exv4w33



 


EXHIBIT 4.33



2 September, 2002






Converium AG






MDU Investments Limited










	 
	

	PUT OPTION AGREEMENT

relating to preference shares in MDU

Investments Limited
	





















 






 





CONTENTS




	 	 	 	 	 	 
	CLAUSE	 	PAGE
	 	 	 	 	 	 
	1.   INTERPRETATION
	 	 	1	 
	2.   PUT OPTION
	 	 	3	 
	3.   EXERCISE OF OPTION
	 	 	3	 
	4.   OPTION PRICE
	 	 	4	 
	5.
  COMPLETION
	 	 	4	 
	6.   TRIGGER EVENT
	 	 	4	 
	7.   WARRANTIES
	 	 	6	 
	8.   NEGATIVE UNDERTAKINGS
	 	 	7	 
	9.   RISK PAYMENT
	 	 	11	 
	10. TERMINATION
	 	 	11	 
	11. NON-ASSIGNMENT
	 	 	12	 
	12. AMENDMENTS
	 	 	12	 
	13. NOTICES
	 	 	12	 
	14. COUNTERPARTS
	 	 	13	 
	15. NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
	 	 	13	 
	16. GOVERNING LAW
	 	 	13	 
	SCHEDULE 1 DISCLOSURE AGAINST THE WARRANTIES IN
CLAUSE 7
	 	 	15	 
	 	Professor Spurrett
	 	 	15	 
	 	Dr Barry
	 	 	15	 
	SCHEDULE 2 PREFERENCE SHARE RIGHTS
	 	 	17	 
	 	Dividends
	 	 	17	 
	 	Capital
	 	 	17	 
	 	Class consents
	 	 	17	 
	 	Redemption
	 	 	18	 
	 	Restrictions
	 	 	19	 
	 	General
	 	 	19	 



 






 



THIS PUT OPTION AGREEMENT is made on 2 September 2002



BETWEEN:



	(1)	 	MDU Investments Limited, whose registered office is at 230 Blackfriars
Road, London SE1 8PJ, England (MDUI);
	 
	(2)	 	Converium AG, whose registered office is at General Guisan-Quai 26, 8022
Zurich, Switzerland (Converium) and
	 
	(3)	 	The Medical Defence Union Limited, whose registered office is at 230
Blackfriars Road, London SE1 8PJ, England.



WHEREAS:


(A)     MDUI is a private limited company with an authorised share capital of one
hundred pounds (£100) comprising one hundred (100) shares of one pound (£1)
each.


(B)     Converium has agreed to grant MDUI an option to require Converium (or a
person nominated by Converium) to subscribe for up to twenty million Preference
Shares to be created by MDUI at their nominal value of one pound (£1) each on
the terms of this Agreement.


IT IS AGREED as follows:



	1.	 	INTERPRETATION



Definitions



1.1     In this Agreement, the following expressions shall have the following
meanings:


Balance Sheet has the meaning given to it in clause 6;


Bank Account has the meaning given to it in clause 6;


Borrowings has the meaning given to it in clause 8;


Business Day means a day (other than a Saturday or Sunday) on which banks
generally are open in London and Zurich for a full range of business;


Completion means completion of an issue of Option Shares in accordance
with clause 5;


Conditions Precedent means the conditions set out in clause 6.4;


Deutsche Cash and Money Markets Fund means the fund of that name (or any
replacement name from time to time) managed by Deutsche Bank;


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Group means, in relation to MDUI or any other company, that company and
its Subsidiaries for the time being;


Low Risk Rate means the five year average rate of interest of sterling
denominated UK Government securities with an original maturity of five years;


MDUIL means MDU Insurance Limited;


Option Notice means a
notice given in accordance with clause 3;


Option Period means the period beginning on the date of this Agreement and
ending on 1 January 2009;


Option Price has the meaning given to it in clause 4;


Option Shares means twenty million (20,000,000) Preference Shares;


parties means Converium and MDUI (and party shall be construed
accordingly);


Permitted Borrowings has the meaning given to it in clause 8;


