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Form 8-K ENDURANCE SPECIALTY HOLD For: Dec 02

December 2, 2016 4:22 PM EST

 
 
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 
FORM 8-K
 
 
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
 
December 2, 2016 (December 1, 2016)
Date of Report (Date of earliest event reported)
 
 
Endurance Specialty Holdings Ltd.
(Exact name of registrant as specified in its charter)
 

Bermuda
 
1-31599
 
98-0392908
(State or Other Jurisdiction
of Incorporation)
 
(Commission
File Number)
 
(I.R.S. Employer
Identification No.)

Waterloo House, 100 Pitts Bay Road, Pembroke HM 08, Bermuda
(Address of principal executive offices, including zip code)

(441) 278-0400
(Registrant’s telephone number, including area code)

Not Applicable
(Former name or former address, if changed since last report)
 
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
£
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
£
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
£
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
£
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 

 
 
Item 1.01.
Entry Into a Material Definitive Agreement
 
As previously announced, on October 5, 2016, Endurance Specialty Holdings Ltd. (“Endurance”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Sompo Holdings, Inc. (“Sompo”) and Volcano International Limited, an indirect, wholly owned subsidiary of Sompo (“Merger Sub”). The Merger Agreement provides for, subject to the satisfaction or waiver of specified conditions, the merger of Merger Sub with and into Endurance (the “Merger”), with Endurance surviving the Merger as an indirect, wholly owned subsidiary of Sompo (the “Surviving Company”). Pursuant to the Merger Agreement, at the effective time of the Merger, each issued and outstanding ordinary share of Endurance owned by any direct or indirect wholly owned subsidiary of Endurance would be converted into one share of the Surviving Company.
 
On December 1, 2016, Endurance, Sompo and Merger Sub amended the Merger Agreement (“Amendment No. 1”) to provide that, at the effective time of the Merger, each issued and outstanding ordinary share of Endurance owned by any direct or indirect wholly owned subsidiary of Endurance will be automatically canceled and converted into the right to receive the merger consideration of $93.00 in cash, without interest.
 
The foregoing description of the Amendment No. 1 does not purport to be complete and is subject to and qualified in its entirety by reference to the Amendment No. 1, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
 
Item 9.01
Financial Statements and Exhibits
 
(d) Exhibits
 
2.1
Amendment Agreement, dated as of December 1, 2016, by and among Endurance Specialty Holdings Ltd., Sompo Holdings, Inc. and Volcano International Limited

 
 

 
 
Cautionary Note Regarding Forward-Looking Statements
 
This material may include, and Endurance may make related oral, forward-looking statements which reflect our current views with respect to future events and financial performance. Such statements may include forward-looking statements both with respect to us in general and the insurance and reinsurance sectors specifically, both as to underwriting and investment matters. These statements may also include assumptions about our proposed acquisition by Sompo (including its benefits, results, effects and timing). Statements which include the words “should,” “would,” “expect,” “intend,” “plan,” “believe,” “project,” “anticipate,” “seek,” “will,” and similar statements of a future or forward-looking nature identify forward-looking statements in this material for purposes of the U.S. federal securities laws or otherwise. We intend these forward-looking statements to be covered by the safe harbor provisions for forward-looking statements in the Private Securities Litigation Reform Act of 1995.
 
The proposed transaction is subject to risks and uncertainties, including: (A) that Endurance and Sompo may be unable to complete the proposed transaction because, among other reasons, conditions to the closing of the proposed transaction may not be satisfied or waived; (B) uncertainty as to the timing of completion of the proposed transaction; (C) the inability to complete the proposed transaction due to the failure to obtain Endurance shareholder approval for the proposed transaction or the failure to satisfy other conditions to completion of the proposed transaction, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the transaction; (D) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; (E) risks related to disruption of management’s attention from Endurance’s ongoing business operations due to the proposed transaction; (F) the effect of the announcement of the proposed transaction on Endurance’s relationships with its clients, operating results and business generally and (G) the outcome of any legal proceedings to the extent initiated against Endurance, Sompo or others following the announcement of the proposed transaction, as well as Endurance’s and Sompo’s management's 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 Endurance’s most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q  for the quarter ended June 30, 2016 and September 30, 2016 and other documents of Endurance on file with the U.S. Securities and Exchange Commission. Any forward-looking statements made in this material are qualified by these cautionary statements, and there can be no assurance that the actual results or developments anticipated by Endurance will be realized or, even if substantially realized, that they will have the expected consequences to, or effects on, Endurance or its business or operations. Except as required by law, the parties undertake no obligation to update publicly or revise any forward-looking statement, whether as a result of new information, future developments or otherwise.
 

