Partner, its Affiliates or its transferees, executing any amendment to this Agreement or other agreements, executing any new agreement, making any tax election or tax filing, and agreeing not to take any contrary position.
vii.Tax Treatment
.
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1.Except with regard to the Tax Treatment, each Partner agrees not to treat, on any income tax return or in any claim for a refund, any item of income, gain, loss, deduction or credit in a manner inconsistent with the treatment of such item pursuant to the terms of this Agreement unless otherwise required by a Final Determination after such Partner uses its commercially reasonable efforts to uphold the treatment of the item in a manner consistent with the terms of this Agreement.  The Partners shall (i) treat the Partnership as a partnership for U.S. federal income tax purposes; (ii) treat the transactions completed by the First Amended and Restated Agreement as an “assets-over” partnership merger of the USA Joint Venture into the Bermuda Joint Venture under Treasury Regulation Section 1.708-1(c)(3)(i) in which the Bermuda Joint Venture is treated as the “continuing partnership” and the USA Joint Venture is treated as liquidating and distributing its interest in the Bermuda Joint Venture to its partners in liquidation; (iii) treat the Partnership as a continuation of the Bermuda Joint Venture; and (iv) treat the Incentive Allocation as a partnership profits interest for U.S. tax purposes as contemplated by this Agreement (clauses (i) through (iv), the “Tax Treatment”).
2.Notwithstanding the foregoing, the Partners shall not take any position inconsistent with the Tax Treatment.  If a claim, action or proceeding (a “Tax Proceeding”) is brought by the Internal Revenue Service or other taxing authority against a Partner or the Partnership (or either of the Joint Ventures) challenging the Tax Treatment, such Partner shall provide prompt written notice to the General Partner of such Tax Proceeding and the General Partner shall be entitled to assume the defense of, and control all matters with regard to, such Tax Proceeding as it relates to the Tax Treatment.  The General Partner shall use reasonable efforts to keep such Partner apprised of the status of such Tax Proceeding.  No Partner may settle a Tax Proceeding inconsistent with the Tax Treatment contemplated by this Agreement unless the General Partner fails to assume or maintain the defense of the Tax Proceeding as contemplated by this Section 4.1.7.2, or the General Partner provides express prior written consent.  In the event the General Partner exercises its right to assume control of the defense, the Partner that is the subject of such Tax Proceeding shall reasonably cooperate with the General Partner in such defense and make available to the General Partner witnesses, pertinent records, materials and information in its possession or under its control relating thereto as are reasonably requested by the General Partner.
q.Valuation
.
i.The Partnership’s assets and liabilities shall be valued as of the close of business on the last day of each month, in each case in accordance with the Investment Manager’s valuation policy and procedures, as may be amended from time to time (the “Valuation Policy”). The General Partner shall cause the Investment Manager to provide a copy of its Valuation Policy to any Limited Partner upon request by such Limited Partner and to notify the Limited Partners of any changes to the Valuation Policy.
ii.All values assigned to Securities, other assets and liabilities in accordance with the procedures set forth in the Valuation Policy shall be final.
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r.Liabilities; Reserves
. The Partnership’s liabilities shall be determined in accordance with GAAP, and shall include the establishment of such reserves for estimated accrued expenses and contingencies as the General Partner may deem advisable; provided, however, that the General Partner may provide reserves and holdbacks for estimated accrued expenses, liabilities or contingencies, including general reserves and holdbacks for unspecified contingencies (even if such reserves or holdbacks are not required by GAAP). All such reserves or holdbacks could reduce the amount of distribution on withdrawal. Such reserves or holdbacks may be invested or maintained in a manner deemed appropriate by the General Partner. Any holdback shall be applied equally and equitably to all Capital Accounts that are subject to the expenses, liabilities and contingencies for which such holdback was established. Upon the determination of the General Partner that such holdback is no longer needed, the remainder (if any) of the holdback, and the estimated interest that the Partnership earned thereon or is attributed thereto (in each case, if any) shall be distributed or credited, as applicable, to the Capital Accounts for which such holdback was established. Limited Partners shall be provided upon request the nature and amount of any holdback that is not otherwise required by GAAP.
s.Determination by General Partner of Certain Matters
. All matters concerning the valuation of Securities, the allocation of profits, gains and losses among the Partners, the taxes on profits, gains and losses, and accounting procedures, not specifically and expressly provided for by the terms of this Agreement, shall be determined in good faith by the General Partner, whose determination shall be final, binding and conclusive on all of the Partners. The General Partner shall have the power to make all tax elections and determinations for the Partnership, and to take any and all action necessary under the Code or other applicable Law to effect those elections and determinations. All such elections and determinations by the General Partner shall be final, binding and conclusive upon all Partners.
Article V.

Records, Accounting and Reports, Partnership Funds
t.Records and Accounting
.
i.Proper and complete records and books of account of the Partnership’s business shall be maintained at the Partnership’s principal place of business or at such other place as may be determined by the General Partner. Unless determined otherwise by the General Partner, in its discretion, the books and records of the Partnership shall be kept pursuant to the accrual method of accounting, which shall be the method of accounting followed by the Partnership for U.S. federal income tax purposes.
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ii.Except as otherwise expressly provided in this Agreement, no Limited Partner shall have any right to inspect the register of limited partners or to obtain any information contained in the books and records of the Partnership (whether kept by the General Partner, the Investment Manager, the Administrator or any other Person), including, without limiting the generality of any of the foregoing, any Confidential Material and any information relating to any other Limited Partner or the Partnership’s trading activity. Notwithstanding the foregoing, (i) each Limited Partner shall have the right to inspect the register of limited partners and the books and records of the Partnership during customary business hours at the principal place of business of the Partnership or such other location where such books and records are maintained pursuant to Section 5.1.1 solely for purposes of confirming such Limited Partner’s status as a Limited Partner or investment in the Partnership; and (ii) the General Partner shall afford to the Company’s auditors reasonable access during customary business hours to the foregoing information maintained in the books and records of the Partnership so long as (x) such information pertains to such Limited Partner’s investment in the Partnership; and (y) the Company’s auditors are subject to the confidentiality obligations set forth in Section 12.1.
iii.The General Partner shall retain (or arrange for the retention), for a period of at least seven years, copies of any documents generated or received by the General Partner in the ordinary course of business pertaining to the assets of the Partnership or to the compensation payable to the General Partner and the Investment Manager, which shall include, at the very least, documents required to be kept in accordance with applicable Law.
u.Independent Audit
. The records and books of account of the Partnership shall be audited as of the end of each Fiscal Year by independent certified public accountants selected by the General Partner in its discretion. The General Partner shall promptly notify the Limited Partners of any resignation of, or replacement of, the Partnership’s independent certified public accountants.
v.Tax Information
. Within 90 days after the end of each Taxable Year (or as soon thereafter as is reasonably practicable), the General Partner shall cause to be delivered to each Person who was a Partner at any time during that Taxable Year all information necessary, at the discretion of the General Partner, for the preparation of the Partner’s U.S. federal income tax returns, including a Form 1065/Schedule K1 statement showing the Partner’s share of income or loss, deductions and credits for the year for U.S. federal income tax purposes, and the amount of any distributions made to or for the account of the Partner pursuant to this Agreement.
w.Annual Reports to Current Partners
. The Partnership shall furnish to each Limited Partner, with respect to each Fiscal Year an annual consolidated audited financial statement of the Partnership as of the end of, and for, such Fiscal Year prepared in accordance with GAAP and audited by the independent certified public accountants selected by the General Partner in accordance with Section 5.2.  The Partnership shall provide a draft of such statement by February 15 of the immediately following
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Fiscal Year and the final audited statement by February 25 of such immediately following Fiscal Year.
x.Investment Committee Meeting
. At the commercially reasonable request of the Company, and subject to reasonable prior notice, the General Partner shall cause the Investment Manager to make one of its representatives available to meet with the Investment Committee (in person or telephonically) to report on the Partnership’s activities and discuss the Investment Manager’s investment outlook.
y.Tax Returns
. The General Partner shall cause tax returns for the Partnership to be prepared and timely filed (taking into account extensions) with the appropriate authorities, and shall determine which items of cash outlay are to be capitalized or treated as current expenses.
z.Reporting
. The General Partner shall provide the information set forth on Exhibit B with the frequency stated therein.
Article VI.

Rights and Duties of the General Partner
aa.Management Power
.
i.The General Partner shall have exclusive management and control of the business of the Partnership. Except as expressly provided in this Agreement, the authority of the General Partner to manage and control the day-to-day business of the Partnership shall be exercised by the Managing Member, and all decisions regarding the daytoday management and affairs of the Partnership shall be made by the Managing Member on behalf of the General Partner (whether or not this Agreement specifies that the General Partner or the Managing Member is authorized to make such decision). The General Partner shall, except as provided in this Agreement, have the rights and power to manage and administer the affairs of the Partnership and conduct the business of the Partnership. Except as otherwise expressly provided in this Agreement, the General Partner is granted the right, power and authority to undertake on behalf of the Partnership all actions that, in its sole judgment, are necessary, suitable, proper or desirable to carry out its duties and responsibilities, including the right, power and authority from time to time to take the following actions at the expense of, in the name of, and, on behalf of, the Partnership:
1.To acquire, trade, hold, encumber, sell, lease, exchange, purchase, transfer, invest, mortgage, pledge, charge, dispose of and otherwise deal with, on
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margin or otherwise, Securities (including to acquire “long” positions or “short” positions and to make purchases or sales increasing, decreasing or liquidating the position or changing from a “long” position to a “short” position or from a “short” position to a “long” position, without any limitation as to the frequency of the fluctuation in such positions or as to the frequency of the changes in the nature of the positions), commodities and commodities contracts, including futures contracts, forwards, options and swaps thereon, and other assets of the Partnership, and to exercise all rights, powers, privileges and other incidents of ownership or possession with regard to Securities, including voting rights, at prices and upon terms deemed to be in the best interests of the Partnership, and to engage in any other activities and transactions that may be necessary, suitable or proper for the accomplishment of or in furtherance of, any of the foregoing objects and purposes and to do any and all other acts and things incidental or appurtenant to or arising from or connected with any of such objects and purposes;
2.To organize one or more corporations or other entities to invest, in Securities or participations in Securities, or to hold record title of, or as nominee for the Partnership of, Securities or funds of the Partnership (each such entity, a “Special Purpose Vehicle”);
3.To incur all expenditures permitted by this Agreement;
4.To engage any and all agents, managers, consultants, advisors, including the Investment Manager, independent contractors, attorneys, the Administrator, accountants and other Persons necessary or appropriate to carry out the business of the Partnership, and to pay fees, expenses and other compensation to such Persons, and provide for the exculpation and/or indemnification of such Persons by the Partnership, including such Persons or firms that may be Limited Partners or Affiliates of the General Partner or its principals or employees;
5.To admit new Limited Partners to the Partnership, pursuant to and subject to the terms of Article III of this Agreement;
6.To enter into Other Agreements with Limited Partners containing such terms and conditions as determined by the General Partner;
7.To assist the Partnership with investor relations services, including communications from the Partnership to the Limited Partners and prospective investors;
8.To the extent that funds of the Partnership are, in the General Partner’s judgment, not required for the conduct of the Partnership’s business, to invest the excess funds;
9.To pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend or compromise, upon terms that the General Partner may in its discretion determine and upon evidence that it deems sufficient, any obligation, suit, liability, cause of action or claim, including taxes, either in favor of or against the Partnership;
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10.To make, execute, and deliver any and all documents of transfer and conveyance and any and all other instruments and agreements that may be necessary or appropriate to carry out the powers granted in this Agreement;
11.To open, maintain, conduct and close accounts, including margin and custodial accounts, with brokers and bank accounts, and to draw checks or other orders for the payment of money by the Partnership;
12.If the General Partner deems registration, qualification or exemption necessary or desirable, to cause the Partnership to comply with all applicable provisions of Law, including the registration or qualification of the Partnership under the Laws of any applicable jurisdiction or the obtainment of exemptions under such Laws;
13.To engage in hedging and/or interest exchange agreement transactions on behalf of or for the direct or indirect benefit of the Partnership through the purchase and sale of: contracts for future delivery of bank certificates of deposit; securities issued or guaranteed by the United States Government and its agencies and instrumentalities, such as United States treasury bonds, notes, and bills, and mortgagebacked securities issued by the Government National Mortgage Association; other interestbearing negotiable instruments; and other financial futures contracts, financial options contracts and other Securities whether in existence now or in the future;
14.To lend, either with or without security, any Securities, funds or other properties of the Partnership, to borrow or raise funds, without limit as to the amount or manner and time of repayment, and to issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures or other negotiable or non-negotiable instruments and evidences of indebtedness, to secure the payment of such or other obligations of the Partnership by mortgage upon, or pledge, or charge, hypothecation or guarantee of, all or any part of the property of the Partnership, whether owned or acquired thereafter and to execute and record financing statements in connection with perfecting any such security interests of the Partnership, as applicable;
15.To acquire, enter into, and pay for any contract of insurance that the General Partner in its discretion deems necessary and proper for the protection of the Partnership, for the conservation of the assets of the Partnership, or for any purposes beneficial to the Partnership;
16.To enter into, make, perform, execute, amend, supplement, acknowledge and deliver any and all contracts, agreements, licenses, undertakings or other instruments and to engage in any kind of activity necessary, proper or desirable to carry out the purposes of the Partnership;
17.To assist the Partnership with any legal, compliance, tax or regulatory filings;
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18.To make any securities filings on behalf of the Partnership or the Company relating to any of the investment activities of the Partnership;
19.To direct or permit the Investment Manager to enter into direct or indirect sub-advisory arrangements or otherwise delegate the investment management authority over the Partnership to any other Person; provided, however, that management, control and conduct of the activities of the Partnership shall remain the responsibility of the General Partner; provided further, that in the case of any delegate that is an Affiliate of the Investment Manager, the Partnership shall not bear any additional fees or performance-based compensation in connection with such arrangement or be subject to any expenses not consistent with this Agreement; provided further, that the General Partner may not direct or permit the Investment Manager to engage any delegate who is not an Affiliate of the Investment Manager, unless (i) the General Partner has obtained the written consent of the Investment Committee prior to any such engagement; (ii) the Investment Manager effectuates such delegation on the same terms and conditions as the Affiliated Funds; (iii) any such delegation is subject to the same limitations and restrictions set forth in this Agreement (including the Guidelines) and the same standard of care as if performed directly by the Investment Manager or General Partner; (iv) the Investment Manager conducted appropriate due diligence on the delegate (including with respect to such delegate’s investment professionals, operations, regulatory compliance and prior performance); (v) the Investment Manager retains the authority and responsibility to monitor and review the performance of the delegate and to terminate any arrangement with the delegate; and (vi) the Investment Manager has sought “most favored nations” treatment of any investment by the Partnership with such delegate;
20.To make all tax elections and determinations for the Partnership, and to take any and all action necessary under the Code or other applicable Law to effect those elections and determinations;
21.To be or to designate a Partnership Representative for all purposes under the Code;
22.To combine purchase or sale orders on behalf of the Partnership with orders for Affiliated Funds, and allocate the securities or other assets so purchased or sold, on an average price basis, among the Partnership and such Affiliated Funds;
23.To enter into arrangements with brokers to open “average price” accounts wherein orders placed during a trading day are placed on behalf of the Partnership and Affiliated Funds and are allocated among such accounts using an average price;
24.To provide research and analysis and direct the formulation of investment policies and strategies for the Partnership;
25.To invest in other pooled investment vehicles, which investments shall be subject in each case to the terms and conditions of the respective governing document for such vehicle;
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26.Subject to applicable Law, to purchase Securities and other property from and sell Securities and other property to Affiliated Funds; and
27.To delegate any or all authorities of the General Partner hereunder, and in furtherance of any such delegation to appoint, employ, or contract with the Investment Manager for its services in connection with the management and operation of the Partnership in accordance with the terms of the Investment Management Agreement.
ii.
1.Notwithstanding anything to the contrary in this Agreement, except as provided in Section 6.1.2.2, the General Partner shall use commercially reasonable efforts to avoid engaging in any activity or taking any action that would cause TP Re Bermuda to be treated as engaged in a U.S. trade or business for U.S. federal income tax purposes, including investing in any asset that (i) does not qualify for the trading safe harbor provided in Section 864(b)(2) of the Code and the Treasury Regulations; or (ii) would be considered a United States real property interest for purposes of Section 897 of the Code. The foregoing shall not prohibit the investment, directly or indirectly, by the Partnership in an entity treated as a corporation for U.S. federal income tax purposes that in turn invests in assets described in the foregoing clauses (i) and (ii).
2.Notwithstanding the foregoing Section 6.1.2.1, the General Partner shall be permitted to invest in assets that could generate income that is effectively connected with the conduct of a trade or business in the United States (including U.S. real estate assets) so long as those assets are allocated only to the General Partner, Excluded Investors and TP Re USA pursuant to Section 4.1.3.8. Notwithstanding anything to the contrary in this Section 6.1.2, the General Partner shall not be deemed to have violated this Section 6.1.2 with respect to TP Re Bermuda either (x) with respect to the operation of the special allocations permitted by this Section 6.1.2.2; or (y) with respect to the operation of Section 8.4.
iii.The Company may, upon at least three Business Days’ prior written notice to the General Partner and subject to (a) the General Partner’s acceptance; and (b) the General Partner satisfying the requirements set forth in Section 3.1.1, elect to make additional Capital Contributions to the Partnership on the first Business Day of a calendar month.
iv.Notwithstanding any provision of this Agreement to the contrary, the General Partner hereby agrees to cause the Investment Manager to follow the investment guidelines attached hereto as Exhibit A (the “Guidelines”). The Investment Manager shall not effect any investment transaction for the Partnership that is inconsistent with the Guidelines; provided that, upon written request of the Investment Manager, the senior management of the Company may, in exigent circumstances, permit any variation from the Guidelines. The General Partner shall use commercially reasonable efforts to notify the Company when it has actual knowledge of a violation or a reasonable likelihood of a violation of the Guidelines; provided that such notification shall not be required in connection with potential violations of the Guidelines based on anticipated performance of Securities. Upon having any such actual knowledge of a violation or reasonable likelihood of a violation of the Guidelines, the General
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Partner shall use commercially reasonable efforts to engage in such transactions as the General Partner deems necessary to ensure the Partnership’s investments become consistent with the Guidelines no later than the first month-end date of a calendar month falling at least 7 days after the date that the General Partner becomes aware that the Partnership is not compliant with the Guidelines (and during such period, the General Partner shall not be in breach of this Agreement); provided, however, that if the General Partner reasonably believes that the violation of the Guidelines cannot be cured within such period without violating applicable Law or would otherwise trigger liability based on trading windows to which the General Partner or the Investment Manager is subject, or short-swing profit violations, then the General Partner shall promptly notify the Company and shall promptly bring the Partnership’s investments into compliance with the Guidelines when it is permissible to do so (and during such cure period, the General Partner shall not be in breach of this Agreement).
v.Certain of the Company’s insurance subsidiaries are regulated by insurance regulators (including the Bermuda Monetary Authority). The parties hereto hereby agree to work together in good faith to agree on any amendments to this Agreement (including any Exhibits hereto) that are necessary to comply with insurance regulatory provisions applicable to the Company resulting from changes of the insurance regulatory rules or administrative or court interpretations thereof after the date hereof. The parties acknowledge that a failure to agree on such amendments to this Agreement that are necessary to comply with applicable insurance regulatory provisions may result in a withdrawal pursuant to Section 3.5.1.2.
vi.The General Partner shall promptly notify the Partners: (a) if it becomes aware of the occurrence of a Cause Event; and (b) if it subsequently become aware any new, material information relating thereto.
vii.The General Partner shall promptly notify the Company if it becomes aware of any threatened or actual litigation where the Partnership, the Company or any of their respective subsidiaries are named or are reasonably expected to be named as a party. Neither the General Partner nor the Investment Manager may settle any such litigation which involves more than a de minimis amount without the prior written consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned.
viii.The General Partner shall promptly notify the Partners if it becomes aware of the occurrence of any event that may reasonably constitute a Disability Onset or a Key Person Event.
ab.Resignation or Withdrawal by the General Partner
. Subject to Section 3.1.1, the General Partner may voluntarily resign or withdraw from the Partnership upon written notice sent to all Partners.
ac.Right of Public to Rely on Authority of General Partner
. Nothing contained in this Agreement shall impose any obligation on any Person or firm doing business with the Partnership to inquire whether the General Partner has exceeded
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its authority in executing any contract, lease, mortgage, deed or other instrument on behalf of the Partnership, and any such third person shall be fully protected in relying upon that authority.
ad.Time and Attention of the General Partner
. The General Partner shall devote to the Partnership, and apply to the accomplishment of Partnership purposes, an amount of time and attention that the General Partner in its discretion deems necessary or appropriate.
ae.Exculpation and Indemnification of the General Partner
.
i.Neither the General Partner nor any Affiliate or any members, associates, directors, officers, employees or agents of the General Partner or any Affiliate shall be liable to the Partnership or to the Limited Partners for any act or omission based upon honest errors of judgment, negligence or other fault in connection with the business or affairs of the Partnership, so long as the action or failure to act does not constitute Disabling Conduct.
ii.The Partnership agrees to indemnify the General Partner, the Investment Manager, the Tax Matters Partner and the Partnership Representative (in each case, acting in their capacity as such) and their respective members, Affiliates, associates, directors, officers, employees or agents (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) to the fullest extent permitted by Law and to hold them harmless from and with respect to (a) all fees, costs and expenses (including attorneys’ fees and disbursements) incurred in connection with or resulting from any claim, action or demand against the Indemnified Parties that arise out of or in any way relate to the Partnership, its properties, business or affairs; and (b) any losses or damages resulting from any such claim, action or demand, including amounts paid in settlement or compromise of the claim, action or demand, except that this indemnification shall not apply to any such fees, costs, expenses, losses or damages (“Losses”) arising out of an Indemnified Party’s Disabling Conduct. Further, the Partnership’s obligations under this Section 6.5.2 shall not apply (x) with respect to Losses arising out of any unsuccessful claim, action or demand (excluding counterclaims) by any Indemnified Party against any Limited Partner; or (y) with respect to Losses arising out of any claim, action or demand arising out of or related to disputes among the Indemnified Parties. The Partnership shall advance to any Indemnified Party costs and expenses (including attorneys’ fees and disbursements) that are deemed reasonable by the General Partner, and that are incurred in connection with any action or proceeding subject to indemnification hereunder, prior to the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it is ultimately determined that such Indemnified Party is not entitled to be indemnified by the Partnership. U.S. federal securities laws, under certain circumstances, impose liability even on persons that act in good faith, and the Partnership and the Limited Partners are not waiving any rights they may have to the extent that such liability may not be waived, modified or eliminated under applicable Law but shall be construed so as to effectuate the provisions of this Section 6.5.2 to the fullest extent permitted by Law.
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iii.To the maximum extent permitted by law, as among (i) any director and officer liability insurance policies or other any liability insurance policies that may be maintained by or on behalf of the Partnership (“Partnership Insurance”), (ii) any director and officer liability insurance policies, umbrella policies, general partnership liability insurance policies or other liability insurance policies that may be maintained by or on behalf of the General Partner, the Investment Manager or any of their respective Affiliates (“D&O Insurance”), (iii) the Partnership (for the avoidance of doubt, the Partnership, for purposes of this clause (iii) shall be interpreted to exclude Partnership Insurance described in clause (i)), and (iv) the General Partner and its Affiliates (for the avoidance of doubt, the General Partner and its Affiliates, for purposes of this clause (iv) shall be interpreted to exclude D&O Insurance described in clause (ii)), this Section 6.5.3 shall be interpreted to reflect an ordering of liability for potentially overlapping or duplicative indemnification payments, with (A) any Partnership Insurance (if applicable) having primary liability, (B) any D&O Insurance (if applicable) having secondary liability, (C) the Partnership (if applicable) having tertiary liability and (D) the General Partner and its Affiliates having quaternary liability (and as between the General Partner and its Affiliates such obligations shall be on an equal basis unless they agree otherwise).
iv.For purposes of this Section 6.5, acts or failures to act undertaken upon the advice of counsel shall be deemed to be actions in good faith, within the scope of authority and in the best interests of the Partnership.
v.The provisions of this Section 6.5 shall survive the termination of this Agreement, the termination of the Investment Management Agreement and/or the resignation or withdrawal of the General Partner of the Partnership.
af.Other Business Ventures
. Each Partner agrees that the General Partner, its Affiliates and their respective members, associates, directors, officers or employees may engage in other business activities or possess interests in other business activities of every kind and description, independently or with others. These activities may include investing in, financing, acquiring and disposing of securities in which the Partnership may from time to time invest, or in which the Partnership is able to invest or otherwise have any interest. The Limited Partners agree that the General Partner and the Investment Manager may act as a general partner of other partnerships, including investment partnerships or as managing member of limited liability companies. The Limited Partners further agree that the General Partner or the Investment Manager may organize and manage one or more domestic or offshore entities or accounts that may have similar investment activities as the Partnership and that the General Partner or the Investment Manager, as the case may be, shall allocate investment opportunities among such entities or accounts, other Affiliated Funds, and the Partnership as it deems to be fair and equitable in its sole discretion.
ag.Certain Tax Matters
.
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i.The Tax Matters Partner and the Partnership Representative, in such capacity, are authorized and empowered to act and represent the Partnership and each of the Partners before the Internal Revenue Service and any other taxing authority in any audit or examination of any Partnership tax return and before any court selected by the General Partner for judicial review of any adjustments assessed by the Internal Revenue Service and any other taxing authority. By the execution of this Agreement, the Partners agree to be bound by, and agree not to take any action inconsistent with, the actions or inaction of the Tax Matters Partner or the Partnership Representative, as applicable, including tax return positions, the extension of the statute of limitations or any contest, settlement or other action or position that the Tax Matters Partner or the Partnership Representative, as applicable, deems proper under the circumstances. Each Partner agrees to notify the Tax Matters Partner or the Partnership Representative, as applicable, of any such action to be taken by the Partner, in violation of this Agreement or otherwise, at least 10 days prior to the date the Partner takes the action. The Partnership Representative or the Tax Matters Partner, as applicable, shall notify each Partner in writing of all administrative and judicial proceedings for the adjustment of Partnership items and shall make periodic reports to the Partners setting forth information it deems appropriate at its sole discretion to keep the Partners informed of the status of such proceedings. The Partnership Representative and the Tax Matters Partner, as applicable, shall have the authority to take all actions necessary or desirable at its discretion to accomplish the matters set forth in this Section 6.7. The foregoing rules shall apply mutatis mutandis to any substantially comparable state, local or non-U.S. tax Laws.
ii.If the Partnership is subject to any Entity Taxes, the General Partner shall allocate among the Partners (or Former Partners) any tax liability imposed under the BBA Rules by deducting amounts from Capital Accounts or reducing amounts otherwise distributable to Partners or payable to Partners upon withdrawal, taking into account any modifications attributable to a Partner pursuant to Section 6225(c) of the BBA Rules (if applicable) and any similar state and local authority. Any tax liabilities so allocated shall be subject to the provisions of Section 3.8. To the extent that a portion of the tax liabilities imposed under the BBA Rules for a prior year relates to a Former Partner, the General Partner may require such Former Partner to reimburse and/or indemnify the Partnership for its allocable portion of such tax. Each Limited Partner acknowledges that, notwithstanding the Transfer or withdrawal of all or any portion of its Interest in the Partnership, pursuant to this Section 6.7.2, it shall remain liable for tax liabilities with respect to its allocable share of income and gain of the Partnership for the Partnership’s Taxable Years (or portions thereof) prior to such Transfer or withdrawal, as applicable, under the BBA Rules, or any similar state or local provisions. The Partners acknowledge and agree that the General Partner and Partnership Representative shall be permitted to take any actions to avoid Entity Taxes being imposed on the Partnership or any of its subsidiaries under the BBA Rules. Each Limited Partner agrees that, notwithstanding the Transfer or withdrawal of all or any portion of its Interest in the Partnership, if requested by the General Partner, it shall provide the appropriate Internal Revenue Service Form W-8 or W-9 or any other certificate or documentation which the General Partner reasonably determines is necessary to reduce Entity Taxes.
ah.Addition of General Partners
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. The General Partner may, if it deems it in the best interest of the Partnership, admit one or more additional General Partners (which may also be Limited Partners) with the prior written consent of the Company. Such additional General Partner or Partners shall become General Partner(s) upon the last to occur of the following: (a) their making their respective Capital Contributions, if required; (b) the execution by the additional general partner of this Agreement in its capacity as a General Partner; and (c) the filing of an amendment to the Partnership’s Statement in accordance with the Partnership Law, if required. Such Person shall thereupon be included in the definition of Partners or General Partner, as the case may be, and be deemed to be parties to this Agreement, for all purposes of this Agreement.
ai.Principal Transactions and Other Related Party Transactions
. The UCC shall be entitled to review and/or approve or disapprove (as applicable), on behalf of the Partnership, “principal transactions” within the meaning of Section 206(3) of the Advisers Act and/or any other matters involving conflicts of interest deemed appropriate by the General Partner, or as otherwise required by this Agreement.
Article VII.

Rights and Obligations of Limited Partners
aj.No Participation in Management
. No Limited Partner, in its capacity as such, shall participate in the control or business of the Partnership, transact any business in the Partnership’s name or have the power to sign documents for or bind the Partnership in any other way.
ak.Liability of Partners
.
i.Except as otherwise expressly provided in the Partnership Law, the debts, obligations and liabilities of the Partnership, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Partnership, and a Limited Partner shall not be obligated personally for any such debt, obligation or liability of the Partnership solely by reason of being a Limited Partner; provided, however, that a Limited Partner or Former Partner shall be required to contribute to the Partnership any amounts required under the Partnership Law and pursuant to Section 3.8 and Section 6.7.2.
ii.Except as otherwise provided in the Partnership Law, the General Partner shall have unlimited liability for the repayment and discharge of all debts, obligations and liabilities of the Partnership to the extent the assets of the Partnership are inadequate. Neither the General Partner nor any of its Affiliates (other than the Partnership), shall be liable for the return of the Capital Contributions of any Limited Partner, and each Limited Partner hereby waives any and all claims that it may have against the General Partner or any Affiliate thereof (other than, for the avoidance of doubt, the Partnership) in this regard.
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al.Withdrawal, Death, etc. of Limited Partner
. The death, disability, incapacity, adjudication of incompetency, termination, bankruptcy, insolvency or winding up and dissolution (collectively, “Termination Event”) of a Limited Partner shall not cause a winding up and dissolution of the Partnership. The legal representatives of a Limited Partner shall succeed as assignee to the Limited Partner’s interest in the Partnership upon a Termination Event of such Limited Partner, but shall not be admitted as a substituted Partner without the consent of the General Partner, in its discretion. Distributions in respect of withdrawal requests by such Limited Partner’s legal representatives shall be made on the same terms, and shall be subject to the same conditions, as set forth in Article III in respect of a withdrawal by a Limited Partner of its Capital Account.
am.Assignability of Interest
. Without the prior written consent of the General Partner, which consent may be granted or withheld in its discretion, a Limited Partner may not make a Transfer. Notwithstanding the foregoing, a Limited Partner may Transfer all or any portion of its Interests to an Affiliate without the consent of the General Partner; provided that (a) such transferee agrees to be bound by the terms and conditions of this Agreement; and (b) the General Partner determines that the Partnership shall not have, as a result of such Transfer, more than one hundred Partners at any time during the taxable year of the Partnership pursuant to Treasury Regulation Section 1.7704-1(h)(1)(ii). The General Partner may also permit other Transfers under such other terms and conditions as it, in its discretion, deems appropriate; provided, however, that prior to any such other Transfer, the General Partner shall consult with counsel to the Partnership to ensure that such Transfer, alone or taken together with other Transfers and withdrawals, shall not cause the Partnership to be treated as a “publicly traded partnership” taxable as a corporation within the meaning of Section 7704 of the Code. Any attempted Transfer not made in accordance with this Section 7.4, to the fullest extent permitted by Law, shall be void and of no force and effect.
an.Priority
. Except as specifically provided in this Agreement, no Limited Partner is given any priority over any other Limited Partner as to the return of contributions or as to compensation by way of income.
Article VIII.