Preference Dividend means the dividend (which may be at different rates
for different series of Preference Shares) attaching to the Preference Shares;


Preference Shares means the cumulative redeemable preference shares of one
pound (£1) each to be created in the capital of MDUI which shall have the
rights set out in Schedule 2 to this Agreement and which may be issued in more
than one series;


Put Option has the meaning given to it in clause 2;


Risk Payment has the meaning given to it in clause 9;


Security Interest has the meaning given to it in clause 8;


Shareholders’ Agreement means the shareholders agreement relating to MDU
Services Limited dated 10 December 2001 between Converium, The Medical Defence
Union Limited, MDUIL and MDU Services Limited as amended by a deed of amendment
dated the date of this Agreement;


Subscription Monies has the meaning given to it in clause 9;


Subsidiary means, in relation to an undertaking (the holding undertaking),
any other undertaking in which the holding undertaking (or persons acting on
its or their behalf) for the time being directly or indirectly holds or
controls either:



	(a)	 	a majority of the voting rights exercisable at general meetings of the
members of that undertaking on all, or substantially all, matters; or



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	(b)	 	the right to appoint or remove directors having a majority of the voting
rights exercisable at meetings of the board of directors of that
undertaking on all, or substantially all, matters,



and any undertaking which is a Subsidiary of another undertaking shall
also be a Subsidiary of any further undertaking of which that other is a
Subsidiary; and Subsidiaries shall be construed accordingly; and


Trigger Event shall have the meaning given to it in clause 6.1.


1.2     In this Agreement, unless the context otherwise requires:



	(a)	 	references to persons shall include individuals, bodies corporate
(wherever incorporated), unincorporated associations and partnerships;
	 
	(b)	 	the headings are inserted for convenience only and shall not affect the
construction of the Agreement;
	 
	(c)	 	references to one gender shall include all genders;
	 
	(d)	 	any reference to an enactment is a reference to it as from time to time
amended, consolidated or re-enacted (with or without modification) and
includes all instruments or orders made under such enactment; and
	 
	(e)	 	references to documents in the agreed form are to such documents as
agreed between the parties and initialled on behalf of each party.



1.3     The Schedules comprise schedules to this Agreement and form part of this
Agreement.



	2.	 	PUT OPTION



In consideration of the payment of £1, receipt of which is hereby acknowledged,
Converium hereby grants to MDUI an option (the Put Option) to require Converium
to subscribe for up to an aggregate of twenty million (20,000,000) Preference
Shares on the terms of this Agreement. Converium may, at its absolute
discretion, procure that a Subsidiary of Converium subscribes for the relevant
Preference Shares in satisfaction of Converium’s obligations pursuant to this
clause 2. The Put Option may be exercised in whole on one occasion or by
several tranches of one million (1,000,000) Preference Share multiples.



	3.	 	EXERCISE OF OPTION



3.1     The Put Option may be exercised by notice or notices in writing by MDUI
given at any time during the Option Period when the Conditions Precedent have
been satisfied and
the Trigger Event applies but only to the extent necessary (rounded up to the
nearest one million (1,000,000) Preference Shares) to ensure that the Trigger
Event no longer applies.


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3.2     The Put Option may only be exercised in respect of multiples of one million
(1,000,000) of the Option Shares.



	4.	 	OPTION PRICE



The price payable for the Option Shares under the Put Option (the Option Price)
shall be one pound (£1) per Preference Share



	5.	 	COMPLETION



5.1     Subject to the Conditions Precedent having been satisfied, completion of
the subscription of the relevant Option Shares shall take place at MDUI’s
registered office on the fifth Business Day following the receipt by Converium
of an Option Notice.


