PREN14A
PRELIMINARY
PROXY STATEMENT, DATED MAY 12, 2009 SUBJECT TO
COMPLETION
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the
Registrant o
Filed by a Party other than the
Registrant þ
Check the appropriate box:
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Preliminary Proxy Statement (Preliminary Solicitation Statement
to Request Special General Meeting)
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Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under §240.14a-12
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IPC HOLDINGS, LTD.
(Name of Registrant as Specified
In Its Charter)
VALIDUS HOLDINGS, LTD.
(Name of Person(s) Filing Proxy
Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and 0-11.
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(set forth the amount on which the filing fee is calculated and
state how it was determined):
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Proposed maximum aggregate value of transaction:
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Fee paid previously with preliminary materials:
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Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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Form, Schedule or Registration Statement No.:
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PRELIMINARY
COPY, DATED MAY 12, 2009 SUBJECT TO
COMPLETION
IPC
HOLDINGS, LTD.
SOLICITATION
STATEMENT
TO REQUISITION A SPECIAL GENERAL MEETING OF IPC HOLDINGS,
LTD.
BY
VALIDUS HOLDINGS, LTD.
To the Shareholders of IPC Holdings, Ltd.:
Validus Holdings, Ltd., a Bermuda exempted company
(Validus, us or we), is
hereby asking you to compel the board of directors of IPC
Holdings, Ltd., a Bermuda exempted company (IPC), to
call a special general meeting of IPC. This solicitation
statement (this solicitation statement) and the
accompanying GREEN requisition card are being furnished by
Validus to holders of IPCs common shares, par value $0.01
per share (the IPC common shares). Validus is
seeking your written requisition to compel the board of
directors of IPC to call a special general meeting of IPC (the
IPC special general meeting) for the purposes
described below. IPC shareholders holding at least 10% of
the issued and outstanding IPC common shares (the
requisite IPC shareholders) may, by executing and
delivering written requisitions, compel the IPC board of
directors to call the IPC special general meeting.
WE ARE NOT SEEKING YOUR PROXY, CONSENT OR AUTHORIZATION AT
THIS TIME FOR ANY PROPOSALS TO BE CONSIDERED AT THE IPC
SPECIAL GENERAL MEETING. WE ARE ONLY SOLICITING YOUR
WRITTEN REQUISITION TO CALL THE IPC SPECIAL GENERAL
MEETING. AFTER THE IPC SPECIAL GENERAL MEETING HAS BEEN
REQUISITIONED, WE WILL SEND YOU PROXY MATERIALS WITH RESPECT TO
THE PROPOSALS TO BE CONSIDERED AT THE IPC SPECIAL GENERAL
MEETING.
On March 1, 2009, IPC entered into an Agreement and Plan of
Amalgamation, as amended on March 5, 2009, among Max
Capital Group Ltd. (Max), IPC and IPC Limited (the
Max amalgamation agreement) which would result in
the amalgamation of Max with IPC Limited, a wholly-owned
subsidiary of IPC (the proposed Max
amalgamation). On March 31, 2009, Validus
delivered to IPC an offer (the Validus amalgamation
offer) to effect the acquisition of IPC by Validus by
amalgamation of Validus Ltd., a direct, wholly-owned subsidiary
of Validus, with IPC whereby each issued and outstanding IPC
common share would be exchanged for 1.2037 Validus voting common
shares (the Validus shares). The board of
directors of IPC has determined that the Validus amalgamation
offer does not constitute a superior proposal to the proposed
Max amalgamation, and Max has not released IPC from the
prohibition in the Max amalgamation agreement that prevents IPC
from even discussing the Validus amalgamation offer with
Validus. Therefore, in order to consummate the acquisition
of all the issued and outstanding IPC common shares (the
acquisition) without the cooperation of the IPC
board of directors, Validus is pursuing a scheme of arrangement,
as set forth on Annex A hereto (the Validus scheme of
arrangement), under Part VII of The Companies Act of
1981 of Bermuda, as amended (the Companies Act), on
the same economic terms as the Validus amalgamation offer.
In order to implement the Validus scheme of arrangement, the IPC
shareholders must approve the Validus scheme of arrangement at a
meeting ordered by the Supreme Court of Bermuda (the
court-ordered IPC meeting), IPC must separately
approve the Validus scheme of arrangement and the Validus scheme
of arrangement must be sanctioned by the Supreme Court of
Bermuda. If the IPC shareholders approve the Validus
scheme of arrangement at the court-ordered IPC meeting, the
separate approval of IPC of the Validus scheme of arrangement
can be provided by either (i) the IPC board of directors
voluntarily complying with the will of the IPC shareholders as
expressed at the court-ordered IPC meeting, or (ii) the
shareholders of IPC approving resolutions at the IPC special
general meeting, including resolutions for IPC to approve and to
be bound by the Validus scheme of arrangement and to terminate
the Max amalgamation agreement. Validus is seeking your
written requisitions to compel the IPC board of directors to
call the IPC special general meeting in order to complete the
Validus scheme of arrangement, if necessary, without the
cooperation of the IPC board of directors.
IPC shareholders holding at least 10% of the issued and
outstanding IPC common shares may, by executing and delivering
written requisitions, compel the IPC board of directors to call
the IPC special general meeting. The written requisitions
to be executed by IPC shareholders will grant Validus the power
and authority to convene the IPC special general meeting,
assuming written requisitions are executed by the requisite IPC
shareholders and
deposited by Validus with IPC, if the board of directors of IPC
fails to proceed duly within 21 days from the date of the
deposit of the requisitions with IPC to convene the IPC special
general meeting.
This solicitation statement is being sent to you to solicit
your written requisition to compel the IPC board of directors to
call the IPC special general meeting. If you believe that
you, an IPC shareholder, should have the opportunity to benefit
from the superior economic terms of the acquisition, we urge you
to promptly sign and return the GREEN requisition card to compel
the board of directors of IPC to call the IPC special general
meeting.
THIS SOLICITATION IS BEING MADE BY VALIDUS AND NOT ON BEHALF
OF THE IPC BOARD OF DIRECTORS. YOUR WRITTEN REQUISITION IS
IMPORTANT, NO MATTER HOW MANY OR HOW FEW SHARES YOU OWN.
WE URGE YOU TO COMPLETE, SIGN, DATE AND RETURN THE ENCLOSED
GREEN REQUISITION CARD TO CALL THE IPC SPECIAL GENERAL
MEETING.
Requisitions to call the IPC special general meeting should be
delivered as promptly as possible, by mail using the enclosed
envelope.
WE URGE YOU NOT TO SIGN ANY REVOCATION OF REQUISITION CARD
THAT MAY BE SENT TO YOU BY IPC. IF YOU HAVE DONE SO, YOU
MAY REVOKE THAT REVOCATION OF REQUISITION BY DELIVERING A LATER
DATED GREEN REQUISITION CARD.
Please complete, sign, date and return the enclosed GREEN
requisition card in the enclosed envelope today! If you have
any questions about executing or delivering your GREEN
requisition card or require assistance, please contact
Validus solicitation agent, Georgeson Inc.
(Georgeson):
199 Water Street
26th Floor
New York, NY 10038
Banks and Brokers should call:
(212) 440-9800
or
Toll Free: at
(888) 274-5119
Email: validusIPC@georgeson.com
The date of this solicitation statement is May
[ ], 2009. This solicitation statement
and the enclosed GREEN requisition card are first being sent or
given to IPCs shareholders on or about May
[ ], 2009.
Important Notice Regarding the Availability of Solicitation
Materials to solicit requisitions for the IPC special general
meeting:
This solicitation statement and the related solicitation
materials are available free of charge on Validus website
at www.validusre.bm.
All references to dollars and $ in this
solicitation statement refer to U.S. dollars.
TABLE
OF CONTENTS
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i
THE
ACQUISITION
In order to consummate the acquisition, Validus is
simultaneously pursuing the following alternative transaction
structures, pursuant to which IPC shareholders will receive
1.2037 Validus shares for each outstanding IPC common share:
(1) the Validus amalgamation offer;
(2) the Validus scheme of arrangement; and
(3) an exchange offer for all of the issued and outstanding
IPC common shares (the exchange offer).
The Validus amalgamation offer, the Validus scheme of
arrangement and the exchange offer are alternative methods for
Validus to acquire all of the issued and outstanding IPC common
shares on the same economic terms. Ultimately, only one of
these transaction structures can be pursued to completion.
Validus intends to seek to acquire all IPC common shares by
whichever method Validus determines is most effective and
efficient.
On March 31, 2009, Validus announced that it had delivered
to IPC the Validus amalgamation offer, providing for the
amalgamation of Validus and IPC whereby each IPC common share
would be exchanged for 1.2037 Validus shares. In
connection with the delivery of the Validus amalgamation offer
to IPC, Validus also delivered a copy of the proposed Agreement
and Plan of Amalgamation (the Validus amalgamation
agreement) signed by Validus so that, upon a termination
of the Max amalgamation agreement, IPC would be able to sign the
Validus amalgamation agreement with the certainty of an agreed
transaction. IPC announced on April 7, 2009, that its
board of directors had determined that the Validus amalgamation
offer does not constitute a superior proposal to the proposed
Max amalgamation and reaffirmed its support of the proposed Max
amalgamation. Additionally, Max has not released IPC from
the prohibition in the Max amalgamation agreement that prevents
IPC from even discussing the Validus amalgamation offer with
Validus. Therefore, in order to consummate the acquisition
without the cooperation of the IPC board of directors, Validus
is pursuing a three-part plan.
First, Validus is soliciting proxies from IPC shareholders to
vote against the proposed Max amalgamation. If the
proposed Max amalgamation is voted down by IPC shareholders,
IPCs board of directors will be able to terminate the Max
amalgamation agreement and execute the Validus amalgamation
agreement. If IPCs board of directors were to enter into
the Validus amalgamation agreement following the termination of
the Max amalgamation agreement, Validus believes the
amalgamation could be completed in mid-to-late July.