Expenses and Management Fee
ao.Certain Expenses
. Any expenses incurred by the General Partner and the Partnership in connection with the negotiation of this Agreement, including legal and accounting expenses, shall be borne by the General Partner or its Affiliates and not by the Partnership. Any expenses incurred by the Limited Partners in connection with the negotiation of this Agreement, including legal and
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accounting expenses, shall be borne by the Limited Partners or their respective Affiliates and not by the Partnership.
ap.Operational Expenses
.
i.Any and all expenses incurred by, or on behalf of the Partnership, in connection with or that otherwise pertain to or are incidental to the Partnership’s organization (including the offering of Interests), administration, investments and operations, other than those borne by the Investment Manager, shall be borne by the Partnership, including:
1.trade support services including pre- and posttrade support software and related support services;
2.research (including computer, newswire, quotation services, publications, periodicals, subscriptions, data services and data base processing that are directly related to research activities on behalf of the Partnership) and consulting, advisory, expert, investment banking, finders and other professional fees relating to investments or contemplated investments, whether charged as fixed fees (such as retainers) and/or performance-based fees and allocations, in the form of cash, options, warrants, stock, stock appreciation rights or otherwise and irrespective of whether (A) there is a contractual obligation to pay such fees; or (B) such third parties are engaged by the Partnership in a dedicated or exclusive capacity; provided that the Partnership shall not bear the costs of any third party who may be retained to provide trade idea generation to the Partnership on an ongoing basis;
3.risk analysis and risk reporting by third parties and risk-related and consulting services;
4.fees of providers of specialized data and/or analysis as to specific companies, sectors or asset classes in which the Partnership has made or intends to make an investment;
5.transactional expenses, including fees or costs related to due diligence, investigation and negotiation of potential investments, whether or not such investments are consummated;
6.any costs (including legal costs) associated with contemplated or actual proxy solicitation contests, the preparation of any letters with respect to plans and proposals regarding the management, ownership and capital structure of any portfolio company (and related anti-trust or other regulatory filings) by the Investment Manager in connection with the Partnership’s investments, any compensation paid to individuals considered for nomination, nominated and/or appointed, at the Partnership’s request, to the board of a portfolio company (including any compensation paid in relation to serving in such capacity) and any related expenses (such as all costs incurred in connection with recruiting directors to serve on the board of a portfolio company, proxy solicitors, public relations experts, costs associated
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with “white papers”, lobbying organizations to the extent reasonably determined by the General Partner to be employed in connection with investments or prospective investments of the Partnership and public presentations);
7.brokerage commissions and services and similar expenses necessary for the Partnership to receive, buy, sell, exchange, trade and otherwise deal in and with securities and other property of the Partnership (including expenses relating to spreads, short dividends, negative rebates, financing charges and currency hedging costs);
8.subject to Section 6.1.7, legal fees and related expenses incurred in connection with Partnership investments or contemplated potential investments or the ongoing existence of the Partnership, including legal costs and related expenses of (a) Indemnified Parties (such as indemnification and advances on account of indemnification) that may be payable by the Partnership pursuant to any indemnification obligations of the Partnership; or (b) any threatened or actual litigation involving the Partnership, which may include monetary damages, fees, fines and other sanctions, whether as a result of such regulatory authorities or such commercial interests prevailing, or the General Partner determining to settle such threatened or actual litigation;
9.legal and compliance third-party fees and expenses allocated to the Partnership to the extent the General Partner has reasonably determined that such services are related to, or otherwise benefiting, the organizational, operational, investment or trading activities of the Partnership including filing and registration fees and expenses (e.g., expenses associated with regulatory filings, audits and inquiries with the SEC, the CFTC, the Federal Trade Commission and other regulatory authorities including foreign regulatory authorities, and any other filings made in connection with or that otherwise relate to or are incidental to the Partnership’s organization (including the offering of interests), administration, investments and operations, including Form PF, but excluding the preparation of Form ADV and other expenses determined by the Investment Manager to be primarily related to other filings to be made, as well as the establishment, implementation and maintenance of internal policies and procedures of the Investment Manager that are intended to facilitate the Investment Manager’s compliance with respect to its “own” compliance obligations not directly related to any services provided to its clients (for instance, the Investment Manager’s obligation to maintain registration with the SEC or to maintain records such as those specified in Rule 204-2(a) under the Advisers Act are its “own” obligations; but its obligations relating to, without limitation, research, trading, investments and monitoring of investments are not the Investment Manager’s “own” obligations), as opposed to the compliance obligations of the Partnership);
10.80% of the cost of any insurance premiums (other than wrongful employment practices insurance, premises liability insurance and insurance covering similar risks (e.g., covering liabilities of the Investment Manager in its capacity as an employer or landlord/tenant)), including the cost of any insurance covering the potential liabilities of the Partnership, the General Partner, the Investment Manager, their respective Affiliates or any agent or employee of the Partnership, as well as the potential liabilities of any individual serving at the request of the Partnership as a director of a portfolio company (such as directors’ and officers’
41



liability or other similar insurance policies and errors and omissions insurance or other similar insurance policies) (for purposes of utmost clarity, any deductibles or retentions pursuant to such insurance policies are liabilities to be borne in accordance with the Partnership’s indemnification obligations);
11.third-party valuation services (including fees of pricing, data and exchange services and financial modeling services), fund accounting, auditing and tax preparation (including tax filing fees, the cost of passive foreign investment company reporting, any expenses incurred in order to satisfy tax reporting requirements in any jurisdiction (if applicable) and other professional services and advisors) and expenses related to complying with FATCA;
12.Management Fees;
13.expenses related to the maintenance of the Partnership’s registered office and corporate licensing;
14.consultant and other personnel expenses of companies and non-U.S. offices formed for the purpose of facilitating and/or holding investments by the Partnership;
15.costs and expenses related to acquisition, installation, servicing of, and consulting with respect to, order, trade, and commission management products and services (including risk management and trading software or database packages);
16.any costs associated with engaging service providers, including the Administrator, prime brokers and the UCC;
17.interest costs and taxes (including entity-level taxes and governmental fees or other charges payable by or with respect to or levied against the Partnership, its investments, or to federal, state or other governmental agencies, domestic or foreign, including real estate, stamp or other transfer taxes and transfer, capital and other taxes, duties and costs incurred in connection with the making of investments by the Partnership in a portfolio), in each case, except as allocated and apportioned to specific Partners pursuant to Section 3.8, Section 6.7.2 or otherwise;
18.custodian and transfer agency services (including the costs, fees and expenses associated with the opening, maintaining and closing of bank accounts, custodial accounts and accounts with brokers on behalf of the Partnership (including the customary fees and charges applicable to transactions in such broker accounts));
19.winding-up and liquidation expenses; and
20.other expenses related to the Partnership similar to those set forth in Section 8.2.1.1 to Section 8.2.1.19 (collectively, the “Expenses”).
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ii.Notwithstanding anything herein, unless otherwise approved in writing by the Investment Committee, to the extent the aggregate amount of the Expenses payable by the Partnership for any Fiscal Year (which, for purposes of this Section 8.2.2, Expenses shall exclude, (A) any Expenses incurred pursuant to Section 8.2.1.7 and Section 8.2.1.17; (B) use of “soft dollars”; (C) any indemnification payments made pursuant to Section 6.5 and that may be covered under Section 8.2.1.8; and (D) the Management Fee) exceed the product of (x) 0.0175 and (y) the average Net Assets (calculated as the average Net Assets as of each calendar month end) for such Fiscal Year, then the Investment Manager shall reimburse the amount of such excess to the Partnership.
iii.From time to time the Investment Manager shall be required to make determinations regarding whether certain Expenses should be borne solely by the Partnership or in conjunction with one or more Affiliated Funds. Subject to certain exceptions such as tax or similar restrictions, all investment related Expenses are expected to be shared by the Partnership and any Affiliated Fund pro rata to their participation in that investment (or contemplated participation), while other Expenses shall generally be borne pro rata by the Partnership and certain or all Affiliated Funds based on their relative net asset values.
iv.Expenses shall be borne pro rata by the Partners in accordance with the balances in their respective Capital Accounts, except as provided elsewhere in this Agreement, including Section 3.8, Section 4.1.3.7, Section 6.7.2 and Section 13.2.
v.Except as otherwise provided for in this Agreement, any expenditures payable by or on behalf of the Partnership, to the extent determined by the General Partner to have been paid or withheld on behalf of, or by reason of particular circumstances applicable to, one or more but fewer than all of the Partners, shall be charged to only those Partners on whose behalf such payments are made or whose particular circumstances gave rise to such payments. Such charges shall be debited from the Capital Accounts of such Partners as of the close of the Fiscal Period during which any such items were accrued or paid.
vi.For the avoidance of doubt, the Investment Manager is responsible for, and the Fund shall not pay:  (i) travel expenses of its principals and employees (other than pursuant to Section 8.2.1.14); (ii) the Investment Manager’s own overhead expenses, including salaries, bonuses, benefits, rent and other overhead; and (iii) information services, software, technology and data services purchased primarily for the benefit of the Investment Manager’s “own” purposes (but, for the avoidance of doubt, not the Partnership’s share of those information services, software, technology and data services expenses primarily utilized in connection with the Investment Manager’s investing, portfolio management and risk management functions, which are paid for by the Partnership).
aq.Management Fee
.
i.Pursuant to the Investment Management Agreement, the Partnership shall pay to the Investment Manager a fixed management fee, payable monthly in advance, with
43



respect to each Capital Account, equal to 1/12 of 1.25% per month (1.25% per annum), of the balance of each such Capital Account (the “Management Fee”), as of the beginning of each month before the accrual of the Incentive Allocation. For the avoidance of doubt, such balance shall not include any exposure leverage of the Partnership or any Capital Account thereof. In determining the amount of the Management Fee allocable to each Limited Partner, the General Partner shall make such equitable adjustments as are necessary to reflect the admission of, and withdrawals or distributions paid to, one or more Limited Partners during any calendar month. If this Agreement is terminated on any day other than the last day of a calendar month, any unearned portion of the prepaid monthly fee for the month in which this Agreement is terminated, with respect to a Limited Partner, shall be refunded by the Investment Manager or its Affiliate, as the case may be, to the Partnership and allocated to that Limited Partner’s Capital Account.
ii.The General Partner, in its discretion, may elect to reduce, waive or calculate differently the Management Fee, with respect to any Limited Partner.
iii.Notwithstanding the foregoing, the General Partner may elect to have the Management Fee paid to the Investment Manager (or to any of its Affiliates) at the level of any Special Purpose Vehicle through which the investment program of the Partnership is being effectuated without receiving consent from existing Limited Partners, for so long as such election does not result in any material adverse consequences to the Limited Partners.
ar.Transaction Fees
. Any closing fees, directors’ fees or break-up fees (net of expenses attributable thereto and to any transactions not completed) paid to the Investment Manager or its Affiliates attributable to and as a result of the Partnership’s investments (collectively, the “Transaction Fees”) shall be set-off to reduce the Management Fee unless the receipt of such fees is waived by the Investment Manager. If Transaction Fees for a particular month exceed the amount of Management Fees for such month, the excess shall be applied to reduce Management Fees in subsequent months.
as.Assignment of Investment Advisory Contract
. In its discretion, the General Partner may enter into any transaction with respect to (a) any investment advisory contract between the Partnership and the Investment Manager; or (b) the General Partner’s interest in the Partnership (each, a “GP Transaction”); provided that the General Partner may only enter into a GP Transaction that would constitute an “assignment” as such term is defined under the Advisers Act with the consent of a Majority-in-Interest of the then-Limited Partners; provided further, that any action taken pursuant to this Section 8.5 shall not cause the balance sheets of the Partnership and the Company to be consolidated for financial statement purposes.
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at.Most-Favored Nations
.
i.If any of the TP Funds reduces (i) the base management fee rate payable by any non-Excluded Investor in any share class existing as of the Effective Date or (ii) the base incentive compensation rate imposed on any non-Excluded Investor in any such share class, or if, after the Effective Date, any of the TP Funds offer a new share class to any non-Excluded Investor with the same liquidity terms as a share class existing as of the Effective Date but with lower base management fee or incentive compensation rates than such existing share class (or if a TP Fund subsequently lowers the base fee rates imposed on any non-Excluded Investor in such new share class), then the General Partner agrees to automatically and immediately make proportionate reductions in (A) the rate of Management Fee (which, for the avoidance of doubt, is equal to 1.25% per annum) or (B) the rate of Incentive Allocation (which, for the avoidance of doubt, is equal to 20%), as applicable, hereunder. The General Partner represents and warrants to the Company that it has disclosed to the Company the management fee, incentive compensation and liquidity terms of all share classes currently existing in the TP Funds as of the Effective Date and that it has not granted any current non-Excluded Investor in a TP Fund a lower base management fee rate or base incentive compensation rate than the “standard” terms of such share classes.
ii.To the extent that any of the TP Funds offers a new share class to, or offers to enter into a side letter or other arrangement with, any non-Excluded Investor on or after the Effective Date, which terms provide for equally or more favorable liquidity terms than those set forth herein and provides for a different management fee terms and/or incentive compensation terms than those set forth herein (other than a new share class described in Section 8.6.1), then the General Partner shall provide prompt written notice of the offering of such terms to the Company and (i) the Company may elect to change the compensation arrangements herein to mimic such other management fee terms and/or incentive compensation terms, in each case with effect beginning as of the effective date that such non-Excluded Investor was entitled to such other management fee terms and/or incentive compensation terms, or (ii) if the Company does not make such election within 30 days of receiving notice of the terms offered to such Non-Excluded Investor, at the Company’s request the Investment Manager and the Company shall engage in good faith discussions to determine whether a change to the compensation arrangements hereunder is appropriate (which may include other changes to this Agreement). For the avoidance of doubt, any terms of investment offered by a TP Fund to a non-Excluded Investor with a lock-up period of (i) during the first two years of the Investment Period, five years or less and (ii) thereafter, three years or less, shall be deemed to have equal or more favorable liquidity terms than those set forth herein for purposes of this Section 8.6.2.
iii.If the Investment Manager forms an investment vehicle (that offers interests to non-Excluded Investors) that pursues an investment strategy that is materially different from the TP Funds, the General Partner will notify the Company of such new investment vehicle and will provide the Company with the option to withdraw assets from the
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Partnership and re-invest such withdrawn amounts in any such vehicle on a “most-favored nation” basis.
iv.The General Partner agrees to work with the Company in good faith to ensure that the economic terms of this Partnership after such contemplated adjustments reflect the unique relationship between the Company and the Investment Manager.
Article IX.

Winding Up and Dissolution
au.Winding Up
. The Partnership and its affairs shall be required to be wound up upon the first to occur of any of the events described in Section 2.6.
av.Dissolution
. Following the commencement of the winding up of the Partnership, the General Partner (or, if there is no General Partner, one or more Persons selected by the Majority-in-Interest of the then-Limited Partners) shall, wind up the Partnership’s affairs and shall distribute the Partnership’s assets in cash or in-kind in the following manner and order:
i.in satisfaction of the claims of all creditors of the Partnership, other than the Partners;
ii.in satisfaction of the claims of the Partners as creditors of the Partnership; and
iii.any balance to the Partners in the relative proportions that their respective Capital Accounts bear to each other, such Capital Accounts to be determined as of the Fiscal Year of the Partnership ended on the date of final liquidation.
Any distribution of assets in-kind shall be allocated to the Partners by the General Partner, to the extent practicable, on a proportionate basis. If any distributions in-kind are made in connection with the winding up and dissolution of the Partnership, the General Partner shall (x) make such distributions in-kind in accordance with Section 3.6.1; or (y) (i) immediately prior to such distribution in-kind, determine the Fair Value of such in-kind proceeds and adjust the Capital Accounts of all Partners upwards or downwards to reflect the difference between the book value and the Fair Value thereof, as if such gain or loss had been recognized upon an actual sale of such property on such date and allocated pursuant to Section 4.1.3; and (ii) at the time of such distribution, reduce the Capital Account(s) of the distributee Partner by the Fair Value of such in-kind proceeds distributed to such Partner.
aw.Time for Liquidation, etc.
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A reasonable time period shall be allowed for the orderly winding up and liquidation of the assets of the Partnership and the discharge of liabilities to creditors so as to enable the Partnership to seek to minimize potential losses upon such liquidation. The provisions of this Agreement, including the provisions relating to the payment of the Management Fee and the Incentive Allocation, shall remain in full force and effect during the period of winding up and until the General Partner (or liquidator, as applicable) shall execute a Notice of Dissolution in respect of the Partnership and shall cause such Notice of Dissolution to be filed with the Registrar of Exempted Limited Partnerships in the Cayman Islands.
Article X.

Amendments
ax.Amendment of Agreement
.
i.Subject to Section 10.1.2, this Agreement may be amended, in whole or in part, with the consent of all of the Partners.
ii.Notwithstanding Section 10.1.1, without the consent of the Limited Partners, the General Partner may amend this Agreement to: (A) reflect a change in the name of the Partnership; (B) change the provisions relating to the Incentive Allocation as provided in, and subject to the provisions of, Section 4.1.4; (C) make any change that is necessary or, in the opinion of the General Partner, advisable to qualify the Partnership as a limited partnership or a partnership in which the Limited Partners have limited liability under the Laws of any state or non-U.S. jurisdiction, or ensure that the Partnership shall not be treated as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for Federal tax purposes; (D) make any change that does not adversely affect the Limited Partners in any material respect; (E) make any change that is necessary or desirable to cure any ambiguity, to correct or supplement any provision in this Agreement that would be inconsistent with any other provision in this Agreement, or to make any other provision with respect to matters or questions arising under this Agreement that shall not be inconsistent with the provisions of this Agreement, in each case, so long as such change does not adversely affect the Limited Partners in any material respect; (F) correct any printing, stenographic or clerical error or effect changes of an administrative or ministerial nature which do not increase the authority of the General Partner in any material respect or adversely affect the Limited Partners in any material respect; (G) make any change that is necessary or desirable to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, statute, ruling or regulation of any Federal, state or non-U.S. governmental entity, so long as such change is made in a manner that minimizes any adverse effect on the Limited Partners; (H) prevent the Partnership from in any manner being deemed an “investment company” subject to the provisions of the Investment Company Act; (I) enable, when applicable, the Partnership (x) to elect any alternative to the Partnership’s payment of any amount under the BBA Rules; or (y) to avoid or minimize Entity Taxes; (J) prevent the Partnership from being deemed to be “plan assets” for the purposes of ERISA and the Code; or (K) make any other amendments similar to the foregoing.
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Article XI.

Power of Attorney
ay.Power of Attorney
. Each Limited Partner, in executing this Agreement, appoints the General Partner, or the Managing Member thereof acting individually, as the Limited Partner’s true and lawful attorney-in-fact, with full power and authority in the Limited Partner’s name, place and stead to execute, acknowledge, deliver, swear to, file and record at the appropriate public offices those documents and instruments as may be necessary or appropriate to carry out the provisions of this Agreement, including:
i.the Statement and any amendments to the Statement as may be required;
ii.any duly adopted amendment to this Agreement;
iii.all other certificates and instruments or amendments of those certificates and instruments that the General Partner deems appropriate to qualify or continue the Partnership as a limited partnership in any jurisdiction in which the Partnership may conduct business; and
iv.all certificates or instruments that the General Partner deems appropriate to reflect the winding up and dissolution of the Partnership.
v.The foregoing appointment is granted by way of security for the performance of each Limited Partner’s obligations hereunder and is intended to secure an interest in property, is irrevocable and shall survive the incapacity of any Person giving the power, the dissolution of any corporation or partnership giving the power or the termination of any trust giving the power.
Article XII.

Confidentiality
az.Confidentiality
.
i.In connection with the Partnership’s ongoing business, the Limited Partners shall receive or have access to Confidential Material. Each Limited Partner shall keep confidential, and not make any use of (other than for purposes reasonably related to its Interest or for purposes of filing such Limited Partner’s tax returns) or disclose to any Person, any Confidential Material except (i) to its Representatives on a need-to-know basis; (ii) as otherwise requested or required by any Governmental Authority, Law or by legal process (and, with respect to clause (ii), only in compliance with Section 12.1.2); or (iii) with the written consent of the General Partner. Each Limited Partner and its Representatives shall keep the existence of the Confidential Material confidential and shall exercise at least the same care with respect to the
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Confidential Material as such Limited Partner would exercise with respect to its own proprietary and confidential material. Each Limited Partner shall advise its Representatives of the confidential nature of the Confidential Material and shall (x) either have such Representatives agree to keep and maintain such information confidential; or (y) ensure that such Representatives are bound by professional obligations of confidentiality. Each Limited Partner shall be responsible for any actions taken by its Representatives that would be deemed a breach of this Agreement if such Limited Partner had taken such actions.
ii.In the event that a Limited Partner or its Representatives are requested or required by any Governmental Authority, Law or by legal process to disclose any Confidential Material (other than disclosures in connection with any routine periodic reporting or filing), such Limited Partner shall give the General Partner, to the extent permitted by Law and reasonably practicable under the circumstances, prompt written notice of such request or requirement so that the General Partner may seek an appropriate order or other remedy protecting the Confidential Material from disclosure, and such Limited Partner shall reasonably cooperate with the General Partner to obtain such protective order or other remedy. In the event that a protective order or other remedy is not obtained, or the General Partner waives its rights to seek such an order or other remedy, such Limited Partner (or its Representatives to whom such request is directed) may, without liability under this Agreement, furnish only that portion of the Confidential Material which such Limited Partner (or its Representatives) are, in the advice of such Limited Partner’s counsel, legally required or are requested by a Governmental Authority to disclose; provided that such Limited Partner gives the General Partner written notice of the information to be disclosed as far in advance of its disclosure as practicable and such Limited Partner uses its best efforts to request that confidential treatment shall be accorded to such information.
iii.Notwithstanding anything in this Agreement to the contrary, to the extent required by applicable Treasury Regulations, each Partner (and each employee, representative, or other agent of such Partner) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of (i) the Partnership; and (ii) any of its transactions, and all materials of any kind (including opinions or other tax analyses) that are provided to the Partner relating to such tax treatment and tax structure; it being understood, that “tax treatment” and “tax structure” do not include the name or the identifying information of the Partnership or a transaction. Nothing herein shall limit any Partner’s right to initiate communications with governmental and regulatory authorities at any time.
iv.Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall restrict the Company from disclosing the overall monthly and year-to-date performance of the Partnership.
v.Each party acknowledges and agrees that such party may receive material nonpublic information in connection with the matters contemplated by this Agreement, and further that such party is aware that the United States securities laws impose restrictions on purchasing or selling debt or equity securities based on such information.
vi.Notwithstanding anything to the contrary herein, to the extent a Limited Partner is a party to, or otherwise subject to the terms of, a separate agreement with the General
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Partner, the Investment Manager or any of their respective Affiliates that imposes confidentiality obligations with respect to Confidential Material that are more restrictive (whether in terms of scope, duration or otherwise) than the obligations set forth in this Article XII, then the more restrictive confidentiality obligations of such separate agreement shall govern in accordance with the terms set forth therein and shall not be limited or waived by the terms of this Agreement and, similarly, the confidentiality obligations of the Limited Partner set forth in this Agreement shall not be limited or waived by the terms of such separate confidentiality agreement. The confidentiality obligations set forth in this Article XII may be waived with the prior written consent of the General Partner, which may be given or withheld in its discretion.
ba.Non-Disclosure of LP Confidential Information
.
i.The Third Point Parties shall keep confidential all information relating to this Agreement, the Partnership and the Company (collectively, “LP Confidential Information”) and shall not make any use of (other than for purposes reasonably related to the administration and management of the Partnership) or disclose to any Person, any LP Confidential Information except (i) to its Representatives on a need-to-know basis; (ii) as otherwise requested or required by any Governmental Authority, Law, or by legal process (and, with respect to clause (ii), only in compliance with Section 12.2.2); or (iii) with the written consent of the Company. Each Third Point Party and its Representatives shall keep the existence of the LP Confidential Information confidential and shall exercise at least the same care with respect to the LP Confidential Information as such Third Point Party would exercise with respect to its own proprietary and confidential material. Each Third Point Party shall advise its Representatives of the confidential nature of the LP Confidential Information and shall either (x) have such Representatives agree to keep and maintain such information confidential; or (y) ensure that such Representatives are bound by professional obligations of confidentiality. Each Third Point Party shall be responsible for any actions taken by its Representatives that would be deemed a breach of this Agreement if such Third Point Party had taken such actions.
ii.In the event that any Third Point Party or any of its Representatives is requested or required by any Governmental Authority, Law or regulation, or by legal process to disclose any LP Confidential Information, the General Partner shall give the Company, to the extent permitted by Law and reasonably practicable under the circumstances, prompt written notice of such request or requirement so that the Company may seek an appropriate order or other remedy protecting the LP Confidential Information from disclosure, and the applicable disclosing party shall reasonably cooperate with the Company to obtain such protective order or other remedy. In the event that a protective order or other remedy is not obtained, or the Company waives its rights to seek such an order or other remedy, the Third Point Party (or its Representatives to whom such request is directed) may, without liability under this Agreement, furnish only that portion of the LP Confidential Information which such Third Point Party (or its Representatives) are, in the advice of such Third Point Party’s (or Representatives’) counsel, legally required to disclose or requested by a Governmental Authority to disclose; provided that the General Partner gives the Company written notice of the information to be disclosed as far in
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advance of its disclosure as practicable and the disclosing Third Point Party (or Representative) use its best efforts to request that confidential treatment shall be accorded to such information. Notwithstanding the foregoing, no notification to the Company shall be required for disclosures (i) in connection with any routine periodic reporting or filing required by any Governmental Authority or Law (including, for the avoidance of doubt, the Investment Manager’s Form ADV or Form PF filings); (ii) in connection with requests made pursuant to FATCA or CRS; or (iii) required or requested by any regulatory or supervisory authority (including, for the avoidance of doubt, the SEC or its staff) unless, in the case of this subclause (iii), such required or requested disclosure is specifically targeted at the Company or the Partnership, and not at the Investment Manager and its Affiliated Funds, as well.
iii.Notwithstanding anything to the contrary herein, to the extent the General Partner, the Investment Manager or any of their respective Affiliates is a party to, or otherwise subject to the terms of, a separate agreement with the Company or any of its Affiliates that imposes confidentiality obligations with respect to Confidential Material of the Company that are more restrictive (whether in terms of scope, duration or otherwise) than the obligations set forth in this Article XII, then the more restrictive confidentiality obligations of such separate agreement shall govern in accordance with the terms set forth therein and shall not be limited or waived by the terms of this Agreement and, similarly, the confidentiality obligations of the General Partner, the Investment Manager and their respective Affiliates set forth in this Agreement shall not be limited or waived by the terms of such separate confidentiality agreement. The confidentiality obligations set forth in this Article XII may be waived with the prior written consent of the Company, which may be given or withheld in its sole discretion.
bb.Equitable and Injunctive Relief
. The Partners acknowledge that (a) the provisions of Section 12.1 hereof are intended to preserve the unique relationship between the Partners; and (b) the provisions of Section 12.1 are intended to preserve the value and goodwill of the Partnership’s business; and that, in the event of a breach or a threatened breach by any Partner (or its Representatives) of its obligations under Section 12.1, the other Partners may not have an adequate remedy at law. Accordingly, in the event of any such breach or threatened breach by a Partner or its Representatives, any of the other Partners shall be entitled to seek such equitable and injunctive relief as may be available to restrain such Partner and any Person participating in such breach or threatened breach from the violation of the provisions thereof. Nothing in this Agreement shall be construed as prohibiting a Partner from pursuing any other remedies available at law or in equity for such breach or threatened breach, including the recovery of damages.
Article XIII.

Miscellaneous
bc.Notices
. Notices that may or are required to be given under this Agreement by any Partner shall be in writing and shall be deemed to have been duly given: (i) on the date of
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service if served personally on the party to whom notice is to be given; (ii) on the day of transmission if sent via facsimile or electronic mail transmission, and telephonic or electronic mail confirmation of receipt is obtained promptly after completion of transmission; (iii) on the day after delivery to Federal Express or similar overnight courier or the Express Mail service maintained by the United States Postal Service; or (iv) on the fifth day after mailing, if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, addressed to the respective parties at their addresses set forth in the books and records of the Partnership, or to any other addresses designated by any Partner by notice addressed to the Partnership in the case of any Limited Partner, and to the Limited Partners in the case of the General Partner. Unless otherwise provided in writing to the other parties, all notices shall be sent to the following addresses, facsimile numbers or email addresses:
If to the Investment Manager or the General Partner:
c/o Third Point LLC
55 Hudson Yards
New York, NY 10001
Email: Legal@thirdpoint.com
If to the Company:
Point House
3 Waterloo Lane
Pembroke HM 08
Bermuda
Attn: Janice R. Weidenborner
Email: janice.weidenborner@thirdpointre.bm
bd.Adjustment to Take Account of Certain Events
.
i.Notwithstanding anything to the contrary in this Agreement, if the Code or Treasury Regulations require a withholding on or other adjustment to the Capital Account(s) or otherwise to the interest of a Partner or Former Partner, or any other event or events occur(s) necessitating or justifying, in the General Partner’s sole judgment an equitable adjustment to the Capital Account(s) or otherwise to the interest of a Partner or Former Partner (including if allocations would not properly reflect the economic arrangement of the Partners or Former Partners or would otherwise cause an inequitable or onerous result for any Partner), the General Partner shall make such adjustments to the Capital Account(s) or otherwise to the interest of the Partners or Former Partners including in the determination and allocation among the Partners (and Former Partners, if relevant) of Net Capital Appreciation, Net Capital Depreciation, Capital Accounts, Partnership Percentages, Incentive Allocation, Management Fee, items of income, deduction, gain, loss, credit or withholding for tax purposes, accounting procedures or such other financial or tax items as shall equitably take into account such event (or events) and applicable
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provisions of Law or regulation, and the determination thereof in the discretion of the General Partner shall be final and conclusive as to all of the Partners (and Former Partners, if relevant).
ii.The parties acknowledge that additional amendments to this Agreement may be required between the signing of the agreement with respect to that certain Agreement and Plan of Merger relating to the Merger and the Effective Date to comply with legal or regulatory requirements, and each side agrees to act in good faith in such an event, provided that no neither party shall be required pursuant to this provision to agree to alter the fundamental business arrangement between the parties as set forth in this Agreement.
be.Governing Law
. Notwithstanding the place where this Agreement may be executed by any of the parties hereto, the parties expressly agree that all of the terms and provisions hereof shall be governed by and construed under the Laws of the Cayman Islands, without regard to the conflicts of laws principles of any jurisdiction.
bf.No Third Party Rights
. Except for the provisions of Section 6.5, the provisions of this Agreement, including the provisions of Section 7.2, are not intended to be for the benefit of any creditor or other Person (other than the Partners in their capacities as such) to which any debts, liabilities or obligations are owed by (or who otherwise have a claim against or dealings with) the Partnership or any Partner, and, to the fullest extent permitted by Law, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Law, 2014 (as amended) of the Cayman Islands to enforce any provision of this Agreement; provided that, without the prior explicit and written consent of the General Partner (such consent to refer specifically to this Section 13.4), no Indemnified Party (other than the General Partner and the Investment Manager) shall be entitled to claim the benefit of any right otherwise accruing to such Indemnified Party under Section 6.5. Notwithstanding any other provision of this Agreement, including the foregoing, the consent of or notice to any person who is not a party to this Agreement shall not be required for any termination, rescission or agreement to any amendment, waiver or other variation, assignment, novation, release or settlement under this Agreement at any time.
bg.Entire Agreement
. Without limiting and subject to Section 12.1.6 and Section 12.2.3, this Agreement, the Subscription Agreement, the TPIPS Management Agreement and the Trademark License Agreements represent the entire agreement among the parties hereto governing the subject matter hereof, and supersede and cancel all prior negotiations, correspondence or agreements, written or oral, among the parties hereto with respect to the subject matter hereof. In addition to the foregoing, notwithstanding the termination of the Amended JV Agreements, the General Partner and the Company agree that the Investment Manager’s obligations as set forth under Section 5.2 of the Amended JV Agreements shall now be borne by the General Partner in
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favor of the Company in respect of the Partnership, and, in such event, the Partnership’s obligations under Section 6.5.2 of this Agreement shall not apply.
bh.Counterparts
. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
bi.Miscellaneous
.
i.All pronouns used herein and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person may require. Any reference to any federal, state, local, or foreign statute or Law is deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean “including, without limitation.” The word “or” is not exclusive. All words used in this Agreement shall be construed to be of such gender or number as the circumstances require.
ii.Each party hereto hereby agrees that the other parties would be damaged irreparably if any provision of this Agreement were not performed in accordance with the specific terms or were otherwise breached and each party hereto agrees that any party shall be entitled to seek equitable relief, including any injunction or injunctions, to prevent breaches or threatened breaches of this Agreement by the other parties or any of their Representatives and to specifically enforce the terms and provisions of this Agreement.
iii.Each party hereto acknowledges, confirms and agrees that, by entering into this Agreement, such party intends to take any and all lawful actions toward effecting the purpose and objectives of this Agreement. Accordingly, each of the parties hereto hereby agrees and covenants not to engage in any business, activities, transactions or actions, directly or indirectly, with the intent, purpose or effect of undermining the purpose and objectives of this Agreement.
iv.The General Partner shall have a reasonable opportunity to review any press release or Form 8-K made in connection with the parties entering into this Agreement.
bj.Partners Not Agents
. Nothing contained in this Agreement shall be construed to constitute any Partner the agent of another Partner, except as specifically provided in this Agreement, or in any manner to limit the Partners in the carrying on of their own respective businesses or activities.
bk.Severability
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. Each provision of this Agreement is intended to be severable. A determination that a particular provision of this Agreement is illegal or invalid shall not affect the validity of the remainder of the Agreement.
bl.Discretion
. Whenever in this Agreement the General Partner is permitted or required to make a decision in its “discretion,” “sole discretion” or under a grant of similar authority or latitude, the General Partner shall be entitled to consider the Partnership’s interests as well as such other interests and factors as it desires, including its own interests and the interests of its Affiliates.
bm.Venue
. Any action, proceeding or claim relating in any way to, arising out of or concerning this Agreement or the Partnership’s affairs shall be brought and maintained exclusively in the Chancery Court of the State of Delaware, and each party irrevocably consents to the jurisdiction of such courts to the broadest extent possible for any such action, proceeding or claim and waives any objection to proceeding there that such party might have on the basis of inconvenient forum, improper venue, or otherwise; provided that if the Chancery Court of the State of Delaware would not have or are found not to have subject matter jurisdiction over any action, proceeding or claim relating in any way to, arising out of or concerning this Agreement or the Partnership’s affairs, such action, proceeding or claim shall be brought and maintained exclusively in the Federal courts located in New York County, and each party irrevocably consents to the jurisdiction of such courts to the broadest extent possible for any such action, proceeding or claim and waives any objection to proceeding there that such party might have on the basis of inconvenient forum, improper venue, or otherwise.
bn.Waiver of Partition
. Except as may otherwise be required by Law in connection with the winding up, liquidation and dissolution of the Partnership, each Partner hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Partnership’s property.
bo.Waiver of Jury Trial
. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS WAIVER APPLIES TO ANY LEGAL ACTION OR PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL. THE PARTNERSHIP OR ANY PARTNER MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS SECTION 13.13 WITH ANY COURT OR JURISDICTION AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTNERS TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
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bp.Survival
. The provisions of Section 3.8, Section 6.5, Section 6.7, Section 7.2, Section 12.1, Section 12.2, Section 12.3, Section 13.3, Section 13.5, Section 13.9, Section 13.11, Section 13.12, Section 13.13, and this Section 13.14 shall survive the termination of this Agreement, the termination of the Investment Management Agreement and/or the resignation of the General Partner of the Partnership.
bq.Effective Date
. Notwithstanding the date of execution of this Agreement, each of the parties agrees that their respective rights, duties and obligations pursuant to this Agreement shall have effect from the Effective Date (except for Section 4.1.3.6, which shall be effective on December 31, 2020).
[Signature page follows.]