5.2     The following events shall take place at Completion:



	(a)	 	Converium shall cause the Option Price to be paid by banker’s draft made
payable to MDUI or electronic funds transfer to the Bank Account or such
other bank account in the UK in the name of MDUI as MDUI shall notify to
Converium in the Option Notice;
	 
	(b)	 	MDUI shall deliver to Converium a copy of valid board and shareholders
resolutions of MDUI (in each case certified by the company secretary of
MDUI as being true and complete copies) approving the creation of the
Preference Shares that are to be subscribed by Converium as required by
clause 6.4 and making any necessary changes to the memorandum and articles
of association of MDUI;
	 
	(c)	 	MDUI shall deliver to Converium a copy of a valid board resolution of
MDUI resolving to issue the relevant Option Shares to Converium and valid
resolutions of the shareholders of MDUI granting authority pursuant to
section 80 of the Companies Act 1985 and Article 2(a) of MDUI’s articles
of association for such issue and disapplying the statutory pre-emption
rights pursuant to section 95 of the Companies Act 1985 in relation to
such issue (in each case certified by the company secretary of MDUI as
being true and complete copies);
	 
	(d)	 	MDUI shall deliver to Converium the share certificates relating to the
relevant Option Shares; and
	 
	(e)	 	MDUI shall procure that Converium is entered in the register of members
of MDUI as the holder of the relevant Option Shares.
	 
	6.	 	TRIGGER EVENT



6.1     Subject to Clause 6.2 the Trigger Event is the reduction of the
consolidated net assets of The Medical Defence Union Limited and its
Subsidiaries to below twenty million pounds sterling (£20,000,000).


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6.2     The Trigger Event shall only apply if MDUI provides to Converium, with the
Option Notice, a consolidated balance sheet (a Balance Sheet) (prepared in
accordance with the accounting practices and principles used to prepare the
audited consolidated accounts for The Medical Defence Union Limited’s Group for
the previous accounting period of The Medical Defence Union Limited for which
such accounts have been produced) showing that the condition in clause 6.1 has
been satisfied and the Balance Sheet has been certified by the finance director
of The Medical Defence Union Limited on behalf of The Medical Defence Union
Limited (and without personal liability) as giving an accurate view of the
consolidated net assets of The Medical Defence Union Limited and its
Subsidiaries based on such accounting principles and practices.


6.3     MDUI shall procure that a copy of the audited annual consolidated accounts
of The Medical Defence Union Limited and its Subsidiaries (including a
confirmation from the auditors of The Medical Defence Union Limited that in
their opinion the financial statements comprising the audited annual
consolidated accounts of The Medical Defence Union Limited and its Subsidiaries
give a true and fair view of the state of The Medical Defence Union Limited and
its Subsidiaries’ affairs as at the date of such financial statements) for each
year during which one or more Balance Sheet is issued is provided to Converium
within fourteen (14) days of the completion of such accounts.


6.4     The Conditions Precedent are:



	(a)	 	MDUI validly increasing its share capital by the creation of such number
of Preference Shares as are to be subscribed by Converium pursuant to the
Option Notice. The Preference Shares shall have the rights set out in
Schedule 2 and shall be subject to no other obligations of any kind other
than those applying to shareholders of MDUI in general as set out in the
articles of association of MDUI in the agreed form. The rate of interest
to be inserted in paragraph A.1 of Schedule 2 shall be the rate of
interest equal to aggregate of (i) the Low Risk Rate on the date when the
relevant Option Notice is served and (ii) 300 basis points. All
Preference Shares, regardless of their interest rate, shall rank pari
passu;
	 
	(b)	 	the valid transfer of the shares in MDUIL currently registered in the
name of The Medical Defence Union Limited to MDUI on the terms set out in
the draft share sale agreement in the agreed form and the valid transfer
of the share in MDU Insurance Limited currently registered in the name of
Dental Defence Union Limited to The Medical Defence Union Limited such
that following such transfers MDUI and The Medical Defence Union Limited
will together hold the entire issued share capital of MDU Insurance
Limited;
	 
	(c)	 	MDUI opening a bank account in the name of MDUI with a UK resident bank
(the Bank Account); and
	 
	(d)	 	MDU Insurance Limited entering into a negative covenant agreement in the
agreed form.