Second, Validus is pursuing the Validus scheme of
arrangement. In order to implement the Validus scheme of
arrangement, the IPC shareholders must approve the Validus
scheme of arrangement at the court-ordered IPC meeting, IPC must
separately approve the Validus scheme of arrangement and the
Validus scheme of arrangement must be sanctioned by the Supreme
Court of Bermuda. The Validus scheme of arrangement must
be approved by a majority in number of the holders of IPC common
shares voting at the court-ordered IPC meeting, whether in
person or by proxy, representing 75% or more in value of the IPC
common shares voting at the court-ordered IPC meeting, whether
in person or by proxy. If the IPC shareholders approve the
Validus scheme of arrangement at the court-ordered IPC meeting,
the separate approval of IPC to the Validus scheme of
arrangement can be provided by either (i) the IPC board of
directors voluntarily complying with the will of the IPC
shareholders as expressed at the court-ordered IPC meeting, or
(ii) the shareholders of IPC approving resolutions at the
IPC special general meeting (the Validus proposals),
including resolutions for IPC to approve and to be bound by the
Validus scheme of arrangement and to terminate the Max
amalgamation agreement. Validus is seeking your written
requisitions to compel the IPC board of directors to call the
IPC special general meeting in order to complete the Validus
scheme of arrangement, if necessary, without the cooperation of
the IPC board of directors. Following IPC shareholder approval
at both the court-ordered IPC meeting and the IPC special
general meeting, the satisfaction or, where relevant, waiver of
the other conditions to the effectiveness of the Validus scheme
of arrangement, and the granting of a court order from the
Supreme Court of Bermuda sanctioning the Validus scheme of
arrangement, a copy of the court order sanctioning the Validus
scheme of arrangement will be delivered to the Bermuda Registrar
of Companies at which time the Validus scheme of arrangement
will be effective. Validus believes that, under the Validus
scheme of arrangement, it would be able to close the acquisition
as early as mid-July based on the assumptions that: (1) the
Supreme Court of Bermuda will be able to accommodate the
preferred hearings schedule and meeting dates and other
procedural matters; (2) IPC shareholders holding at least
one-tenth of the issued IPC common shares have requisitioned the
IPC special general meeting to be held in late June or early
July; and (3) the
IPC directors, following the rejection of the Max amalgamation
agreement, or IPC shareholders, convene the IPC special general
meeting, allowing it to be held by mid-July.
Third, on May 12, 2009, Validus commenced the exchange
offer. The exchange offer is subject to certain conditions
described in the prospectus/offer to exchange included in the
Registration Statement on
Form S-4
filed by Validus with the Securities and Exchange Commission
(the SEC), including the tender of at least 90% of
the then-outstanding IPC common shares on a fully-diluted basis
(excluding any IPC common shares beneficially owned by Validus,
its subsidiaries or IPC), termination of the Max amalgamation
agreement, and the consent of Validus lenders. The
exchange offer is not conditioned on the receipt of regulatory
approvals or the elimination of the possible payment of the
$50 million termination fee contained in the Max
amalgamation agreement (the Max termination
fee). The exchange offer allows Validus to complete
the acquisition of IPC if the IPC shareholders vote down the
proposed Max amalgamation. Under Bermuda law, if Validus
acquires at least 90% of the IPC common shares which it is
seeking to acquire in the exchange offer, Validus will have the
right to acquire the remaining IPC common shares on the same
terms in a second-step acquisition. Validus believes that if the
conditions of the exchange offer are satisfied, it would be able
to acquire IPC common shares under the exchange offer in June
based on the following. The exchange offer was commenced on
May 12, 2009 and the expiration time of the exchange offer
will be June 26, 2009, unless extended. As a result, if the
conditions of the exchange offer are satisfied or waived at the
expiration time of the exchange offer, Validus would be able to
acquire all of the IPC common shares that are validly tendered
pursuant to the exchange offer.
Assuming closing of the acquisition, based on Validus and
IPCs capitalization as of December 31, 2008 and the
exchange ratio of 1.2037, Validus would issue 67,338,947 Validus
shares in connection with the acquisition and IPC shareholders
would own approximately 43% of the issued and outstanding common
shares of Validus on a fully-diluted basis.
BACKGROUND
OF THE ACQUISITION
On March 2, 2009, IPC and Max announced that they had
entered into the Max amalgamation agreement. The joint
proxy statement/prospectus included in the Registration
Statement on
Form S-4
filed by IPC with the SEC on March 27, 2009, as amended
(the IPC/Max
S-4),
provides a summary of the events leading to Max and IPC entering
into the Max amalgamation agreement.
In the morning on March 31, 2009, Edward J. Noonan, the
Chief Executive Officer and Chairman of the Board of Validus,
placed a telephone call to James P. Bryce, the Chief Executive
Officer and President of IPC. Mr. Noonan spoke with
Mr. Bryce and explained that Validus intended to make an
offer to exchange each outstanding IPC common share for 1.2037
Validus shares, subject to the termination of the Max
amalgamation agreement.
Following this telephone call, in the morning of March 31,
2009, Validus delivered to IPCs board of directors in care
of Mr. Bryce a proposal letter containing the Validus
amalgamation offer and Validus issued a press release announcing
the Validus amalgamation offer.
In connection with the delivery of the Validus amalgamation
offer to IPC, Validus delivered the signed Validus amalgamation
agreement that would be binding on Validus upon countersignature
by IPC. The Validus amalgamation agreement, and a
description thereof, were filed with the SEC on March 31,
2009. For the full terms of the Validus amalgamation
agreement we refer you to that filing.
In the afternoon on March 31, 2009, IPC issued a press
release acknowledging receipt of the letter from Validus
outlining the Validus amalgamation offer and indicating that
IPCs board of directors would review the terms of the
Validus amalgamation offer in a manner consistent with its
obligations under the Max amalgamation agreement and applicable
Bermuda law.
Also in the afternoon on March 31, 2009, Max issued a press
release announcing that it had received from IPC a copy of the
letter from Validus outlining the Validus amalgamation offer.
In the morning on April 2, 2009, Max sent a letter to
IPCs board of directors purporting to outline the relative
advantages of the pending IPC/Max amalgamation as well as the
business and financial issues raised by the Validus amalgamation
offer and issued a press release announcing the letter.
The letter presented Maxs analysis of the
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Validus amalgamation offer asserting 12 purported advantages to
the IPC/Max amalgamation and concluded that Validus had not
presented a superior proposal or a proposal that could
reasonably be expected to lead to a superior proposal pursuant
to the Max amalgamation agreement. The text of the letter
was filed by Max with the SEC.
In the afternoon on April 2, 2009, Validus sent a letter to
IPCs board of directors addressing the claims made by Max
in its letter to IPCs board of directors in the morning on
April 2, 2009. The text of the letter was filed by
Validus with the SEC.
In the afternoon on April 5, 2009, Validus sent a letter to
IPCs board of directors regarding an error that Max had
made in its calculation of pro forma tangible book value under
the terms of the Validus amalgamation offer. The text of
the letter was filed by Validus with the SEC. In the
afternoon on April 5, 2009, Validus also posted the
material referenced in the letter on its website.
In the morning on April 6, 2009, Max issued a press release
reaffirming its prior disclosure regarding the Validus
amalgamation offer and stating that it continues to
believe that Validus had not presented a Superior Proposal, nor
one that can be reasonably expected to lead to a Superior
Proposal (as such term is defined in the [Max amalgamation
agreement]).
In the afternoon on April 6, 2009, Validus sent a letter to
IPCs board of directors regarding the Max press release
and issued a press release announcing the letter. The text
of the letter was filed by Validus with the SEC.
In the afternoon on April 7, 2009, Kenneth L. Hammond,
Chairman of IPCs board of directors, sent a letter to
Mr. Noonan indicating that IPCs board of directors
had reaffirmed its recommendation to combine with Max and issued
a press release announcing the letter.
In the afternoon on April 8, 2009, Validus sent a letter to
Mr. Hammond, the Chairman of IPCs board of directors,
regarding the IPC press release and letter and issued a press
release announcing the letter. The text of the letter was
filed by Validus with the SEC.
On April 9, 2009, Validus filed with the SEC a preliminary
proxy statement which, in its definitive form, is being used to
solicit votes from the IPC shareholders against the proposed Max
amalgamation. The full text of the communications
described above can be found in such proxy statement filed by
Validus.
On April 13, 2009, IPC filed with the SEC an amendment to
the IPC/Max
S-4, which,
among other things, added to the disclosure regarding the
background to the proposed Max amalgamation including the
reasons as to why Validus was excluded from the process that
resulted in the proposed Max amalgamation. Such amendment
also contained a correction to IPCs diluted book value for
the year ended December 31, 2008.
On April 16, 2009, Validus filed with the SEC a preliminary
proxy statement which, when filed in its definitive form, will
be used to solicit votes from Validus shareholders to approve
the issuance of Validus shares in connection with the
acquisition. All of the Validus officers, directors and
those shareholders which Validus refers to as its
qualified sponsors, in each case, who beneficially
own Validus shares have indicated that they intend to vote their
shares in favor of the issuance of Validus shares in connection
with the acquisition. As of April 30, 2009, these
persons and entities beneficially owned 42.4% of the voting
interests relating to the Validus shares. The Validus
shareholders which Validus refers to as its qualified
sponsors are Aquiline Capital Partners, LLC and its
related companies, Goldman Sachs Capital Partners, Vestar
Capital Partners, New Mountain Capital, LLC and Merrill Lynch
Global Private Equity.
On April 21, 2009, Validus filed an amendment with the SEC
to its preliminary proxy statement with respect to soliciting
votes from IPC shareholders against the proposed Max
amalgamation.
On April 28, 2009, IPC filed with the SEC a second
amendment to the IPC/Max
S-4.
On April 28, 2009, Validus filed a claim in the Supreme
Court of Bermuda against IPC, IPC Limited and Max (the
Bermuda claim). The Bermuda claim challenges the
validity of the Max termination fee and provisions which
restrict the ability of IPC to discuss competing proposals with
third parties (the no-talk provisions) in the Max
amalgamation agreement. Further, the Bermuda claim alleges that
by entering into the Max amalgamation agreement containing the
Max termination fee and no talk provisions and continuing to act
in accordance with the terms of these provisions, the directors
of IPC acted in breach of their fiduciary or other duties and
not in accordance with the constitution of IPC.
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On April 30, 2009, Validus issued a press release outlining
its three-part plan to expedite its acquisition of IPC through
the exchange offer or Validus scheme of arrangement under
Bermuda law.
On April 30, 2009, IPC issued a press release reaffirming
its belief that the Validus amalgamation offer does not
represent a superior proposal and that the IPC board of
directors continues to recommend IPC shareholders vote in favor
of the proposed Max amalgamation.
On May 1, 2009, Validus filed an amendment with the SEC to
its preliminary proxy statement with respect to soliciting votes
from IPC shareholders against the proposed Max amalgamation.
On May 1, 2009, Validus filed an application to expedite
the trial of the Bermuda claim.
On May 4, 2009, IPC filed with the SEC a third amendment to
the IPC/Max
S-4.
On May 5, 2009, Validus filed an investor presentation
titled Superior Proposal for IPC Shareholders with
the SEC and on May 6, 2009, filed a revised investor
presentation with the SEC.
On May 6, 2009, Validus filed an amendment with the SEC to
its preliminary proxy statement with respect to soliciting votes
from IPC shareholders against the proposed Max amalgamation.
On May 7, 2009, IPC and Max filed a joint proxy
statement/prospectus for the IPC/Max
S-4 with the
SEC and stated that they would mail the joint proxy
statement/prospectus on or about May 7, 2009, to their
respective shareholders of record as of the close of business on
April 28, 2009.
On May 8, 2009, Validus filed with the SEC and commenced
mailing definitive proxy materials and proxy cards to IPC
shareholders seeking proxies from IPC shareholders to vote
against the proposed Max amalgamation.
On May 11-12, 2009, Validus application to expedite
the trial of the Bermuda claim is being heard by the Supreme
Court of Bermuda.