 
 

 

 
SIGNATURES
 
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
 
Dated: December 2, 2016
 
 
By:
 
/s/ John V. Del Col
 
Name:
 
John V. Del Col
 
Title:
 
General Counsel & Secretary

 
 

 
 
EXHIBIT INDEX
 
 
Exhibit No.
 
Description
2.1
 
Amendment Agreement, dated as of December 1, 2016, by and among Endurance Specialty Holdings Ltd., Sompo Holdings, Inc. and Volcano International Limited

 
Exhibit 2.1
 
EXECUTION VERSION

 
AMENDMENT AGREEMENT
 
AMENDMENT No. 1 (this “Amendment”), dated as of December 1, 2016, to the Agreement and Plan of Merger (the “Agreement”), dated as of October 5, 2016 among Endurance Specialty Holdings Ltd., a Bermuda exempted company (the “Company”), Sompo Holdings, Inc., a kabushiki kaisha organized under the laws of Japan (the “Parent”), and Volcano International Limited, a Bermuda exempted company (the “Merger Sub”).  Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Agreement.
 
WITNESSETH:
 
WHEREAS, the parties have entered into the Agreement; and
 
WHEREAS, pursuant to and in accordance with Section 8.02 of the Agreement, the parties wish to amend the Agreement as set forth in this Amendment.
 
NOW, THEREFORE, in consideration of the rights and obligations contained herein, and for other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:
 
Section 1.        SECTION 2.01(B).  Section 2.01(b) of the Agreement is hereby amended to read as follows:
 
Cancelation of Treasury Shares; Treatment of Shares Held by Company Subsidiaries. All Company Shares that are owned by the Company as treasury shares shall, by virtue of the Merger and without any action on the part of the holder thereof, be canceled automatically and shall cease to exist and no consideration shall be delivered in exchange therefor. Each Company Share, if any, owned by any direct or indirect wholly owned Subsidiary of the Company shall be automatically canceled and converted into and shall thereafter represent the right to receive the Merger Consideration.”
 
Section 2.        EXHIBIT A.  Section 8.1.1 of the Form of Statutory Merger Agreement attached as Exhibit A to the Agreement is hereby amended to read as follows:
 
 
“8.1.1
each Company Share that is owned by any direct or indirect wholly owned Subsidiary of the Company immediately prior to the Effective Time shall automatically be canceled and converted into and shall thereafter represent the right to receive the Merger Consideration;”
 
Section 3.        Assignment.  Neither this Amendment nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, by any of the parties hereto without the prior written consent of the other parties hereto. No assignment by any party shall relieve such party of any of its obligations hereunder. Subject to the immediately preceding two (2) sentences, this Amendment shall be binding upon,
 
 
 

 

inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns. Any purported assignment not permitted under this Section 3 shall be null and void.
 
Section 4.        Entire Agreement; No Third Party Beneficiary.  This Amendment (a) constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties hereto and their Affiliates, or any of them, with respect to the subject matter hereof and thereof and (b) is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.  Except as amended by this Amendment, the Agreement shall continue in full force and effect.
 
Section 5.        Severability.  If any term, condition or other provision of this Amendment is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Amendment shall nevertheless remain in full force and effect. Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate to attempt to modify this Amendment so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.
 
Section 6.        Counterparts.  This Amendment may be executed in one or more counterparts (including by facsimile or electronic mail), each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.
 
Section 7.        Governing Law.  This Amendment shall be governed by, and construed in accordance with, the Laws of the State of Delaware applicable to contracts executed in and to be performed entirely in that state, regardless of the laws that might otherwise govern under any applicable conflict of laws principles, except to the extent any provisions of this Amendment which relate to the exercise of a director’s or officer’s fiduciary duties, statutory duties, obligations and/or statutory provisions, or which arise under, the Laws of Bermuda (including those applicable to the Merger) shall be governed by and in accordance with the Laws of Bermuda.
 
 
2

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
 
 
 
ENDURANCE SPECIALTY HOLDINGS LTD.
   
   
 
By:
 
/s/ John R. Charman
     
Name:
 
John R. Charman
     
Title:
 
Chairman & CEO
           
           
 
SOMPO HOLDINGS, INC.
   
   
 
By:
 
/s/ Kengo Sakurada
     
Name:
 
Kengo Sakurada
     
Title:
 
President & CEO
           
           
 
VOLCANO INTERNATIONAL LIMITED
   
   
 
By:
 
/s/ Nigel Frudd
     
Name:
 
Nigel Frudd
     
Title:
 
Director

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