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	7.	 	WARRANTIES



7.1     MDUI warrants to Converium that as at the date of this Agreement and as at
any date when an Option Notice is served by MDUI:



	(a)	 	MDUI has been duly incorporated and is validly existing under relevant
law with full power and authority to execute and perform its obligations
under this Agreement;
	 
	(b)	 	the execution, delivery and performance of this Agreement by MDUI has
been duly authorised by MDUI and this Agreement constitutes a legal, valid
and binding obligation of MDUI enforceable in accordance with its terms;
	 
	(c)	 	all corporate and other approvals, consents and authorisations required
by the MDUI for the issue of the Option Shares will have been obtained and
will be unconditional and in full force and effect when such shares are
issued;
	 
	(d)	 	the Option Shares will have been duly authorised when such shares are
issued and, when such shares are issued and delivered in accordance with
the terms of this Agreement they will be validly issued in accordance with
the law and regulations of England, fully paid and free from all liens,
charges, encumbrances and other third party rights, and the existing
shareholders of MDUI will have validly waived their pre-emption rights (if
any) with respect to the Option Shares and no other person has any
pre-emptive or other rights with respect to the Option Shares and there
are no legal restrictions on the issue of the Option Shares under the laws
of England or the constitutional documents of MDUI;
	 
	(e)	 	upon issue of any Option Shares to Converium or its nominated Subsidiary,
Converium or that Subsidiary will become the sole legal and beneficial
owner of such Option Shares;
	 
	(f)	 	the execution and delivery of this Agreement, the performance of its
terms and the creation and issue of the Option Shares will not infringe
any provision of applicable law or regulation, is not contrary to the
provisions of the constitutional documents of MDUI and will not result in
any breach of the terms of, or constitute a default under, any instrument,
agreement or order to which MDUI is a party or by which it or its property
is bound;



7.2     MDUI warrants to Converium that so far as MDUI or any of Mr Maurice
Gallivan, Dr Michael Saunders or Dr Christine Tomkins are aware and save as
disclosed in Schedule 1 to this Agreement, as at the date of this Agreement no
member of The Medical Defence Union Limited’s Group (save for MDU Services
Limited) is:



	(a)	 	in material breach of the terms of, or in material default under, any
instrument, agreement or order to which it is a party or by which it or
its property is bound; or



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	(b)	 	a party to any litigation or arbitration proceedings relating to claims
or amounts which are likely to have a material adverse effect on the
condition (financial or other), prospects, results of operations or
general affairs of The Medical Defence Union Limited’s Group taken as a
whole or would materially and adversely affect the ability of the MDUI to
perform its obligations under this Agreement.



7.3     For the purpose of clause 7.2(a) a breach or default will not be considered
material unless such breach or default results in a claim (or series of
connected claims) against or a cost to The Medical Defence Union Limited’s
Group of one million pounds (£1,000,000) or more and claims or amounts referred
to in 7.2(b) will not have a material adverse effect unless such claim or
amount exceeds one million pounds (£1,000,000) or results in a cost to The
Medical Defence Union Limited’s Group of one million pounds (£1,000,000) or
more.


7.4     MDUI will not be liable in respect of any claim for breach of warranty
unless MDUI receives notification of the claim on or before the date which
falls one year after the later of: (a) the date on which twenty million
(20,000,000) Preference Shares have been acquired by Converium or a Subsidiary
nominated by it pursuant to this Agreement; and (b) 1 January 2009.


7.5     The total aggregate liability of MDUI in respect of any claim or claims for
breach of warranty pursuant to this clause 7 will be limited to an amount equal
to the aggregate of the nominal value of the Preference Shares held by
Converium or any of its Subsidiaries at the time such claim is notified to MDUI
together with all amounts outstanding pursuant to the terms of the Preference
Shares at that time.


7.6     MDUI agrees to notify Converium to the extent it or any of Mr Maurice
Gallivan, Dr Michael Saunders or Dr Christine Tomkins, becomes aware that there
has been or is likely to be a breach of the warranties set out in this clause
7.