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HIGHLY CONFIDENTIAL & TRADE SECRET

IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement as a deed on the date first above written.
           GENERAL PARTNER:
THIRD POINT ADVISORS L.L.C.


By: /s/ R. Mendy Haas
Name: R. Mendy Haas
Title:  Chief Financial Officer

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LIMITED PARTNERS:
THE COMPANY:
THIRD POINT REINSURANCE LTD.


By: /s/ Josh Targoff
Name: Josh Targoff
Title: Chairman of the Board of Directors
By: /s/ Sid Sankaran
Name: Sid Sankaran
Title: Director
TP RE BERMUDA:
Third Point Reinsurance Company Ltd.


By: /s/ Janice Weidenborner
Name: Janice Weidenborner
Title: EVP and Group General Counsel
By: /s/ Christopher S. Coleman
Name: Christopher S. Coleman
Title: Chief Operating Officer
TP RE USA:
Third Point Reinsurance (USA) Ltd.


By: /s/ Suzanne Wylie
Name: Suzanne Wylie
Title: Secretary
By: /s/ David Govrin
Name: David Govrin
Title: President

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HIGHLY CONFIDENTIAL & TRADE SECRET

Exhibit A
INVESTMENT GUIDELINES
•Subject to the following provisions, the Partnership shall generally acquire and dispose of investments on a pari passu basis with the Offshore Master Fund, however with increased exposure to investments through the use of additional leverage. The General Partner shall generally target a “leverage factor” of (a) one and one half times (1.5x) for investments in liquid securities (though the General Partner may, in its discretion, determine to vary the “leverage factor” with respect to certain securities); and (b) one times (1x) for investments in illiquid securities and ABS securities, in each case, as determined by the General Partner in its discretion; provided that the General Partner (i) may increase the leverage factor above such aforementioned targets with the prior written consent of the Investment Committee; and (ii) with respect to liquid securities, may decrease the leverage factor below such aforementioned target but in no event lower than the leverage factor of Third Point Ultra Master Fund L.P. without the prior written consent of the Investment Committee.
•In the event that there is a significant appropriate investment opportunity for the Partnership that does not, in the opinion of the General Partner, fit the liquidity profile for the Offshore Master Fund (any such investment a “Non-Parallel Investment”), the General Partner shall have the ability to request that the Investment Committee approve any Non-Parallel Investment, and upon such approval, shall have the authority to make such Non-Parallel Investment for the Partnership.
•The General Partner shall be required to apply the following limitations for the Partnership’s portfolio:
Composition of Investments: At least 60% of the investment portfolio shall be held in debt or equity securities (including swaps) of publicly traded companies (or their subsidiaries) and governments of OECD (the Organization of Economic Co-operation and Development) high income countries, asset-backed securities, cash, cash equivalents and gold and other precious metals.
Concentration of Investments: Other than cash, cash equivalents and United States government obligations, the Partnership’s total exposure to any one issuer or entity shall constitute no more than 15% (multiplied by the “leverage factor”) of the investment portfolio’s Net Assets. To the extent that the Partnership exceeds such 15% limitation (as multiplied by the “leverage factor”), the General Partner shall promptly notify the Investment Committee in writing and if the Investment Committee requests that such concentration be lowered, the General Partner shall use commercially reasonable efforts to lower concentration at the earliest practicable time.

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Net Exposure Limits: The net position (long positions less short positions) may not exceed 2 times net asset value for more than 10 trading days in any 30-trading day period.



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Exhibit B
REPORTING
        The General Partner shall prepare the following reports:

(a) Within 15 Business Days of each calendar month end, the Partnership shall cause to be prepared to each Partner a statement of such Partner’s Capital Account.

(b) After the end of the first three (3) quarters of a Fiscal Year, the Partnership shall cause to be prepared for the Company a report setting out as of the end of the quarter information determined by the General Partner to be appropriate concerning assets, liabilities, profits, gains and losses of the Partnership.

(c) The General Partner shall use commercially reasonable efforts to assist the Company in any required internal risk management, control or compliance matters applicable to the Company and related to this Agreement, including providing regular or ad hoc exposure and/or risk reports and preparing any internal control reviews that are reasonably deemed necessary by the Company. The General Partner acknowledges that the Company is subject to the regulatory and information requirements of insurance regulators and ratings agencies generally and will reasonably assist the Company in meeting such requirements. Furthermore, the General Partner shall use commercially reasonable efforts to give access to the Partnership’s books and records related to the Company in case requested by the Bermuda Monetary Authority.

(d) Notwithstanding Section 5.1.2, upon reasonable notice to the General Partner, the General Partner shall use its commercially reasonable efforts to provide the Company, the Company’s auditors and regulators with such information as is customarily required in connection with the annual audit of the Company’s accounts, tax compliance or compliance by the Company with its regulatory obligations on a timely basis.

(e) As of the first Business Day of each month, the performance and net asset value of the Partnership over the prior month.

(f) On a monthly basis, a report demonstrating compliance with the Guidelines requiring the Partnership to generally acquire and dispose of investments on a pari passu basis with the Offshore Master Fund.

(g) By the third Business Day of each month, the attribution of the Partnership’s performance as of the end of the prior month to (a) the top 10 and bottom 10 performance driving positions and to (b) sub-strategies and overlay hedges as defined in the monthly report of the Partnership.


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(h) The total assets under management of the TP Funds as of the beginning of each month.

(i) On a monthly basis, risk and exposure information relative to the Partnership and the Offshore Master Fund, as reasonably requested by the risk management functions of the Company.

(j) No later than 5 Business Days after a request by the Investment Committee, the General Partner shall provide to the Investment Committee a full list of each of the Partnership’s positions and the size of each such position; provided that any such request pursuant to this clause (j) shall not occur more than four times per any 12-month period.

(k) No later than 10 Business Days prior to the applicable due date (including any application extensions), to the extent reasonably practicable the General Partner shall provide to the Company a draft of any U.S. income tax return required to be filed for the Partnership (together with schedules, statements or attachments). The General Partner shall consult with the Company and in good faith consider any comments provided by the Company within five Business Days of its receipt of such tax returns.

(l) No later than 5 Business Days after each calendar quarter-end, the General Partner shall provide, and shall cause the Investment Manager to provide, a statement to the Company confirming that (i) the General Partner and the Investment Manager have complied with the terms of this Agreement (including the Guidelines) and the Investment Management Agreement, respectively, and (ii) neither the Investment Manager nor the General Partner are aware of the occurrence of any event that constitutes, or could reasonably be expected to constitute, a Cause Event, a Key Person Event or a Disability Onset during such calendar quarter.

        Except as otherwise specified, all information to be provided on a monthly basis shall be provided no later than 10 Business Days after month end.

        All information to be provided pursuant to this Exhibit B may be made available in electronic form, such as e-mail or by posting on a web site.



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EXHIBIT 10.2
INVESTMENT MANAGEMENT AGREEMENT
This Investment Management Agreement (this “Agreement”), dated as of August 6, 2020 and effective as of the Effective Date (as defined in the Partnership Agreement (as defined below)), is by and between Third Point LLC d/b/a Third Point Insurance Portfolio Solutions, a Delaware limited liability company (the “Investment Manager”), and Third Point Reinsurance Ltd., a Bermuda company (“Holdco,” and together with any of its subsidiaries or Affiliates, and any successor or assignee thereto, including any acquirer of all or a substantial portion of its or any of its subsidiaries or Affiliates’ assets or stock by merger, amalgamation, reorganization, reconstitution, business combination or otherwise, the “Company”). All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Partnership Agreement.
WHEREAS, the Company desires that the Investment Manager provide discretionary and non-discretionary investment advice with respect to all of the investable assets of the Company other than such amounts as the Company may retain or withdraw from the Account from time to time for working capital cash management purposes (all of such assets, whether in a single or multiple accounts, are collectively referred to herein as the “Account”), in accordance with the terms and conditions set forth in this Agreement, and the Investment Manager wishes to accept such appointment on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1.Appointment of Investment Manager. On the terms and subject to the conditions set forth herein, the Company hereby appoints the Investment Manager as investment manager of the Account: (a) to make recommendations in respect of the appointment of sub-advisors to manage all or a portion of the Account’s assets (such portion of the Account allocated or to be allocated for management by the Sub-Advisors, the “Sub-Advisory Portfolio”), subject to the approval of the Company, negotiate advisory agreements and other terms of investment with Sub-Advisor(s), implement instructions given by the Company in respect of Sub-Advisor(s) and monitor and prepare reports in respect of each Sub-Advisor and its investments for the Account; and (b) to supervise and manage the investment and reinvestment of the Account’s assets outside of the Partnership and the Sub-Advisory Portfolio (such portion of the Account, the “Non-Sub-Advisory Portfolio”), in each case in accordance with and subject to the terms hereof (including the Investment Guidelines (as defined below)), and the Investment Manager accepts such appointment. For the avoidance of doubt, the Investment Manager shall have exclusive and discretionary authority solely in respect of the Non-Sub-Advisory Portfolio (subject to the Investment Guidelines) and shall not have any discretionary authority in respect of the Sub-Advisory Portfolio. In the course of providing the services contemplated by this Agreement, the Investment Manager shall act as a fiduciary and shall discharge its fiduciary duties and exercise each of its powers under this Agreement



with the care, skill and diligence that a registered investment adviser, acting in a like capacity and familiar with insurance company matters, would use in the conduct of a like enterprise with like aims, taking into consideration the facts and circumstances then prevailing, and such fiduciary duties shall specifically include (but not be limited to) a duty: (i) to act with good faith; (ii) of loyalty to the Company; (iii) to provide full and fair disclosure of all material facts; (iv) to employ reasonable care to avoid misleading the Company; and (v) to act in a manner consistent with the Investment Guidelines.
2.Management Services; Duties of and Restrictions on Investment Manager; Sub-Advisors; Other Strategies.
(a)The Investment Manager will coordinate on a regular basis with, and take instruction from, the Chief Executive Officer of Holdco (the “CEO”), the Head of Investments (or similar title) of Holdco (if any), and the Investment Committee with respect to the management of the Account generally. For the avoidance of doubt, the Investment Manager’s responsibility hereunder shall be to execute on the investment strategy as determined by the Company.
(b)For the avoidance of doubt and without limiting the generality of the powers conferred upon it by Section 1, the Investment Manager shall be responsible for the investment and reinvestment of the assets of the Non-Sub-Advisory Portfolio, subject to the investment guidelines provided by the Company from time to time (as amended or supplemented from time to time by the Company, the “Investment Guidelines”). In connection therewith, the Investment Manager shall have full authority, solely in respect of the Non-Sub-Advisory Portfolio:
(i)to buy, sell, sell short, hold and trade, on margin or otherwise and in or on any market or exchange within or outside the United States or otherwise, preferred and common stock of domestic and foreign issuers, securities convertible into preferred or common stock of domestic and foreign issuers, debt securities of and/or loans to domestic and foreign governmental issuers (including federal, state, municipal, governmental sponsored agency, global and regional development bank and export-import bank issuers) and domestic and foreign corporate issuers, investment company securities, money-market securities, partnership interests, mortgage and asset backed securities, foreign currencies and currency forwards, futures contracts and options thereon, bank and debtor-in-possession loans, trade receivables, repurchase and reverse repurchase agreements, commercial paper, other securities, futures and derivatives (including equity, interest rate and currency swaps, swaptions, caps, collars and floors), asset hedging, rights and options on all of the foregoing and other investments, assets or property selected by the Investment Manager in its discretion, in each case to the extent permitted by the Investment Guidelines;
(ii)to open, maintain or close one or more sub-accounts with any Custodian (as defined below) pursuant to the applicable Custodial Agreement (as defined below);
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(iii)to transfer funds (by wire transfer or otherwise) or securities (by transfer via the Depository Trust & Clearing Corporation or otherwise) (A) between the Account’s Custodians (if more than one), (B) between sub-accounts maintained by any Custodian for the Account, (C) subject to Section 18(d), between the Account and any account owned by other clients of the Investment Manager or (D) to or from any brokers or dealers engaged by the Investment Manager on behalf of the Company in connection with the investments permitted herein;
(iv)to select and open, maintain, and close one or more trading accounts with brokers and dealers for the execution of transactions on behalf of the Company and to negotiate, enter into, execute, deliver, perform, renew, extend, and terminate all contracts, agreements, and other undertakings on behalf of the Company with brokers, dealers, prime brokers or other counterparties; and
(v)to effect such other investment transactions involving the assets in the Company’s name and solely for the Non-Sub-Advisory Portfolio, including without limitation, to execute swaps, futures, options, licenses, undertakings and similar instruments and other documents, agreements, contracts, powers of attorney, trust deeds, and the like and to enter into over-the-counter, exchange traded and other asset hedging and derivative transactions (including executing any and all contracts or agreements related thereto), with counterparties on the Company’s behalf as the Investment Manager deems appropriate from time to time in order to carry out the Investment Manager’s responsibilities hereunder.
(c)The Investment Manager and the Company will have a continual dialogue regarding the liquidity, regulatory, ratings-agency, tax and other considerations relating to the Company’s investment portfolio and will assist the Company in creating investment solutions that reflect such considerations. The Company, including the Investment Committee, and the Investment Manager shall review the Investment Guidelines periodically (not less than quarterly) to confirm whether amendments should be made to the same. If, due to a change in insurance laws and regulations applicable to investments of the Company (including one or more of Holdco’s subsidiaries or Affiliates, and any successor or assignee as described in the definition of “Company”) (“Applicable Investment Law”), the Company determines that the Investment Guidelines no longer conform to Applicable Investment Law, the Company may revise the Investment Guidelines in order to cause the Investment Guidelines to conform to Applicable Investment Law, and the Investment Manager shall take any actions necessary to bring the Non-Sub-Advisory Portfolio in compliance with the revised Investment Guidelines as soon as practicable but in any event no later than 15 Business Days after receiving the revised Investment Guidelines. Changes made by the Company to the Investment Guidelines that are not as a result of a change in Applicable Investment Law shall be implemented by the Investment Manager as promptly as practicable upon receipt of the amended Investment Guidelines from the Company.
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(d)In accordance with the Investment Manager’s proxy policies and procedures, the Investment Manager or its agent is authorized, but shall not be required, to vote, tender or convert any securities in the Non-Sub-Advisory Portfolio; to execute waivers, consents and other instruments with respect to such securities; to endorse, transfer or deliver such securities or to consent to any class action, plan of reorganization, merger, combination, consolidation, liquidation or similar plan with reference to such securities.
(e)The Investment Manager shall make recommendations to the Company regarding the appointment, retention and termination of Sub-Advisors to manage all or a portion of the Account’s assets (excluding the portion of such assets invested in the Partnership). As used herein, “Sub-Advisors” shall mean: (x) any sub-advisor recommended by the Investment Manager to the Company and approved by the Company in writing; and (y) any other sub-advisor selected by the Company (with Investment Manager’s input) to manage all or a portion of the Account’s assets. Each Sub-Advisor shall be listed on Schedule 2 hereof, which the Company may amend from time to time upon notice to the Investment Manager. With respect to each Sub-Advisor, the Investment Manager shall:
(i)negotiate (with the Company’s approval), or otherwise assist the Company with the negotiation of, any advisory agreement or similar agreement with such Sub-Advisor or any subscription agreement, side letter or similar agreement in respect of an investment by the Account in an investment fund managed by such Sub-Advisor (such agreements, the “Sub-Advisory Agreements”);
(ii)implement any instruction given by the Company in respect of such Sub-Advisor or any Sub-Advisory Portfolio asset managed by such Sub-Advisor;
(iii)if approved by the Company, open, maintain or close one or more sub-accounts with any Custodian pursuant to the applicable Custodial Agreement;
(iv)if approved by the Company, select and open, maintain, and close one or more trading accounts on behalf of the Company (to the extent such authority has not been otherwise delegated to the Sub-Advisor with the Company’s approval);
(v)if approved by the Company, transfer funds (by wire transfer or otherwise) or securities (by transfer via the Depository Trust & Clearing Corporation or otherwise) between the Account’s Custodians (if more than one), between sub-accounts maintained by any Custodian for the Account, or to the Sub-Advisor to pay any compensation or expense to the Sub-Advisor in accordance with the relevant Sub-Advisory Agreement; and
(vi)monitor the performance of the Sub-Advisor and prepare periodic and other reports in respect thereof in accordance with Section 16.
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For the avoidance of doubt, the Company shall have the sole and exclusive authority to make decisions regarding: (A) the appointment or termination of a Sub-Advisor (including any contributions to, and withdrawals from, any fund or account managed by a Sub-Advisor); (B) any increase or decrease in allocations made to a Sub-Advisor or any fund or account managed by a Sub-Advisor; and (C) any modification to the compensation or liquidity terms of an existing Sub-Advisory Agreement or any other modification that would meaningfully alter the terms of the relationship between the Company and such Sub-Advisor.
(f)If the Company determines that it wishes to invest a portion of the investable assets that are not invested in the Partnership in an alternative asset investment strategy, then the Company shall grant the Investment Manager a reasonable opportunity to make a presentation to it regarding its capabilities to manage the Company’s assets in such investment strategy, unless the Investment Committee reasonably determines that the Investment Manager does not have the capability to execute such investment strategy.
3.Compensation; Expenses.
(a)For the investment management services provided pursuant to this Agreement, the Company shall pay or cause to be paid to the Investment Manager a fixed management fee, payable monthly in advance, equal to 1/12 of 0.06% per month (6 basis points per annum) of the fair value of the assets of the Account that are not invested in the Partnership (the “Management Fee”), as of the beginning of each month. In the case of any contribution to the Account as of any day other than the first day of a calendar month or any withdrawal from the Account as of any day other than the last day of a calendar month, the Investment Manager shall prorate the Management Fee based on the number of days during such calendar month that the amount contributed or withdrawn is managed under this Agreement. In the case of a partial withdrawal as of any day other than the last day of a calendar month, the prepaid Management Fee attributable to the withdrawn amount shall be reimbursed to the Company, either by way of a refund to the Company or as an offset against future Management Fees payable under this Agreement. If this Agreement is terminated on any day other than the last day of a calendar month, any unearned portion of the prepaid monthly fee for the month in which this Agreement is terminated shall be refunded by the Investment Manager to the Company.
(b)Account Trading and Investment Expenses, Specified Investment Expenses (if any) and Specified Custodial Fees shall be paid by the Company out of the assets of the Account. For purposes of this Agreement, “Account Trading and Investment Expenses” shall mean all third-party, out-of-pocket brokerage fees, brokerage commissions and all other brokerage transaction costs, stock borrowing and lending fees, interest on cash balances, regulatory fees applicable to the Company in connection with specific investments made in the Account, if any, or taxes payable by the Company in respect of the Account, as well as the Account’s share of fees in connection with the use of proxy voting services and any other fees and expenses related to the trading and investment activity of the Account (including any compensation and expenses payable to
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any Sub-Advisor) as determined by the Investment Manager in good faith. “Specified Investment Expenses” shall mean third-party, out-of-pocket research and legal expenses incurred by the Investment Manager directly in respect of investments specifically requested by the Company or proposed by the Investment Manager and approved by the Company (such expenses shall not exceed an annual cap of $100,000 per annum without the Company’s approval). “Specified Custodial Fees” shall mean all custodial fees incurred during any calendar year relating to the assets managed in the Non-Sub-Advisory Portfolio but only to the extent such custodial fees do not exceed the amount equal to 0.01% (1 basis point) per annum of the fair value of the assets of the Account during any calendar year. All expenses, other than Account Trading and Investment Expenses, Specified Investment Expense (if any) and Specified Custodial Fees incurred by the Investment Manager in connection with its provision of services hereunder (including, without limitation, investment research expenses and expenses of any software, data and subscription services, expenses of any consultants or other professional advisors and administrative expenses) and custodial fees (only in excess of the Specified Custodial Fees) shall be borne by the Investment Manager.
(c)Any fees of any affiliate of the Investment Manager (an “Affiliated Sub-Advisor”) applicable to the Company’s investment in a product managed by such Affiliated Sub-Advisor shall be at rates no less favorable than the fees charged with respect to any third-party investor in the same product (or another product managed by such Affiliated Sub-Advisor with the same or substantially the same investment strategy); provided, that the aggregate amount of the Company assets invested in the Partnership and any other fund or product investing in core alternative strategies portfolios managed by the Investment Manager or its Affiliates (for the avoidance of doubt, not including amounts that are invested by the Company in the Account and subject to the Management Fee terms under Section 3(a)) is equal to, or greater than, the aggregate amount of such third-party investor’s assets under management by the Investment Manager and its Affiliates.
4.Custodian.
(a)The assets of the Account shall be held by one or more custodians, trustees or securities intermediaries duly appointed by the Company (each, a “Custodian”), in one or more accounts at each such Custodian pursuant to custodial, trust or similar agreements approved by the Company (each, a “Custodial Agreement”). Subject to Section 2(e)(iii), the Investment Manager may open new sub-accounts in respect of Account assets under any Custodial Agreement, and cause the assets of the Account to be held in such sub-accounts established with the applicable Custodian in accordance with such Custodial Agreement. Subject to Section 2(c), the Investment Manager is authorized to give instructions to each Custodian, in writing, with respect to all investment decisions regarding the Account. Nothing contained herein shall be deemed to authorize the Investment Manager to take or receive physical possession of any of the assets for the Account, it being intended that sole responsibility for safekeeping thereof (in such investments as the Investment Manager may direct) and the
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consummation of all purchases, sales, deliveries and investments made pursuant to the Investment Manager’s direction shall rest upon the Custodians. The Custodians may be changed from time to time upon the written instructions of the Company.
(b)The Company shall instruct each Custodian to send the Investment Manager duplicate copies of all Account statements given to the Company by the Custodian.
5.Brokerage. The Investment Manager shall exercise commercially reasonable efforts to secure the best execution in selecting brokers for transactions in the Company in respect of the Non-Sub-Advisory Portfolio. It is understood that the Investment Manager may cause the Company to pay a broker a commission in excess of the amount of commission that another broker would have charged if the Investment Manager determines in good faith that the commission paid is reasonable in relation to the value of the brokerage or research services provided viewed in terms of the overall responsibilities with respect to the accounts as to which the Investment Manager exercises investment discretion. Any “soft dollar” arrangement between the Investment Manager and a broker relating to commissions generated by the Account shall comply with Section 28(e) of the Securities Exchange Act of 1934, as amended. The Investment Manager shall provide such information regarding the brokers selected for the Account and the Account’s soft dollar arrangements and usage as the Company may request.
6.Limitation of Liability; Indemnification.
(a)The Investment Manager does not guarantee the future performance of the Account or any specific level of performance, the success of any investment decision or strategy that the Investment Manager may use, or the success of the Investment Manager’s recommendations in respect of the Sub-Advisory Portfolio or management of the Non-Sub-Advisory Portfolio. The Investment Manager does not provide any express or implied warranty as to the performance or profitability of the Account or any part thereof or that any specific investment objectives will be successfully met. The Company understands that investment recommendations or decisions made by the Investment Manager on behalf of the Account are subject to various market, currency, economic, political and business risks, and that those investment recommendations or decisions will not always be profitable.
(b)Neither the Investment Manager nor any Affiliate or any members, associates, directors, officers, employees or agents of the Investment Manager or any Affiliate (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) shall be liable to the Company for any act or omission based upon honest errors of judgment, negligence or other fault in connection with the business or affairs of the Company, so long as the action or failure to act does not constitute Disabling Conduct (including, without limitation, for the actions of any Sub-Advisor selected by the Investment Manager, except where the Indemnified Party acted with Disabling Conduct in the selection and engagement of such Sub-Advisor). As used herein, references to the
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Partnership Agreement in the definition of “Disabling Conduct” shall be replaced by references to this Agreement.
(c)The Investment Manager shall indemnify, defend, hold and save harmless the Company or any member, partner, shareholder, principal, director, officer, employee or agent of the Company (each, a “Company Party”) against any Losses resulting from the Investment Manager’s or any Indemnified Party’s Disabling Conduct in connection with performance of services hereunder. The Investment Manager will provide written notice to the Company promptly if the Investment Manager identifies any matter that would result in Disabling Conduct.
(d)The Company shall indemnify each Indemnified Party to the fullest extent permitted by Law and to hold each Indemnified Party harmless from and with respect to any Losses in connection with the performance of services hereunder, other than any Losses arising out of the Investment Manager’s or the Indemnified Party’s Disabling Conduct. Further, the Company’s obligations under this Section 6 shall not apply (x) with respect to Losses arising out of any unsuccessful claim, action or demand (excluding counterclaims) by any Indemnified Party against the Company, or (y) with respect to Losses arising out of any claim, action or demand arising out of or related to disputes among the Investment Manager or any of its Affiliates. U.S. federal securities laws, under certain circumstances, impose liability even on Persons that act in good faith, and the Company is not waiving any rights it may have to the extent that such liability may not be waived, modified or eliminated under applicable Law but shall be construed so as to effectuate the provisions of this Section 6 to the fullest extent permitted by Law.
7.Term; Termination.
(a)The term (the “Term”) of this agreement shall expire on the two-year anniversary of the Effective Date and shall automatically renew for successive one-year terms, unless either party terminates this Agreement in accordance with this Section 7.
(b)This Agreement may be terminated by the Company upon not less than 30 days’ prior written notice, effective as of the last day of the then-existing Term or as of any calendar month-end during such Term. Any decision to terminate the Agreement under this Section 7(b) shall be made with the recommendation of the CEO and the approval of the Investment Committee. If this Agreement is terminated pursuant to this Section 7(b) with effect as of any day other than the last day of the then-existing Term, then the Company shall pay the Investment Manager, within ten Business Days from the effective date of termination, an amount equal to the Management Fee that the Company would have been required to pay the Investment Manager through the last day of then-existing Term had the Agreement not terminated prior to such day (and assuming that the fair value of the assets of the Account, determined as of the effective date of the termination, would have been the same through the remainder of the then-existing Term).
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(c)This Agreement may be terminated by the Investment Manager as of any month-end provided that it has given the Company at least 120 days’ prior written notice of its intention to so terminate,
(d)This Agreement may be terminated by the Company, upon the recommendation of the CEO and with the approval of the Investment Committee, upon not less than five days’ prior written notice to the Investment Manager, following the occurrence of any Cause Event.
(e)This Agreement may be terminated by the Company, upon the recommendation of the CEO and with the approval of the Investment Committee, upon not less than 90 days’ prior written notice to the Investment Manager, (i) following the occurrence of any Key Person Event (other than a Key Person Event arising out of the Disability of Daniel S. Loeb) or (ii) following the occurrence of a Key Person Event arising out of the Disability of Daniel S. Loeb, provided that the Company submitted a withdrawal request to the Investment Manager following the Company’s receipt of written notice of the related Disability Onset.
(f)Termination of this Agreement shall not, however, affect liabilities and obligations incurred or arising from transactions initiated under this Agreement prior to the termination date (including, for the avoidance of doubt, the payment described in Section 5(b), if applicable), or consummation of any transactions initiated prior to the termination date. Following a notice to terminate, the Investment Manager shall work with the Company to effect a prompt and orderly transition of the Account; provided that, following the effective date of the termination, the Investment Manager will have no obligation to recommend any action with respect to, or to liquidate, the assets in the Account nor shall the Investment Manager be required to incur any out of pocket expense in respect of such liquidation.
8.Representations, Warranties and Covenants.
(a)Holdco represents and warrants to the Investment Manager as of the date hereof as follows:
1.the Company has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
2.this Agreement constitutes a binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law;
3.the execution, delivery and performance of this Agreement by the Company do not violate (A) any law applicable to the Company, (B) any provision
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of the constituent documents of the Company, or (C) any agreement or instrument to which the Company is a party, except in each case for such violations as would not have a material adverse effect on the ability of the Company to perform its obligations under this Agreement;
4.no consent of any person, and no license, permit, approval or authorization of, exemption by, report to, or registration, filing or declaration with, any governmental authority is required by the Company in connection with the execution, delivery and performance of this Agreement other than those already obtained;
5.the Company is not an investment company (as that term is defined in the Investment Company Act of 1940, as amended) nor exempt from the definition of investment company by reason of Section 3(c)(1) of such Act;
6.the Company is a “qualified institutional buyer” (“QIB”) as defined in Rule 144A under the Securities Act of 1933, as amended, and the Company will promptly notify the Investment Manager if the Company ceases to be a QIB;
7.the Company is a “qualified eligible person” (“QEP”) as defined in Commodity Futures Trading Commission Rule 4.7 (“CFTC Rule 4.7”), and the Company will promptly notify the Investment Manager if the Company ceases to be a QEP, and hereby consents to be treated as an “exempt account” under CFTC Rule 4.7 by the Investment Manager or any Sub-Advisor, as the case may be;
8.the Company is a “qualified purchaser” (“QP”) as defined in Section 2(a)(51) of the Investment Company Act of 1940, as amended, and the Company will promptly notify the Investment Manager if the Company ceases to be a QP;
9.none of the assets contained in the Account are or will be “plan assets” of an employee benefit plan subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended, and
10.the Company has adopted appropriate anti-money laundering policies and procedures consistent with the applicable requirements of the USA PATRIOT Act and any other applicable anti-money laundering laws and regulations.
Holdco shall promptly notify the Investment Manager in writing of any change in any of the foregoing representations and warranties.
(b)The Investment Manager represents and warrants, and with respect to clauses (vi)-(ix) below, covenants, to the Company as of the date hereof (and as of the Effective Date and during the term of this Agreement), as follows:
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(i)the Investment Manager has full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
(ii)this Agreement constitutes a binding obligation of the Investment Manager, enforceable against the Investment Manager in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights or by general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(iii)the execution, delivery and performance of this Agreement by the Investment Manager do not violate (A) any law applicable to the Investment Manager, (B) any provision of the articles of incorporation or by-laws of the Investment Manager, or (C) any agreement or instrument to which the Investment Manager is a party, except in each case for such violations as would not have a material adverse effect on the ability of the Investment Manager to perform its obligations under this Agreement;
(iv)no consent of any person, and no license, permit, approval or authorization of, exemption by, report to, or registration, filing or declaration with, any governmental authority is required by the Investment Manager in connection with the execution, delivery and performance of this Agreement other than those already obtained;
(v)the Investment Manager is registered under the Investment Advisers Act of 1940, as amended, as an “investment adviser”;
(vi)the Investment Manager shall continue to be registered under the Investment Advisers Act of 1940, as amended, as an “investment adviser” for as long as this Agreement is in full force and effect or until this Agreement is otherwise terminated in accordance with Section 7;
(vii)the Investment Manager believes that it has sufficient resources and personnel in place with the necessary experience to perform the Investment Manager’s obligations under this Agreement;
(viii)the Investment Manager has established, and will maintain at all times during the term of this Agreement, appropriate operational and technological policies, systems and controls that are subject to regular review and testing and are consistent with prevailing industry practice and applicable laws, including, without limitation, appropriate business continuity and disaster recovery plans; and
(ix)the Investment Manager has policies in place to ensure that it complies with all applicable laws, regulatory requirements and guidelines as well as the Investment Guidelines and any other policy approved by the Company.
The Investment Manager shall promptly notify Holdco in writing of any change in any of the foregoing representations, warranties and covenants.
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9.Notices. All notices, requests, demands and other communications hereunder must be in writing and shall be deemed to have been duly given if delivered by hand, e-mail, or mailed by first class, registered mail, return receipt requested, postage and registry fees prepaid and addressed as follows:
If to the Company:
Point House
3 Waterloo Lane
Pembroke HM 08
Bermuda
Attn: Janice R. Weidenborner
Email: janice.weidenborner@thirdpointre.bm
If to the Investment Manager:
Third Point LLC
55 Hudson Yards
New York, NY 10001
Email: legal@thirdpoint.com
Attention: Robin Brem
10.No Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assignees. This Agreement and the rights and obligations of each party hereunder shall not be assignable or delegable without the consent of the other parties hereto, except that the Investment Manager may assign its rights and obligations hereunder to an entity that controls, is controlled by or is under common control with the Investment Manager; provided that no assignment or delegation by the Investment Manager of its obligations hereunder to any party shall relieve the Investment Manager of, or otherwise affect, any of the Investment Manager’s obligations under this Agreement. For purposes of this Section 10, with respect to the Investment Manager, the term “assignment” shall have the meaning set forth in Section 202(a)(1) of the U.S. Investment Advisers Act of 1940, as amended.
11.Governing Law. This Agreement shall be construed in accordance with the laws of the State of New York without giving effect to the principles of conflicts of law of such state or of any other jurisdiction. If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of the Agreement shall not be affected thereby.
12.Venue. Any action, proceeding or claim relating in any way to, arising out of or concerning this Agreement or the Company’s affairs shall be brought and maintained exclusively in the Chancery Court of the State of Delaware, and each party irrevocably consents to the jurisdiction of such courts to the broadest extent possible for any such action, proceeding or claim and waives any objection to proceeding there that such party might have on the basis of inconvenient forum, improper venue, or otherwise;
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provided, that if the Chancery Court of the State of Delaware would not have or are found not to have subject matter jurisdiction over any action, proceeding or claim relating in any way to, arising out of or concerning this Agreement or the Company’s affairs, such action, proceeding or claim shall be brought and maintained exclusively in the Federal courts located in New York County, and each party irrevocably consents to the jurisdiction of such courts to the broadest extent possible for any such action, proceeding or claim and waives any objection to proceeding there that such party might have on the basis of inconvenient forum, improper venue, or otherwise.
13.Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. Each party hereby (i) certifies that no representative, agent or attorney of the other has represented, expressly or otherwise, that the other would not, in the event of a proceeding, seek to enforce the forgoing waiver and (ii) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this paragraph.
14.Right to Audit; Onsite Inspections; Duty to Respond to Regulatory Inquiries. The Company and its representatives shall have the right, at its own expense, to conduct an audit of the relevant books, records and accounts of the Investment Manager related to the Account during normal business hours upon giving reasonable notice of their intent to conduct such an audit. In the event of such audit, the Investment Manager shall comply with the reasonable requests of the Company and its representatives and provide access to all books, records and accounts necessary to the audit. In addition, the Investment Manager acknowledges that the Company is subject to the regulatory and information requirements of Governmental Authorities (including the Bermuda Monetary Authority), and the Investment Manager shall allow onsite inspections as requested by any Governmental Authority or any external auditor of the Company; provide access to the Investment Manager’s books and records in respect of the Account as requested by any Governmental Authority or any external auditor of the Company; and cooperate with, and respond to any inquiries addressed directly to the Investment Manager by, a Governmental Authority. The Company shall reimburse the Investment Manager for its reasonable out-of-pocket costs and expenses incurred by the Investment Manager in connection with any audit by the Company, its representatives or external auditor or a Governmental Authority or any inquiries from a Governmental Authority or an external auditor of the Company.
15.Books and Records. The Investment Manager shall keep and maintain proper books and records wherein shall be recorded the business transacted by it on behalf of, in the name of, or on account of the Company in respect of the Account.
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16.Reports. The Investment Manager shall furnish the Company with such information and reports relating to the Account on a frequency and with such detail as the Company reasonably requests (including, without limitation, such information and reports as the Company may require to satisfy its regulatory obligations) and will monitor and report on performance of the Sub-Advisors. Without limiting the generality of the foregoing, the Investment Manager shall promptly notify the Company in writing of any development which may have a material impact on the Investment Manager’s ability to perform its obligations hereunder effectively and in compliance with applicable laws and regulatory requirements.
17.Force Majeure. No party to this Agreement shall be liable for damages resulting from delayed or defective performance when such delays or defects (i) arise out of causes beyond the control and (ii) are without the fault or gross negligence of the offending party. Such causes may include, but are not restricted to, acts of God or of the public enemy, terrorism, acts of the state in its sovereign capacity, fires, floods, earthquakes, power failure, disabling strikes, epidemics, quarantine restrictions and freight embargoes.
18.Non-Exclusive Dealings with and by Investment Manager Parties; Conflicts of Interest.
(a)Although nothing herein shall require the Investment Manager to devote its full time or any material portion of its time to the performance of its duties and obligations under this Agreement, the Investment Manager shall furnish continuous investment management services for the Account and, in that connection, devote to such services such of its time and activity (and the time and activity of its employees) during normal business days and hours as it shall reasonably determine to be necessary for the Account to achieve its investment objective(s); provided, however, that nothing contained in this Section 18(a) shall preclude the Investment Manager or its Affiliates from acting, consistent with the foregoing, either individually or as a member, partner, shareholder, principal, director, trustee, officer, official, employee or agent of any entity, in connection with any type of enterprise (whether or not for profit), regardless of whether the Company, Account or the Investment Manager or any of its Affiliates has dealings with or invests in such enterprise.
(b)The Company understands that the Investment Manager will continue to furnish investment management and advisory services to others, and that the Investment Manager shall be at all times free, in its discretion, to make recommendations to others which may be the same as, or may be different from those made to the Account. The Company further understands that the Investment Manager or any of its Affiliates may or may not have an interest in the securities whose purchase and sale the Investment Manager may recommend for the Non-Sub-Advisory Portfolio. Actions with respect to securities of the same kind may be the same as or different from the action which the Investment Manager or any of its Affiliates or other investors may take with respect thereto.
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(c)The Company agrees that the Investment Manager may refrain from rendering any advice or services concerning securities of companies of which any of the Investment Manager or any of its Affiliates are directors or officers, or companies as to which the Investment Manager or any of its Affiliates have any substantial economic interest or possesses material non-public information, unless the Investment Manager either determines in good faith that it may appropriately do so without disclosing such conflict to the Company or discloses such conflict to the Company prior to rendering such advice or services with respect to the Non-Sub-Advisory Portfolio.
(d)From time to time, when determined by the Investment Manager to be in the best interest of the Company, the Non-Sub-Advisory Portfolio may, with the prior written approval of the Company in respect of each transaction, purchase securities from or sell securities to another account (including, without limitation, public or private collective investment vehicles) managed, maintained or trusteed by the Investment Manager or an affiliate at prevailing market levels in accordance with applicable law and utilizing such pricing methodology determined to be fair and equitable to the Company in the Investment Manager’s good faith judgment.
19.Aggregation and Allocation of Orders. The Company acknowledges that circumstances may arise under which the Investment Manager determines that, while it would be both desirable and suitable that a particular security or other investment be purchased or sold for the account of more than one of the Investment Manager’s clients’ accounts, there is a limited supply or demand for the security or other investment. Under such circumstances, the Company acknowledges that, while the Investment Manager will seek to allocate the opportunity to purchase or sell that security or other investment among those accounts on a fair and equitable basis, the Investment Manager shall not be required to assure equality of treatment among all of its clients (including that the opportunity to purchase or sell that security or other investment will be proportionally allocated among those clients according to any particular or predetermined standards or criteria). Where, because of prevailing market conditions, it is not possible to obtain the same price or time of execution for all of the securities or other investments purchased or sold for the Non-Sub-Advisory Portfolio, the Investment Manager may average the various prices and charge or credit the Non-Sub-Advisory Portfolio with the average price.
20.Investment Manager Independent. For all purposes of this Agreement, the Investment Manager shall be deemed to be an independent contractor and shall have no authority to act for, bind or represent the Company or the Company’s shareholders in any way, except as expressly provided herein, and shall not otherwise be deemed to be an agent of the Company. Nothing contained herein shall create or constitute the Investment Manager and the Company as a member of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, nor shall anything contained herein be deemed to confer on any of them any express, implied, or apparent authority to incur any obligation or liability on behalf of any other person, except as expressly provided herein.
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21.Confidentiality. The parties hereto shall be subject to confidentiality provisions substantially similar to those set forth under Article XII of the Partnership Agreement.
22.Entire Agreement. This Agreement and that certain Third Amended and Restated Exempted Limited Partnership Agreement of Third Point Enhanced LP (the “Partnership”), dated August 6, 2020 and effective as of the Effective Date (as may be amended, restated or supplemented from time to time, the “Partnership Agreement”) entered into between the Company and Third Point Advisors LLC, a Delaware limited liability company and Affiliate of the Investment Manager, together, constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement. There are no understandings between the parties with respect to the subject matter of this Agreement other than as expressed herein and therein.
23.Severability. To the extent this Agreement may be in conflict with any applicable law or regulation, this Agreement shall be construed to the greatest extent practicable in a manner consistent with such law or regulation. The invalidity or illegality of any provision of this Agreement shall not be deemed to affect the validity or legality of any other provision of this Agreement.
24.Survival. The provisions of Sections 3, 6, 9, 11, 12, 13, 21, 22 and this Section 24 shall survive the termination of this Agreement.
25.Counterparts; Amendment. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may not be modified or amended, except by an instrument in writing signed by the party to be bound or as may otherwise be provided for herein.
26.Business Day. For the purpose of this Agreement, “Business Day” shall mean any day other than a Saturday, Sunday or any other day on which banking institutions are authorized or required by law or executive order to close in New York, New York.
[Signature page follows.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the date and year first above written.
THIRD POINT LLC