On May 11, 2009, Validus also filed with the SEC two
amendments to its preliminary proxy statement with respect to
soliciting votes from Validus shareholders to approve the
issuance of Validus shares in connection with the acquisition.
On May 12, 2009, in addition to filing the preliminary copy of
this solicitation statement, Validus filed two preliminary proxy
statements with the SEC which, when filed in their definitive
forms, will be used to, respectively, (i) solicit votes
from IPC shareholders to approve the Validus scheme of
arrangement at the court-ordered IPC meeting, and
(ii) solicit votes to approve the Validus proposals at the
IPC special general meeting.
On May 12, 2009, Validus commenced the exchange offer.
REASONS
TO REQUISITION THE IPC SPECIAL GENERAL MEETING
In order to implement the Validus scheme of arrangement, the IPC
shareholders must approve the Validus scheme of arrangement at
the court-ordered IPC meeting, IPC must separately approve the
Validus scheme of arrangement and the Validus scheme of
arrangement must be sanctioned by the Supreme Court of
Bermuda. The Validus scheme of arrangement must be
approved by a majority in number of the holders of IPC common
shares voting at the court-ordered IPC meeting, whether in
person or by proxy, representing 75% or more in value of the IPC
common shares voting at the court-ordered IPC meeting, whether
in person or by proxy. If the IPC shareholders approve the
Validus scheme of arrangement at the court-ordered IPC meeting,
the separate approval of IPC of the Validus scheme of
arrangement can be provided by either (i) the IPC board of
directors voluntarily complying with the will of the IPC
shareholders as expressed at the court-ordered IPC meeting, or
(ii) the shareholders of IPC approving resolutions at the
IPC special general meeting, including resolutions for IPC to
approve and to be bound by the Validus scheme of arrangement and
to terminate the Max amalgamation agreement. The IPC
special general meeting may be convened by the IPC board of
directors or, if the IPC board of directors continues to be
uncooperative, the requisite IPC shareholders may, by written
requisition, compel the IPC board of directors to call the IPC
special general meeting.
Following IPC shareholder approval at both the court-ordered IPC
meeting and the IPC special general meeting, the satisfaction
or, where relevant, waiver of the other conditions to the
effectiveness of the Validus scheme of arrangement, and the
granting of a court order from the Supreme Court of Bermuda
sanctioning the Validus scheme of arrangement, a copy of the
court order sanctioning the Validus scheme of arrangement will
be delivered to the Bermuda Registrar of Companies at which time
the Validus scheme of arrangement will be effective.
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We urge you, the owners of IPC, to take action by executing and
delivering your written requisitions to compel the board of
directors of IPC to call the IPC special general meeting so that
you will have the opportunity to benefit from the Validus scheme
of arrangement, even if the board of directors of IPC continues
to withhold their support for the acquisition. To
requisition that the IPC board of directors call the IPC special
general meeting, please follow the instructions for delivering
the enclosed GREEN requisition card described below.
REQUISITIONING
THE IPC SPECIAL GENERAL MEETING
We are furnishing this solicitation statement and a GREEN
requisition card to the holders of outstanding IPC common shares
to solicit written requisitions to compel the board of directors
of IPC to call the IPC special general meeting. The
procedures for calling a special general meeting of IPC are
governed by IPCs Restated Bye-laws (the
Bye-laws)
and the Companies Act, which provide that a special general
meeting of IPC shall be held if the requisite IPC shareholders
have deposited at IPCs registered office a signed
requisition for the meeting, stating the purpose or purposes for
which the special general meeting is to be held. Such
requisition may consist of several documents in like form each
signed by one or more requisitionists.
Based on the IPC/Max
S-4, as of
April 9, 2009, there were issued and outstanding 55,948,821
IPC common shares. Accordingly, assuming no changes to
such number, holders of approximately 5,594,822 IPC common
shares will have to execute and deliver written requisitions to
us for deposit at IPCs registered office in order to
compel the board of directors of IPC to call the IPC special
general meeting.
If we obtain sufficient executed written requisitions for the
IPC special general meeting, we intend to compel the board of
directors of IPC to call the IPC special general meeting to
consider and vote upon the Validus proposals, and we will file
with the SEC, and provide to IPC shareholders, a definitive
proxy statement and a proxy card relating to the matters to be
considered at the IPC special general meeting.
Under the Companies Act, if, following the receipt of validly
executed written requisitions from the requisite IPC
shareholders, the board of directors of IPC fails to proceed
duly within 21 days from the date of the deposit of the
requisitions to convene a special general meeting, the
requisitionists, or any of them representing more than one half
of the total voting rights of all of them, may themselves
convene a special general meeting, but any such meeting so
convened shall not be held after the expiration of three months
from the said date.
Under the Bye-laws, IPC must deliver written notice to its
shareholders of the IPC special general meeting at least ten
days prior to the meeting and notice is deemed served ten days
after the date on which it is deposited in the mail in the
European Union, Bermuda, or United States. For the purpose
of determining shareholders entitled to notice of or to vote at
the IPC special general meeting, the IPC board of directors may
fix the record date if the IPC board of directors proceeds duly
within 21 days from the date of the deposit of the
requisitions to convene the IPC special general meeting. If the
IPC board of directors fails to proceed duly within 21 days
from the date of the deposit of the requisitions to convene the
IPC special general meeting, the requisitionists, or any of them
representing more than one half of the total voting rights of
all of them, may themselves fix the record date for such
meeting.
If the IPC special general meeting is called, IPC
shareholders will be furnished with notice of the IPC special
general meeting and definitive proxy materials relating to the
proposals to be considered at the IPC special general
meeting. These proxy materials will contain more detailed
information concerning the proposals to be voted upon at the IPC
special general meeting. Such proxy materials, when filed,
will also be available to the public without charge on the
SECs website
(http://www.sec.gov)
or from Validus, by directing a request to Georgeson Inc., 199
Water Street, 26th Floor, New York, New York 10038, at
(888) 274-5119
or by email at validusIPC@georgeson.com.
REQUISITION
PROCEDURES
Pursuant to this solicitation statement, we are soliciting
written requisitions from shareholders to compel the IPC board
of directors to call the IPC special general meeting. By
executing a requisition, a shareholder is requisitioning the
board of directors of IPC to call the IPC special general
meeting. Please note that a written
-5-
requisition to call the IPC special general meeting does
not grant Validus the power to vote your IPC common
shares at the IPC special general meeting and does not commit
you to cast any vote in favor or against any proposal to be
brought at the IPC special general meeting. The
written requisition does, however, give Validus the power and
authority to convene the IPC special general meeting, assuming
written requisitions are executed by the requisite IPC
shareholders and deposited by Validus with IPC, if the board of
directors of IPC fails to proceed duly within 21 days from
the date of the deposit of the requisitions with IPC to convene
the IPC special general meeting. In such case, the IPC
special general meeting must be held within three months after
the date that is 21 days from the date the requisitions are
deposited by Validus with IPC. To vote on the matters to
be brought at the IPC special general meeting you must vote by
proxy or in person at the IPC special general meeting.
Procedures for submitting requisitions are as follows and will
depend on how your IPC common shares are held:
1. If you own shares of record, meaning that your IPC
common shares are represented by certificates or book entries in
your name so that you appear as a record shareholder in the
transfer books maintained by the IPC common share transfer
agent, please complete, sign, date and return the enclosed GREEN
requisition card to Validus Holdings, Ltd., care of Georgeson,
in the postage-paid envelope enclosed.
2. If you own IPC common shares through a bank, broker or
other nominee (in street name), only your bank,
broker or other nominee can vote your IPC common shares and only
upon receipt of your specific instructions. If your IPC
common shares are held in street-name, deliver the
enclosed GREEN requisition card to your bank, broker or other
nominee or contact the person responsible for your account to
ensure that a GREEN requisition card is submitted on your
behalf. We urge you to confirm in writing your
instructions to the person responsible for your account and to
provide a copy of those instructions to Validus Holdings, Ltd.,
care of Georgeson Inc., 199 Water Street, 26th Floor, New
York, New York 10038, at
(888) 274-5119,
fax number
(212) 440-9009,
so that Validus will be aware of all instructions given and can
attempt to ensure that such instructions are followed.
3. Do not sign or return any revocation card you may
receive from IPC. If you have already submitted a
revocation card, it is not too late to submit a
requisition simply complete, sign, date and return
the GREEN requisition card in the enclosed envelope. Only
your latest dated requisition will be counted.
Once we receive executed GREEN requisition cards from the
requisite IPC shareholders, we intend to deposit the
requisitions with IPC to compel the board of directors of IPC to
send within 21 days of such time notice of the IPC special
general meeting. We will issue a press release promptly
upon making such deposit. We urge you to return your executed
GREEN requisition card by May [ ], 2009, to
enable us to timely requisition the board of directors of IPC.
You may revoke your requisition to compel the IPC board of
directors to call the IPC special general meeting at any time
prior to our deposit of the requisitions to IPC, by submitting a
written notice of revocation to either (a) Validus
Holdings, Ltd., care of Georgeson Inc., 199 Water Street,
26th floor, New York, New York 10038, or (b) the
principal executive offices of IPC at American International
Building, 29 Richmond Road, Pembroke HM08, Bermuda. A
revocation may be in any written form validly signed by the
record holder as long as it clearly states that the requisition
previously given is no longer effective. Shareholders who
hold their IPC common shares in a bank or brokerage account will
need to notify the person responsible for their account to
revoke or withdraw previously given instructions. We
request that a copy of any revocation sent to IPC or any
revocation notification sent to the person responsible for a
bank or brokerage account also be sent to Validus Holdings,
Ltd., care of Georgeson, at the address below. Unless
revoked in the manner set forth above, subject to the foregoing,
duly executed requisitions in the form enclosed will be
submitted to IPC. Upon receipt of requisitions from the
requisite IPC shareholders in favor of compelling the IPC board
of directors to call the IPC special general meeting, we
anticipate delivering such written requisitions to IPC.
-6-
If you have any questions about executing or delivering your
GREEN requisition card or require assistance, please contact:
199 Water Street
26th Floor
New York, NY 10038
Banks and Brokers should call:
(212) 440-9800
or
Toll Free: at
(888) 274-5119
Email: validusIPC@georgeson.com
By executing and returning the GREEN requisition card, you
are not committing to cast any vote in favor or against, nor are
you granting us any proxy to vote on, any proposal to be brought
before the IPC special general meeting.
This solicitation is being made by Validus, and not on behalf of
IPCs board of directors. At this time, we are not
seeking your proxy, consent or authorization for approval of the
Validus proposals. We are only soliciting your written
requisition to compel the IPC board of directors to call the IPC
special general meeting. After the IPC special general
meeting has been called, we expect to send you proxy materials
relating to the proposals to be considered at the IPC special
general meeting. Your written requisition is important, no
matter how many or how few shares you own. We urge you to
complete, sign, date and return the enclosed GREEN requisition
card to call the IPC special general meeting.