	8.	 	NEGATIVE UNDERTAKINGS



8.1     MDUI undertakes with Converium that, from the date of this Agreement until
the earlier of (i) the date on which the Preference Shares have been redeemed
in full and all amounts due pursuant to the terms of the Preference Shares paid
in full and; (ii) 1 January 2009 if no Preference Shares or Option Notice are
then outstanding, without the written consent of Converium, it will not:



	(a)	 	and will procure that no member of The Medical Defence Union Limited’s
Group save for MDUIL will:




	 	(i)	 	create or permit to subsist any Security Interest
on the whole or any part of its present or future property,
assets or revenues;
	 
	 	(ii)	 	sell or otherwise dispose of any of its assets on
terms whereby such property or asset is or may be leased to or
re-acquired or acquired by it or any other member of The
Medical Defence Union Limited’s Group;



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	 	(iii)	 	sell or otherwise dispose of any of its
receivables on recourse terms,




	 	 	except for Permitted Security Interests and actions taken by MDU Services
Limited and approved by a board resolution of that company in accordance
with the Shareholders’ Agreement;




	(b)	 	and will procure that no member of The Medical Defence Union Limited’s
Group save for MDUIL will, either in a single transaction or in a series
of transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or any a
substantial part of their property or assets or any shares in MDUIL except
that the following disposals shall not be taken into account:




	 	(i)	 	disposals made with the prior consent of Converium
including pursuant to clause 6.4(b);
	 
	 	(ii)	 	disposals of property or assets made in the
ordinary course of business of the disposing entity;
	 
	 	(iii)	 	disposals of property or assets in exchange for
other property or assets comparable as to type and value;




	 	 	except for actions taken by MDU Services Limited and approved by a board
resolution of that company in accordance with the Shareholders Agreement;




	(c)	 	and will procure that no member of The Medical Defence Union Limited’s
Group save for MDUIL will incur or have outstanding any Borrowings other
than (i) Borrowings incurred solely for the purpose of redeeming or
purchasing the Preference Shares; or (ii) Permitted Borrowings; or (iii)
Borrowings by MDU Services Limited that are approved by a board resolution
of that company in accordance with the Shareholders Agreement;
	 
	(d)	 	and will procure that no member of The Medical Defence Union Limited’s
Group save for MDUIL will acquire any business (which for the avoidance of
doubt does not include the shares in a dormant Subsidiary of The Medical
Defence Union Limited held by The Medical Defence Union Limited or one of
its Subsidiaries) other than an acquisition by MDU Services Limited with
the agreement of the board of that company in accordance with the
Shareholders Agreement;
	 
	(e)	 	enter into any amalgamation, merger or reconstruction;
	 
	(f)	 	and will procure that no member of The Medical Defence Union Limited’s
Group save for MDUIL will incur any expenditure save in the ordinary
course of business (save for expenditure by MDU Services Limited with the
agreement of the board of that company in accordance with the Shareholders
Agreement);



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	(g)	 	and will procure that no member of The Medical Defence Union Limited’s
Group save for MDUIL will incur any Capital Expenditure in excess of an
aggregate amount of £150,000 per annum (save for expenditure by MDU
Services Limited with the agreement of the board of that company in
accordance with the Shareholders’ Agreement);
	 
	(h)	 	and will procure that no other member of The Medical Defence Union
Limited’s Group save for MDUIL will invest in any undertaking (as defined
in the Companies Act 1985) or other entity save for: (i) an investment in
an undertaking or entity that only carries out or will only carry out the
business of providing professional indemnity cover on a discretionary
basis, providing advice and assistance with medico-legal problems and
claims related advice and assistance and risk management that The Medical
Defence Union Limited’s Group and MDU Services Limited currently carries
out; and (ii) provided that the undertaking or entity in which such
investment is made becomes a Subsidiary of The Medical Defence Union
Limited as a result of such investment.