By: /s/ Josh Targoff
Name: Josh Targoff
Title:  Partner, COO and General Counsel
THIRD POINT REINSURANCE LTD.


By: /s/ Josh Targoff
Name: Josh Targoff
Title: Chairman of the Board of Directors
By: /s/ Sid Sankaran
Name: Sid Sankaran
Title: Director


[Signature Page – Account IMA]
1006148346v1

Schedule 1

Investment Guidelines

Capitalized terms used but not otherwise defined in these Investment Guidelines have the meanings ascribed to such terms in the Investment Management Agreement.

1.
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Schedule 2

Approved Sub-Advisors

1.[TO BE COMPLETED BY THE COMPANY]
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EXHIBIT 10.3

VOTING AND SUPPORT AGREEMENT

This VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of August 6, 2020, by and among CM Bermuda Limited, a Bermuda exempted company limited by shares (the “Shareholder”), CMIG International Holding Pte. Ltd., a Singapore incorporated company (“CMIG International”), Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (the “Company”), and Third Point Reinsurance Ltd., a Bermuda exempted company limited by shares (“Parent”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof, the Shareholder is the record and beneficial owner of 110,480,720 Company Shares (together with such additional Company Shares that become beneficially owned (within the meaning of Rule 13d−3 promulgated under the Exchange Act) by the Shareholder, whether upon the conversion of convertible securities or otherwise, after the date hereof until the Expiration Date (as defined below), the “Subject Shares”);
WHEREAS, concurrently with the execution of this Agreement, Parent, Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a wholly owned subsidiary of Parent (“Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;
WHEREAS, the Company Board has unanimously (a) determined that the Merger Consideration constitutes fair value for each Company Share in accordance with the Bermuda Companies Act, (b) determined that the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, is fair to, and in the best interests of, the Company, (c) approved the Merger, the Merger Agreement and the Statutory Merger Agreement and (d) resolved to recommend the approval of the Merger, the Statutory Merger Agreement and the Merger Agreement to the holders of Company Shares; and
WHEREAS, as a condition and inducement to the willingness of Parent to enter into the Merger Agreement, Parent has required that the Shareholder and CMIG International enter into this Agreement, and the Shareholder and CMIG International desire to enter into this Agreement to induce Parent to enter into the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:


1.Voting of Shares; Election. From the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, at every meeting of the shareholders of the Company (whether annual, special or otherwise) however called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of the shareholders of the Company proposed by the Company with respect to any of the following, when a meeting is held, the Shareholder shall appear at such meeting (in person or by proxy) or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum and shall vote or cause to be voted the Subject Shares that the Shareholder is entitled to vote, and when a written consent is proposed, respond to each request by the Company for written consent and consent (a) in favor of the approval of the Merger, the Statutory Merger Agreement and the Merger Agreement and the transactions contemplated thereby and any other matters necessary or reasonably requested by Parent for consummation of the Merger and the other transactions contemplated by the Merger Agreement and (b) against any other action or agreement that would reasonably be expected to (i) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement, (ii) result in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled or (iii) impede, frustrate, interfere with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement. The Shareholder shall make a Mixed Election with respect to all of the Subject Shares and the Shareholder will not thereafter revoke such Mixed Election prior to the Election Deadline.
2.Irrevocable Proxy. From the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, without limiting the obligations of the Shareholder under this Agreement, the Shareholder hereby irrevocably appoints as its proxy and attorney-in-fact the officers of Parent set forth on Annex A hereto, and any individual who shall hereafter succeed to any such officer of Parent, and any other Person designated in writing by Parent (collectively, the “Proxy Holders”), each of them individually, with full power of substitution, to vote the Subject Shares in accordance with Section 1 above; provided that the proxy and the power of attorney granted by the Shareholder shall be effective if, and only if, the Shareholder has not delivered to the Company at least three (3) Business Days prior to the date of an applicable meeting of the shareholders of the Company (or, as applicable, any adjournments or postponements thereof), a duly executed proxy card voting the Shareholder’s Subject Shares in accordance with Section 1 above and has not revoked such duly executed proxy card. This proxy is coupled with an interest and shall be irrevocable, and the Shareholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by the Shareholder with respect to the Subject Shares. This proxy and the power of attorney is given by the Shareholder in connection with, and in consideration of, the execution of the Merger Agreement by Parent and to secure the performance of the duties of the Shareholder under this Agreement. The power of attorney granted by the Shareholder herein is a durable power
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of attorney and shall survive the dissolution or bankruptcy of the Shareholder. The irrevocable proxy granted hereunder shall automatically terminate upon the Expiration Date.
3.Transfer of Shares.
(a)The Shareholder covenants and agrees that during the period from the date of this Agreement until the Expiration Date, the Shareholder will not, directly or indirectly, (i) transfer, assign, sell, pledge, encumber, hypothecate or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of or consent to any of the foregoing (“Transfer”), or cause to be Transferred, any of the Subject Shares, (ii) deposit any of the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Subject Shares or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (iii) enter into any contract, option or other arrangement or undertaking with respect to the Transfer of any Subject Shares or (iv) take any other action or enter into any agreement or undertaking that would reasonably be expected to restrict, limit or interfere with the performance of the Shareholder’s obligations hereunder. The foregoing restrictions on Transfers of Subject Shares shall not prohibit any such Transfers by the Shareholder in connection with the transactions contemplated by the Merger Agreement. CMIG International covenants and agrees that during the period from the date of this Agreement through the Expiration Date, CMIG International will not, directly or indirectly, (x) Transfer, or cause to be Transferred, any of the equity interests in the Shareholder (the “Shareholder Shares”) or (y) enter into any contract, option or other arrangement or undertaking with respect to the Transfer of any of the Shareholder Shares; provided that CMIG International shall, with the written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), be permitted to make any such Transfer of Shareholder Shares that does not result in any another Person becoming the beneficial owner of an amount of Shareholder Shares that is equal to or greater than the amount of Shareholder Shares beneficially owned by CMIG International after giving effect to such Transfer.
(b)At all times commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, in furtherance of this Agreement, the Shareholder hereby authorizes the Company or its counsel to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Subject Shares (and that this Agreement places limits on the voting and Transfer of the Subject Shares). The Company shall not register, or permit the Company’s transfer agent to register, a Transfer of any of the Subject Shares in violation of this Agreement. The Company shall immediately withdraw and terminate any such stop transfer order and notice following the Expiration Date.
4.Acquisition Proposals. The Shareholder and CMIG International shall not, and shall cause each of its Subsidiaries (other than the Company and its Subsidiaries), directors, executive officers and employees not to, and shall direct its other Representatives not to, directly or indirectly, (a) solicit, initiate, induce or knowingly
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facilitate the making of any proposal that constitutes, or would reasonably be expected to lead to, a Company Alternative Proposal, (b) engage in or otherwise participate in any discussions or negotiations with any other Person regarding, or furnish to any other Person any material non-public information for the purpose of knowingly facilitating, a Company Alternative Proposal or (c) approve or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Alternative Proposal, and the Shareholder and CMIG International shall not, alone or together with any other Person, make a Company Alternative Proposal (the actions described in clause (a), (b) and (c), collectively, the “Restricted Activities”). Notwithstanding the foregoing, to the extent that the Company or the Company Board is permitted to engage in any Restricted Activities pursuant to Section 5.02 of the Merger Agreement, the Shareholder and CMIG International may participate in such Restricted Activities; provided that such action by the Shareholder and CMIG International would be permitted to be taken by the Company or the Company Board pursuant to Section 5.02 of the Merger Agreement.
5.Transactions Involving CMIG International. Nothing in this Agreement, including Section 3 or Section 4, shall prohibit CMIG International from being party to, or consummating, any restructuring, reorganization or recapitalization of CMIG International or other similar transaction involving CMIG International or its securityholders that (a) does not result in a sale of shares of capital stock, assets or businesses of the Shareholder or the Company, (b) subject to the proviso in the last sentence of Section 3(a), does not result in a Transfer of Shareholder Shares and (c) would not reasonably be likely to prevent, impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by the Merger Agreement.
6.Fiduciary Duties. This Agreement is being entered into by the Shareholder and CMIG International solely (a) in the case of the Shareholder as a record and/or beneficial owner of the Subject Shares, and (b) in the case of CMIG International, as a record and/or beneficial owner of the equity interests of Shareholder. Nothing in this Agreement shall restrict or limit the ability of the Shareholder, CMIG International or any of their respective Affiliates who is a director, officer or employee of the Company to take any action in his or her capacity as a director, officer or employee of the Company, including the exercise of fiduciary duties to the Company or its shareholders.
7.No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to the Subject Shares. All ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Shareholder. Except as otherwise provided herein, Parent shall have no authority to direct the Shareholder in the voting or disposition of any of the Subject Shares.
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8.Cooperation. The Shareholder and CMIG International shall (a) promptly provide, or cause to be provided, to any Governmental Authority whose approval is required in connection with the transactions contemplated by the Merger Agreement (an “Applicable Governmental Authority”), on a confidential basis (if permitted under the applicable insurance Laws), all agreements, documents, instruments, affidavits, statements or information that may be required or requested by such Applicable Governmental Authority relating to the Shareholder or CMIG International and (b) use commercially reasonable efforts to promptly provide, or cause to be provided, to any Applicable Governmental Authority, on a confidential basis (if permitted under the applicable insurance Laws), all agreements, documents, instruments, affidavits, statements or information that may be required or requested by such Applicable Governmental Authority relating to the directors, executive officers, shareholders, members or partners of the Shareholder or CMIG International or Persons who are deemed or may be deemed to “control” the Shareholder or CMIG International within the meaning of applicable insurance Laws, or its or their structure, ownership, businesses, operations, investment management, regulatory and legal compliance, assets, liabilities, financing, financial condition or results of operations, or any of its or their directors, officers, employees, general and limited partners, members or shareholders. If requested or required by any Applicable Governmental Authority, the Shareholder and CMIG International shall promptly file, or cause to be filed, an acquisition of control or disclaimer of control or other filing under applicable insurance Laws, as appropriate, and shall (or, in the case of clause (y) below, use commercially reasonable efforts to) include therein all information required by applicable Law with respect to (x) the Shareholder and CMIG International and (y) any of their respective directors, executive officers, shareholders, members or partners, and all Persons who are deemed or may be deemed to “control” the Shareholder or CMIG International within the meaning of applicable insurance Laws, including in each case any information required by Law in respect of any individuals (such as personal financial statements, fingerprints, biographical affidavits and any other information that is customarily required in such filings). Subject to the foregoing, the Shareholder and CMIG International agree that the obligations and duties of Parent and the Company in Section 5.05 of the Merger Agreement (other than Section 5.05(c) thereof) shall apply to the Shareholder and CMIG International, mutatis mutandis, including, but not limited to, the obligation to use each of their respective reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, and to assist and cooperate with Parent, Merger Sub and the Company in doing, all things necessary, proper or advisable to fulfill all conditions to Closing and consummate and make effective, in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated by the Merger Agreement and the obligation to use reasonable best efforts to obtain all necessary, proper or advisable actions or nonactions, consents, approvals, authorizations, waivers and qualifications from Applicable Governmental Authorities and making all necessary, proper or advisable registrations, filings and notices and using reasonable best efforts to take all steps as may be necessary to obtain a consent, approval, authorization, waiver or exemption from any Applicable Governmental Authority. In addition, and without limiting the foregoing, subject to the terms and conditions set forth in this Agreement and the Merger Agreement, each of the
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parties hereto agrees that it will cooperate in good faith with the other parties and use its reasonable best efforts to provide its written consent to any change, modification, amendment or waiver to the terms of the Merger Agreement that may be requested by the parties with authority to amend the Merger Agreement, in a reasonably timely manner. The obligations of the Shareholder and CMIG International set forth in this Section 8 shall be referred to herein as the “Obligations”.
9.Additional Covenants.
(a)Further Assurances. From time to time and without additional consideration, but subject to Section 8, the Shareholder and CMIG International shall (at their sole cost and expense) execute and deliver, or cause to be executed and delivered, such additional instruments, and shall (at its sole cost and expense) take such further actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Agreement and the transactions contemplated by the Merger Agreement. Without limiting the generality of the foregoing, prior to or at the Closing, each of the Shareholder, Parent and the Company shall execute the Registration Rights Agreement, the Investor Rights Agreement, and any other agreement to which the Shareholder is contemplated to be a party (subject to any changes thereto that the Shareholder and CMIG International are required to agree to as a result of the Obligations) and which is reasonably required to effect the Merger and the other transactions contemplated by the Merger Agreement, in each case, in substantially the same form as attached as an Exhibit to the Merger Agreement (if applicable), with such changes, amendments or modifications as may be required in compliance with the Obligations (subject to the terms and conditions of the Merger Agreement).
(b)Waiver of Appraisal Rights. The Shareholder hereby waives, to the full extent of the law, and agrees not to assert any appraisal rights pursuant to Section 106(6) of the Bermuda Companies Act or otherwise in connection with the Merger with respect to any and all Subject Shares held by the undersigned of record or beneficially owned.
(c)No Legal Action. The Shareholder and CMIG International shall not, and shall cause their respective Representatives not to, bring, commence, institute, maintain, prosecute or voluntarily aid any claim, appeal, or proceeding which (i) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and delivery of this Agreement by the Shareholder or CMIG International (or their performance hereunder) breaches any fiduciary duty of the Company Board (or any member thereof) or any duty that the Shareholder has (or may be alleged to have) to the Company or to the other holders of the Common Shares.
(d)Stock Dividends, etc. In the event of a stock split, stock dividend or distribution, or any change in the Company Shares by reason of any split-up, subdivision, reverse stock split, consolidation, recapitalization, combination, reclassification, reincorporation, exchange of shares or the like, the terms “Company Shares” and “Subject Shares” shall be deemed to refer to and include such shares as well as all such
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stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
(e)Disclosure. The Shareholder and CMIG International hereby authorize the Company and Parent to publish and disclose in any announcement or disclosure required by the SEC, including in the Registration Statement and the Joint Proxy Statement, the Shareholder’s and CMIG International’s identity, the Shareholder’s ownership of the Subject Shares and the nature of the Shareholder’s and CMIG International’s obligations under this Agreement.
(f)Public Announcements. Neither the Shareholder nor CMIG International shall issue any press release or otherwise make any public statement (including scheduling of a press conference or conference call with investors or analysts) with respect to this Agreement or the Merger Agreement or the matters contemplated hereby or thereby and shall not issue any such press release or make any such public statement without prior consultation with the Company and without the prior consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed; provided that the Shareholder and CMIG International may, without the prior consent of Parent and without prior consultation with the Company, issue such press release or make such public statement (i) as may be required by Law or Order, (ii) that is consistent in all material respects with, and not additive to, a prior press release or public statement approved by the parties hereto or (iii) to enforce its rights and remedies under this Agreement. Parent shall use its reasonable best efforts to consult with the Shareholder and CMIG International prior to issuing any press release or otherwise making any public statement (including scheduling of a press conference or conference call with investors or analysts) with respect to this Agreement or the Merger Agreement or the matters contemplated hereby or thereby and shall not issue any press release or make any public statement that names or refers to the Shareholder or CMIG International without the prior consent of the Shareholder, which consent shall not be unreasonably withheld, conditioned or delayed; provided that Parent may, without the prior consent of the Shareholder, issue such press release or make such public statement (x) as may be required by Law or Order, (y) that is consistent in all material respects with, and not additive to, a prior press release or public statement approved by the parties hereto or (z) to enforce its rights and remedies under this Agreement.
(g)Series B Claims. Prior to the Effective Time, each of the Shareholder and CMIG International shall and shall cause their respective Representatives to (i) give prompt notice to Parent of any written information that comes to its attention, or any written communication received, regarding the Series B Claims (excluding any such information or communication that the Shareholder or CMIG International receive from the Company), (ii) not make any admission that could reasonably be expected to result in liability for the Company with respect to the Series B Claims, (iii) provide Parent with periodic updates regarding live or telephonic meetings between CMIG International and any Series B Shareholder and (iv) consult with Parent regarding the strategy for addressing the Series B Claims. Prior to the Effective Time, Parent shall and shall cause
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its Representatives to (w) give prompt notice to the Company, the Shareholder and CMIG International of any written information that comes to its attention, or any written communication received, regarding the Series B Claims (excluding any such information or communication that Parent receives from the Company), (x) not make any admission that could reasonably be expected to result in liability for the Company with respect to the Series B Claims, (y) provide the Company, the Shareholder and CMIG International with periodic updates regarding live or telephonic meetings between Parent and any Series B Shareholder, and (z) consult with CMIG International regarding the strategy for addressing the Series B Claims.
10.Representations and Warranties of the Shareholder and CMIG International. The Shareholder and CMIG International hereby represent and warrant to Parent as follows:
(a)Authority. Each of the Shareholder and CMIG International has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by each of the Shareholder and CMIG International of this Agreement have been duly authorized and approved by the Shareholder and CMIG International. This Agreement constitutes a legal, valid and binding obligation of each of the Shareholder and CMIG International, enforceable against them in accordance with its terms, subject to the Bankruptcy and Equity Exception. Other than as provided in the Merger Agreement, the execution, delivery and performance by each of the Shareholder and CMIG International of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the Merger or the Shareholder’s or CMIG International’s ability to observe and perform its obligations hereunder.
(b)No Conflicts. The execution, delivery and performance of this Agreement by the Shareholder and CMIG International, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of the constitutional documents of the Shareholder or CMIG International or any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to the Shareholder or CMIG International, or to either of their property or assets.
(c)The Subject Shares. The Shareholder is the record and beneficial owner of, and has good and marketable title to, the Subject Shares, free and clear of any and all security interests, liens, changes, encumbrances, equities, claims, options or limitations of
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whatever nature and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Shares), other than any of the foregoing that would not prevent, impede or delay in any material respect the Shareholder’s ability to perform its obligations hereunder or as created by this Agreement. The Shareholder does not own, of record or beneficially, any shares of capital stock of the Company other than the Subject Shares, and CMIG International does not own, of record or beneficially, any shares of capital stock of the Company. The Shareholder has the sole right to vote or direct the vote of, or to dispose of or direct the disposition of, the Subject Shares, and none of the Subject Shares is subject to any agreement, arrangement or restriction with respect to the voting of such Subject Shares that would prevent or delay the Shareholder’s ability to perform its obligations hereunder. There are no agreements or arrangements of any kind, contingent or otherwise, obligating the Shareholder to Transfer, or cause to be Transferred, any of the Subject Shares and no Person has any contractual or other right or obligation to purchase or otherwise acquire any of such Subject Shares. There are no agreements or arrangements of any kind, contingent or otherwise, obligating CMIG International to Transfer, or cause to be Transferred, any of the equity interests of the Shareholder and no Person has any contractual or other right or obligation to purchase or otherwise acquire any of such equity interests of the Shareholder.
(d)Ownership. No Governmental Authority (i) controls the Shareholder or CMIG International or (ii) to the actual knowledge of each of the Shareholder and CMIG International, is the beneficial owner, directly or indirectly, of five percent (5%) or more, of the shares of the Shareholder or CMIG International.
(e)Litigation. As of the date hereof, there is no Action pending or threatened against the Shareholder or CMIG International that questions the beneficial or record ownership of the Shareholder’s Subject Shares, the validity of this Agreement or any action taken or to be taken by the Shareholder or CMIG International in connection with this Agreement.
(f)Election. The Shareholder acknowledges that it has participated in the negotiation of the Merger Agreement, including the negotiations over the form and terms of the Mixed Election, has been represented by counsel in connection with such negotiations and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of making the Mixed Election and is capable of bearing the economic risks of such election.
(g)Finders Fees. No broker, investment bank, financial advisor or other Person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission payable by the Company or any of its Subsidiaries in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Shareholder or CMIG International.
(h)Governmental Approvals. Except as set forth in Annex B hereto, neither the Shareholder nor CMIG International is required to obtain the Consent of, or make any
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filing, declaration or registration with, any Governmental Authority in connection with the consummation of the transactions contemplated by the Merger Agreement, other than such Consents, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be likely to prevent, impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by the Merger Agreement or the ability of the Shareholder or CMIG International to perform its obligations under this Agreement.
11.Representations and Warranties of Parent. Parent represents and warrants to the Shareholder and CMIG International as follows:
(a)Authority. Parent is a Bermuda exempted company, validly existing and in good standing under the Laws of Bermuda and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Parent Board, and no other corporate action on the part of Parent is necessary to authorize the execution, delivery and performance by Parent of this Agreement. This Agreement has been duly executed and delivered by Parent, and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(b)No Conflicts. The execution, delivery and performance of this Agreement by Parent, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of the constitutional documents of Parent or any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to Parent, or to its property or assets.
(c)Litigation. As of the date hereof, there is no Action pending or threatened against Parent that questions the validity of the Merger Agreement or any action taken or to be taken by Parent in connection with the Merger Agreement.
12.Representations and Warranties of the Company. The Company represents and warrants to Parent as follows: The Company is a Bermuda exempted company, validly existing and in good standing under the Laws of Bermuda and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Agreement. This Agreement has been duly executed and delivered by the Company, and this Agreement constitutes a legal, valid and
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binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
13.Termination.
(a)This Agreement shall automatically terminate without further action upon the earliest to occur (the “Expiration Date”) of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms, (iii) the written agreement of the Shareholder and Parent to terminate this Agreement and (iv) the entry into, or granting of any change, modification or amendment to, or waiver of, the terms of the Merger Agreement pursuant to Section 8.02 thereof (other than an amendment, modification or waiver that is ministerial in nature and does not adversely affect the substantive rights of the Shareholder in any way, or is intended to correct a manifest error in the Merger Agreement) for which the Shareholder and CMIG International did not provide prior written consent; provided, that the Shareholder and CMIG International are in compliance in all material respects with the Obligations at the time of such termination.
(b)Upon termination of this Agreement in accordance with Section 13, this Agreement shall forthwith become void and have no effect, and there shall not be any liability or obligation on the part of any party hereto; provided, that the provisions set forth in this Section 13 through Section 23 shall survive the termination of this Agreement.
14.Specific Enforcement; Effect of Breach Under Merger Agreement.
(a)The parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 15(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right to specific enforcement is an integral part of the transactions contemplated by this Agreement and the Merger Agreement and without that right, Parent would not have entered into this Agreement or the Merger Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 14 shall not be required to provide any bond or other security in connection with any such order or injunction.
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(b)Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge and agree that no breach of any representation or warranty contained in this Agreement shall give rise to the failure of any condition to the Merger to be satisfied or the right of any party to terminate the Merger Agreement.
15.Governing Law; Jurisdiction.
(a)This Agreement, and all Actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction.
(b)All Actions arising out of or relating to the interpretation and enforcement of the provisions of this Agreement (except to the extent any such proceeding mandatorily must be brought in Bermuda) shall be heard and determined in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. The parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 15(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any Action arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 19 of this Agreement. The parties hereto agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
16.WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
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UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 16.
17.Waivers and Amendment. This Agreement may be changed, modified or amended, and the provisions and terms hereof may be waived, or the time for its performance extended, only by instrument in writing signed by each of the parties hereto, or, in the case of a waiver, by the party entitled to waive compliance with such provision or term. Any change or modification to this Agreement shall be null and void, unless made by written amendment to this Agreement and signed by each of the parties hereto. Any waiver of any provision or term of this Agreement, or any extension in time for performance of such provision or term, shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party entitled to grant such waiver, it is authorized in writing by an authorized Representative of such party. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.
18.Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of, and be enforceable by and against, the parties to this Agreement and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party without the prior written consent of the other party, and any attempted assignment without the prior written consent of the other party shall be void and have no effect.
19.Notices. All notices, requests, consents, claims, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (a) when personally delivered, (b) when transmitted via e-mail (except if not a Business Day then the next Business Day) to the e-mail address set out below, (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business
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Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, requests, consents, claims, demands and other communications, in each case to the respective party, will be sent to the applicable address set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 19):
If to Parent, to it at:
Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda
Attention:  Janice R. Weidenborner
Email:  Janice.Weidenborner@thirdpointre.bm
with a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
Email:  nfpotter@debevoise.com
If to the Shareholder or CMIG International, to it at:
CMIG International Holding Pte. Ltd.
8 Marina Boulevard #13-01
Marina Bay Financial Centre, Tower 1
Singapore 018981
Attention: Raymond Tan
         Weihe Shang
Email: raymondtan@cm-inv.com
         shangweihe@cm-inv.com
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attention: Todd E. Freed
         Jon A. Hlafter
Email:   todd.freed@skadden.com
         jon.hlafter@skadden.com
If to the Company, to it at:
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Sirius International Insurance Group, Ltd.
14Wesley Street, 5th Floor
Hamilton HM11 Bermuda
Attention: Gene Boxer
E-mail:  Gene.Boxer@siriusgroup.com
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Sean M. Keyvan
         Jonathan A. Blackburn
E-mail:   skeyvan@sidley.com
         jblackburn@sidley.com
20.Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. If any provision of this Agreement is so broad as to be unenforceable, that provision shall be interpreted to be only so broad as is enforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
21.Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof and this Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.
22.Section Headings. The section headings of this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
23.Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which will be deemed to constitute an original, but all of which shall constitute one and the same agreement, and may be delivered by email or other electronic means intended to preserve the original graphic or pictorial appearance of a document, such delivery by email or other electronic means to be deemed as effective as delivery of a manually executed counterpart of this Agreement.
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[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
THIRD POINT REINSURANCE LTD.
By: /s/ Sid Sankaran
Name: Sid Sankaran
Title: Director