-7-
CERTAIN
INFORMATION ABOUT IPC
IPC is a Bermuda exempted company with its principal executive
offices at American International Building, 29 Richmond Road,
Pembroke, Bermuda. The telephone number of IPC is
(441) 298-5100.
IPCs common shares are quoted on the NASDAQ Global Select
Market under the ticker symbol IPCR and the Bermuda
Stock Exchange under the symbol IPCR BH.
IPC is subject to the informational filing requirements of the
Securities Exchange Act of 1934, as amended (the Exchange
Act), and in accordance therewith it files periodic
reports, proxy statements and other information with the
SEC. Reports, proxy statements and other information filed
by IPC with the SEC can be inspected and copied at the public
reference facilities maintained by the SEC at
100 F Street, N.W., Room 1580,
Washington, D.C. 20549. Information regarding the public
reference facilities may be obtained from the SEC by telephoning
1-800-SEC-0330.
IPCs filings with the SEC are also available to the public
without charge on the SECs website
(http://www.sec.gov).
Information with respect to the beneficial ownership of IPC
common shares by the directors and executive officers of IPC as
of April 29, 2009, as contained in the IPC/Max
S-4, is set
forth in Schedule I to this solicitation statement.
The information concerning IPC and the proposed Max amalgamation
contained herein has been taken from, or is based upon, publicly
available documents on file with the SEC and other publicly
available information. Although Validus has no knowledge
that would indicate that statements relating to IPC or the Max
amalgamation agreement contained in this solicitation statement,
in reliance upon publicly available information, are inaccurate
or incomplete, to date it has not had access to the full books
and records of IPC, was not involved in the preparation of such
information and statements and is not in a position to verify
any such information or statements.
Further information concerning the Max amalgamation agreement,
the proposed Max amalgamation, and other information relating to
the proposed combination of Max and IPC is contained in the
IPC/Max S-4
publicly available on file with the SEC.
INFORMATION
CONCERNING THE PARTICIPANTS IN THE SOLICITATION
Validus is a Bermuda exempted company, with its principal
executive offices located at 19 Par-La-Ville Road, Hamilton
HM11, Bermuda. The telephone number of Validus is
(441) 278-9000.
Validus is a provider of reinsurance and insurance, conducting
its operations worldwide through two wholly-owned subsidiaries,
Validus Reinsurance, Ltd. (Validus Re) and Talbot
Holdings Ltd. (Talbot). Validus Re is a
Bermuda based reinsurer focused on short-tail lines of
reinsurance. Talbot is the Bermuda parent of the specialty
insurance group primarily operating within the Lloyds
insurance market through Syndicate 1183. Validus shares
are traded on the New York Stock Exchange under the symbol
VR and, as of May 11, 2009, the last practicable
date prior to the filing of this solicitation statement, Validus
had a market capitalization of approximately
$1.7 billion. Validus has approximately
280 employees. As of the date this solicitation
statement was first mailed to IPCs shareholders, Validus
was the registered owner of 100 IPC common shares, or less than
1% of the outstanding IPC common shares, and Validus was
entitled to vote as to all of the IPC common shares it owns.
Information for the director and the executive officers of
Validus who are considered to be participants in this
requisition solicitation and certain other information is set
forth in Schedule II to this solicitation statement.
Other than as set forth herein, none of Validus or any of the
participants set forth in Schedule II hereto have any
interest, direct or indirect, by security holdings or otherwise,
in the acquisition.
SOLICITATION
OF REQUISITIONS
Except as set forth below, Validus will not pay any fees or
commissions to any broker, dealer, commercial bank, trust
company or other nominee for the solicitation of requisitions in
connection with this solicitation.
Requisitions will be solicited by mail, telephone, facsimile,
telegraph, the internet,
e-mail,
newspapers and other publications of general distribution and in
person. The director and the executive officers of Validus
listed in Schedule II hereto may assist in the solicitation
of requisitions without any additional remuneration.
Validus has retained Georgeson for solicitation and advisory
services in connection with solicitations relating to the
requisitions to compel the IPC board of directors to call the
IPC special general meeting, for which Georgeson may receive a
fee of up to $50,000 in connection with the solicitation of
requisitions. Up to 100 people may be
-8-
employed by Georgeson in connection with the
solicitation. Validus has also agreed to reimburse
Georgeson for out-of-pocket expenses and to indemnify Georgeson
against certain liabilities and expenses, including reasonable
legal fees and related charges. Georgeson will solicit
requisitions from individuals, brokers, banks, bank nominees and
other institutional holders. Directors, officers and
certain employees of Validus may assist in the solicitation of
requisitions without any additional remuneration. The
entire expense of soliciting requisitions by or on behalf of
Validus is being borne by Validus.
If you have any questions concerning this solicitation statement
or the procedures to be followed to execute and deliver a
requisition, please contact Georgeson at the address or
telephone number specified in this solicitation statement.
Validus has engaged Greenhill & Co., LLC
(Greenhill) as financial advisor with respect to its
strategic process and the acquisition. In connection with
Greenhills services as financial advisor to Validus in
connection with Validus strategic process and the
acquisition, Validus agreed to pay Greenhill an aggregate fee of
$10.0 million, $2.75 million of which has already been
paid and $7.25 million (less the fee for Greenhills
service as dealer manager in connection with the exchange offer
described below) of which is contingent upon the consummation of
a transaction or entry into a definitive agreement that
subsequently results in a transaction. In addition,
Validus will reimburse Greenhill for its reasonable
out-of-pocket expenses, including the reasonable fees and
expenses of its legal counsel. Validus has also agreed to
indemnify Greenhill and its affiliates in connection with
Greenhills service as financial advisor against certain
liabilities in connection with their engagement, including
liabilities under the U.S. federal securities laws.
Validus has also engaged Greenhill to act as dealer manager in
connection with the exchange offer. Greenhill may contact
beneficial owners of IPC common shares in its capacity as dealer
manager regarding the exchange offer and may request brokers,
dealers, commercial banks, trust companies and other nominees to
forward the prospectus/offer to exchange included in the
Registration Statement on
Form S-4
filed by Validus with the SEC on May 12, 2009, and related
materials to beneficial owners of IPC common shares.
Validus has agreed to pay Greenhill a reasonable and customary
fee for its service as dealer manager in connection with the
exchange offer. In addition, Validus will reimburse
Greenhill for its reasonable out-of-pocket expenses, including
the reasonable fees and expenses of its legal counsel.
Validus has also agreed to indemnify Greenhill and its
affiliates in connection with Greenhills service as dealer
manager against certain liabilities in connection with their
engagement, including liabilities under the U.S. federal
securities laws.
As of March 31, 2009, four merchant banking funds
affiliated with Greenhill owned an aggregate of 2,571,427
Validus common shares, and certain employees of Greenhill and
its affiliates had interests in one or more of such funds.
Validus has also engaged Dowling & Partners
Securities, LLC (Dowling) as capital markets advisor
with respect to the acquisition. In connection with
Dowlings services, Validus agreed to pay Dowling an
aggregate fee of $2.0 million. Payment of the fee to
Dowling is not conditioned on a successful acquisition or
otherwise. In addition, Validus will reimburse Dowling for
its reasonable out-of-pocket expenses, including the reasonable
fees and expenses of its legal counsel. Validus has also
agreed to indemnify Dowling and its affiliates in connection
with Dowlings services against certain liabilities in
connection with their engagement, including liabilities under
the U.S. federal securities laws.
Validus has retained Georgeson as information agent in
connection with the exchange offer. The information agent
may contact holders of IPC common shares by mail, telephone,
telex, telegraph and personal interview and may request brokers,
dealers, commercial banks, trust companies and other nominees to
forward material relating to the exchange offer to beneficial
owners of IPC common shares. Validus will pay the information
agent reasonable and customary compensation for these services
in addition to reimbursing the information agent for its
reasonable out-of-pocket expenses. Validus agreed to indemnify
the information agent against certain liabilities and expenses
in connection with the exchange offer, including certain
liabilities under the U.S. federal securities laws.
-9-
SHAREHOLDER
PROPOSALS FOR IPCS 2010 ANNUAL GENERAL
MEETING
Based on the IPC/Max
S-4, if IPC
shareholders wish to submit a proposal to be considered for
inclusion in the proxy materials for IPCs 2010 annual
general meeting or propose a nominee for the board of directors,
please send it to the Secretary, IPC Holdings, Ltd. (or, if the
proposed Max amalgamation has occurred, to Max Capital Group
Ltd. after the closing date), American International Building,
29 Richmond Road, Pembroke HM 08, Bermuda. Under the rules of
the SEC, proposals must be received no later than
December 30, 2009, to be eligible for inclusion in
IPCs 2010 annual general meeting proxy statement. If
a shareholder wishes to submit a proposal to IPCs 2010
annual general meeting without including such proposal in the
proxy statement for that meeting, that proposal will be
considered untimely if IPC is not notified of such proposal by
March 15, 2010.
-10-
FORWARD-LOOKING
STATEMENTS
This solicitation statement may include forward-looking
statements, both with respect to us and our industry, that
reflect our current views with respect to future events and
financial performance. Statements that include the words
expect, intend, plan,
believe, project,
anticipate, will, may and
similar statements of a future or forward-looking nature
identify forward-looking statements. All forward-looking
statements address matters that involve risks and uncertainties,
many of which are beyond our control. Accordingly, there
are or will be important factors that could cause actual results
to differ materially from those indicated in such statements
and, therefore, you should not place undue reliance on any such
statements. We believe that these factors include, but are
not limited to, the following: 1) uncertainty as to whether
Validus will be able to enter into and to consummate the
proposed acquisition on the terms set forth in the Validus
amalgamation offer; 2) uncertainty as to the actual premium
that will be realized by IPC shareholders in connection with the
proposed acquisition; 3) uncertainty as to the long-term
value of Validus common shares; 4) unpredictability and
severity of catastrophic events; 5) rating agency actions;
6) adequacy of Validus or IPCs risk management
and loss limitation methods; 7) cyclicality of demand and
pricing in the insurance and reinsurance markets;
8) Validus limited operating history;
9) Validus ability to implement its business strategy
during soft as well as hard markets;
10) adequacy of Validus or IPCs loss reserves;
11) continued availability of capital and financing;
12) retention of key personnel; 13) competition;
14) potential loss of business from one or more major
insurance or reinsurance brokers; 15) Validus or
IPCs ability to implement, successfully and on a timely
basis, complex infrastructure, distribution capabilities,
systems, procedures and internal controls, and to develop
accurate actuarial data to support the business and regulatory
and reporting requirements; 16) general economic and market
conditions (including inflation, volatility in the credit and
capital markets, interest rates and foreign currency exchange
rates); 17) the integration of Talbot or other businesses
we may acquire or new business ventures we may start;
18) the effect on Validus or IPCs investment
portfolios of changing financial market conditions including
inflation, interest rates, liquidity and other factors;
19) acts of terrorism or outbreak of war;
20) availability of reinsurance and retrocessional
coverage; 21) failure to realize the anticipated benefits
of the proposed acquisition, including as a result of failure or
delay in integrating the businesses of Validus and IPC; and
22) the outcome of litigation arising from Validus
offer for IPC, as well as managements response to any of
the aforementioned factors.
The foregoing review of important factors should not be
construed as exhaustive and should be read in conjunction with
the other cautionary statements that are included herein and
elsewhere, including the Risk Factors included in our most
recent reports on
Form 10-K
and
Form 10-Q
and the risk factors included in IPCs most recent reports
on
Form 10-K
and
Form 10-Q
and other documents of Validus and IPC on file with the
SEC. Any forward-looking statements made in this
solicitation statement are qualified by these cautionary
statements, and there can be no assurance that the actual
results or developments anticipated by Validus will be realized
or, even if substantially realized, that they will have the
expected consequences to, or effects on, us or our business or
operations. Except as required by law, we undertake no
obligation to update publicly or revise any forward-looking
statement, whether as a result of new information, future
developments or otherwise.
-11-
SCHEDULE I
THE
FOLLOWING TABLE IS REPRINTED FROM THE
IPC/MAX S-4
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
SECURITY
OWNERSHIP OF PRINCIPAL SHAREHOLDERS AND MANAGEMENT OF
IPC
The table below sets forth certain information as of
April 29, 2009 (unless otherwise specified) with respect to
the beneficial ownership of IPC common shares by each person who
is known to IPC, based on filings made by such person under
Section 13(d) and Section 13(g) of the Exchange Act,
to own beneficially more than 5% of the outstanding common
shares, each person currently serving as a director of IPC, each
nominee for director, the Chief Executive Officer, the Chief
Financial Officer, each of the two most highly compensated
executive officers of IPC other than the Chief Executive Officer
and Chief Financial Officer and all directors and executive
officers as a group.
|
|
|
|
|
|
|
|
|
|
|
Amount and Nature
|
|
|
|
|
of Beneficial
|
|
|
Name and Address of Beneficial Owner
|
|
Ownership(1)
|
|
Percentage(2)
|
|
FMR LLC
82 Devonshire Street
Boston, Massachusetts 02109
|
|
|
4,965,479
|
(3)
|
|
|
8.9
|
%
|
Franklin Resources, Inc.
One Franklin Parkway
San Mateo, California
94403-1906
|
|
|
3,926,292
|
(4)
|
|
|
7.0
|
%
|
Barclays Global Investors, NA.
400 Howard Street
San Francisco, California 94105
|
|
|
2,811,789
|
(5)
|
|
|
5.0
|
%
|
Mark R. Bridges
|
|
|
891
|
(6)
|
|
|
|
*
|
James P. Bryce
|
|
|
324,524
|
(7)
|
|
|
|
*
|
Michael J. Cascio
|
|
|
155
|
(6)
|
|
|
|
*
|
Peter S. Christie
|
|
|
891
|
(6)
|
|
|
|
*
|
Kenneth L. Hammond
|
|
|
891
|
(6)
|
|
|
|
*
|
L. Anthony Joaquin
|
|
|
891
|
(6)
|
|
|
|
*
|
Antony P.D. Lancaster
|
|
|
891
|
(6)
|
|
|
|
*
|
Peter J.A. Cozens
|
|
|
140,340
|
(8)
|
|
|
|
*
|
Stephen F. Fallon
|
|
|
144,669
|
(9)
|
|
|
|
*
|
John R. Weale
|
|
|
161,047
|
(10)
|
|
|
|
*
|
All directors and executive officers as a group
|
|
|
775,190
|
|
|
|
1.4
|
%
|
|
|
|
* |
|
Less than 1% of the outstanding common shares. |
|
|
|
(1) |
|
In accordance with the rules of the SEC, a person is deemed to
have beneficial ownership of common shares that such
person has the rights to acquire within 60 days. For
purposes of calculating percent ownership, each persons
holdings have been calculated assuming full exercise of
outstanding options currently exercisable or exercisable within
60 days by such person and by including such persons
restricted stock units and performance share units vesting
within 60 days, but not the exercise of options held by any
other person. All amounts listed represent sole investment
and voting power unless otherwise indicated. |
|
|
|
(2) |
|
Based on 55,948,821 common shares issued and outstanding at
March 26, 2009. |
|
|
|
(3) |
|
According to information in the Schedule 13G/A filed on
February 17, 2009, FMR LLC had the following dispositive
powers with respect to common shares: (a) sole voting
power: none; (b) shared voting power: none; (c) sole
dispositive power: 4,965,479; and (d) shared dispositive
power: none. |
|
|
|
(4) |
|
According to information reported in the Schedule 13G/A
filed on February 6, 2009, Franklin Resources, Inc. had the
following dispositive powers with respect to common shares:
(a) sole voting power: 3,862,492; (b) shared voting
power: none; (c) sole dispositive power: 3,926,292;
(d) shared dispositive power: none. |
I-1
|
|
|
(5) |
|
According to information reported in the Schedule 13G filed
on February 5, 2009, Barclays Global Investors, NA. had the
following dispositive powers with respect to common shares:
(a) sole voting power: 2,540,495; (b) shared voting
power: none; (c) sole dispositive power: 2,811,789;
(d) shared dispositive power: none. |
|
|
|
(6) |
|
Transfer-restricted common shares awarded as compensation for
his services as a Director. |
|
|
|
(7) |
|
Includes 581 common shares that are held by the IRA trustee for
Mr. Bryces wife, for which Mr. Bryce disclaims
beneficial ownership, 175,000 common shares issuable upon the
exercise of options and 7,429 transfer-restricted common shares. |
|
|
|
(8) |
|
Includes 81,250 common shares issuable upon the exercise of
options and 2,928 transfer-restricted common shares. |
|
|
|
(9) |
|
Includes 78,750 common shares issuable upon the exercise of
options and 2,556 transfer-restricted common shares. |
|
|
|
(10) |
|
Includes 115,750 common shares issuable upon the exercise of
options and 2,637 transfer-restricted common shares. |
I-2
SCHEDULE II
INFORMATION
CONCERNING THE DIRECTOR AND
EXECUTIVE OFFICERS OF VALIDUS WHO ARE PARTICIPANTS
The following table sets forth certain information with respect
to each director and executive officer of Validus that is a
participant in the solicitation. The current business address of
each person is 19 Par-La-Ville Road, Hamilton HM11, Bermuda
and the current business telephone number is
(441) 278-9000.
Each such person is a citizen of the United States, and each
occupation set forth opposite an individuals name refers
to employment with Validus.
DIRECTOR
|
|
|
|
|
Present Principal Occupation or Employment, Material
Positions
|
Name and Current Business Address
|
|
Held During the Past Five Years
|
|
Edward J. Noonan
|
|
Mr. Noonan has been Chairman of the Board and the Chief
Executive Officer of Validus since its formation. He has
27 years of experience in the insurance and reinsurance
industry, serving most recently as the acting chief executive
officer of United America Indemnity Ltd. (Nasdaq: INDM) from
February 2005 through October 2005 and as a member of the board
of directors from December 2003 to May
2007. Mr. Noonan served as president and chief
executive officer of American Re-Insurance Company from 1997 to
2002, having joined American Re in 1983. Mr. Noonan
also served as chairman of Inter-Ocean Reinsurance Holdings of
Hamilton, Bermuda from 1997 to 2002. Prior to joining
American Re, Mr. Noonan worked at Swiss Reinsurance from
1979 to 1983.
|
PARTICIPANT
EXECUTIVE OFFICERS
|
|
|
|
|
Present Principal Occupation or Employment, Material
Positions
|
Name and Current Business Address
|
|
Held During the Past Five Years
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|
Edward J. Noonan
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|
Mr. Noonan has been Chairman of the Board and the Chief
Executive Officer of Validus since its formation. He has
27 years of experience in the insurance and reinsurance
industry, serving most recently as the acting chief executive
officer of United America Indemnity Ltd. (Nasdaq: INDM) from
February 2005 through October 2005 and as a member of the board
of directors from December 2003 to May
2007. Mr. Noonan served as president and chief
executive officer of American Re-Insurance Company from 1997 to
2002, having joined American Re in 1983. Mr. Noonan
also served as chairman of Inter-Ocean Reinsurance Holdings of
Hamilton, Bermuda from 1997 to 2002. Prior to joining
American Re, Mr. Noonan worked at Swiss Reinsurance from
1979 to 1983.
|
Joseph E. (Jeff) Consolino
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|
Mr. Consolino has been Executive Vice President and Chief
Financial Officer of Validus since March 2006. He has over
16 years of experience in the financial services industry,
specifically in providing investment banking services to the
insurance industry, and most recently served as a managing
director in Merrill Lynchs Financial Institutions Group
specializing in insurance company advisory and financing
transactions. He serves as a Director of National
Interstate Corporation, a property and casualty company based in
Ohio and of AmWINS Group, Inc., a wholesale insurance broker
based in North Carolina.
|
II-1
Annex
A
FORM OF
THE SCHEME OF ARRANGEMENT
IN THE SUPREME COURT OF BERMUDA
CIVIL JURISDICTION
|
|
(COMMERCIAL COURT) |
No.
[ ] of 2009 |
IN THE
MATTER OF IPC HOLDINGS, LTD.
- and
-
IN THE
MATTER OF SECTION 99 OF THE BERMUDA COMPANIES ACT
1981
A-1
PRELIMINARY
In this Scheme, unless inconsistent with the subject or context,
the following expressions bear the following meanings:
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|
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Acquisition
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the proposed acquisition of IPC by Validus
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Allowed Proceeding
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any proceeding by a holder of Scheme Shares to enforce its
rights under this Scheme in the event Validus or IPC fails to
perform its obligations under this Scheme
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Business Day
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any day other than a Saturday, Sunday or other day on which
banking institutions in New York or Bermuda are obligated by law
or executive order to be closed.
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Closing Validus Share Price
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|
the closing price per share of Validus common stock as reported
on the NYSE on the last trading day prior to the Effective Time
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Conditions
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the conditions to the effectiveness of this Scheme set forth in
the Schedule A attached hereto
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Court
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the Supreme Court of Bermuda
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Court Hearing
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the hearing of the Court to sanction this Scheme under section
99 of the Bermuda Companies Act 1981
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Effective Time
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the time and date on which this Scheme becomes effective in
accordance with clause 9.1 of this Scheme
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Exchange Agent
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BNY Mellon Shareowner Services
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Excluded Shares
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any IPC Shares which are registered in the name of, or
beneficially owned by Validus, IPC or any of their respective
subsidiaries, or which Validus, IPC or any of their respective
subsidiaries acquires or becomes beneficially interested in from
time to time
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IPC
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IPC Holdings, Ltd., a Bermuda exempted company whose principal
executive offices are located at American International
Building, 29 Richmond Road, Pembroke HM 08, Bermuda
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IPC Shares
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shares of common stock, par value $0.01 per share, of IPC
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Max
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Max Capital Group Ltd.