SIRIUS INTERNATIONAL INSURANCE GROUP, LTD.
By: /s/ Kernan V. Oberting
Name: Kernan V. Oberting
Title: President & CEO




CMIG INTERNATIONAL HOLDING PTE. LTD.
By: /s/ Raymond Tan
Name: Raymond Tan
Title: CEO




CM BERMUDA LIMITED
By: /s/ Raymond Tan
Name: Raymond Tan
Title: Director


[Signature Page to Voting and Support Agreement]


Annex A

Proxy Holders

Name Title
Daniel V. Malloy Chief Executive Officer
Christopher S. Coleman Chief Financial Officer
Janice R. Weidenborner Executive Vice President, Group General Counsel and Secretary
Suzanne L. Wylie Assistant Vice President, Legal Administration

EXHIBIT 10.4

VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of August 6, 2020, by and among Daniel S. Loeb, The 2010 Loeb Family Trust, Third Point Advisors LLC, Third Point Opportunities Master Fund L.P. and the 2011 Loeb Family GST Trust (collectively, the “Shareholder”), Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (the “Company”), and Third Point Reinsurance Ltd., a Bermuda exempted company limited by shares (“Parent”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof, the Shareholder is the record and beneficial owner of 9,081,451 Parent Shares and (together with such additional Parent Shares that become beneficially owned (within the meaning of Rule 13d−3 promulgated under the Exchange Act) by the Shareholder, whether upon the conversion of convertible securities or otherwise, after the date hereof until the Expiration Date (as defined below), the “Subject Shares”);
WHEREAS, concurrently with the execution of this Agreement, Parent, Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a wholly owned subsidiary of Parent (“Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;
WHEREAS, the Parent Board has unanimously (a) approved (x) the business combination transaction provided for in the Merger Agreement in which Merger Sub will, subject to the terms and conditions set forth in the Merger Agreement and in the Statutory Merger Agreement, merge with and into the Company, with the Company surviving such merger (the “Merger”), so that immediately following the Merger, the Company will be a wholly owned Subsidiary of Parent, (y) the Merger Agreement and (z) the Statutory Merger Agreement, (b) determined that the terms of the Merger Agreement, the Statutory Merger Agreement and the Transactions, including the Merger, are in the best interests of and fair to Parent or Merger Sub, as applicable, (c) resolved to recommend the approval by the holders of the Parent Shares of the issuance of the Parent Shares pursuant to the terms and conditions of the Merger Agreement and (d) declared the advisability of the Merger Agreement, the Statutory Merger Agreement and the Transactions; and
WHEREAS, as a condition and inducement to the willingness of the Company to enter into the Merger Agreement, the Company has required that the Shareholder enter into this Agreement, and the Shareholder desires to enter into this Agreement to induce the Company to enter into the Merger Agreement;
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1.Voting of Shares.
(a)From the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, at every meeting of the shareholders of Parent (whether annual, special or otherwise) however called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of the shareholders of Parent proposed by Parent with respect to any of the following, when a meeting is held, the Shareholder shall appear at such meeting (in person or by proxy) or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum and shall vote or cause to be voted the Subject Shares that the Shareholder is entitled to vote, and when a written consent is proposed, respond to each request by Parent for written consent and consent (a) in favor of the approval of the Share Issuance and any other matters necessary or reasonably requested by the Company for the approval of the Share Issuance and (b) against any other action or agreement that would reasonably be expected to (i) result in a breach of any covenant, representation or warranty or any other obligation or agreement of Parent under the Merger Agreement, (ii) result in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled or (iii) impede, frustrate, interfere with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement.
(b)From the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, without limiting the obligations of the Shareholder under this Agreement, the Shareholder hereby irrevocably appoints as its proxy and attorney-in-fact the officers of the Company set forth on Annex A hereto, and any individual who shall hereafter succeed to any such officer of the Company, and any other Person designated in writing by the Company (collectively, the “Proxy Holders”), each of them individually, with full power of substitution, to vote the Subject Shares in accordance with Section 1(a); provided that the proxy and the power of attorney granted by the Shareholder shall be effective if, and only if, the Shareholder has not delivered to Parent at least three (3) Business Days prior to the date of any applicable meeting of the shareholders of Parent (or, as applicable, any adjournments or postponements thereof), a duly executed proxy card voting the Shareholder’s Subject Shares in accordance with Section 1(a) and has not revoked such duly executed proxy card. This proxy is coupled with an interest and shall be irrevocable, and the Shareholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by the Shareholder with respect to the Subject Shares. This proxy and the power of attorney is given by the Shareholder in connection with, and in consideration of, the execution of the Merger Agreement by Parent and to secure the performance of the duties of the Shareholder under this Agreement. The power of attorney granted by the Shareholder herein is a
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durable power of attorney and shall survive the dissolution or bankruptcy of the Shareholder. The irrevocable proxy granted hereunder shall automatically terminate upon the Expiration Date.
2.Transfer of Shares.
(a)The Shareholder covenants and agrees that during the period from the date of this Agreement until the Expiration Date, the Shareholder will not, directly or indirectly, (i) transfer, assign, sell, pledge, encumber, hypothecate or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of or consent to any of the foregoing (“Transfer”), or cause to be Transferred, any of the Subject Shares, (ii) deposit any of the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Subject Shares or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (iii) enter into any contract, option or other arrangement or undertaking with respect to the Transfer of any Subject Shares or (iv) take any other action or enter into any agreement or undertaking that would reasonably be expected to restrict, limit or interfere with the performance of the Shareholder’s obligations hereunder. The foregoing restrictions on Transfers of Subject Shares shall not prohibit any such Transfers by the Shareholder in connection with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, the Shareholder may Transfer the Subject Shares by will, for estate planning purposes, or to any of Shareholder’s controlled Affiliates (such Persons, collectively, the “Permitted Transferee”), in each case, provided that (A) the Subject Shares shall continue to be bound by this Agreement following such Transfer and (B) each Permitted Transferee that is not a party hereto agrees in writing to be bound by the terms and conditions of this Agreement. Notwithstanding the restrictions set forth herein, if, between the date hereof and the Expiration Date, the Shareholder shall be deemed to own more than 9.9% of the outstanding Parent Shares, including as a result of any stock repurchases by Parent, stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the Shareholder may Transfer the number of Subject Shares so deemed to be owned by it in excess of 9.9% of the outstanding Parent Shares such that, immediately following such Transfer, the Shareholder owns 9.9% of the outstanding Parent Shares.
(b)At all times commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, in furtherance of this Agreement, the Shareholder hereby authorizes Parent or its counsel to notify Parent’s transfer agent that there is a stop transfer order with respect to all of the Subject Shares (and that this Agreement places limits on the voting and Transfer of the Subject Shares). Parent shall not register, or permit Parent’s transfer agent to register, a Transfer of any of the Subject Shares in violation of this Agreement. Parent shall immediately withdraw and terminate any such stop transfer order and notice following the Expiration Date.
3.Acquisition Proposals. The Shareholder shall not, and shall cause its general partners, directors, executive officers and employees not to, and shall direct its
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other Representatives not to, directly or indirectly, (a) solicit, initiate, induce or knowingly facilitate the making of any proposal that constitutes, or would reasonably be likely to lead to, a Parent Alternative Proposal, (b) engage in or otherwise participate in any discussions or negotiations with any other Person regarding, or furnish to any other Person any material non-public information for the purpose of facilitating, a Parent Alternative Proposal or (c) approve or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Parent Alternative Proposal, and the Shareholder shall not, alone or together with any other Person, make a Parent Alternative Proposal (the actions described in clause (a), (b) and (c), collectively, the “Restricted Activities”). Notwithstanding the foregoing, to the extent that Parent or the Parent Board is permitted to engage in any Restricted Activities pursuant to Section 5.03 of the Merger Agreement, the Shareholder may participate in such Restricted Activities; provided that such action by the Shareholder would be permitted to be taken by Parent or the Parent Board pursuant to Section 5.03 of the Merger Agreement.
4.Lock-Up Agreement. During the applicable Lock-Up Period (and for the avoidance of doubt solely with respect to the Subject Shares to which such Lock-Up Period applies), the Shareholder and its Affiliates shall not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, assign, encumber, pledge, hypothecate, or otherwise directly transfer or dispose of the Subject Shares held or beneficially owned by the Shareholder and its Affiliates or (ii) enter into any hedge, swap, put, call, short sale, derivative or other arrangement with respect to any Subject Shares held or beneficially owned by the Shareholder and its Affiliates whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Subject Shares or other securities, in cash or otherwise; provided, that Shareholders and its Affiliates shall be entitled to (x) collaterally assign and/or pledge its Subject Shares to any of its lenders or its Affiliates’ lenders; and (y) transfer its Subject Shares to any of its Affiliates. For the avoidance of doubt, any securities of Parent that are subject to the foregoing lock-up agreement shall be eligible for participation in any share repurchase program conducted by Parent; provided, that any such securities are sold directly to Parent. For purposes of this Section 4, “Lock-Up Period” means the period from the date hereof through and including (i) the 225th day following the date hereof with respect to one-third of the Subject Shares held or beneficially owned by the Shareholder on the date hereof, (ii) the 365th day following the date hereof with respect to one-third of the Subject Shares held or beneficially owned by the Shareholder on the date hereof and (iii) the 450th day following the Closing Date with respect to one-third of the Subject Shares held or beneficially owned by the Shareholder; provided, further, that the Shareholder and its Affiliates may request that Parent release additional Subject Shares from the applicable Lock-Up Period (such consent not to be unreasonably withheld or delayed) in order to facilitate an orderly sell-down of Subject Shares by the Shareholder and its Affiliates. Notwithstanding the foregoing, if during any Lock-Up Period the Shareholder shall be deemed to own more than 9.9% of the outstanding Parent Shares, including as a result of any stock repurchases by Parent, stock dividend, subdivision, reclassification,
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recapitalization, split, combination, exchange of shares or similar transaction, the Shareholder may Transfer the number of Subject Shares so deemed to be owned by it in excess of 9.9% of the outstanding Parent Shares such that, immediately following such Transfer, the Shareholder owns 9.9% of the outstanding Parent Shares.
5.Fiduciary Duties. This Agreement is being entered into by the Shareholder solely as a record and/or beneficial owner of the Subject Shares. Nothing in this Agreement shall restrict or limit the ability of the Shareholder or any of its Affiliates who is a director, officer or employee of Parent to take any action in his or her capacity as a director, officer or employee of Parent, including the exercise of fiduciary duties to Parent or its shareholders.
6.No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company any direct or indirect ownership or incidence of ownership of or with respect to the Subject Shares. All ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Shareholder. Except as otherwise provided herein, the Company shall have no authority to direct the Shareholder in the voting or disposition of any of the Subject Shares.
7.Regulatory Covenants. The Shareholder agrees to use reasonable best efforts to assist and cooperate with Parent, Merger Sub and the Company to obtain all necessary, proper or advisable actions or nonactions, consents, approvals, authorizations, waivers and qualifications from any Governmental Authority whose consent is required in connection with the proposed amendment of the Investment Management Agreement between Third Point LLC and Third Point Enhanced LP, dated July 31, 2018 (the “Investment Management Agreement”), and as amended and restated on February 28, 2019; provided that the Shareholder shall in no event be required to take (or not take) any actions pursuant to this Section 7 if such action or nonaction would adversely affect the Shareholder or its Affiliates (other than in respect of the Investment Management Agreement and the Third Amended and Restated Exempted Limited Partnership Agreement of Third Point Enhanced LP, by and among Third Point Advisors LLC, Third Point Reinsurance Company Ltd. and Third Point Reinsurance (USA) Ltd., and Parent, dated as of August 6, 2020, to which reasonable best efforts shall apply).
8.Additional Covenants.
(a)Further Assurances. From time to time and without additional consideration, the Shareholder shall (at its sole cost and expense) execute and deliver, or cause to be executed and delivered, such additional instruments, and shall (at its sole cost and expense) take such further actions, as the Company may reasonably request for the purpose of carrying out and furthering the intent of this Agreement and the transactions contemplated by the Merger Agreement.
(b)No Legal Action. The Shareholder shall not, and shall cause its Representatives not to, bring, commence, institute, maintain, prosecute or voluntarily aid any claim, appeal, or proceeding which (i) challenges the validity of or seeks to enjoin the
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operation of any provision of this Agreement or (ii) alleges that the execution and delivery of this Agreement by the Shareholder (or its performance hereunder) breaches any fiduciary duty of the Parent Board (or any member thereof) or any duty that the Shareholder has (or may be alleged to have) to Parent or to the other holders of the Parent Shares.
(c)Stock Dividends, etc. In the event of a stock split, stock dividend or distribution, or any change in the Parent Shares by reason of any split-up, subdivision, reverse stock split, consolidation, recapitalization, combination, reclassification, reincorporation, exchange of shares or the like, the terms “Parent Shares” and “Subject Shares” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
(d)Disclosure. The Shareholder hereby authorizes the Company and Parent to publish and disclose in any announcement or disclosure required by the SEC, including in the Registration Statement and the Joint Proxy Statement, the Shareholder’s identity, the Shareholder’s ownership of the Subject Shares and the nature of the Shareholder’s obligations under this Agreement.
(e)Public Announcements. The Shareholder shall not issue any press release or otherwise make any public statement (including scheduling of a press conference or conference call with investors or analysts) with respect to this Agreement or the Merger Agreement or the matters contemplated hereby or thereby and shall not issue any such press release or make any such public statement without the prior consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed; provided that the Shareholder may, without the prior consent of Parent, issue such press release or make such public statement (i) as may be required by Law or Order, (ii) that is consistent in all material respects with, and not additive to, a prior press release or public statement approved by the parties hereto or (iii) to enforce its rights and remedies under this Agreement.
9.Representations and Warranties of the Shareholder. The Shareholder hereby represents and warrant to the Company as follows:
(a)Authority. The Shareholder has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Shareholder of this Agreement has been duly authorized and approved by the Shareholder. This Agreement constitutes a legal, valid and binding obligation of the Shareholder, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception. Other than as provided in the Merger Agreement, the execution, delivery and performance by the Shareholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make
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or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the Merger or the Shareholder’s ability to observe and perform its obligations hereunder.
(b)No Conflicts. Except as would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the Shareholder’s ability to observe and perform its obligations hereunder, the execution, delivery and performance of this Agreement by the Shareholder, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of the constitutional documents of the Shareholder or any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to the Shareholder, or to its property or assets.
(c)The Subject Shares. The Shareholder is the record and beneficial owner of, and has good and marketable title to, the Subject Shares, free and clear of any and all security interests, liens, changes, encumbrances, equities, claims, options or limitations of whatever nature and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Shares), other than any of the foregoing that would not prevent, impede or delay in any material respect the Shareholder’s ability to perform its obligations hereunder or as created by this Agreement. The Shareholder does not own, of record or beneficially, any shares of capital stock of the Company other than the Subject Shares. The Shareholder has the sole right to vote or direct the vote of, or to dispose of or direct the disposition of, the Subject Shares, and none of the Subject Shares is subject to any agreement, arrangement or restriction with respect to the voting of such Subject Shares that would prevent or materially delay the Shareholder’s ability to perform its obligations hereunder. There are no agreements or arrangements of any kind, contingent or otherwise, obligating the Shareholder to Transfer, or cause to be Transferred, any of the Subject Shares and no Person has any contractual or other right or obligation to purchase or otherwise acquire any of such Subject Shares.
(d)Litigation. As of the date hereof, there is no Action pending or, to the knowledge of the Shareholder, threatened against the Shareholder that questions the beneficial or record ownership of the Shareholder’s Subject Shares, the validity of this Agreement or any action taken or to be taken by the Shareholder in connection with this Agreement.
(e)Finders Fees. No broker, investment bank, financial advisor or other Person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission payable by Parent or any of its Subsidiaries in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Shareholder.
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(f)Governmental Approvals. The Shareholder is not required to obtain the Consent of, or make any filing, declaration or registration with, any Governmental Authority in connection with the consummation of the transactions contemplated by the Merger Agreement, other than such Consents, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be likely to prevent, impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by the Merger Agreement or the ability of the Shareholder to perform its obligations under this Agreement.
10.Representations and Warranties of Parent. Parent represents and warrants to the Shareholder as follows:
(a)Authority. Parent is a Bermuda exempted company, validly existing and in good standing under the Laws of Bermuda and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Parent Board, and no other corporate action on the part of Parent is necessary to authorize the execution, delivery and performance by Parent of this Agreement. This Agreement has been duly executed and delivered by Parent, and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(b)No Conflicts. The execution, delivery and performance of this Agreement by Parent, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of the constitutional documents of Parent or any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to Parent, or to its property or assets.
(c)Litigation. As of the date hereof, there is no Action pending or threatened against Parent that questions the validity of the Merger Agreement or any action taken or to be taken by Parent in connection with the Merger Agreement.
11.Representations and Warranties of the Company. The Company represents and warrants to Parent and the Shareholder as follows: The Company is a Bermuda exempted company, validly existing and in good standing under the Laws of Bermuda and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Agreement. This
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Agreement has been duly executed and delivered by the Company, and this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
12.Termination.
(a)This Agreement shall automatically terminate without further action upon the earliest to occur (the “Expiration Date”) of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms, (iii) the written agreement of the Shareholder and the Company to terminate this Agreement, and (iv) the entry into, or grant, by Parent, the Company and Merger Sub of any amendment, modification or waiver to the terms of the Merger Agreement which increases the Merger Consideration or otherwise adversely affects Parent Shareholders and for which Parent, the Company and Merger Sub do not obtain the prior written consent of the Shareholder; provided, that the Shareholder is in compliance in all material respects with its obligations hereunder at the time of such termination.
(b)Upon termination of this Agreement in accordance with Section 12(a), this Agreement shall forthwith become void and have no effect, and there shall not be any liability or obligation on the part of any party hereto; provided, that the provisions set forth in this Section 12 and Section 14 through Section 22 shall survive the termination of this Agreement ;provided, that Section 4 shall survive in accordance with its terms.
13.Specific Enforcement; Effect of Breach Under Merger Agreement.
(a)The parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 14(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right to specific enforcement is an integral part of the transactions contemplated by this Agreement and the Merger Agreement and without that right, Parent would not have entered into this Agreement or the Merger Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 13(a) shall not be required to provide any bond or other security in connection with any such order or injunction.
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(b)Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge and agree that no breach of any representation or warranty contained in this Agreement shall give rise to the failure of any condition to the Merger to be satisfied or the right of any party to terminate the Merger Agreement.
14.Governing Law; Jurisdiction.
(a)This Agreement, and all Actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction.
(b)All Actions arising out of or relating to the interpretation and enforcement of the provisions of this Agreement shall be heard and determined in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. The parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 14(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any Action arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 18 of this Agreement. The parties hereto agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
15.WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
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APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 15.
16.Waivers and Amendment. This Agreement may be changed, modified or amended, and the provisions and terms hereof may be waived, or the time for its performance extended, only by instrument in writing signed by each of the parties hereto, or, in the case of a waiver, by the party entitled to waive compliance with such provision or term. Any change or modification to this Agreement shall be null and void, unless made by written amendment to this Agreement and signed by each of the parties hereto. Any waiver of any provision or term of this Agreement, or any extension in time for performance of such provision or term, shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party entitled to grant such waiver, it is authorized in writing by an authorized Representative of such party. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.
17.Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of, and be enforceable by and against, the parties to this Agreement and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party without the prior written consent of the other party, and any attempted assignment without the prior written consent of the other party shall be void and have no effect. Notwithstanding the foregoing, the Shareholder may assign this Agreement and its obligations hereunder to a Permitted Transferee pursuant to Section 2(a).
18.Notices. All notices, requests, consents, claims, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (a) when personally delivered, (b) when transmitted via e-mail (except if not a Business Day then the next Business Day) to the e-mail address set out below, (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered
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prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, requests, consents, claims, demands and other communications, in each case to the respective party, will be sent to the applicable address set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 18):
If to Parent, to it at:
Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda
Attention:  Janice R. Weidenborner
Email:  Janice.Weidenborner@thirdpointre.bm
with a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
Email:  nfpotter@debevoise.com
If to the Shareholder, to it at:
Third Point LLC
390 Park Avenue
New York, NY 10022
Attention: Joshua Targoff, Esq.
E-mail:  JTargoff@thirdpoint.com
with a copy (which shall not constitute notice) to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attn.: Laura Delanoy
Email: ldelanoy@willkie.com

If to the Company, to it at:
Sirius International Insurance Group, Ltd.
14Wesley Street, 5th Floor
Hamilton HM11 Bermuda
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Attention: Gene Boxer
E-mail:  Gene.Boxer@siriusgroup.com
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Sean M. Keyvan
         Jonathan A. Blackburn
E-mail:   skeyvan@sidley.com
         jblackburn@sidley.com
19.Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. If any provision of this Agreement is so broad as to be unenforceable, that provision shall be interpreted to be only so broad as is enforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
20.Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof and this Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.
21.Section Headings. The section headings of this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
22.Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which will be deemed to constitute an original, but all of which shall constitute one and the same agreement, and may be delivered by email or other electronic means intended to preserve the original graphic or pictorial appearance of a document, such delivery by email or other electronic means to be deemed as effective as delivery of a manually executed counterpart of this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


SIRIUS INTERNATIONAL INSURANCE GROUP, LTD.

By: /s/ Kernan V. Oberting
Name: Kernan V. Oberting
Title: President & CEO


[Signature Page to Voting Agreement (Loeb)]


DANIEL S. LOEB


By: /s/ Daniel S. Loeb


The 2010 Loeb Family Trust

By: /s/ Daniel S. Loeb
Name: Daniel S. Loeb
Title: Trustee


Third Point Advisors LLC

By: /s/ Josh Targoff
Name: Josh Targoff
Title: Chief Operating Officer and General Counsel


Third Point Opportunities Master Fund L.P.

By: /s/ Josh Targoff
Name: Josh Targoff
Title: Chief Operating Officer and General Counsel

[Signature Page to Voting Agreement (Loeb)]



2011 Loeb Family GST Trust

By: /s/ Daniel S. Loeb
Name: Daniel S. Loeb
Title: Trustee


[Signature Page to Voting Agreement (Loeb)]


Third Point Reinsurance Ltd.

By: /s/ Sid Sankaran
Name: Sid Sankaran
Title: Director

[Signature Page to Voting Agreement (Loeb)]


Annex A
Proxy Holders
Name Title
Kernan V. Oberting President and Chief Executive Officer
Gene Boxer Executive Vice President & Group General Counsel

EXHIBIT 10.5

VOTING AND SUPPORT AGREEMENT

This VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of August 6, 2020, by and among Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (the “Company”), Third Point Reinsurance Ltd., a Bermuda exempted company limited by shares (“Parent”), and each of the persons set forth on Annex A hereto (each, a “Shareholder”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of the number of Parent Shares (together with such additional Parent Shares that become beneficially owned (within the meaning of Rule 13d−3 promulgated under the Exchange Act) in each case set forth opposite such Shareholder’s name on Annex A, whether upon the conversion of convertible securities or otherwise, after the date hereof until the Expiration Date (as defined below), the “Subject Shares”);
WHEREAS, concurrently with the execution of this Agreement, Parent, Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a wholly owned subsidiary of Parent (“Merger Sub”), and the Company, are entering into an Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent;
WHEREAS, the Parent Board has unanimously (a) approved (x) the business combination transaction provided for in the Merger Agreement in which Merger Sub will, subject to the terms and conditions set forth in the Merger Agreement and in the Statutory Merger Agreement, merge with and into the Company, with the Company surviving such merger (the “Merger”), so that immediately following the Merger, the Company will be a wholly owned Subsidiary of Parent, (y) the Merger Agreement and (z) the Statutory Merger Agreement, (b) determined that the terms of the Merger Agreement, the Statutory Merger Agreement and the Transactions, including the Merger, are in the best interests of and fair to Parent or Merger Sub, as applicable, (c) resolved to recommend the approval by the holders of the Parent Shares of the issuance of the Parent Shares pursuant to the terms and conditions of the Merger Agreement and (d) declared the advisability of the Merger Agreement, the Statutory Merger Agreement and the Transactions; and
WHEREAS, as a condition and inducement to the willingness of the Company to enter into the Merger Agreement, the Company has required that each Shareholder enter into this Agreement, and each Shareholder desires to enter into this Agreement to induce the Company to enter into the Merger Agreement;


NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1.Voting of Shares.
(a)From the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, at every meeting of the shareholders of Parent (whether annual, special or otherwise) however called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of the shareholders of Parent proposed by Parent with respect to any of the following, when a meeting is held, the Shareholder shall appear at such meeting (in person or by proxy) or otherwise cause the Subject Shares to be counted as present thereat for the purpose of establishing a quorum and shall vote or cause to be voted the Subject Shares that the Shareholder is entitled to vote, and when a written consent is proposed, respond to each request by Parent for written consent and consent (a) in favor of the approval of the Share Issuance and any other matters necessary or reasonably requested by the Company for the approval of the Share Issuance and (b) against any other action or agreement that would reasonably be expected to (i) result in a breach of any covenant, representation or warranty or any other obligation or agreement of Parent under the Merger Agreement, (ii) result in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled or (iii) impede, frustrate, interfere with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement.
(b)From the period commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, without limiting the obligations of each Shareholder under this Agreement, each Shareholder hereby irrevocably appoints as its proxy and attorney-in-fact the officers of the Company set forth on Annex B hereto, and any individual who shall hereafter succeed to any such officer of the Company, and any other Person designated in writing by the Company (collectively, the “Proxy Holders”), each of them individually, with full power of substitution, to vote the Subject Shares in accordance with Section 1(a); provided that the proxy and the power of attorney granted by each Shareholder shall be effective if, and only if, such Shareholder has not delivered to Parent at least three (3) Business Days prior to the date of an applicable meeting of the shareholders of Parent (or, as applicable, any adjournments or postponements thereof), a duly executed proxy card voting the Shareholder’s Subject Shares in accordance with Section 1(a) and has not revoked such duly executed proxy card. This proxy is coupled with an interest and shall be irrevocable, and each Shareholder shall take such further action or execute such other instruments as may be reasonably necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by the Shareholder with respect to the Subject Shares. This proxy and the power of attorney is given by the Shareholder in connection with, and in consideration of, the execution of the Merger Agreement by Parent and to secure the performance of the duties of each Shareholder under this Agreement. The power of
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attorney granted by each Shareholder herein is a durable power of attorney and shall survive the dissolution or bankruptcy of each Shareholder. The irrevocable proxy granted hereunder shall automatically terminate upon the Expiration Date.
2.Transfer of Shares.
(a)Each Shareholder covenants and agrees that during the period from the date of this Agreement until the Expiration Date, the Shareholder will not, directly or indirectly, (i) transfer, assign, sell, pledge, encumber, hypothecate or otherwise dispose (whether by sale, liquidation, dissolution, dividend or distribution) of or consent to any of the foregoing (“Transfer”), or cause to be Transferred, any of the Subject Shares, (ii) deposit any of the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Subject Shares or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (iii) enter into any contract, option or other arrangement or undertaking with respect to the Transfer of any Subject Shares or (iv) take any other action or enter into any agreement or undertaking that would reasonably be expected to restrict, limit or interfere with the performance of any Shareholder’s obligations hereunder. The foregoing restrictions on Transfers of Subject Shares shall not prohibit any such Transfers by any Shareholder in connection with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, each Shareholder may Transfer the Subject Shares by will, for estate planning purposes, or to any of such Shareholder’s controlled Affiliates (such Persons, collectively, the “Permitted Transferee”), in each case, provided that (A) the Subject Shares shall continue to be bound by this Agreement following such Transfer and (B) each Permitted Transferee that is not a party hereto agrees in writing to be bound by the terms and conditions of this Agreement.
(b)At all times commencing with the execution and delivery of this Agreement and continuing until the Expiration Date, in furtherance of this Agreement, each Shareholder hereby authorizes Parent or its counsel to notify Parent’s transfer agent that there is a stop transfer order with respect to all of the Subject Shares (and that this Agreement places limits on the voting and Transfer of the Subject Shares). Parent shall not register, or permit Parent’s transfer agent to register, a Transfer of any of the Subject Shares in violation of this Agreement. Parent shall immediately withdraw and terminate any such stop transfer order and notice following the Expiration Date.
3.Acquisition Proposals. Each Shareholder shall not and shall direct its Representatives not to, directly or indirectly, (a) solicit, initiate, induce or knowingly facilitate the making of any proposal that constitutes, or would reasonably be likely to lead to, a Parent Alternative Proposal, (b) engage in or otherwise participate in any discussions or negotiations with any other Person regarding, or furnish to any other Person any material non-public information for the purpose of facilitating, a Parent Alternative Proposal or (c) approve or recommend, make any public statement approving or recommending, or enter into any agreement relating to, any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Parent Alternative Proposal,
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and the Shareholder shall not, alone or together with any other Person, make a Parent Alternative Proposal (the actions described in clause (a), (b) and (c), collectively, the “Restricted Activities”). Notwithstanding the foregoing, to the extent that Parent or the Parent Board is permitted to engage in any Restricted Activities pursuant to Section 5.03 of the Merger Agreement, a Shareholder may participate in such Restricted Activities; provided that such action by a Shareholder would be permitted to be taken by Parent or the Parent Board pursuant to Section 5.03 of the Merger Agreement.
4.Fiduciary Duties. This Agreement is being entered into by each Shareholder solely as a record and/or beneficial owner of the Subject Shares. Nothing in this Agreement shall restrict or limit the ability of any Shareholder or any of its Affiliates who is a director, officer or employee of Parent to take any action in his or her capacity as a director, officer or employee of Parent, including the exercise of fiduciary duties to Parent or its shareholders.
5.No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company any direct or indirect ownership or incidence of ownership of or with respect to the Subject Shares. All ownership and economic benefits of and relating to the Subject Shares shall remain vested in and belong to the Shareholder. Except as otherwise provided herein, the Company shall have no authority to direct any Shareholder in the voting or disposition of any of the Subject Shares.
6.Regulatory Covenants. Each Shareholder agrees to reasonably assist and cooperate with Parent, Merger Sub and the Company to obtain all necessary, proper or advisable actions or nonactions, consents, approvals, authorizations, waivers and qualifications from any Governmental Authority whose consent is required in connection with the proposed amendment of the Investment Management Agreement between Third Point LLC and Third Point Enhanced LP, dated July 31, 2018, and as amended and restated on February 28, 2019; provided that no Shareholder shall in any event be required to take (or not take) any actions pursuant to this Section 6 if such action or nonaction would adversely affect the Shareholder or its Affiliates.
7.Additional Covenants.
(a)Further Assurances. From time to time and without additional consideration, each Shareholder shall (at its sole cost and expense) execute and deliver, or cause to be executed and delivered, such additional instruments, and shall (at its sole cost and expense) take such further actions, as the Company may reasonably request for the purpose of carrying out and furthering the intent of this Agreement and the transactions contemplated by the Merger Agreement.
(b)No Legal Action. Each Shareholder shall not, and shall cause its Representatives not to, bring, commence, institute, maintain, prosecute or voluntarily aid any claim, appeal, or proceeding which (i) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and delivery of this Agreement by the Shareholder (or its performance hereunder) breaches
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any fiduciary duty of the Parent Board (or any member thereof) or any duty that the Shareholder has (or may be alleged to have) to Parent or to the other holders of the Parent Shares.
(c)Stock Dividends, etc. In the event of a stock split, stock dividend or distribution, or any change in the Parent Shares by reason of any split-up, subdivision, reverse stock split, consolidation, recapitalization, combination, reclassification, reincorporation, exchange of shares or the like, the terms “Parent Shares” and “Subject Shares” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
(d)Disclosure. Each Shareholder hereby authorizes the Company and Parent to publish and disclose in any announcement or disclosure required by the SEC, including in the Registration Statement and the Joint Proxy Statement, the Shareholder’s identity, the Shareholder’s ownership of the Subject Shares and the nature of the Shareholder’s obligations under this Agreement.
(e)Public Announcements. Each Shareholder shall not issue any press release or otherwise make any public statement (including scheduling of a press conference or conference call with investors or analysts) with respect to this Agreement or the Merger Agreement or the matters contemplated hereby or thereby and shall not issue any such press release or make any such public statement without the prior consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed; provided that a Shareholder may, without the prior consent of Parent, issue such press release or make such public statement (i) as may be required by Law or Order, (ii) that is consistent in all material respects with, and not additive to, a prior press release or public statement approved by the parties hereto or (iii) to enforce its rights and remedies under this Agreement.
8.Representations and Warranties of the Shareholder. Each Shareholder hereby represents and warrant to the Company as follows:
(a)Authority. The Shareholder has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Shareholder of this Agreement has been duly authorized and approved by the Shareholder. This Agreement constitutes a legal, valid and binding obligation of the Shareholder, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception. Other than as provided in the Merger Agreement, the execution, delivery and performance by the Shareholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent
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or materially delay the consummation of the Merger or the Shareholder’s ability to observe and perform its obligations hereunder.
(b)No Conflicts. The execution, delivery and performance of this Agreement by the Shareholder, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of the constitutional documents of the Shareholder or any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to the Shareholder, or to its property or assets.
(c)The Subject Shares. The Shareholder is the record and beneficial owner of, and has good and marketable title to, the Subject Shares, free and clear of any and all security interests, liens, changes, encumbrances, equities, claims, options or limitations of whatever nature and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Shares), other than any of the foregoing that would not prevent, impede or delay in any material respect the Shareholder’s ability to perform its obligations hereunder or as created by this Agreement. The Shareholder does not own, of record or beneficially, any shares of capital stock of the Company other than the Subject Shares. The Shareholder has the sole right to vote or direct the vote of, or to dispose of or direct the disposition of, the Subject Shares, and none of the Subject Shares is subject to any agreement, arrangement or restriction with respect to the voting of such Subject Shares that would prevent or delay the Shareholder’s ability to perform its obligations hereunder. There are no agreements or arrangements of any kind, contingent or otherwise, obligating the Shareholder to Transfer, or cause to be Transferred, any of the Subject Shares and no Person has any contractual or other right or obligation to purchase or otherwise acquire any of such Subject Shares.
(d)Litigation. As of the date hereof, there is no Action pending or threatened against the Shareholder that questions the beneficial or record ownership of the Shareholder’s Subject Shares, the validity of this Agreement or any action taken or to be taken by the Shareholder in connection with this Agreement.
(e)Finders Fees. No broker, investment bank, financial advisor or other Person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission payable by Parent or any of its Subsidiaries in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Shareholder.
(f)Governmental Approvals. No Shareholder is required to obtain the Consent of, or make any filing, declaration or registration with, any Governmental Authority in connection with the consummation of the transactions contemplated by the Merger Agreement, other than such Consents, filings, declarations or registrations that, if
6