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Max Amalgamation Agreement
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the Agreement and Plan of Amalgamation dated 1 March 2009,
as amended on 5 March 2009, among Max, IPC and IPC Limited
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Max Termination Fee
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the termination fee that may be payable by IPC to Max in certain
circumstances pursuant to the terms of the Max Amalgamation
Agreement
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New Validus Shares
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the new shares of voting common stock, par value $0.175 per
share, of Validus to be issued credited as fully paid pursuant
to this Scheme
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NYSE
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The New York Stock Exchange
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Prohibited Proceeding
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any process, suit, action, legal or other proceeding including
without limitation any arbitration, mediation, alternative
dispute resolution, judicial review, adjudication, demand,
execution, restraint, forfeiture, re-entry, seizure, lien,
enforcement of judgment, enforcement of any security or
enforcement of any letter of credit against Validus or IPC or
any of their respective subsidiaries or their respective
property in any jurisdiction whatsoever other than an Allowed
Proceeding
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Record Date
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6.00 p.m. (Atlantic Time) on [ ] 2009
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Register of Members
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IPCs register of members or any branch register kept in
accordance with section 65 of the Bermuda Companies Act 1981
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Registrar
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the Bermuda Registrar of Companies
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A-2
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Requisition Proxy Statement
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the proxy statement on Schedule 14A pursuant to Section 14a of
the United States Securities Exchange Act of 1934, as amended,
to be sent to holders of IPC Shares in connection with approval
at the Special General Meeting of resolutions determined by
Validus to be reasonably necessary in connection with
implementation of this Scheme, containing, inter alia,
the notice of the Special General Meeting
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Scheme
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this scheme of arrangement in its present form or with or
subject to any modification, addition or condition approved or
imposed by the Court and agreed by Validus
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Scheme Court Order
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the order of the Court sanctioning this Scheme pursuant to
section 99 of the Bermuda Companies Act 1981
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Scheme Meeting
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the meeting of holders of IPC Shares as at the Record Date
convened by order of the Court pursuant to section 99 of the
Bermuda Companies Act 1981 to consider and, if thought fit,
approve this Scheme (with or without amendment), including any
adjournment or postponement thereof
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Scheme Proxy Statement
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the proxy statement on Schedule 14A pursuant to Section 14a of
the United States Securities Exchange Act of 1934, as amended,
to be sent to holders of IPC Shares in connection with approval
at the Scheme Meeting of this Scheme, containing, inter alia
details of this Scheme and the notice of the Scheme Meeting
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Scheme Shares
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all IPC Shares which are in issue immediately prior to the
Effective Time, other than the Excluded Shares
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Special General Meeting
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the special general meeting of IPC at which the holders of IPC
Shares as at the record date for such meeting may consider and,
if they so determine, approve resolutions determined by Validus
to be reasonably necessary in connection with implementation of
this Scheme, including resolutions for IPC to approve and to be
bound by this Scheme and to terminate the Max Amalgamation
Agreement, notice of which is to be set out in the Requisition
Proxy Statement
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Validus
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Validus Holdings, Ltd., an exempted company incorporated under
the laws of Bermuda with its principal executive offices at
19 Par-La-Ville Road, Hamilton, HM11, Bermuda
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United States
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the United States of America, its territories and possessions,
any state of the United States of America and the District of
Columbia
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$ or United States dollars
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the lawful currency of the United States
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and references to clauses and
sub-clauses
are to clauses and
sub-clauses
of this Scheme.
(A) As at the date of this Scheme, the authorised share
capital of IPC is $[ ] divided into
[ ] IPC Shares. As at the close of business on
[ ] 2009, being the latest practicable date
prior to the posting of the Scheme Proxy Statement,
[ ] IPC Shares have been issued and are
credited as fully paid and the remainder are unissued.
(B) As at the date of this Scheme, 100 IPC Shares,
representing less than one per cent. of the existing issued
share capital of IPC are registered in the name of Validus;
(C) Validus has agreed to appear, and to procure that the
registered holders of any IPC Shares which it or any of its
subsidiaries beneficially owns to agree to appear, by Counsel at
the Court Hearing and to be bound by, and to undertake to the
Court to be bound by, the provisions of this Scheme and to
execute and do or procure to be executed and done all such
documents, acts and things as may be necessary or desirable to
be executed and done by it for the purposes of giving effect to
this Scheme.
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1.
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PURPOSE
OF THIS SCHEME
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1.1 The purpose of this Scheme is to effect the exchange of
each Scheme Share for 1.2307 New Validus Shares. At the
Effective Time, all Scheme Shares shall be transferred to
Validus and as a result thereof IPC shall
A-3
become a wholly owned subsidiary of Validus. In furtherance of
this Scheme, following the Effective Time Validus shall issue
and allot the New Validus Shares to the holders of Scheme Shares
in accordance with the terms of this Scheme.
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2.
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APPLICATION
AND EFFECTIVENESS OF THIS SCHEME
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2.1 The compromise and arrangement effected by this Scheme
shall apply to all Scheme Shares and shall be binding on IPC and
on all holders of Scheme Shares. With effect from the Effective
Time, until such time as the Scheme Shares have been transferred
to Validus, there shall be no further registration of transfers
on the Register of Members of any Scheme Shares.
3.1 The holders of IPC Shares and the number of IPC Shares
that they hold for the purposes of voting at the Scheme Meeting
shall be determined as those recorded on the Register of Members
as at the Record Date.
4.1 Conditional upon and subject to clause 5, Validus
shall, in consideration for the transfer of the Scheme Shares,
and subject as hereinafter provided, allot and issue, credited
as fully paid, to each holder of Scheme Shares (as appearing in
the Register of Members immediately prior to the Effective
Time), New Validus Shares on the following basis:
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for each Scheme Share
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1.2037 New Validus Shares
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4.2 Fractional entitlements to New Validus Shares will not
be allotted or issued to holders of Scheme Shares. Holders of
Scheme Shares shall be paid cash in lieu of any fractional
entitlement to which they would otherwise be entitled. The cash
amount to be paid to such holders of Scheme Shares shall be
determined by multiplying the relevant fraction by the Closing
Validus Share Price.
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5.
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ACQUISITION
OF SCHEME SHARES
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5.1 At the Effective Time, in consideration for the
consideration provided for in clause 4, notwithstanding any
term of any relevant document to the contrary, the Scheme Shares
shall be transferred to Validus and such transfer shall
forthwith be registered on the Register of Members.
5.2 With effect from and including the Effective Time, each
holder of Scheme Shares shall in accordance with this Scheme
cease to have any rights with respect to Scheme Shares, except
the right to receive the consideration provided for in
clause 4.
5.3 Validus shall acquire the Scheme Shares fully paid and
free from all liens, equitable interests, charges, encumbrances
and rights of pre-emption and any other interests of any nature
whatsoever and together with all rights attaching thereto
including the right to receive and retain all dividends and
other distributions declared, paid or made thereon, on or after
the Effective Time, other than any pro rata dividend payable by
IPC in respect of the reduction, if any, of the Max Termination
Fee.
5.4 For such purposes, the Scheme Shares shall be
transferred to Validus or its nominees and to give effect to
such transfer any person may be appointed by Validus as attorney
and shall be authorised as such attorney on behalf of the holder
concerned to execute and deliver as transferor a form of
transfer or other instrument or instruction of transfer of any
Scheme Shares and every form, instrument or instruction of
transfer so executed shall be as effective as if it had been
executed by the holder or holders of the Scheme Shares thereby
transferred.
6.1 With effect from and including the Effective Time, each
existing certificate representing a holding of Scheme Shares
shall cease to be valid in respect of such holding and each
holder of Scheme Shares shall be bound at the request of Validus
to deliver up the same to Validus or to any person appointed by
Validus to receive the same for cancellation or to destroy such
share certificates.
A-4
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7.
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DESPATCH
OF CONSIDERATION
|
7.1 At or about the Effective Time, Validus shall deposit
the New Validus Shares required to be issued by it under this
Scheme with the Exchange Agent (or such other person or entity
as Validus may determine in its sole discretion) acting on
behalf of and for the account of the holders of Scheme Shares.
Promptly after the Effective Time, Validus shall procure that
the Exchange Agent (or such other person or entity as Validus
may determine in its sole discretion) shall mail each holder of
Scheme Shares instructions for surrendering share certificates
in respect of Scheme Shares or for non-certificated Scheme
Shares represented by book entry and that the Exchange Agent
shall transfer such New Validus Shares to each holder of Scheme
Shares in accordance with their respective entitlements under
this Scheme promptly following the Exchange Agents receipt
of the share certificates in respect of Scheme Shares or
non-certificated Scheme Shares represented by book entry from
such holder of Scheme Shares. In addition, Validus will direct
the Exchange Agent (or such other person or entity as Validus
may determine in its sole discretion) to pay (out of funds
previously provided by Validus) to each holder of Scheme Shares
entitled thereto a cash payment in respect of any amount payable
to such holder of Scheme Shares pursuant to
sub-clause 4.2,
less any applicable withholding taxes, together with the
transfer to such holder of Scheme Shares of the New Validus
Shares to which it is entitled under the terms of this Scheme.
7.2 No interest will be paid or accrued on the cash payable
upon the surrender of any share certificate (or book-entry
shares). Until surrendered in accordance with the provisions of
this clause 7, each share certificate in respect of Scheme
Shares or non-certificated Scheme Shares represented by book
entry will represent after the Effective Time for all purposes
only evidence of the right to receive the consideration due to
each holder of Scheme Shares provided for in clause 4.
7.3 All deliveries of cheques, certificates or other
documents required to be made to holders of Scheme Shares
pursuant to this Scheme shall be effected by sending the same by
mail in prepaid envelopes addressed to the persons entitled
thereto at their respective registered addresses as appearing in
the Register of Members immediately prior to the Effective Time
(or, in the case of joint holders, at the address of the joint
holder who appears first in the said register) and none of IPC,
Validus, any person appointed by Validus pursuant to
sub-clause 5.4
or any of their respective agents or nominees shall be
responsible for any loss or delay in the transmission of any
cheques, certificates or other documents sent in accordance with
this
sub-clause 7.3,
which shall be sent at the risk of the person or persons
entitled thereto.
7.4 All cheques shall be in United States dollars and shall
be made payable to the person or persons to whom, in accordance
with the foregoing provisions of this clause 7, the
envelope containing the same is addressed, and the encashment of
any such cheque shall be a complete discharge of Validus
obligation under this Scheme to pay for the monies represented
thereby.
7.5 The preceding
sub-clauses
of this clause 7 shall take effect subject to any
prohibition or condition imposed by law.
8.1 All mandates and other instructions to IPC in force
immediately prior to the Effective Time relating to Scheme
Shares shall, unless and until revoked or amended, be deemed as
from the Effective Time to be valid and effective mandates and
instructions to Validus in relation to the New Validus Shares
issued in respect thereof.
9.1 This Scheme shall become effective in accordance with
its terms as soon as an office copy of the Scheme Court Order
shall have been delivered to the Registrar for registration.