not obtained, made or given, would not, individually or in the aggregate, reasonably be likely to prevent, impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by the Merger Agreement or the ability of the Shareholder to perform its obligations under this Agreement.
9.Representations and Warranties of Parent. Parent represents and warrants to the Shareholder as follows:
(a)Authority. Parent is a Bermuda exempted company, validly existing and in good standing under the Laws of Bermuda and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Parent Board, and no other corporate action on the part of Parent is necessary to authorize the execution, delivery and performance by Parent of this Agreement. This Agreement has been duly executed and delivered by Parent, and this Agreement constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(b)No Conflicts. The execution, delivery and performance of this Agreement by Parent, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of the constitutional documents of Parent or any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to Parent, or to its property or assets.
(c)Litigation. As of the date hereof, there is no Action pending or threatened against Parent that questions the validity of the Merger Agreement or any action taken or to be taken by Parent in connection with the Merger Agreement.
10.Representations and Warranties of the Company. The Company represents and warrants to Parent and each Shareholder as follows: The Company is a Bermuda exempted company, validly existing and in good standing under the Laws of Bermuda and has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the consummation of the transactions contemplated hereby have been duly authorized and approved by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Agreement. This Agreement has been duly executed and delivered by the Company, and this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.
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11.Termination.
(a)This Agreement shall automatically terminate without further action upon the earliest to occur (the “Expiration Date”) of (i) the Effective Time, (ii) the termination of the Merger Agreement in accordance with its terms and (iii) the written agreement of the Shareholder and the Company to terminate this Agreement.
(b)Upon termination of this Agreement in accordance with Section 11(a), this Agreement shall forthwith become void and have no effect, and there shall not be any liability or obligation on the part of any party hereto; provided, that the provisions set forth in this Section 11 and Section 13 through Section 21 shall survive the termination of this Agreement.
12.Specific Enforcement; Effect of Breach Under Merger Agreement.
(a)The parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 13(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right to specific enforcement is an integral part of the transactions contemplated by this Agreement and the Merger Agreement and without that right, Parent would not have entered into this Agreement or the Merger Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 12(a) shall not be required to provide any bond or other security in connection with any such order or injunction.
(b)Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge and agree that no breach of any representation or warranty contained in this Agreement shall give rise to the failure of any condition to the Merger to be satisfied or the right of any party to terminate the Merger Agreement.
13.Governing Law; Jurisdiction.
(a)This Agreement, and all Actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with
8


this Agreement or as an inducement to enter into this Agreement), shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction.
(b)All Actions arising out of or relating to the interpretation and enforcement of the provisions of this Agreement (except to the extent any such proceeding mandatorily must be brought in Bermuda) shall be heard and determined in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. The parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this Section 13(b) shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any Action arising out of or relating to this Agreement shall be effective if notice is given by overnight courier at the address set forth in Section 17 of this Agreement. The parties hereto agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
14.WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO
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THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 14.
15.Waivers and Amendment. This Agreement may be changed, modified or amended, and the provisions and terms hereof may be waived, or the time for its performance extended, only by instrument in writing signed by each of the parties hereto, or, in the case of a waiver, by the party entitled to waive compliance with such provision or term. Any change or modification to this Agreement shall be null and void, unless made by written amendment to this Agreement and signed by each of the parties hereto. Any waiver of any provision or term of this Agreement, or any extension in time for performance of such provision or term, shall be validly and sufficiently authorized for the purposes of this Agreement if, as to any party entitled to grant such waiver, it is authorized in writing by an authorized Representative of such party. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.
16.Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of, and be enforceable by and against, the parties to this Agreement and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party without the prior written consent of the other party, and any attempted assignment without the prior written consent of the other party shall be void and have no effect. Notwithstanding the foregoing, the Shareholder may assign this Agreement and its obligations hereunder to a Permitted Transferee pursuant to Section 2(a).
17.Notices. All notices, requests, consents, claims, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (a) when personally delivered, (b) when transmitted via e-mail (except if not a Business Day then the next Business Day) to the e-mail address set out below, (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third (3rd) Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, requests, consents, claims, demands and other communications, in each case to the respective party, will be sent to the applicable address set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 17):
If to the Shareholder, to it at the address in each case set forth beneath such Shareholder’s name on Annex A.
If to Parent, to it at:
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Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda
Attention: Janice R. Weidenborner
Email:  Janice.Weidenborner@thirdpointre.com
with a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
Email:  nfpotter@debevoise.com
If to the Company, to it at:
Sirius International Insurance Group, Ltd.
14Wesley Street, 5th Floor
Hamilton HM11 Bermuda
Attention: Gene Boxer
E-mail:  Gene.Boxer@siriusgroup.com
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Sean M. Keyvan
         Jonathan A. Blackburn
E-mail:   skeyvan@sidley.com
         jblackburn@sidley.com
18.Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party. If any provision of this Agreement is so broad as to be unenforceable, that provision shall be interpreted to be only so broad as is enforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
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19.Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof and this Agreement is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.
20.Section Headings. The section headings of this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
21.Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which will be deemed to constitute an original, but all of which shall constitute one and the same agreement, and may be delivered by email or other electronic means intended to preserve the original graphic or pictorial appearance of a document, such delivery by email or other electronic means to be deemed as effective as delivery of a manually executed counterpart of this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

SIRIUS INTERNATIONAL INSURANCE GROUP, LTD.

By: /s/ Kernan V. Oberting
Name: Kernan V. Oberting
Title: President & CEO


[Signature Page to Director Voting Agreement]




JOSHUA L. TARGOFF
/s/ Joshua L. Targoff
______________________________________

[Signature Page to Director Voting Agreement]


Joseph L. Dowling III
/s/ Joseph L. Dowling III
______________________________________

[Signature Page to Director Voting Agreement]


Rafe de la Gueronniere
/s/ Rafe de la Gueronniere
______________________________________

[Signature Page to Director Voting Agreement]


Gretchen A. Hayes
/s/ Gretchen A. Hayes
______________________________________

[Signature Page to Director Voting Agreement]


Daniel V. Malloy
/s/ Daniel V. Malloy
______________________________________


[Signature Page to Director Voting Agreement]


Mark Parkin
/s/ Mark Parkin
______________________________________

[Signature Page to Director Voting Agreement]


Sid Sankaran
/s/ Sid Sankaran
______________________________________


[Signature Page to Director Voting Agreement]


Third Point Reinsurance Ltd.

By: /s/ Sid Sankaran
Name: Sid Sankaran
Title: Director




[Signature Page to Director Voting Agreement]


ANNEX A


SHAREHOLDERS
Name and Address Parent Shares
Joshua L. Targoff
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

209,991
Joseph L. Dowling III
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

23,481
Rafe de la Gueronniere
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

71,755
Gretchen A. Hayes
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

34,625
Daniel V. Malloy
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

825,327
Mark Parkin
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

81,357
Sid Sankaran
c/o Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

51,176



EXHIBIT 10.5
Annex B
Proxy Holders
Name Title
Kernan V. Oberting President and Chief Executive Officer
Gene Boxer Executive Vice President & Group General Counsel



EXHIBIT 10.6

JPMORGAN CHASE BANK, N.A.
383 Madison Avenue
New York, New York 10179


August 6, 2020
Third Point Reinsurance Ltd.
Point House, 3 Waterloo Lane
Pembroke HM 08, Bermuda
Attention: Chris Coleman, Chief Financial Officer
$125,000,000 Bridge Facility
Commitment Letter
Ladies and Gentlemen:
Third Point Reinsurance Ltd., a company incorporated and organized under the laws of Bermuda (“you”), has advised JPMorgan Chase Bank, N.A. (“JPMorgan”, the “Commitment Party”, “us” or “we”) that Yoga Merger Sub Limited, a Bermuda exempted company limited by shares (“Merger Sub”), intends to obtain a bridge facility in an aggregate principal amount of up to $125,000,000 (the “Bridge Facility”), the proceeds of which will be used, in part, to consummate (or cause to be consummated) the Transactions. Capitalized terms used but not defined herein are used with the meanings assigned to them in the Term Sheet (as defined below).
1.  Commitments
In connection with the Transactions, JPMorgan (the “Initial Lender”) is pleased to advise you of its commitment to provide 100% of the aggregate amount of the Bridge Facility, upon the terms and conditions set forth in this letter (this “Commitment Letter”) and in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”), the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Term Sheet” and, together with the Summary of Conditions Precedent attached hereto as Exhibit C (the “Conditions Exhibit”) and the Transaction Description, the “Term Sheet”) and subject only to the conditions expressly set forth in the Conditions Exhibit, and hereby commits to provide any increase required as a result of the exercise of Flex Provisions (as defined in the Fee Letter) of the Fee Letter (as defined below), upon the terms set forth in this Commitment Letter and in the Term Sheet and subject only to the conditions expressly set forth in the Conditions Exhibit.
2.  Titles and Roles
It is agreed that (a) JPMorgan will act as sole lead arranger and sole bookrunner for the Bridge Facility (acting in such capacities, the “Lead Arranger”) upon the terms set forth in this Commitment Letter and in the Term Sheet and subject only to the conditions expressly set forth in the Conditions Exhibit (provided that you agree that JPMorgan may perform its responsibilities hereunder through its affiliate, J.P. Morgan Securities LLC) and (b) JPMorgan will act as sole and exclusive administrative agent for the Bridge Facility, upon the terms set forth in this Commitment Letter and in the Term Sheet. The Commitment Party, in such capacity, will perform the duties and exercise the authority customarily performed and exercised by it in such role.

You agree that no other agents, co-agents, arrangers, co-arrangers, bookrunners, co-bookrunners, managers or co-managers will be appointed, no other titles will be awarded in connection with the Bridge Facility and no compensation (other than that expressly contemplated by the Term Sheet and Fee Letter referred to below) will be paid by you to any Lender in respect of the Bridge Facility unless you and we shall so agree in writing; provided, that it is acknowledged and agreed that (i) EA Markets LLC (“EA Markets”) has been separately appointed as your financial advisor and (ii) EA Markets has been separately appointed as an arranger under the Bridge Facility) (it being understood that EA Markets may act through its affiliate, EA Markets Securities LLC).
3.  Syndication
        We intend to syndicate the Bridge Facility, prior to or after the execution of the definitive documentation for the Bridge Facility (the “Credit Documentation”), to a group of lenders identified by us and reasonably satisfactory to you that will become parties to such definitive documentation pursuant to a syndication managed by the Commitment Party (together with the Initial Lender, the “Lenders”), provided, that notwithstanding our right to syndicate the Bridge Facility and receive commitments with respect thereto, unless agreed in writing by you, (a) no Commitment Party shall be relieved, released or novated from its obligations hereunder (including, but not limited to, its obligation to fund its commitment hereunder on the Closing Date) in connection with any syndication, assignment or participation of the Bridge Facility, including its commitment in respect thereof, until after the funding under the Bridge Facility on the Closing Date has occurred and (b) each Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Bridge Facility, including all rights with respect to consents, waivers, modifications, supplements and amendments, until the Closing Date has occurred; provided, that the aggregate amount of commitments with respect to the Bridge Facility shall be reduced at any time after the date hereof as and to the extent set forth in the Term Sheet (under “Mandatory Prepayments and Commitment Reductions” or “Optional Prepayments and Commitment Reductions”) or the Credit Documentation, as applicable. Notwithstanding the foregoing, we will not syndicate, participate to or otherwise assign any portion of the commitment under the Bridge Facility to those persons that are (i) identified in writing on or prior to the date hereof by you, (ii) competitors of you or your subsidiaries or the Target or its subsidiaries (other than bona fide fixed income investors or debt funds) that are identified in writing by you to us (or, if after the Closing Date, the Administrative Agent) from time to time or (iii) affiliates of such persons set forth in clauses (i) and (ii) above (in the case of affiliates of such persons set forth in clause (ii) above, other than bona fide fixed income investors or debt funds)) that are either (a) identified in writing by you to us (or, if after the Closing Date, the Administrative Agent) from time to time or (b) clearly identifiable as an affiliate of such persons solely on the basis of such affiliate’s name (the persons described in clauses (i) through (iii), collectively, the “Disqualified Institutions”); provided, that (x) to the extent persons are identified as Disqualified Institutions in writing by you to us after the date hereof (or, if after the Closing Date, the Administrative Agent) pursuant to clauses (ii) or (iii)(a), the inclusion of such persons as Disqualified Institutions shall not retroactively apply to prior assignments or participations, (y) a list of Disqualified Institutions may be disclosed by us (or after the Closing Date, the Administrative Agent) to any Lender, bona fide prospective Lender or assignee or participant and (z) in no event shall the designation of any person as a Disqualified Institution be effective until three Business Days after receipt by the Administrative Agent or Lender, as applicable, of written notice of such designation.
        The Commitment Party intends to commence syndication efforts promptly, and you agree until the earlier of (x) the date upon which a Successful Syndication (as defined in the Fee Letter) of the Bridge Facility is achieved and (y) the date that is 60 days after the Closing Date (such earlier date, the “Syndication Date”), to assist (and, to the extent consistent with the Merger Agreement, prior to the
2
        

Closing Date if applicable, to use your commercially reasonable efforts to cause the Target to actively assist) the Commitment Party in completing a syndication reasonable satisfactory to the Commitment Party. Such assistance shall include (A) your using commercially reasonable efforts to ensure that the syndication efforts benefit from your and your subsidiaries’ existing banking relationships and those of the Target, (B) direct contact during the syndication between your senior management, representatives and advisors and the proposed Lenders (and prior to the Closing Date if applicable, using your commercially reasonable efforts to ensure such contact between senior management of the Target and the proposed Lenders), (C) your assistance (and, to the extent consistent with the Merger Agreement, prior to the Closing Date if applicable using commercially reasonable efforts to cause the Target to assist) in the preparation of a customary Confidential Information Memorandum for the Bridge Facility and other customary marketing materials to be used in connection with the syndication (other than the portions thereof customarily provided by financing arrangers) (collectively, the “Information Materials”), by providing information and other customary materials reasonably requested in connection with such Information Materials, all subject prior to the Closing Date to the limitation on your rights to request information concerning the Target as set forth in the Merger Agreement and (D) your hosting, with the Commitment Party, of one or more meetings (or, if you and we shall agree, conference calls in lieu of any such meeting) of prospective Lenders (limited to one “bank meeting”, unless otherwise deemed necessary in the reasonable judgment of the Lead Arranger) at a reasonable time and place to be mutually agreed. On or prior to the Syndication Date, you will ensure that there will not be any competing issuance, offering, placement, arrangement or syndication of credit facilities or announcement thereof by or on behalf of you and your subsidiaries (and, to the extent consistent with the Merger Agreement, prior to the Closing Date if applicable, your using commercially reasonable efforts to ensure that there is no competing issuance, offering, placement, arrangement or syndication of credit facilities or announcement thereof by or on behalf of the Target and its subsidiaries in connection with the Transactions) that would have an adverse impact on the primary syndication of the Bridge Facility, without the written consent of the Lead Arranger. You hereby (subject prior to the Closing Date to any applicable limitations set forth in the Merger Agreement) authorize the Commitment Party to download copies of your and the Target’s trademark logos from its website and post copies thereof on the IntraLinks site or similar workspace (an “Electronic Platform”) established by the Commitment Party to syndicate the Bridge Facility and use the logos on any confidential information memoranda, presentations and other marketing materials prepared in connection with the syndication of the Bridge Facility or in any advertisements (to which you consent, such consent not to be unreasonably withheld, conditioned or delayed) that we may place after the closing of the Bridge Facility in financial and other newspapers, journals, the World Wide Web, home page or otherwise, at their own expense describing its services to you and the Borrower hereunder. You understand and acknowledge that we may provide to market data collectors, such as league table, or other service providers to the lending industry, information regarding the closing date, size, type, purpose of, and parties to, the Bridge Facility. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transactions to the contrary (and without prejudice to your obligations to otherwise comply with such provisions), none of the compliance with the foregoing provisions of this paragraph or the commencement or completion of any syndication of the Bridge Facility shall constitute a condition to the commitments hereunder or the funding of the Bridge Facility on the Closing Date. For the avoidance of doubt, in connection with the foregoing requirements to provide assistance, you will not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation, or any obligation of confidentiality owing to a third party and binding you, the Target or your or their respective affiliates; provided, that, no such obligation of confidentiality shall be entered into in contemplation of this sentence and in the event you do not provide information in reliance on this sentence, you shall provide notice to us that such information is being withheld and you shall use your commercially reasonable efforts to obtain the relevant consents and to communicate, to the extent both
3
        

feasible and permitted under applicable law, rule, regulation or confidentiality obligation, the applicable information.
The Commitment Party will manage, in consultation with you, all aspects of the syndication; provided that decisions as to the selection of institutions to be approached and when they will be approached, when commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders shall be subject to your consent (not to be unreasonably conditioned, withheld or delayed) and exclude Disqualified Institutions. You hereby acknowledge and agree that in no event shall the Commitment Party be subject to any fiduciary or other implied duties in connection with the transactions contemplated hereby.
At the request of the Commitment Party, you agree to assist the Commitment Party in preparing an additional version of the Information Materials (a “Public Version”) to be used by prospective Lenders’ public-side employees and representatives (“Public-Siders”) who do not wish to receive material non-public information (within the meaning of the United States Federal or State securities laws) with respect to you, the Target, your and its respective affiliates and any of your or its respective securities (such material non-public information, “MNPI”) and who may be engaged in investment and other market-related activities with respect to your, the Target’s or your and its respective affiliates’ securities or loans. Before distribution of any Information Materials, (a) you agree to execute and deliver to the Commitment Party (i) a customary letter in which you authorize distribution of the Information Materials to a prospective Lender’s employees willing to receive MNPI (“Private-Siders”) and (ii) a separate customary letter in which you authorize distribution of the Public Side Version to Public-Siders and represent that no MNPI is contained therein and (b) you agree to identify that portion of the Information Materials that may be distributed to Public-Siders as not containing MNPI, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof (and you agree that, by marking Information Materials as “PUBLIC”, you shall be deemed to have authorized the Commitment Party and the prospective Lenders to treat such Information Materials as not containing MNPI (it being understood that you shall not be under any obligation to mark the Information Materials as “PUBLIC”)). You acknowledge that the Commitment Party will make available the Information Materials on a confidential basis to the proposed syndicate of Lenders by posting such information on Intralinks, Debt X or SyndTrak Online or by similar electronic means. You agree that the following documents may be distributed to both Private-Siders and Public-Siders, unless you advise the Commitment Party within a reasonable time after receipt of such materials for review that such materials should only be distributed to Private-Siders: (1) administrative materials prepared by the Commitment Party for prospective Lenders (such as a lender meeting invitation, bank allocation, if any, and funding and closing memoranda), (2) the Term Sheet and notification of changes to the Bridge Facility’s terms and conditions and (3) drafts and final versions of the Credit Documentation. If you so advise the Commitment Party that any of the foregoing should be distributed only to Private-Siders, then Public-Siders will not receive such materials without further discussions with you.
4.  Information
You hereby represent and warrant that (but the accuracy of such representation and warranty shall not be a condition to the commitment hereunder or the funding of the Bridge Facility on the Closing Date) (with respect to any information or data relating to the Target, the following representations and warranties shall be made solely to your knowledge) (a) all written information (including all Information Materials), other than financial estimates, forecasts and other forward-looking information (collectively, the “Projections”) and information of a general economic or industry specific nature) that has been or will
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be made available to us by you or any of your representatives in connection with the transactions contemplated hereby (the “Information”), when taken as a whole, does not or will not, when furnished to us, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto) and (b) the Projections that have been or will be made available to us by you or any of your representatives in connection with the transactions contemplated hereby have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time furnished to us (it being recognized by the Commitment Party that such Projections are merely estimates and are not to be viewed as facts and that actual results during the period or periods covered by any such Projections may differ from the projected results, and such differences may be material). You agree that if, at any time prior to the Closing Date, you become aware that any of the representations in the preceding sentence would be incorrect if such Information or Projections were furnished at such time and such representations were remade, in any material respect, then you will promptly supplement the Information and the Projections so that such representations when remade would be correct, in all material respects, under those circumstances, it being understood that such supplementation shall cure any breach of such representation and warranty. You understand that in arranging and syndicating the Bridge Facility we may use and rely on the Information and Projections without independent verification thereof.
5.  Fees
As consideration for the commitments and agreements of the Commitment Party hereunder, you agree to pay or cause to be paid the nonrefundable fees described in the JPMorgan Fee Letter dated the date hereof and delivered herewith with respect to the Bridge Facility (the “Fee Letter”) on the terms and subject to the conditions set forth therein. Once paid, except as expressly provided in the Fee Letter or as otherwise separately agreed to in writing by you and us, such fees shall not be refundable under any circumstances.
6.  Conditions
The commitment of the Initial Lender hereunder to fund the Bridge Facility on the Closing Date and the agreement of the Lead Arranger to perform the services described herein are subject solely to the express conditions set forth in the Conditions Exhibit (the “Financing Conditions”), it being understood that there are no conditions (implied or otherwise) to the commitments hereunder (including compliance with the terms of the Commitment Letter, the Fee Letter or the Credit Documentation) other than the Financing Conditions that are expressly stated to be conditions to the initial funding under the Bridge Facility on the Closing Date; and upon satisfaction (or waiver by the Commitment Party) of such conditions, the funding under the Bridge Facility shall occur.
Notwithstanding anything in this Commitment Letter, the Term Sheet, the Fee Letter, the Credit Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (a) the only representations and warranties that will be made on the Closing Date and the accuracy of which shall be a condition to the availability of the Bridge Facility on the Closing Date shall be (i) such of the representations and warranties made by the Target or its affiliates with respect to the Target in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that you or the Borrower has (or one of their affiliates has) (x) the right to terminate its obligations under the Merger Agreement after giving effect to all notice provisions as a result of a breach of such representations and warranties in the Merger Agreement or (y) the right to decline to (or no obligation to) consummate the Acquisition as a result of the failure of a condition precedent to its
5
        

obligations thereunder caused by a breach of such representations and warranties in the Merger Agreement (the “Specified Merger Agreement Representations”) and (ii) the Specified Representations (as defined below) made by the Borrower in the Credit Documentation; (b) the terms of the Credit Documentation shall be in a form such that they do not impair the availability or funding of the Bridge Facility on the Closing Date if the conditions described in the immediately preceding paragraph are satisfied or waived by the Commitment Party and (c) any guarantee to be provided by any Acquired Entity (together with any other condition set forth on the Conditions Exhibit as it relates to any Acquired Entity) shall not be required to be delivered at or prior to closing, but shall be required to be delivered on or prior to 11:59 p.m. on the first business day immediately following the Closing Date. For purposes hereof, “Specified Representations” means the representations and warranties of the Borrower relating to the Borrower set forth in the Credit Documentation relating to organization and powers (as to execution, delivery and performance of the Credit Documentation); authorization, due execution and delivery and enforceability of the Credit Documentation; no conflicts between the Credit Documentation (limited to the execution, delivery and performance of the Credit Documentation and incurrence of the indebtedness thereunder) and the organizational documents of the Borrower and the Guarantors immediately after giving effect to the Transactions; use of proceeds of the Bridge Facility not violating the PATRIOT Act, OFAC, FCPA and other applicable sanctions and anti-corruption laws; solvency on a consolidated basis as of the Closing Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis (solvency to be defined in a manner consistent with the form of solvency certificate attached hereto); the Investment Company Act of 1940; and Federal Reserve margin regulations. This paragraph, and the provisions herein, shall be referred to as the “Limited Conditionality Provisions”.
7.  Indemnification and Expenses
        You agree (a) to indemnify and hold harmless the Commitment Party and its affiliates, the Lead Arranger and its affiliates, and its and their respective directors, officers, employees, advisors and agents (each, and including, without limitation, JPMorgan, an “indemnified commitment party”) and EA Markets and its affiliates and its and their respective directors, officers, employees, advisors and agents (each, an “indemnified financial advisor and arranger”, and together with the indemnified commitment parties, each, an “indemnified person”) from and against any and all losses, claims, demands, damages and liabilities of any kind and related expenses to which any such indemnified person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Bridge Facility, the use of the proceeds thereof or the Transactions or any actual or prospective claim, litigation, investigation, arbitration or administrative judicial or regulatory action or proceeding relating to any of the foregoing (including in relation to enforcing the terms of this Section 7) (each, a “Proceeding”), regardless of whether any indemnified person is a party thereto and whether or not such Proceedings are initiated by you, your equity holders, affiliates, creditors or any other person and to reimburse each indemnified person reasonably promptly after receipt of a written request together with reasonably detailed backup documentation for any reasonable legal out-of-pocket expenses of one firm of counsel for each of (i) the indemnified commitment parties taken as a whole and (ii) the indemnified financial advisor and arranger and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each case for each of (i) the indemnified commitment parties taken as a whole and (ii) the indemnified financial advisor and arranger (and, in the case of an actual or perceived conflict of interest where the indemnified person affected by such conflict informs you of such conflict and thereafter, after receipt of your consent (which shall not be unreasonably withheld), retains its own counsel, of another firm of counsel for such affected indemnified person) incurred in connection with investigating or defending any of the foregoing; provided that the foregoing indemnity will not, as to any indemnified person, apply to any losses, claims, demands, damages or liabilities of any kind or related expenses to the extent they (i) are found by a final, non-appealable judgment of a court of competent jurisdiction to result from the willful misconduct, bad
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faith or gross negligence of such indemnified person, or of any of its affiliates or controlling persons or any of the officers, directors, employees, partners, successors, agents, advisors or representatives of any of the foregoing (collectively, “Related Persons”), (ii) are found by a final, non-appealable judgment of a court of competent jurisdiction to result from a material breach of the obligations of such indemnified person or any of its Related Persons under this Commitment Letter, the Fee Letter or the Credit Documentation, (iii) have not involved an act or omission by you or any of your affiliates and arise out of or in connection with any Proceeding brought by an indemnified person against any other indemnified person (other than any claims against any indemnified person in its capacity or in fulfilling its role as an agent or arranger or any similar role in connection with the Bridge Facility) or (iv) to the extent they have resulted from any agreement governing any settlement that is effected without your prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final judgment for the plaintiff in any such Proceeding, you agree to indemnify and hold harmless each indemnified person from and against any and all losses, claims, demands, damages or liabilities and related expenses by reason of such settlement or judgment in accordance with the terms thereof and (b) solely if the Closing Date occurs, to reimburse the Commitment Party and its affiliates for all reasonable out-of-pocket expenses that have been invoiced (including, but not limited to, due diligence expenses, consultants’ fees and expenses, syndication expenses, travel expenses, and the reasonable and documented fees, charges and disbursements of the firm of counsel to the Commitment Party identified in the Term Sheet and, if necessary, one firm of local counsel in each appropriate jurisdiction) incurred in connection with the Bridge Facility and the preparation, execution and delivery of the Credit Documentation, this Commitment Letter, the Term Sheet and the Fee Letter.

        Notwithstanding any other provision of this Commitment Letter, (i) none of the Commitment Party and its affiliates, EA Markets and its affiliates, and their respective officers, directors, employees, advisors, and agents (each, and including, without limitation, JPMorgan, an “Arranger-Related Person”) and the other parties hereto shall be liable for any damages arising from the use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems, including an Electronic Platform, except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Arranger-Related Person or any of its Related Persons and (ii) neither (x) any Arranger-Related Person or any of its Related Persons, nor (y) you (or any of your subsidiaries or affiliates) or the Target (or any of its subsidiaries or affiliates) shall be liable for any indirect, special, punitive or consequential damages (with respect to you in the case of this clause (y), other than pursuant to the indemnification provisions of this Commitment Letter in respect of any such damages incurred or paid by an Arranger-Related Person to a third party) in connection with this Commitment Letter, the Fee Letter, the Bridge Facility, the Transactions (including the Bridge Facility and the use of proceeds thereunder), or with respect to any activities related to the Bridge Facility.

        You shall not be liable for any settlement of any Proceeding effected without your prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final non-appealable judgment by a court of competent jurisdiction against an indemnified person in any such Proceeding, you agree to indemnify and hold harmless each indemnified person in the manner set forth above. You shall not, without the prior written consent of the affected indemnified person (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened Proceeding against such indemnified person in respect of which indemnity has been sought hereunder by such indemnified person unless such settlement (i) includes an unconditional release of such indemnified person in form and substance reasonably satisfactory to such indemnified person from all liability or claims that are the subject matter of such Proceeding and (ii) does not include any statement as to any admission of fault or culpability of such
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indemnified person or any injunctive relief or other non-monetary remedy. You acknowledge that any failure to comply with your obligations under the preceding sentence may cause irreparable harm to JPMorgan and the other indemnified persons. Notwithstanding the foregoing, each indemnified person (and its Related Persons) shall be obligated to refund and/or return promptly any and all amounts paid by you or on your behalf under this Section 7 to such indemnified person (or its Related Persons) for any such losses, claims, demands, damages, liabilities and expenses to the extent such indemnified person (or its Related Persons) is not entitled to payment of such amounts in accordance with the terms hereof.

8.  Sharing of Information, Absence of Fiduciary Relationship, Affiliate Activities
        The Commitment Party may employ the services of its affiliates in providing certain services hereunder and, in connection with the provision of such services, may exchange with such affiliates information concerning you and the other companies that may be the subject of the transactions contemplated by this Commitment Letter, and, to the extent so employed, such affiliates shall be entitled to the benefits, and be subject to the obligations, of the Commitment Party hereunder. The Commitment Party shall be responsible for its affiliates’ failure to comply with such obligations under this Commitment Letter.

You acknowledge that the Commitment Party (or an affiliate) may be providing debt financing, equity capital or other services (including but not limited to financial advisory services) to companies and other persons in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. In addition, the Commitment Party and its affiliates will not use confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or its relationships with you in connection with the performance by such Commitment Party or any of its affiliates of services for companies or other persons, and the Commitment Party and its affiliates will not furnish any such information to other companies or other persons. You also acknowledge that the Commitment Party and its affiliates have no obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, the Target or your or their respective subsidiaries or representatives, confidential information obtained by the Commitment Party or any of its affiliates from any other company or persons.
You further acknowledge and agree that the Commitment Party will act under this Commitment Letter as an independent contractor and that (a) no fiduciary, advisory or agency relationship between you and the Commitment Party is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter and the Term Sheet, irrespective of whether the Commitment Party has advised or is advising you on other matters (which, for the avoidance of doubt, includes acting as a financial advisor to you or any of your affiliates in respect of any transaction related hereto), (b) the Commitment Party, on the one hand, and you, on the other hand, have an arm's length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty to you or your affiliates on the part of the Commitment Party, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that the Commitment Party is engaged in a broad range of transactions that may involve interests that differ from your interests and that the Commitment Party has no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship, (e) the Commitment Party is not advising you as to any legal, regulatory, tax, accounting, investment or any other matters in any jurisdiction (including, without limitation, with respect to any consents needed in connection with the transactions contemplated hereby) and that you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate, and (f) you agree not to assert, to the fullest extent permitted by law, any claims
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against the Commitment Party for alleged breach of fiduciary duty in connection with the Transactions. It is understood that this paragraph shall not apply to or modify or otherwise affect any arrangement with any financial advisor separately retained by you, the Target or any of your or their respective affiliates in connection with the Transactions, in its capacity as such.
You further acknowledge that the Commitment Party is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, the Commitment Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you and other companies with which you may have commercial or other relationships. With respect to any securities and/or financial instruments so held by the Commitment Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
9.  Confidentiality
This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter nor the Fee Letter nor any of their terms or substance shall be disclosed by you without the consent of the Commitment Party, directly or indirectly, to any other person except (a) the Equity Investor (as defined in the Merger Agreement), and your and their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, agents and advisors, in each case on a confidential and need-to-know basis, (b) pursuant to the order of any court, administrative agency or regulatory authority having jurisdiction over you, your subsidiaries or the Target or its subsidiaries in any legal, judicial, administrative or regulatory proceeding, examination or audit or as otherwise required by law, regulation, compulsory legal or regulatory process or as requested by a governmental authority (in which case you agree, to the extent practicable and permitted by law, rule or regulation and except in connection with any request as part of a regulatory examination, audit or filing, to inform us promptly in advance thereof), (c) in connection with the exercise of any remedies under this Commitment Letter or the Fee Letter, (d) this Commitment Letter, the Term Sheet and the existence and contents hereof and thereof (but not the Fee Letter or the contents thereof other than the existence thereof and the contents thereof may be disclosed as part of projections, pro forma information and a generic disclosure of aggregate sources and uses to the extent customary in marketing materials and other required filings) may be disclosed in any syndication or other marketing material in connection with the Bridge Facility, (e) this Commitment Letter, the Term Sheet and the existence and contents hereof and thereof (but not the Fee Letter or the contents thereof) may be disclosed in connection with any public filing required to be made in connection with the Transactions, including as may be required by the rules, regulations, schedules and forms of the Securities and Exchange Commission (the “SEC”) in connection with any filings with the SEC in connection with the Transactions, (f) the Term Sheet may be disclosed to potential Lenders and to any rating agency in connection with the Transactions, and (g) you may disclose the Commitment Letter, the Term Sheet and, to the extent portions thereof have been redacted in a customary manner, the Fee Letter, to the Target and its subsidiaries and their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, agents and advisors, in each case on a confidential and need-to-know basis. The provisions of this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the definitive documentation for the Bridge Facility; provided that if the Closing Date does not occur, this paragraph shall automatically terminate two years following the date of this Commitment Letter.
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The Commitment Party, on behalf of itself and its affiliates, agrees that it (and they) shall use all information received by them in connection with the Bridge Facility and the Transactions solely for the purposes of providing the services that are the subject of this Commitment Letter and shall treat confidentially all such information and the terms and contents of this Commitment Letter, the Fee Letter and the Credit Documentation and shall not publish, disclose or otherwise divulge such information; provided, however, that nothing herein shall prevent the Commitment Party from disclosing any such information (a) to rating agencies in connection with the Transactions, (b) to any Lenders or participants or prospective Lenders or participants with respect to the Bridge Facility (in each case, other than any Disqualified Institution), (c) to the extent required by any legal, judicial, administrative proceeding or other compulsory process or as required by applicable law, subpoena, rule or regulation or as requested by a governmental authority (in which case the Commitment Party shall promptly notify you, in advance, to the extent permitted by law), (d) upon the request or demand of any regulatory authority (including any self-regulatory authority) or other governmental authority having jurisdiction over the Commitment Party or its affiliates (in which case (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority) the Commitment Party shall promptly notify you, in advance, to the extent permitted by law), (e) to the employees, legal counsel, independent auditors, professionals, advisors and other experts or agents of the Commitment Party who are informed of the confidential nature of such information and are or have been advised of their obligation to keep such information confidential, (f) to any of its respective affiliates (provided that any such affiliate is advised of its obligation to retain such information as confidential, and the Commitment Party shall be responsible for its affiliates’ compliance with this paragraph) solely in connection with the Transactions, (g) to the extent any such information becomes publicly available other than by reason of disclosure by the Commitment Party or any of its affiliates, or any of its or their respective employees, legal counsel, independent auditors, professionals, advisors or other experts or agents, in violation of any confidentiality obligations owing to you hereunder, (h) to the extent that such information is received by the Commitment Party from a third party that is not, to the Commitment Party’s knowledge, subject to contractual or fiduciary confidentiality obligations owing to you with respect to such information, (i) in connection with the exercise of any remedies under this Commitment Letter or the Fee Letter or any suit, action or proceeding relating to this Commitment Letter, the Fee Letter or the Bridge Facility and (j) with your prior written consent; provided that the disclosure of any such information to any Lenders or prospective Lenders or participants or prospective participants or any other parties referred to in clause (b) above shall be made subject to the acknowledgment and acceptance by such Lender or prospective Lender or participant or prospective participant or other party that such information is being disseminated on a confidential basis in accordance with the standard syndication processes of the Commitment Party or customary market standards for dissemination of such type of information. The provisions of this paragraph shall automatically terminate and be superseded by the confidentiality provisions in the definitive documentation for the Bridge Facility; provided that if the Closing Date does not occur, this paragraph shall automatically terminate two years following the date of this Commitment Letter.
10. Miscellaneous
This Commitment Letter and the commitments hereunder shall not be assignable by any party hereto (except (x) by you to one or more affiliates that are a “shell” company which is and will be controlled by you that consummates or intends to consummate the Acquisition, (y) in connection with any other assignment that occurs as a matter of law pursuant to, or otherwise substantially simultaneously with the closing of the Acquisition in accordance with the Merger Agreement and (z) to the Borrower immediately prior to the funding of the Bridge Facility on the Closing Date) without the prior written consent of each other party hereto (and any purported assignment without such consent shall be null and
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void), is intended to be solely for the benefit of the parties hereto and the indemnified persons and the Arranger-Related Persons and is not intended to and does not confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and the indemnified persons and the Arranger-Related Persons to the extent expressly set forth herein. The Commitment Party reserves the right to allocate, in whole or in part, to its affiliates certain fees payable to the Commitment Party in such manner as the Commitment Party and its affiliates may agree in their sole discretion. This Commitment Letter may not be amended or waived except by an instrument in writing signed by you and the Commitment Party. This Commitment Letter, together with the Fee Letter, supersedes all prior understandings, whether written or oral, among us with respect to the Bridge Facility and sets forth the entire understanding of the parties hereto with respect thereto. This Commitment Letter and any claim or controversy arising hereunder or related hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York; provided that, (a) the interpretation of the definition of a Company Material Adverse Effect (as defined in the Merger Agreement) and the determination as to whether there shall have occurred a Company Material Adverse Effect, (b) whether the Acquisition has been consummated as contemplated by the Merger Agreement and (c) whether the representations and warranties made by the Target in the Merger Agreement have been breached and whether as a result of any breach thereof you or the Borrower (or any applicable affiliates) have the right to terminate your or its obligations under the Merger Agreement, or to decline to (or otherwise have no obligation to) consummate the Acquisition (in each case, in accordance with the terms thereof), shall, in each case, be governed and construed in accordance with the laws applicable to the Merger Agreement, as applied thereto.
This Commitment Letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Commitment Letter, the Fee Letter and/or any document to be signed in connection with this letter agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.
The Borrower consents to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan) over any suit, action, proceeding, claim or counterclaim arising out of or relating to the Transactions or the other transactions contemplated hereby, this Commitment Letter or the Fee Letter or the performance of services hereunder or thereunder (whether based on contract, tort or any other theory). You and we agree that service of any process, summons, notice or document by registered mail addressed to you or us shall be effective service of process for any suit, action or proceeding brought in any such court. You and we hereby irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding in the federal or state courts located in the City of New York, Borough of Manhattan. You and we hereby irrevocably agree to waive trial by jury in any suit, action, proceeding, claim or counterclaim brought by or on behalf of any party related to or arising out of the Transactions, this Commitment Letter, the Term Sheet, the Fee Letter or the performance of services hereunder or thereunder or the transactions contemplated hereby or thereby (whether based on contract, tort or any other theory).
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The Commitment Party hereby notifies you that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the “PATRIOT Act”) and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), it may be required to obtain, verify and record information that identifies the Borrower and any guarantor, which information includes names, addresses, tax identification numbers and other information that will allow such Lender to identify the Borrower and any guarantor in accordance with the PATRIOT Act, the Beneficial Ownership Regulation and other applicable anti-money laundering rules and regulations. This notice is given in accordance with the requirements of the PATRIOT Act and the Beneficial Ownership Regulation and is effective for the Commitment Party and each Lender.
Each of the parties hereto acknowledges and agrees that the funding of the Bridge Facility is subject only to the Financing Conditions, including the execution and delivery of the Credit Documentation by the parties hereto in a manner consistent with this Commitment Letter (including the Documentation Principles); provided that nothing contained in this Commitment Letter obligates you or any of your affiliates to draw down any portion of the Bridge Facility.
This paragraph and the indemnification, compensation, reimbursement, expense, jurisdiction, syndication, information, governing law, waiver of jury trial, waiver of objection to the laying of venue, no fiduciary relationship, confidentiality and electronic signature provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the commitments hereunder; provided that your obligations under this Commitment Letter (other than your obligations with respect to (a) assistance to be provided in connection with the syndication thereof (including as to the provision of information and representations with respect thereto) and (b) confidentiality) shall automatically terminate and be superseded by the provisions of the Credit Documentation upon the funding thereunder, and you shall automatically be released from all liability in connection therewith at such time.
This Commitment Letter and the commitments hereunder shall automatically terminate (unless the Commitment Party shall, in its sole discretion, agree to an extension) (i) in the event that the Financing Conditions have not been satisfied or waived on or before the date that is five business days after the Walk-Away Date (as defined in the Merger Agreement as of the date hereof) or, if the Walk-Away Date is extended in accordance with the Merger Agreement as in effect on the date hereof, the date that is five business days after the Walk-Away Date as so extended (such applicable date, the “Expiration Date”), or (ii) if earlier, upon either (x) the date the Merger Agreement is terminated by you or otherwise validly terminated without consummation of the Acquisition and the funding of the Bridge Facility or (y) the consummation of the Acquisition with or without the use of the Bridge Facility; provided that the termination of any commitment pursuant to this sentence shall not prejudice our or your rights and remedies in respect of any breach of this Commitment Letter by the Commitment Party that occurred prior to any such termination. You may terminate this Commitment Letter and the Fee Letter and the commitments of the Commitment Party with respect to the Bridge Facility, in whole or in part, at any time prior to the Closing Date, by written notice to the Commitment Party.
If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and the Fee Letter by returning to us or our counsel executed counterparts of this Commitment Letter and the Fee Letter not later than 11:59 p.m., New York City time, on August 14, 2020. This offer will automatically expire at such time if we have not received such executed counterparts in accordance with the preceding sentence.
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We are pleased to have been given the opportunity to assist you in connection with this important financing.
Very truly yours,
JPMORGAN CHASE BANK, N.A.
By: /s/ Kristen M. Murphy
Name: Kristen M. Murphy
Title: Vice President







Accepted and agreed to as of the date first written above:
THIRD POINT REINSURANCE LTD.
By: /s/ Sid Sankaran
Name: Sid Sankaran
Title: Director






EXHIBIT 10.7


August 6, 2020
CONFIDENTIAL
TO: Third Point Reinsurance Ltd.
Point House
3 Waterloo Lane
Pembroke HM 08 Bermuda

        Re: Equity Financing Commitment
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger attached hereto as Annex I (the “Merger Agreement”), dated as of the date hereof, by and among Sirius International Insurance Group, Ltd., a Bermuda exempted company limited by shares (“Company”), Third Point Reinsurance Ltd., a Bermuda exempted company limited by shares, and Yoga Merger Sub Limited, a Bermuda exempted company limited by shares and a wholly owned Subsidiary of Parent (“Merger Sub”). Capitalized terms used herein without definition shall have the meanings given to them in the Merger Agreement.
1.This letter agreement (this “Letter Agreement”) shall become effective only upon execution and delivery of the Merger Agreement by Parent.  The undersigned hereby commits, subject to the conditions set forth herein and further set forth in the Merger Agreement having been satisfied or waived and the simultaneous consummation of the Transactions, to purchase, directly or indirectly, an aggregate number of duly authorized, validly issued, fully paid and non-assessable Parent Shares from Parent that, together with the number of Parent Shares held by the undersigned and Daniel S. Loeb (whether directly or indirectly through one or more of his Affiliates or family members) collectively as of the Closing, equals 9.5% of the Parent Shares issued and outstanding as of immediately following the Closing, after giving effect to the Transactions but not including any such Parent Shares that were issued during the period between the date hereof and the Closing (rounded to the nearest share) (the “Maximum Percentage”). The undersigned shall purchase such Parent Shares at a price per Parent Share (the “Price”) equal to the lower of (i) $7.9828 (the “Initial Price”) and (ii) the product obtained by multiplying 0.6 times Parent’s fully diluted book value per share, which shall be equal to the lower of (A) Parent’s fully diluted book value per share disclosed in the most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K filed by Parent prior to the Closing and (B) the best estimate of Parent’s fully diluted book value per share as of the last day of the month immediately preceding Closing, as certified by Parent’s Chief Financial Officer (the “Adjusted Price”); provided that the aggregate purchase price for all Parent Shares to be purchased hereunder shall not exceed $53,000,000 (the amount of cash required thereof, the “Commitment”).  The foregoing obligation of the undersigned




to fund the Commitment is subject to the simultaneous consummation of the transactions contemplated by the Merger Agreement; provided that (x) the undersigned shall not, under any circumstances, be obligated to fund to Parent (including via purchases of equity securities, capital contributions, other payments or in any other manner) more than the amount of the Commitment, (y) if the Price is equal to the Adjusted Price, then the Maximum Percentage shall be equal to the sum of 9.5% plus the Additional Amount. The Additional Amount shall be an amount, expressed as a percentage, equal to (i) 0.04 times (ii) the quotient of (a) the Initial Price minus the Adjusted Price divided by (b) the Initial Price; provided, further, that in no event shall the undersigned be obligated to purchase any Parent Shares to the extent that such purchase would cause the undersigned and Daniel S. Loeb (whether directly or indirectly through one or more of his Affiliates or family members) collectively to be treated as owning, directly, indirectly or constructively, greater than 9.9% of the Parent Shares by voting power or by value.  For the avoidance of doubt, the Commitment shall only be for purposes of purchasing Parent Shares by the undersigned pursuant to the terms and conditions of this Letter Agreement and not for any other purpose; provided that any Parent Shares purchased by the undersigned and Daniel S. Loeb (whether directly or indirectly through one or more of his Affiliates or family members) after the date this Letter Agreement becomes effective shall be purchased pursuant to the terms and conditions of this Letter Agreement until such time as the commitment made under this paragraph 1 by the undersigned has been fully discharged (including the funding of the Commitment).  The Parent Shares to be issued to the undersigned pursuant to this Letter Agreement shall be subject to, and treated as “Registrable Securities” as defined in, that certain Registration Rights Agreement, dated December 22, 2011, by and among Parent and the other parties named therein (“2011 Registration Rights Agreement”); provided, that any Parent Shares held by the undersigned and Daniel S. Loeb (whether directly or indirectly through one or more of his Affiliates or family members) shall not be subject to the limitations set forth in the 2011 Registration Rights Agreement with respect to the maximum number of Shareholder Demand Registrations (as defined in the 2011 Registration Rights Agreement).
2.This Letter Agreement, including the undersigned’s obligation to fund the Commitment, shall terminate upon the earliest to occur of (a) the termination of the Merger Agreement, (b) the date that is within 30 days following the Walk-Away Date, and (c) the funding of the Commitment at the Closing (at which time the undersigned’s obligations hereunder shall be discharged). Upon any such termination of this Letter Agreement, any obligations of the undersigned hereunder will terminate automatically and neither of the parties hereto shall have any liability whatsoever to the other party.
3.For the purposes of Section 7 of the 2011 Registration Rights Agreement, the undersigned hereby consents to the granting of registration rights by Parent to CM Bermuda Ltd. (“CMB”) pursuant to the terms of the Registration Rights Agreement by and between Parent and CMB, in substantially the form attached to the Merger Agreement, to be dated as of the Closing Date. Pursuant to Section 11.4 of the 2011
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Registration Rights Agreement, the undersigned hereby agrees that CMB shall constitute a “Shareholder” for purposes of Section 2(c) of the 2011 Registration Rights Agreement.
4.The undersigned’s obligation to fund the Commitment may be assigned; provided, that the undersigned shall not be released from its obligations hereunder upon such assignment.
5.This Letter Agreement shall be binding on and solely for the benefit of and enforceable by the undersigned (and its permitted assignees) and Parent, and nothing set forth in this Letter Agreement shall be construed to confer upon or give to any other Person any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the Commitment or any provisions of this Letter Agreement. Notwithstanding the foregoing, the Related Parties of the undersigned and the Related Parties of such Related Parties shall be the third party beneficiaries of paragraph 6 of this Letter Agreement.
6.Notwithstanding anything that may be expressed or implied in this Letter Agreement, the parties hereto, by their acceptance of the benefits of this equity commitment, each covenant, agree and acknowledge that no Person other than the parties hereto shall have any obligation hereunder, and that (a) no recourse hereunder or under any documents or instruments delivered in connection herewith shall be had against any Affiliate of the undersigned or any former, current or future, direct or indirect director, manager, officer, employee, agent, financing source of the undersigned or any Affiliates of the undersigned, or any former, current or future heir, executor, administrator, trustee, successor or assign of any of the foregoing Persons (any such person or entity, other than the undersigned, a “Related Party”) or any Related Party of the undersigned’s Related Parties (including, without limitation, in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement and the transactions contemplated thereby or with respect to any dispute arising under or in any way related to the Merger Agreement and the transactions contemplated thereby or arising out of due diligence conducted in connection with or the negotiation, interpretation or enforcement of the Merger Agreement, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise incurred by any Related Party of the undersigned or any Related Party of the undersigned’s Related Parties under this Letter Agreement or any documents or instruments delivered in connection herewith or with the Merger Agreement or for any claim based on, in respect of, or by reason of such obligations hereunder or by their creation.
7.The undersigned hereby represents and warrants with respect to itself to Parent that (a) the undersigned has all authority to execute, deliver and perform this Letter Agreement, (b) the execution, delivery and performance of this Letter Agreement by the undersigned has been duly and validly authorized and approved by all necessary action of the undersigned, (c) this Letter Agreement has been duly and validly executed
3



and delivered by the undersigned and constitutes a valid and legally binding obligation of the undersigned, (d) the execution, delivery and performance of this Letter Agreement by the undersigned does not and will not conflict with, violate the terms of or result in the acceleration of any obligation under any material contract, material commitment or other material instrument to which the undersigned is a party or is bound, in each case, except as such conflict, violation or acceleration of obligations would not reasonably be expected to prevent or materially delay the undersigned’s ability to perform its obligations hereunder.
8.This Letter Agreement, and all Actions (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Letter Agreement, or the negotiation, execution or performance of this Letter Agreement (including any Claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Letter Agreement or as an inducement to enter into this Letter Agreement), shall in all respects be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware applicable to agreements made and to be performed entirely within such state without giving effect to any conflicts of law principles of such state that might refer the governance, construction or interpretation of such agreements to the Laws of another jurisdiction.
9.All Actions arising out of or relating to the interpretation and enforcement of the provisions of this Letter Agreement shall be heard and determined in the Delaware Court of Chancery, or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Delaware Court of Chancery and the federal courts within the State of Delaware decline to accept jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom. The parties hereto hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Actions and irrevocably waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action. The consents to jurisdiction and venue set forth in this paragraph 9 shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. Each party hereto agrees that service of process upon such party in any Action arising out of or relating to this Letter Agreement shall be effective if notice is given by overnight courier at the address (i) set forth in Section 8.09 of the Merger Agreement in the case of the Parent and (ii) set forth on the signature page hereto next to the name of the undersigned. The parties hereto agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing contained in the foregoing shall restrict any party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.
10.EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER AGREEMENT IS
4



LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS PARAGRAPH 10.
11.This Letter Agreement together with the Merger Agreement constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties and their Affiliates, or any of them, with respect to the subject matter hereof and thereof. This Agreement may be changed, modified or amended, and the provisions and terms hereof may be waived, or the time for its performance extended, only by instrument in writing signed by each of the parties hereto, or, in the case of a waiver, by the party having the right to waive compliance with such provision or term. This Letter Agreement may be executed in one or more counterparts, and by the different parties to each such agreement in separate counterparts, each of which will be deemed to constitute an original, but all of which shall constitute one and the same agreement, and may be delivered by email or other electronic means intended to preserve the original graphic or pictorial appearance of a document, such delivery by email or other electronic means to be deemed as effective as delivery of a manually executed counterpart of this Letter Agreement.
[Rest of Page Left Intentionally Blank]
5





Very truly yours,
Third Point Opportunities Master Fund Ltd.


By: /s/ Josh Targoff
Name: Josh Targoff
Title: Chief Operating Officer and General Counsel


[Signature Page to Equity Financing Commitment]




Acknowledged and agreed solely for the purposes of paragraph 3:
        Daniel S. Loeb
/s/ Daniel S. Loeb
[Signature Page to Equity Financing Commitment]




Acknowledged and agreed as of
the date first above written:

Third Point Reinsurance Ltd.

By: /s/ Sid Sankaran
        Name: Sid Sankaran
        Title: Director

[Signature Page to Equity Financing Commitment]


Annex I
Merger Agreement



1006141340v12
Filed by Third Point Reinsurance Ltd. pursuant to Rule 425 under the Securities Act of 1933 and deemed filed under Rule 14a-12 under the Securities Exchange Act of 1934 Subject Company: Sirius International Insurance Group Ltd. Commission File No.: 001-38731 Date: August 6, 2020 SiriusPoint: Strong Global (Re)insurer Well-Positioned to Capitalize on Market Opportunity AUGUST 2020 1 For Information Purposes Only

 
DISCLAIMER Forward-Looking Statements Information set forth in this communication, including financial estimates and statements as to the expected timing, completion and effects of the proposed merger between Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd., constitute forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These estimates and statements are subject to risks and uncertainties, and actual results might differ materially. Such estimates and statements include, but are not limited to, statements about the benefits of the merger, including future financial and operating results, the combined company’s plans, objectives, expectations and intentions, and other statements that are not historical facts. Such statements are based upon the current beliefs and expectations of the management of Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. and are subject to significant risks and uncertainties outside of our control. Among the risks and uncertainties that could cause actual results to differ from those described in the forward-looking statements are the following: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, (2) the risk that Sirius International Insurance Group Ltd. shareholders may not adopt the merger agreement or that Third Point Reinsurance Ltd. shareholders may not approve the stock issuance, (3) the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated, (4) risks that any of the closing conditions to the proposed merger may not be satisfied in a timely manner, and (5) the risk that SiriusPoint may not achieve the expected benefits of the transaction. Discussions of additional risks and uncertainties are contained in Third Point Reinsurance Ltd.’s and Sirius International Insurance Group Ltd.’s filings with the Securities and Exchange Commission (the “SEC”). Neither Third Point Reinsurance Ltd. nor Sirius International Insurance Group Ltd. is under any obligation, and each expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this announcement are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof. Where to Find Additional Information This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. This communication may be deemed to be solicitation material in respect of the proposed merger between Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. In connection with the proposed merger, Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. intend to file a joint proxy statement/prospectus with the SEC. INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE, BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain a free copy of the proxy statement/prospectus (when available) and other documents filed by Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. with the SEC at http://www.sec.gov. Free copies of the joint proxy statement/prospectus, once available, and each company’s other filings with the SEC may also be obtained from the respective companies. Free copies of documents filed with the SEC by Third Point Reinsurance Ltd. will be made available free of charge on Third Point Reinsurance Ltd.’s investor relations website at https://www.thirdpointre.com/investors/financial-information/sec- filings/default.aspx. Free copies of documents filed with the SEC by Sirius International Insurance Group Ltd. will be made available free of charge on Sirius International Insurance Group Ltd.’s investor relations website at https://ir.siriusgroup.com/financials-information/sec-filings/. Participants in the Solicitation Third Point Reinsurance Ltd. and its directors and executive officers, and Sirius International Insurance Group Ltd. and its directors and executive officers, may be deemed to be participants in the solicitation of proxies from their respective shareholders in respect of the proposed merger. Information about the directors and executive officers of Third Point Reinsurance Ltd. is set forth in its Annual Proxy Statement, which was filed with the SEC on April 27, 2020. Information about the directors and executive officers of Sirius International Insurance Group Ltd. is set forth in it Annual Report on For 10-K, which was filed with the SEC on April 21, 2020. Investors may obtain additional information regarding the interest of such participants by reading the proxy statement/prospectus regarding the proposed merger when it becomes available. Non-GAAP Financial Information This presentation may also contain non-GAAP financial information. Management of Third Point Reinsurance Ltd. and Sirius International Insurance Group Ltd. use this information in their respective internal analyses of results and believe that this information may be informative to investors in gauging the quality of their respective performance, identifying trends in their results and providing meaningful period-to-period comparisons. For additional information regarding these non-GAAP financial measures, including any required reconciliations to the most directly comparable financial measure calculated according to GAAP, see the Appendix. 2 For Information Purposes Only

 
SIRIUSPOINT: A STRONG GLOBAL (RE)INSURER Third Point Reinsurance, Ltd.’s (“TPRe”) merger with Sirius International Insurance Group, Ltd. (“Sirius”) creates a diversified company with an attractive business profile backed by a strong balance sheet • The combined company will be rebranded as SiriusPoint • Transformational transaction to create a global, diversified (re)insurance franchise with presence across A&H, property, liability and specialty lines • Enhanced scale and underwriting capabilities, well-positioned for profitable growth Strategic transformation • Reconstituted strategic partnership with Third Point LLC, with the continuation supports re-rating of industry-leading investment returns of stock • Strong pro forma financial performance and capitalization with further ability to reposition risk profile • Proven management team with focus on underwriting profitability • CMIH, Sirius’ majority shareholder, estimated to own approximately 36%1 / 39%2 of SiriusPoint, with a 9.9% voting cap Note: Assumes all minority shareholders elect option 2 while CMIH elects option 3; 1 Based on pro forma basic shares outstanding; 2 Based on pro forma diluted shares outstanding (includes Series A preference shares) 3 For Information Purposes Only

 
PROVEN MANAGEMENT TEAM WITH SHARED VALUES Management team will have enhanced depth, a heritage of underwriting, and a proven track record • Chairman and CEO: Siddhartha (Sid) Sankaran – former AIG CFO and Chief Risk Officer, and Oscar Health CFO • Vice Chairman: Steve Fass – former Sirius Chairman and CEO and former Third Point Re Lead Independent Director • Senior Underwriting Role: Dan Malloy – current Third Point Re CEO Board will comprise individuals with deep industry and business experience • All members of the current TPRe Board • One representative of CMIH from the Sirius Board: Peter Tan • One director from the Sirius Board who is not associated with CMI: Rachelle Keller Significant underwriting talent across the enterprise • Global employee specialists with decades of experience and expertise • Two dedicated Managing General Underwriters (“MGUs”) in accident and health vertical – “sticky” relationships that are profit-aligned Monica Cramér-Manhem  Tenure at Sirius: 33 Dan Malloy  Tenure at TPRe: 8 President, Global Reinsurance  Relevant Experience: 33 TPRe CEO  Relevant Experience: 39 (Sirius) Neal Wasserman David Drury  Tenure at Sirius: 19  Tenure at TPRe: 2 President, Global Runoff Solutions EVP, Global Head of Property  Relevant Experience: 33  Relevant Experience: 30 (Sirius) Catastrophe Reinsurance (TPRe) Jan Onselius  Tenure at Sirius: 36 Tracey Gibbons  Tenure at TPRe: 1 Chief Underwriting Officer, Global  Relevant Experience: 36 SVP, Underwriting (TPRe)  Relevant Experience: 34 Reinsurance (Sirius) Warren Trace  Tenure at Sirius: 36 David Govrin  Tenure at TPRe: 3 President, North America  Relevant Experience: 41 President (TPRe)  Relevant Experience: 30 Reinsurance (Sirius) Amanda Kasala Stuart Liddell  Tenure at Sirius: 16  Tenure at TPRe: 7 SVP, Senior Underwriter, Bermuda Global Head of Life, A&H (Sirius)  Relevant Experience: 29  Relevant Experience: 28 (TPRe) Dan Wilson  Tenure at Sirius: 23 Clare Himmer  Tenure at TPRe: 7 President, U.S. Specialty (Sirius)  Relevant Experience: 33 Marketing Director (TPRe)  Relevant Experience: 28 Deal structure includes retention mechanisms to ensure committed leadership team 4 For Information Purposes Only

 
ACQUISITION ACCELERATES THIRD POINT RE’S ONGOING TRANSFORMATION TO A GLOBAL (RE)INSURER 2019 - 2020 Going Forward SiriusPoint • Shift focus to underwriting profitability • Global platform with access to admitted and non-admitted paper in Europe, U.S., Bermuda and Lloyd’s • Expand into more profitable lines of (re)insurance • Diversified (re)insurance franchise with sidecar- like retrocession program, A&H vertical platform, • Utilize combined (re)insurance and capital and growing specialty capabilities with similar markets expertise to create distribution and vertical platform drive profitable business • Less reliance on property cat to drive underwriting profitability • Reduce investment volatility by transitioning a majority of the portfolio to fixed income • Scale and refocused underwriting strategies position SiriusPoint to capitalize on market opportunities • More balanced return profile that delivers value from both sides of the balance sheet • Repositioned investment portfolio and independent governance structure improves ratings trajectory 5 For Information Purposes Only