9.2 Unless this Scheme shall become effective on or before
30 November 2009, or such later date, if any, as Validus
may determine and the Court may allow, this Scheme shall never
become effective.
A-5
10.1 Validus may consent on behalf of all persons concerned
to any modification of or addition to this Scheme or to any
condition which the Court may approve or impose.
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11.
|
STAY OF
PROHIBITED PROCEEDINGS
|
11.1 No holder of Scheme Shares shall commence a Prohibited
Proceeding in respect of or arising from this Scheme after the
Effective Time.
11.2 A holder of Scheme Shares may commence an Allowed
Proceeding against Validus or IPC after the Effective Time
provided that it has first given Validus ten Business Days prior
notice in writing of its intention to do so.
12.1 When under any provision of this Scheme a matter is to
be determined by Validus, it will have discretion to interpret
such matter under this Scheme in a manner that it considers fair
and reasonable, and its decisions will be binding on all
concerned.
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13.
|
PRE-CONDITIONS
TO THIS SCHEME
|
13.1 The effectiveness of this Scheme is conditional upon
the satisfaction or, where relevant, waiver of the Conditions
prior to the commencement of the Court Hearing.
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14.
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GOVERNING
LAW AND JURISDICTION
|
14.1 The terms of this Scheme shall be governed by and
construed in accordance with the laws of Bermuda and the Courts
of Bermuda shall have exclusive jurisdiction to hear and
determine any suit, action or proceeding and to settle any
dispute which arises out of or connected with the terms of this
Scheme or their implementation or out of any action taken or
omitted to be taken under this Scheme or in connection with the
administration of this Scheme.
Dated
[ ] 2009
A-6
Schedule A
CONDITIONS
TO THE EFFECTIVENESS OF THIS SCHEME
This Scheme is conditional upon the following having occurred on
or before 30 November 2009, or such later date, if any, as
Validus may determine and the Court may allow:
1. the approval of this Scheme by a majority in number of
the holders of IPC Shares entitled to vote and present and
voting, either in person or by proxy, at the Scheme Meeting, or
at any adjournment of such meeting, representing three-fourths
or more in value of the IPC Shares entitled to vote and present
and voting, either in person or by proxy, at the Scheme Meeting,
or at any adjournment of such meeting;
2. all resolutions determined by Validus to be reasonably
necessary in connection with the implementation of this Scheme
to be considered at the Special General Meeting being duly
passed by the requisite majority at the Special General Meeting,
or at any adjournment of that meeting, and not subsequently
being revoked and the matters provided for in such resolutions
becoming effective;
3. the sanction (without modification or with modification
as agreed by Validus) of this Scheme by the Court; and
4. the delivery of an office copy of the court order
sanctioning this Scheme to the Registrar.
In addition, this Scheme is also conditional upon the following
Conditions, and, accordingly, the necessary actions to make this
Scheme effective, including the delivery of an office copy of
the court order sanctioning this Scheme to the Registrar, will
not be taken unless such Conditions (as amended if appropriate)
have been satisfied (and continue to be satisfied pending the
commencement of the Court Hearing) or where relevant waived:
Max
Amalgamation Agreement Condition
The Max Amalgamation Agreement shall have been validly
terminated on terms reasonably satisfactory to Validus, and
Validus shall reasonably believe that IPC could not have any
liability, and Max shall not have asserted any claim of
liability or breach against IPC in connection with the Max
Amalgamation Agreement other than with respect to the possible
payment of the Max Termination Fee thereunder.
Registration
Condition
The issuance of the New Validus Shares shall have been
registered under the United States Securities Act of 1933, as
amended, pursuant to an effective registration statement, or
shall be exempt from the registration requirements thereof.
Shareholder
Approval Condition
The shareholders of Validus shall have approved the issuance of
the New Validus Shares as required under the rules of the NYSE.
NYSE
Listing Condition
The New Validus Shares shall have been authorized for listing on
the NYSE, subject to official notice of issuance.
Pending
Litigation Condition
There shall be no threatened or pending litigation, suit, claim,
action, proceeding or investigation before any supranational,
national, state, provincial, municipal or local government,
governmental, regulatory or administrative authority, agency,
instrumentality or commission or any court, tribunal or judicial
or arbitral body (a governmental authority):
(1) challenging or seeking to, or which, in the judgment of
Validus, is reasonably likely to, make illegal, delay or
otherwise, directly or indirectly, restrain or prohibit or in
which there are allegations of any violation of law, rule or
regulation relating to, the proposing of, or terms or provisions
of, this Scheme or, the transfer of all of the outstanding IPC
Shares (excluding any IPC Shares beneficially owned by Validus,
IPC or any of their respective subsidiaries) to Validus in
exchange for shares in Validus; or (2) seeking to, or which
in the judgment of Validus, is reasonably likely to, prohibit or
limit the full rights of ownership of IPC Shares by Validus or
A-7
any of its affiliates, including, without limitation, the right
to vote any IPC Shares acquired by Validus pursuant to this
Scheme or otherwise on all matters properly presented to IPC
shareholders.
No
Material Adverse Change Condition
Since December 31, 2008, there shall not have been any
change, state of facts, circumstance or event that has had, or
would reasonably be expected to have, a material adverse effect
on the financial condition, properties, assets, liabilities,
obligations (whether accrued, absolute, contingent or
otherwise), businesses or results of operations of IPC and its
subsidiaries, taken as a whole, excluding any such change, state
of facts, circumstance or event to the extent caused by or
resulting from: (i) changes in economic, market, business,
regulatory or political conditions generally in the United
States or in Bermuda or any other jurisdiction in which such
party operates or in Bermudan, United States or global financial
markets; (ii) changes, circumstances or events generally
affecting the property and casualty insurance and reinsurance
industry in the geographic areas in which such party operates;
(iii) changes, circumstances or events resulting in
liabilities under property catastrophe reinsurance, including
any effects resulting from any earthquake, hurricane, tornado,
windstorm, terrorist act, act of war or other natural or
man-made disaster; (iv) changes in any applicable law,
statute, ordinance, common law, arbitration award, or any rule,
regulation, judgment, order, writ, injunction, decree, agency
requirement or published interpretation of any governmental
authority, including all relevant bye-laws and regulations of
the Council and Society of Lloyds incorporated under the
Lloyds Act of 1871 to 1982 of England and Wales in each of
the jurisdictions in which IPC or its subsidiaries currently
conduct business or operate (specified laws);
(v) changes in generally accepted accounting principles or
in statutory accounting principles (or local equivalents in the
applicable jurisdiction) prescribed by the applicable insurance
regulatory authority, including accounting and financial
reporting pronouncements by the Bermuda Monetary Authority, the
Securities and Exchange Commission, the National Association of
Insurance Commissioners and the Financial Accounting Standards
Board; (vi) any change or announcement of a potential
change in IPCs or any of its subsidiaries credit or
claims paying rating or A.M. Best rating or the ratings of
any of IPCs or its subsidiaries businesses or
securities; (vii) a change in the trading prices or volume
of IPC Shares; (viii) the failure to meet any revenue,
earnings or other projections, forecasts or predictions for any
period ending after the date of the Scheme Proxy Statement; or
(ix) the commencement, occurrence or continuation of any
war or armed hostilities, except that (A) in the case of
the foregoing clauses (vi), (vii) and (viii), such
exceptions shall not prevent or otherwise affect a determination
that any changes, state of facts, circumstances or events
underlying a failure described in any such clause has resulted
in, or contributed to, a material adverse effect on IPC and its
subsidiaries and (B) in the case of the foregoing clauses
(i), (ii), (iv), (v) and (ix), to the extent those changes,
state of facts, circumstances or events have a materially
disproportionate effect on IPC and its subsidiaries taken as a
whole relative to other similarly situated persons in the
property and casualty insurance and reinsurance industry. In
addition, a material adverse effect shall be deemed to have
occurred if IPCs book value shall have (A) declined
by more than 50% from December 31, 2008 to the commencement
of the Court Hearing or (B) declined from December 31,
2008 to the commencement of the Court Hearing by 20% or more
than the percentage decline of Validus book value during
the same period, provided, that for purposes of measuring the
20% differential book value decline, if Validus has experienced
an increase in book value from December 31, 2008 to the
commencement of the Court Hearing, Validus shall be deemed to
have experienced no change in its book value. Any such
materially adverse change, state of facts, circumstance or event
or decline in IPCs book value described above are referred
to herein as a material adverse effect.
Conduct
of Business Condition
Each of IPC and its subsidiaries shall have carried on their
respective businesses in the ordinary course consistent with
past practice at all times on or after the date of the Scheme
Proxy Statement and prior to the commencement of the Court
Hearing.
Validus
Credit Facilities Condition
All amendments or waivers under Validus credit facilities
as determined by Validus to be necessary to consummate this
Scheme and the other transactions contemplated by the Scheme
Proxy Statement and by the Requisition Proxy Statement shall be
in full force and effect.
A-8
Other
Conditions
None of the following events or facts shall have occurred:
(a) there is in effect any order or injunction issued by
any court of competent jurisdiction or any action taken, or any
specified law enacted, entered, enforced or deemed applicable to
this Scheme or the other transactions contemplated by the Scheme
Proxy Statement or the Requisition Proxy Statement by any
governmental authority of competent jurisdiction which imposes
any term, condition, obligation or restriction upon Validus, IPC
or any of their respective subsidiaries that would, individually
or the aggregate, reasonably be likely to (A) have a
material adverse effect (assuming all references to IPC in the
definition of material adverse effect were instead
references to Validus) on Validus and its subsidiaries
(including IPC and its subsidiaries following the Effective
Time) on a consolidated basis following the Effective Time or
(B) directly or indirectly (i) delay or otherwise
restrain, impede or prohibit this Scheme or (ii) prohibit
or limit the full rights of ownership of IPC Shares by Validus
or any of its affiliates, including, without limitation, the
right to vote any IPC Shares acquired by Validus pursuant to
this Scheme or otherwise on all matters properly presented to
IPC shareholders;
(b) IPC or any of its subsidiaries has (1) permitted
the issuance or sale of any shares of any class of share capital
or other securities of any subsidiary of IPC (other than IPC
Shares issued pursuant to, and in accordance with, the terms in
effect on the date of the Scheme Proxy Statement of employee
stock options, stock units or other similar awards outstanding
prior to the date of the Scheme Proxy Statement),
(2) declared, paid or proposed to declare or pay any
dividend or other distribution on any share capital of IPC
(other than (A) any quarterly cash dividends paid in the
ordinary course of business consistent with past practice to
holders of IPC Shares and (B) any pro rata dividend payable
by IPC in respect of the reduction, if any, of the Max
Termination Fee), including by adoption of a shareholders rights
plan (or similar plan) which has not otherwise been terminated
or rendered inapplicable to this Scheme prior to the
commencement of the Court Hearing, or (3) amended, or
authorized or proposed any amendment to, its articles of
incorporation or bye-laws (or other similar constituent
documents) or Validus becomes aware that IPC or any of its
subsidiaries shall have amended, or authorized or proposed any
amendment to, its articles of incorporation or bye-laws (or
other similar constituent documents) in a manner that, in the
reasonable judgment of Validus, is reasonably likely to,
directly or indirectly, (A) delay or otherwise restrain,
impede or prohibit this Scheme or (B) prohibit or limit the
full rights of ownership of IPC Shares by Validus or any of its
affiliates, including, without limitation, the right to vote any
IPC Shares acquired by Validus pursuant to this Scheme or
otherwise on all matters properly presented to IPC shareholders;
(c) Validus or any of its affiliates enters into a
definitive agreement or announces an agreement in principle with
IPC providing for an amalgamation or other business combination
or transaction with or involving IPC or any of its subsidiaries,
or the purchase or exchange of securities or assets of IPC or
any of its subsidiaries, whereby Validus or any of its
subsidiaries acquires securities of IPC, or Validus accepts for
exchange under an exchange offer at least 90% of the IPC Shares
which it sought to acquire under that offer, or Validus and IPC
reach any other agreement or understanding, in either case,
pursuant to which it is agreed or provided that this Scheme will
not be implemented;
(d) IPC or any of its subsidiaries has (1) granted to
any person proposing an amalgamation or other business
combination with or involving IPC or any of its subsidiaries or
the purchase or exchange of securities or assets of IPC or any
of its subsidiaries any type of option, warrant or right which,
in Validus judgment, constitutes a
lock-up
device (including, without limitation, a right to acquire or
receive any IPC Shares or other securities, assets or business
of IPC or any of its subsidiaries), (2) paid or agreed to
pay any cash or other consideration to any party in connection
with or in any way related to any such business combination,
purchase or exchange (other than the Max Termination Fee) or
(3) amended the Max Amalgamation Agreement in any respect
that alters IPCs rights or obligations upon termination of
the Max Amalgamation Agreement (other than a reduction of the
Max Termination Fee); or
(e) IPC shareholders shall have adopted the proposed Max
Amalgamation Agreement or there shall have been a business
combination consummated between IPC and Max;
which in the reasonable judgment of Validus in any such case,
and regardless of the circumstances giving rise to any such
condition, makes it inadvisable to proceed with this Scheme.
A-9
The foregoing Conditions are for the sole benefit of Validus and
may be asserted by Validus regardless of the circumstances
giving rise to the right to assert any such Condition or, other
than the Conditions numbered 1 to 4 (inclusive) above, the
Registration Condition, the Shareholder
Approval Condition and the NYSE Listing
Condition (collectively the Unwaivable
Conditions), may be waived by Validus in whole or in part
at any time and from time to time prior to the commencement of
the Court Hearing in its discretion. Validus expressly reserves
the right to waive any of the Conditions, other than the
Unwaivable Conditions, and to make any change in the terms of or
conditions to this Scheme. The failure by Validus at any time to
exercise any of the foregoing rights shall not be deemed a
waiver of any such right; the waiver of any such right with
respect to particular facts and other circumstances shall not be
deemed a waiver with respect to any other facts and
circumstances; and each such right shall be deemed an ongoing
right that may be asserted at any time and from time to time
until the commencement of the Court Hearing or the earlier
lapse, termination or withdrawal of this Scheme.
This Scheme will not proceed unless all the above Conditions are
satisfied or, where relevant, waived or, where appropriate,
determined by Validus to have been satisfied or to remain
satisfied prior to the commencement of the Court Hearing.
Validus shall be under no obligation to waive or treat as
satisfied any of the Conditions set forth following Condition 4
above (the Non-Procedural Conditions) by a date
earlier than 30 November 2009, or such later date, if any,
as Validus may determine and the Court may allow,
notwithstanding that the Non-Procedural Conditions may at such
earlier date have been waived or satisfied and that there are at
such earlier date no circumstances indicating that any of such
Non-Procedural Conditions may not be capable of being satisfied.
Any determination by Validus concerning any Condition or event
described in this Scheme (including this
Schedule A) shall be final and binding on all parties
to the fullest extent permitted by law.
A-10
YOUR
REQUISITION IS IMPORTANT!
NO MATTER HOW MANY OR HOW FEW SHARES YOU OWN, WE ARE SEEKING
YOUR REQUISITION. PLEASE COMPLETE, SIGN, DATE, AND MAIL
THE ENCLOSED GREEN REQUISITION CARD IN THE ENCLOSED
POSTAGE-PAID ENVELOPE AS SOON AS POSSIBLE.
IF YOUR SHARES ARE HELD IN THE NAME OF A BANK, BROKER OR OTHER
NOMINEE, ONLY IT CAN SIGN A WRITTEN REQUISITION WITH RESPECT TO
YOUR SHARES. ACCORDINGLY, PLEASE CONTACT THE PERSON
RESPONSIBLE FOR YOUR ACCOUNT AND GIVE INSTRUCTIONS FOR A
WRITTEN REQUISITION TO BE SIGNED REPRESENTING YOUR SHARES.
IF YOU HAVE ANY QUESTIONS OR REQUIRE ANY ASSISTANCE IN
SUBMITTING YOUR REQUISITION, PLEASE CONTACT:
199 Water Street
26th Floor
New York, NY 10038
Banks and Brokers should call:
(212) 440-9800
or
Toll Free: at
(888) 274-5119
Email: validusIPC@georgeson.com
PRELIMINARY
COPY, DATED MAY 12, 2009 SUBJECT TO COMPLETION
WRITTEN REQUISITION
OF SHAREHOLDERS OF IPC HOLDINGS, LTD.
SOLICITED BY VALIDUS HOLDINGS, LTD. (AND NOT BY IPC HOLDINGS,
LTD.)
TO CALL A SPECIAL GENERAL MEETING OF
IPC HOLDINGS, LTD.
The undersigned is a shareholder of common shares of IPC
Holdings, Ltd. (IPC) and hereby submits this
requisition to compel the board of directors of IPC to forthwith
proceed to convene a special general meeting of IPC (the
IPC Special General Meeting) to consider and, if
IPCs shareholders so determine, approve the proposals
described herein and in the Solicitation Statement that
accompanied this Written Requisition. Nothing contained in
this instrument shall be construed to grant Validus Holdings,
Ltd. (Validus) the right, power or authority to vote
any shares owned by the undersigned at the IPC Special General
Meeting. This Written Requisition does, however, give
Validus the power and authority to convene the IPC Special
General Meeting if the board of directors of IPC fails to
proceed duly within 21 days from the date of the deposit of
the requisitions with IPC to convene the IPC Special General
Meeting.
The requisitioned IPC Special General Meeting shall be held for
the purpose of considering and, if IPCs shareholders so
determine, approving the following proposals:
Proposal 1. That the scheme of
arrangement under Bermuda law to effect the acquisition of IPC
by Validus (the Validus Scheme of Arrangement) set
forth in Annex A to the Solicitation Statement that
accompanied this Written Requisition be and it is hereby
approved by IPC and IPC be bound thereby, and any person
nominated by the Supreme Court of Bermuda or any director of IPC
or of Validus shall be authorized to take all such actions as
Validus may consider necessary or appropriate for carrying the
Validus Scheme of Arrangement into effect;
Proposal 2. That, with immediate effect
from the time at which this resolution is duly approved, the
board of directors of IPC shall henceforth act in conformity
with the following regulation which is hereby prescribed by IPC
in general meeting in accordance with bye-law 3(1) of IPCs
bye-laws; being that the board of directors of IPC shall
promptly comply with any resolution, and shall promptly take, or
procure to be taken, any and all steps necessary to implement
such resolution, approved by the affirmative vote of a majority
of the votes cast at a general meeting of IPC, which directs or
instructs the IPC board of directors to take any action in
relation to any proposal, understanding, arrangement or
agreement of IPC or to which IPC is a party or by which IPC is
bound, for IPC to amalgamate, merge or enter into any other form
of business combination with any other entity or to sell,
transfer or otherwise dispose of all or any substantial part of
the assets or issued capital of IPC or any of its subsidiaries,
to any other person or entity;
Proposal 3. In accordance with the
resolution set forth at Proposal 2, that the board of
directors of IPC is hereby directed and instructed to:
(i) take any and all such steps and actions as are
necessary and desirable to terminate the Agreement and Plan of
Amalgamation, dated as of March 1, 2009, as amended by
Amendment No. 1 to the Agreement and Plan of Amalgamation,
dated as of March 5, 2009, among Max Capital Group Ltd.,
IPC, and IPC Limited (the Max Amalgamation
Agreement), including by any director of IPC delivering
written notice to Max Capital Group Ltd. in accordance with
Section 8.2 of the Max Amalgamation Agreement, at the
earliest possible time permitted under Section 7.1 of the
Max Amalgamation Agreement; and (ii) take all such actions
as may be necessary or appropriate for carrying the Validus
Scheme of Arrangement into effect in accordance with the
reasonable directions of Validus;
Proposal 4. That the Memorandum of
Association (the Memorandum) of IPC be amended such
that immediately following clause 7(2) of the Memorandum,
the following clause 7(3) is inserted:
3. That, notwithstanding any other provision
of this Memorandum of Association or of the Bye-Laws of the
Company, the continuance in effect after the date which is five
business days after the date on which this Memorandum of
Association was amended by the incorporation of this
clause 7(3) of the Agreement and Plan of Amalgamation,
dated as of March 1, 2009, as amended by Amendment
No. 1 to the Agreement and Plan of Amalgamation, dated as
of March 5, 2009, among Max Capital Group Ltd., the
Company, and IPC Limited, and the Company continuing to be bound
thereby and to take any action to implement the same after that
date, shall be beyond the powers and objects of the Company and
the
directors of the Company are required and directed to take
all steps necessary to terminate that agreement in advance of
that date.; and
Proposal 5. Other resolutions determined
by Validus to be reasonably necessary in connection with
implementation of the Validus Scheme of Arrangement by Validus.
The undersigned hereby authorizes and designates Validus or any
agent thereof to collect and deliver to IPC this requisition, to
deliver any other information required in connection therewith
and to convene the IPC Special General Meeting if the board of
directors of IPC fails within 21 days from the date of the
deposit of the requisitions with IPC to proceed duly to convene
the IPC Special General Meeting.
This requisition supersedes, and the undersigned hereby revokes,
any earlier dated revocation which the undersigned may have
submitted to Validus, IPC or any designees of either.
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Signature (if held jointly): |
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Title (only if shares are held by an entity): |
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Number of IPC Holdings, Ltd. Common Shares held: |
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Please sign exactly as your shares are registered. When
shares are held by joint tenants, both should sign. When
signing as an attorney, executor, administrator, trustee, or
guardian, please give full title as such. If a
corporation, please sign in full corporate name by the President
or other duly authorized officer. If a partnership, please
sign in partnership name by an authorized person. This
requisition will represent all shares held in all capacities.
PLEASE
COMPLETE, SIGN, DATE, AND MAIL
IN THE ENCLOSED ENVELOPE AS PROMPTLY AS POSSIBLE