 
FINANCIALLY ATTRACTIVE TRANSACTION FOR SHAREHOLDERS Financial Drivers Expected Financial Impact  Offers opportunity to capitalize on hardening market Accretive to EPS Earnings  Optimize business mix drivers Accretive to Return on Equity  Continued outperformance on investment portfolio Limited BV dilution  Diversified lines of business creates capital synergies Capital Modest TBV multiple required to breakeven drivers  Potential to further optimize combined cat portfolio Anticipate less than 30% leverage at close Strategic transformation removes overhangs of both companies and supports re-rating of stock 6 For Information Purposes Only

 
OVERVIEW OF SIRIUS: KEY HIGHLIGHTS Mix of Business by Reportable Segment (GWP) $2.6 $3.7 $1.9 Property cat. excess billion billion billion (re)insurance Total Investments LTM Gross 15% Other Property Total Capital1 21% and Cash Written Premiums Runoff 4% U.S. Specialty 4% Global (re)insurance Casualty 60% (re)insurance 11% Clients in nearly 20 Aviation & Space Global >8,000 6% Trade Credit 150 Underwriting and Treaties and Global A&H 3% Marine & Energy Countries Representative Accounts 32% Contingency 2% Offices <1% Agriculture (re)insurance 2% Financial Strength Ratings Top 94% 1,085 10 Year Net 20 Employees Combined Ratio A- A- A- Global (re)insurer2 (including MGUs3) AM Best S&P Fitch (avg. 2010-2019) Note: Data as of June 30, 2020 unless noted otherwise; 1 Total capital includes $2.4bn of GAAP capital and $0.2bn of the DTL on the safety reserve; 2 Top 20 Global (re)insurer per S&P Global’s 2019 Global Reinsurance Highlights; 3 International Medical Group and ArmadaCorp Capital 7 For Information Purposes Only

 
DIVERSIFIED INVESTMENT PORTFOLIO MANAGED BY THIRD POINT LLC PROVIDING INDUSTRY-LEADING INVESTMENT RETURNS • Third Point LLC will be a strategic partner to SiriusPoint on portfolio allocation, manage assets directly under the direction of SiriusPoint where they have a competitive advantage, and will likely utilize sub-advisors to manage the majority of the portfolio • Approximately three-quarters of SiriusPoint’s portfolio will be in fixed income and very high credit collateral holdings with the balance in Third Point LLC funds and alternatives – an asset allocation in the range of asset allocation of peer companies Q1’19 TPRe Q2’20 TPRe Expected SiriusPoint Total invested assets Fixed Income TPE TPE and and Collateral1 30% Alternatives 27% 26% Fixed Income Fixed Income 1 TPE and Collateral1 and Collateral 73% 70% 74% Total: $2.3bn Total: $2.5bn Total: $6.1bn Note: 1 Includes cash and cash equivalents (incl. restricted cash) 8 For Information Purposes Only

 
SIRIUS PLATFORM EXPANDS UNDERWRITING CAPABILITIES, GEOGRAPHIC FOOTPRINT AND PRODUCT OFFERINGS Liège Stockholm Hamburg Toronto London Glastonbury, CT Cardiff Zurich New York, NY San Francisco, CA Berwyn, PA Baltimore, MD Bermuda Sirius expands: Indianapolis, IN Miami, FL Hong Kong  Underwriting capabilities Singapore Labuan  Geographic footprint  Product offerings Sydney (Re)insurance franchise Accident & Health vertical platform • Long-standing relationships and track record of underwriting • Decades of market leadership and performance profitability • Two in-house MGUs • Diverse businesses, scalable with larger underwriting platform • Sticky relationships with MGUs that are profit-aligned with Sirius • Proportional retrocession program with sidecar-like economics • Unique opportunities for growth US specialty business growth Global Solutions and Run-off • Proven teams • Strong market presence with attractive long-term IRR • Data-enabled small-commercial business 9 For Information Purposes Only

 
ATTRACTIVE DIVERSIFIED SPECIALTY (RE)INSURANCE FRANCHISE WITH SIGNIFICANT GROWTH POTENTIAL 2Q’20 LTM GPW Expected SiriusPoint Specialty & Specialty Property1 Casualty 29% 37% Property 34% 35% Runoff Casualty 4% 24% Retroactive reinsurance contracts 16% Accident & Accident & Specialty & Casualty2 Health Property Health 24% 32% 28% 30% Runoff & other3 6% $0.6bn $1.9bn $2.5bn 100% 71% 29% 78% 22% (Re)insurance Insurance Note: 1 Includes Sirius Property cat. excess (re)insurance and Sirius Other Property; 2 Includes Sirius Global (re)insurance (excluding Property cat. excess (re)insurance and Other Property) and Sirius U.S. Specialty; 3 Includes Retroactive (re)insurance contracts 10 For Information Purposes Only

 
ENHANCED SCALE & UNDERWRITING CAPABILITIES ($mm) + = Pro forma Q2’20 LTM $591 $1,934 $2,525 GPW 6/30/20 Tangible $1,471 $1,838 $3,3091 Capital Europe, Bermuda, United Europe, Bermuda, Platforms Bermuda & United States States, and Asia United States, and Asia Underwriters 10 192 202 Employees 36 1,085 ~1,100 Note: 1 Excludes transaction adjustments 11 For Information Purposes Only

 
STRONG PRO FORMA CAPITALIZATION WITH INCREASED SCALE $bn GPW (LTM) Tangible capital 1 $9.8 $14.5 2 1 $8.8 $9.9 $6.8 $9.1 $5.5 $8.2 3 $5.4 $7.7 4 $5.0 $6.3 5 $3.4 SiriusPoint6 $3.3 $3.2 5 $2.9 SiriusPoint $2.5 $2.1 $1.9 7 $1.9 5 $0.8 $1.8 $0.8 $1.7 $0.6 $1.5 Larger capital base and broader product offering that is more attractive to customers and shareholders Source: Company filings; Note: Financial data as of 6/30/2020, unless otherwise stated; 1 As of 3/31/2020 or Q1’20 LTM; 2 Excludes Other segment; 3 Showing non-life GPW only; 4 Showing (re)insurance segment only (TransRe); 5 As of 12/31/2019 or FY2019; 6 Excludes transaction adjustments; 7 As of FY2019 including $500mm equity raise on 6/10/2020 and $300mm debt raise on 6/18/2020 12 For Information Purposes Only

 
TRANSACTION OVERVIEW • TPRe will acquire 100% of Sirius for $788mm1, comprised of a mix of stock, cash, and other contingent value components. Transaction value represents ~80% of Sirius’s Q2’20 TBV1 — Number of TPRe common shares issued to Sirius shareholders based on exchange ratio of 0.743x • Transaction structured to provide alignment of interests in the success of the company for all parties — Sirius shareholders will have the ability to elect one of three options: 1. $9.50 in cash per share 2. TPRe shares plus two year CVR which, taken together, guarantees that on the second anniversary of the closing date the electing shareholder will have received equity and cash of at least $13.73 per share on that date . Share based awards for management align long-term incentives 3. i.) cash, ii.) TPRe shares, iii.) Series A preference shares, iv.) five year warrants and v.) upside share instrument . CMIH has agreed to elect option #3 and has agreed to a 9.9% voting cap and lockup agreement . Series A preference shares provide protection for respective shareholders from adverse COVID-19 reserve development • We received positive feedback from the ratings agencies and will continue to evaluate the capital markets for opportunities to optimize our capital structure • Existing excess cash and $125mm bridge loan commitment provide funding for cash consideration and other redemptions, as required • Daniel S. Loeb, our largest individual shareholder, has agreed to provide an equity commitment to purchase approximately $50mm shares in support of the transaction • Approvals and Timing — Subject to shareholder approvals and customary regulatory approvals — Expected closing in Q1’21 Note: Market data as of 8/5/2020; 1 Assumes all minority investors elect option 2 at $13.73 of value and CMIH elects option 3 based on 0.743x and TPRe share price of $8.15 (excludes warrants and upside share instrument as both are out of the money) 13 For Information Purposes Only

 
THIRD POINT RE SECOND QUARTER 2020 RESULTS TPRe Q2 2020 Results • 10.1% return on equity • 10.1% increase in diluted book value per share to $14.37 • Combined ratio of 98.3%, of which 7.0 points was attributable to the impact of COVID-19 • Improved underwriting result is a significant milestone in the ongoing transformation of the company to a specialty reinsurer • Reported 16 straight quarters with no prior year adverse development • 5.8% return on investments managed by Third Point LLC TPRe Q2 YTD 2020 Results • (4.2)% return on equity • (4.5)% decrease in diluted book value per share to $14.37 • Combined ratio of 97.6%, of which 6.8 points was attributable to the impact of COVID-19 • (1.9)% return on investments managed by Third Point LLC 14 For Information Purposes Only

 
SIRIUSPOINT: A STRONG GLOBAL (RE)INSURER TPRe’s merger with Sirius creates a diversified company with an attractive business profile backed by a strong balance sheet • The combined company will be rebranded as SiriusPoint • Transformational transaction to create a global, diversified (re)insurance franchise with presence across A&H, property, liability and specialty lines • Enhanced scale and underwriting capabilities, well-positioned for profitable growth Strategic • Reconstituted strategic partnership with Third Point LLC, with the continuation transformation of industry-leading investment returns supports re-rating • Strong pro forma financial performance and capitalization with further ability to of stock reposition risk profile • Proven management team with focus on underwriting profitability • CMIH, Sirius’ majority shareholder, estimated to own approximately 36%1 / 39%2 of SiriusPoint, with a 9.9% voting cap Thank you for your time and continued support of TPRe and Sirius Note: Assumes all minority shareholders elect option 2 while CMIH elects option 3; 1 Based on pro forma basic shares; 2 Based on pro forma diluted shares outstanding (includes Series A preference shares) 15 For Information Purposes Only

 
Appendix 16 For Information Purposes Only

 
DETAIL ON TRANSACTION CONSIDERATION • Transaction structured to provide alignment of interests in the success of the company for all parties • Sirius shareholders will have the ability to elect one of three options • CMIH has agreed to elect option #3 and has agreed to a 9.9% voting cap and lockup agreement Option #1 • $9.50 in cash per share • Represents $13.73 per share in cash and stock consideration — 0.743x shares of TPRe common stock Option #2 — One Contingent Value Right (“CVR”) o CVR settles in cash after two years representing the difference between $13.73 and SiriusPoint share price at settlement multiplied by 0.743 • $0.905 in cash per share • 0.521x shares of TPRe common stock1 • 0.111x shares of Series A preference shares1 — Three year duration with conversion adjustment mechanism tied to net of Sirius and TPRe COVID-19 losses — The number of shares underlying the security will be fixed at closing • 0.190x Warrants per share of Sirius stock Option #3 — $11.00 per share strike price — Five year duration, settled in stock • $0.905 in aggregate principal amount of the Upside Share Instrument — One year duration; paid if closing price of SiriusPoint common stock exceeds $20.00 per share for any 30 consecutive trading day period prior to the first anniversary of closing — Settled in stock Note: Illustrative based on TPRe’s closing share price as of 8/5/2020; 1 Subject to +/- 5% collar 17 For Information Purposes Only

 


Exhibit 99.2

Filed by Third Point Reinsurance Ltd.
pursuant to Rule 425 under the Securities Act of 1933
and deemed filed under Rule 14a-12
under the Securities Exchange Act of 1934
Subject Company: Sirius International Insurance Group Ltd.
Commission File No.: 001-38731
Date: August 7, 2020

Third Point Re And Sirius Group’s Merger Announcement Call
August 7, 2020

Operator
Good morning, ladies and gentlemen, and welcome to the Third Point Re and Sirius Group's merger announcement call. As a reminder, this conference is being recorded, and we will not be opening the call for questions. I would now like to turn the call over to Mr. Chris Coleman. Please go ahead, sir.
Christopher S. Coleman
Thank you, operator, and good morning, everyone. Thank you for joining our presentation to announce Third Point Re’s combination with Sirius Group and the anticipated creation of SiriusPoint. I’m Chris Coleman, Chief Financial Officer of Third Point Re. On the call today are Josh Targoff, who has served as Chairman of Third Point Re and is currently a member of our Board; Sid Sankaran, the new Chairman of Third Point Re who will also serve as Chairman and Chief Executive Officer of SiriusPoint; and Dan Malloy, Chief Executive Officer of Third Point Re.
We are here today to tell you more about this exciting transaction. As a reminder, we have posted a presentation that will be referenced during this call as well as a press release outlining the transaction to the investor relations section of our website.
Before we start, I would like to remind you that comments today regarding the company’s future business plans, prospects and financial performance are forward-looking statements that we make pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements are made based on management’s current knowledge and assumptions about future events and may involve risks and uncertainties that could cause actual results to differ materially from our expectations. In providing projections and other forward-looking statements, the company disclaims any intent or obligation to update them. For additional information on important factors that could affect these expectations, please see our annual report for the year ended December 31, 2019, and our subsequent filings made with the U.S. Securities and Exchange Commission.
This communication does not constitute an offer to sell or the solicitation of any offer to buy any securities or solicitation of any vote or approval. In connection with the proposed merger, the companies intend to file a registration statement on Form S-4 containing a proxy statement prospectus with the SEC, and you should read the proxy statement prospectus when it becomes available because it will contain important information. Both companies and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders in respect of the proposed merger.
1



Exhibit 99.2
Information about each company’s directors and executive officers is set forth in their respective 10-Ks and other reports filed with the SEC. You may obtain additional information regarding the interest of such participants by reading the proxy statement prospectus regarding the proposed merger when it becomes available.
I’ll now turn the call over to Josh Targoff.
Joshua Targoff
Thanks, Chris, and hi, everyone.
Let’s start with Slide 3. I’ve been involved with Third Point Re since its inception in 2011, and the creation of SiriusPoint is an exciting inflection point that marks a compelling path forward in creating value for all our stakeholders. We will be a strong, top tier global reinsurer well positioned to capitalize on the unique market opportunity that is currently underway.
As many of you already know, Third Point Re has done substantial work over the past 18 months to accelerate our transformation into a global specialty reinsurance company. This has meant a steady focus on underwriting profitability and expansion into more profitable lines, with marked success. In addition to the work we’ve done organically, we have been looking for a partner to allow us to advance and accelerate our progress. As a result, when Sirius Group began its strategic review earlier this year, we were immediately interested in light of their significant underwriting capabilities across key lines on a global scale. We believe that the industrial logic of the transaction is compelling, and we’re confident that our stakeholders will now agree.
Our evolution as an enterprise is worth emphasizing. Many of you know that we started out as a reinsurer focused on total return, generating float by writing low volatility, long-dated reinsurance. During our first several years of operations under that model, we experienced some success. Over time, however, we came to realize the limitations of the model. It was difficult to find profitable, low-volatility underwriting business, and the inherent volatility of our strong investment returns was off-putting to many insurance investors.
Now, we are poised for a new chapter on our evolution – one that introduces a new paradigm of a reinsurer partnering with an investment firm. With the creation of SiriusPoint, we have a unique strategic opportunity to establish a powerful new entity that focuses on underwriting and also strives for excellence on both sides of the balance sheet.
One of the compelling aspects of this transaction is that it will clear actual or perceived market overhangs for both parties. For Third Point Re, obviously, this transaction will allow us to completely turn the page from the “hedge fund re” moniker. You’ll hear more about our new relationship with Third Point LLC in a few minutes, and how it is expected to drive shareholder returns with less volatility. For Sirius Group, they were saddled with market concerns relating to Sirius’ large owner, CMI Group. We welcome the partnership with CMI into SiriusPoint, and thank them for agreeing to a 9.9% voting cutback, despite owning approximately 35% of the equity of the combined business. This could only have been accomplished by establishing a relationship of trust between us and CMI, and we are proud to have forged a real partnership. We look forward to growing the company together with them.
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Exhibit 99.2
As announced, SiriusPoint’s Chairman and CEO will be Sid Sankaran, who joined Third Point Re’s Board a year ago. As Chris just mentioned, Sid has succeeded me as Chairman of TPRE, a transition I happily embrace. Sid’s unique combination of untiring work ethic, superb insurance acumen, and diversified background make him the only person our Board would consider to take on the task of reimagining SiriusPoint, and I look forward to supporting his efforts as a continuing Board member. Sid has incredible industry experience and insight gained through his tenure as CFO and Chief Risk Officer of AIG, and more recently, as CFO of Oscar Health. He’s the right person to lead SiriusPoint as we move forward.
Turning to slide 4.
Sid will be supported by a great team, with significant underwriting expertise across the enterprise.
We are pleased that in combining Sirius and Third Point Re, we will have some of the most talented underwriters in the industry, and this team will be a cornerstone of our success. Both sides have long tenured experienced underwriters and they’ll be driving our business. For example, Dan Malloy, who you’ll hear from in a bit, will be returning to his underwriting roots and will remain a senior underwriting executive of SiriusPoint following the closing. Dan deserves immense credit for stepping into the CEO role at Third Point Re (which he did not seek) and through his leadership commenced the transformation of the company into a specialty reinsurer well on its way to underwriting profitability. We thank Dan for all his efforts and look forward to many more years working together as we continue to build SiriusPoint.
Additionally, we’re very pleased that Third Point Re’s former Lead Independent Director, Steve Fass, will be joining SiriusPoint as Vice Chairman. Steve is a former CEO of the Sirius business, and he knows many of the senior executives and its operations there, so he’ll work closely with Sid and the team on the integration of the two companies.
SiriusPoint’s management will be overseen by a strong and independent Board, made up of the current Third Point Re Board and two new additions from the Sirius Group Board: Rachelle Keller and Peter Tan. Also, it’s worth noting that both companies share an entrepreneurial culture, a laser focus on clients, and enthusiasm for the growth opportunity ahead.
As for Kip Oberting, while he will be stepping down as CEO of Sirius Group at closing, we appreciate the strong oversight that will continue under his direction between now and that time, and we thank him for his leadership and dedication to Sirius.
With that, let me hand it over to Sid to share more about our transformative vision for SiriusPoint.
Siddhartha (Sid) Sankaran
Thanks, Josh, and hi everyone. I look forward to speaking with each of you in the months and years to come.
For those of you who don’t know me, I’m an actuary by training and spent almost a decade at AIG, first as Chief Risk Officer and then as CFO. I’ve had a great experience being part of the Third Point Re Board for the past year and I’m thrilled to have this opportunity to take the
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Exhibit 99.2
combined company to a new level of success. I’m really looking forward to working with Dan, Steve, and the rest of the SiriusPoint team to realize our vision.
Josh has given you good perspective on how we got to where we are. Now, let me tell you why I’m so excited about our future, which you can see summarized on slide 5.
The primary reason this is a strategic transaction for us is the people of Sirius Group. They bring deep experience and expertise in underwriting, with employee specialists across the globe. It’s been clear to me in meeting with the team that Sirius has terrific underwriting talent – and that they are deeply dedicated to their clients and excited to take the next step with me to growing the business profitably. The bottom line in our business is that underwriting comes first, and this is a team is excited for the future.
It’s also very clear that this transaction is transformative for us, based on the platform and capabilities that we can now bring to the table. A number of differentiators will drive our success. First, we’ll have a global platform with access to admitted and non-admitted paper in Europe, the U.S., Bermuda, and Lloyd’s. We will offer clients and brokers a diverse reinsurance franchise, including a niche, hard-to-replicate European branch network and a specialized A&H business. Within A&H, we’ll also have the benefit of their dedicated in-house managing general underwriters, ArmadaCorp Capital and International Medical Group, which are sticky relationships that are profit-aligned.
This transaction is all about looking forward towards market opportunities. The combination of the two companies will provide SiriusPoint with a larger capital base that will enable us to capitalize on improving market conditions. We’ll have a diversified portfolio mix across a range of attractive classes of business and a more traditional investment allocation that will also leverage the strengths of our strategic partnership with Third Point LLC, which I’ll speak to later. This means lower volatility while still taking advantage of opportunities to improve risk-adjusted returns across asset classes.
Turning to slide 6, financially, this transaction is a great opportunity for both companies’ shareholders.
On all traditional financial metrics, this transaction is expected to be accretive. The transaction is expected to be accretive to both EPS and return on equity in the first year after close. In addition to positioning the company for attractive book value and earnings growth, this transaction also removes the overhangs on both companies’ current valuation. This should result in a re-rating of the combined company’s trading multiple to a level more in line with our peers. This will further enhance the value creation opportunity for SiriusPoint shareholders.
While issuing a significant number of Third Point Re shares at a significant discount to book value is expected to result in some dilution to book value per share, we expect a relatively short payback period with only a modest improvement in the valuation profile required for us to breakeven. While there are puts and takes to the consideration, we are acquiring Sirius Group at approximately 80% of tangible book value. We believe that all of our combined shareholders in the new SiriusPoint will benefit from the long-term economic value in this deal.
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Exhibit 99.2
We, of course, anticipate having a strong pro forma balance sheet, with less than 30 percent leverage at close and reducing over time. We’ve discussed our plans with the rating agencies and believe strongly that given all of these factors – as well as our strong pro forma financial performance and capitalization with further ability to reposition our risk profile – the strategic transformation we are executing will have positive credit implications for the combined company.
On slide 7, you can see Sirius Group on a standalone basis is a very well-established reinsurance and insurance provider. The team brings a strong track record of underwriting profitability, including a historical net combined ratio outperformance versus the reinsurance industry. They have $2.6 billion in total capital and $1.9 billion in gross premiums written, and are a top 20 global reinsurer, providing a wide range of coverages to clients in nearly 150 countries.
This includes health and travel products to consumers through two dedicated managing general underwriters: International Medical Group and ArmadaCorp Capital. And as I said earlier, these are extremely valuable partnerships and will be central to our success in the A&H space in the long-term. Sirius Group has also nurtured longstanding relationships with clients and brokers that’ll be invaluable to the combined organization. These are remarkable relationships that have stood the test of time, and we look forward to our clients and brokers continuing to partner with us for years to come.
As I look forward, I have a few specific thoughts on the business. Look, I probably can’t say this enough, but underwriting comes first. Historically, this is a terrific underwriting organization that may have lost its way a little bit in trading off growth versus managing profitability and risk. We are going to refocus on the bottom line and improve the combined ratio.
Second, we have a great platform and all the bones to be a global reinsurance player. There are some parts of the platform we need to reinvigorate in terms of our broker and client relationships and of course underwriting, and we’re excited to do so.
Finally, we need to modernize our infrastructure and IT so we can get to the expense ratios that are best-in-class. Technology is a passion of mine, and this will benefit us in the long run.
I’ll be measuring us on our improvements in the combined ratio, which as we execute will translate to book value per share growth and improvement in our ROE.
Before I hand it over to Dan Malloy, I’d like to chat about the new strategic partnership that we announced with Third Point LLC, on slide 8. We are both very excited as this is truly a win-win for both companies. As Josh alluded to, Third Point Re has had a legacy perception as a captive vehicle. That’s because traditionally, we’ve had a large portion of our invested assets in Third Point LLC’s enhanced fund.
In recent months, the Board and management have been focused on evolving that model, culminating in the reconstituted partnership we announced today. Under the new arrangement, SiriusPoint’s traditional investments – which will comprise the vast majority of its portfolio – will be outsourced to a diversified range of third-party asset managers. Third Point LLC will continue to manage investments in specialty asset classes as well as working with us on tailored asset-liability management strategies. This will be a strategic differentiator on the return side while
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Exhibit 99.2
also reducing volatility and creating a portfolio mix more in line with peer property/casualty reinsurers. We have already seen the benefit of this partnership in our second quarter investment returns as we partner with Third Point in specialty asset classes that have attractive return profiles and meet our risk appetite.
With that, I’d like to invite Dan to share some more color about the combined SiriusPoint’s underwriting platform and capabilities.
Daniel V. Malloy
Thanks, Sid, and good morning, everyone. I’ve been in the reinsurance business for almost 40 years and at Third Point Re for almost nine. I can’t remember the last time I’ve been so excited about our prospects. As you’ve heard today, this transaction is all about focusing on our underwriting talent in order to capitalize on market opportunities. We have the capital, the platforms, and the people to support a wide range of clients and profitably grow our business.
Slide 9 shows what the addition of Sirius brings to our company. It is a respected global reinsurer with a 75-year history of partnering with clients and brokers. Their team shares with ours a strong underwriting culture and a commitment to fostering relationships. I know, respect, and have done business over the years with many of my future colleagues.
Sirius has developed an extensive branch system that offers a range of products to clients in more than 150 countries, meaningfully expanding our profile. Their integrated A&H business includes ownership of two MGUs, which are big contributors to success in specialty areas of the business, and syncs with our ongoing effort to forge closer ties with specialty lines, distribution, and underwriting.
We’re also excited about the Specialty lines operation, a commercial insurance business that is demonstrating strong growth in the U.S. I know many teams that are interested in such a platform and expect it will accelerate our strategic investment and reinsurance ROFR initiatives which accounts for about 10% of TPRe’s 2020 projected volume. Sirius Group’s Global Solutions and Run-off business is also expected to add value as demand for its coverages and claims handling is expected to increase, and it complements our capital relief product offering.
Moving to slide 10, here’s how the combined platform will look on a pro forma basis. Note that SiriusPoint’s business mix will be roughly 80% reinsurance and 20% insurance, based on the 2019 gross premiums written of about $2.5 billion. We have a strong pipeline of specialist insurance opportunities that will fit well in the new company. The combined underwriting businesses are complementary and will comprise 36% Global Property, 33% Specialty & Casualty, and 24% Accident & Health. That’s a much broader and balanced mix for us, so we will be better positioned to respond and grow across more product lines in this improving market.
Potential new class of 2020 insurers are still in the process of starting up from scratch. But at closing, SiriusPoint will already be many steps ahead. As you can see from slide 11, we’ll be a significant player with the capital structure, platforms, underwriting talent, and most importantly, the clients already in-place. We expect to improve profitability by deepening these all important
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Exhibit 99.2
client relationships and offering a wide range of coverage at a time when we are needed more than ever.
Following the closing, we expect SiriusPoint to be in the top tier of reinsurers by gross written premiums and tangible capital, as you can see in slide 12, which shows our ranking among Bermuda-based peers. I can tell you from experience that our larger capital base, as well as broader product offering, will give us opportunities to expand relationships with customers and brokers, thus creating value for our shareholders.
With that, I’d like to invite Chris to walk you through the terms of the transaction. As you know, Third Point Re also reported financial results for the second quarter ending June 30, 2020 at the same time as we announced our combination with Sirius. We’d like to take a few moments for Chris to speak with you about our performance.
Christopher S. Coleman
Thanks, Dan. Please turn to slide 13. The total deal consideration is estimated at $788 million, which comprises stock, cash, and other contingent value components, representing approximately 80 percent of Sirius Group’s reported tangible book value as of June 30, 2020. The transaction is structured to provide Sirius shareholders with optionality to receive immediate cash value for their shares or to continue as SiriusPoint shareholders with the ability to participate in the company’s future success.
All shareholders of Sirius will have the ability to elect one of three options:
One, $9.50 in cash per share.
Two, Third Point Re shares plus a Contingent Value Right, which, taken together, guarantee that on the second anniversary of the closing date, the electing shareholders will have received equity and cash of at least $13.73 per share in value.
Or three, a combination of cash, Third Point Re shares, five-year warrants, and an upside right. The third option also contains Series A Preference shares as part of the consideration package with an expected value of $100 million that will be settled into common shares at the three year anniversary, subject to an adjustment based on each company’s respective COVID losses. Given the uncertainty around the ultimate impact of COVID-19 to each company’s loss estimates, this mechanism provides shareholders of each company with protection should either company’s ultimate COVID losses develop more than the other relative to current expectations.
CMIG, Sirius Group’s majority shareholder, representing approximately 96% of Sirius Group’s outstanding shares, has agreed to select the third option. They believe in the value creation potential of the combined company and are taking a majority of their consideration in shares and other contingent value instruments with significant upside potential. CMIG has also agreed to a 9.9% voting cap that will eliminate any historical stakeholder concerns relating to Sirius Group’s governance and access to capital markets.
We expect that the cash portion of the deal consideration and other redemptions, as may be required, would be funded with excess cash and a $125 million bridge loan commitment.
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Exhibit 99.2
However, we do not anticipate drawing this loan commitment as we plan to access the debt and capital markets.
In addition, Dan Loeb, Third Point Re’s largest individual shareholder, has agreed to provide an equity commitment to purchase approximately $50 million, subject to an equity commitment letter. We view Dan’s desire to maintain his ownership in the combined company as a validation of our business strategy.
We received positive feedback from the rating agencies, and we’ll continue to evaluate the capital markets for opportunities to optimize our capital structure. The transaction is subject to shareholder approvals and customary regulatory approvals, and we expect to close in the first quarter of 2021.
Now, shifting to our second quarter results, on slide 14.
For the second quarter, we generated net income of $124 million, or $1.33 per diluted share, and our return on equity was 10.1%. Our second quarter results were driven by a significant bounce back in our investment performance resulting in a consolidated investment return of 5.8% for the quarter. Our diluted book value per share at the end of the second quarter was $14.37, representing an increase of 10.1% for the quarter.
The shift in our underwriting strategy produced another quarter of underwriting profitability, notwithstanding the continued impacts of COVID-19. Our combined ratio for the second quarter was 98.3%, which included $9.9 million, or 7 points related to additional COVID-19 losses recorded in the quarter, largely in line with expectations. We reported a small benefit from favorable reserve development in the quarter, and this is now our 16th quarter in a row with no prior year adverse reserve development.
While we have recorded our current best estimate of the COVID-19 impact based on the latest information available, there remains significant uncertainty around the ultimate amount of claims and scope of damage resulting from the ongoing pandemic.
Overall, we are very pleased with our results. Our shift in business mix has placed us into higher margin property and specialty lines which are benefiting from improving market conditions. We expect to continue to benefit from our differentiated investment strategy, especially as we enter into a period of historically low interest rates. Our capital position remains strong, and we are well positioned to continue to deliver increasing shareholder value from both underwriting and investments.
I will now turn the call over to Sid for closing remarks.
Siddhartha (Sid) Sankaran
Thank you, Chris. In closing, SiriusPoint will be an entirely new class of reinsurer, uniquely positioned to capitalize on the market opportunities ahead. We’d like to thank you for your time and continued support of both Third Point Re and Sirius Group, and we look forward to our engagement with you as we work toward close and embark on our exciting future.

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Exhibit 99.2
Operator
This concludes today's conference. You may disconnect your lines at this time. Thank you for your participation.

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Forward-Looking Statements
Information set forth in this communication, including financial estimates and statements as to the expected timing, completion and effects of the proposed merger between Third Point Re and Sirius Group, constitute forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These estimates and statements are subject to risks and uncertainties, and actual results might differ materially. Such estimates and statements include, but are not limited to, statements about the benefits of the merger, including future financial and operating results, the combined company’s plans, objectives, expectations and intentions, and other statements that are not historical facts. Such statements are based upon the current beliefs and expectations of the management of Third Point Re and Sirius Group and are subject to significant risks and uncertainties outside of our control. Among the risks and uncertainties that could cause actual results to differ from those described in the forward-looking statements are the following: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, (2) the risk that Sirius Group shareholders may not adopt the merger agreement or that Third Point Re shareholders may not approve the stock issuance, (3) the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated, (4) risks that any of the closing conditions to the proposed merger may not be satisfied in a timely manner, and (5) the risk that SiriusPoint may not achieve the expected benefits of the transaction. Discussions of additional risks and uncertainties are contained in Third Point Re’s and Sirius Group’s filings with the Securities and Exchange Commission. Neither Third Point Re nor Sirius Group is under any obligation, and each expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this announcement are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.

Where to Find Additional Information
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. This communication may be deemed to be solicitation material in respect of the proposed merger between Third Point Re and Sirius Group. In connection with the proposed merger, Third Point Re and Sirius Group intend to file a joint proxy statement/prospectus with the SEC. INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE, BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain a free copy of the proxy statement/prospectus (when available) and other documents filed by Third Point Re and Sirius Group with the SEC at http://www.sec.gov. Free copies of the joint proxy statement/prospectus, once available, and each company’s other filings with the SEC may also be obtained from the respective companies. Free copies of documents filed with the SEC by Third Point Re will be made available free of charge on Third Point Re’s
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Exhibit 99.2
investor relations website at https://www.thirdpointre.com/investors/. Free copies of documents filed with the SEC by Sirius Group will be made available free of charge on Sirius Group’s investor relations website at https://ir.siriusgroup.com/.
Participants in the Solicitation
Third Point Re and its directors and executive officers, and Sirius Group and its directors and executive officers, may be deemed to be participants in the solicitation of proxies from their respective shareholders in respect of the proposed merger. Information about the directors and executive officers of Third Point Re is set forth in its Annual Proxy Statement, which was filed with the SEC on April 27, 2020. Information about the directors and executive officers of Sirius Group is set forth in its Annual Report on Form 10-K, which was filed with the SEC on April 21, 2020. Investors may obtain additional information regarding the interest of such participants by reading the proxy statement/prospectus regarding the proposed merger when it becomes available.

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