Borrowings means and includes as at any date:



	(a)	 	all moneys borrowed (with or without security);
	 
	(b)	 	the nominal amount of the issued share capital (other than equity share
capital as defined by Section 744 of the Companies Act 1985) of any member
of The Medical Defence Union Limited’s Group, which is not beneficially
owned by another member of The Medical Defence Union Limited’s Group;
	 
	(c)	 	receivables sold, assigned or discounted;
	 
	(d)	 	the acquisition cost of any asset to the extent payable before or after
the time of acquisition and possession by the party liable therefor where
the advance or deferred payment is arranged primarily as a method of
raising finance or financing the acquisition of that asset;
	 
	(e)	 	any obligation under any lease which is required to be capitalised under
generally accepted accounting principles;
	 
	(f)	 	the net exposure (meaning the amount payable by the party liable
thereunder on termination or closing out of such arrangements determined
on a mark to market basis) of currency swap or interest swap, cap or
collar transactions;
	 
	(g)	 	the principal amount raised by acceptances or under any acceptance credit
opened on its behalf by a bank or accepting house;
	 
	(h)	 	the principal amount (including any fixed or minimum premium payable on
final redemption or repayment) of any debentures (as defined by Section
744 of the Companies Act 1985);



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	(i)	 	any other transaction having the commercial effect of a borrowing
(whether including money, commodities or other property); and
	 
	(j)	 	any guarantee, indemnity or similar assurance against the Borrowings of
any person.



Capital Expenditure means any expenditure incurred (or committed to be
incurred) which falls to be treated as capital expenditure in accordance with
generally accepted accounting principles.


Permitted Borrowings means:



	(a)	 	Borrowings pursuant to any bank facility granted to any member of The
Medical Defence Union Limited’s Group prior to the date of this Agreement
and advised in writing to Converium prior to the date of this Agreement;
	 
	(b)	 	any lease or hire or retention of title agreements or arrangements in
respect of any office equipment in the ordinary course of business;
	 
	(c)	 	any borrowings from any other member of The Medical Defence Union
Limited’s Group; and
	 
	(d)	 	subject to the limitations in clause 8.1(f), any lease of property
occupied by any member of The Medical Defence Union Limited’s Group.



Permitted Security Interest means:



	(a)	 	a lien or right of set-off arising in the normal course of business or by
operation of law securing obligations not more than thirty days overdue;
	 
	(b)	 	any conditional sale or title retention arising under or pursuant to any
contract for the purchase of goods in the normal course of business
securing obligations not more than thirty days overdue;
	 
	(c)	 	any Security Interest created or permitted to subsist with the prior
written consent of Converium;
	 
	(d)	 	any other Security Interests so long as the amount secured by all such
Security Interests is not in excess of £250,000.



Security Interest means any mortgage, charge, pledge, lien, right of
set-off, assignment by way of security, retention of title or any other
security interest whatsoever or any other agreement or arrangement having the
effect of conferring security, howsoever created or arising.


8.2     MDUI undertakes that, save for the changes to its articles of association
required by clause 6.4, it will not change its articles of association or issue
any shares which rank in
priority to or pari passu with (in either case as to dividends, on a winding-up
or otherwise) the Preference Shares without Converium’s prior written approval.


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8.3     MDU undertakes that (save as envisaged under this Agreement) it shall not
take any action that, so far as it is aware, will cause a liability to
corporation tax to arise to MDUI as a result of the operation of section 179 of
the Taxation of Chargeable Gains Act 1992.



	9.	 	RISK PAYMENT



9.1     Any amounts (the Subscription Monies) paid by Converium or any Subsidiary
of Converium for Preference Shares pursuant to this Agreement shall be invested
in sterling denominated UK government securities or in units of the Deutsche
Cash and Money Markets Fund save to the extent required by any member of The
Medical Defence Union Limited’s Group for the purposes of its business.


9.2     If any Subscription Monies are not invested in sterling denominated UK
government securities or the Deutsche Cash and Money Markets Fund, The Medical
Defence Union Limited shall pay to Converium an amount equal to one and one
half per cent per annum of the amount of the Subscription Monies not so
invested (the Risk Payment).


9.3     The Risk Payment shall accrue on any Subscription Monies not invested in
sterling denominated UK government securities or the Deutsche Cash and Money
Markets Fund from (and including) the date when such Subscription Monies are
not invested in sterling denominated UK government securities or the Deutsche
Cash and Money Markets Fund until (but excluding) the date when the relevant
Subscription Monies are reinvested in sterling denominated UK government
securities or the Deutsche Cash and Money Markets Fund. The Risk Payment shall
compound on an annual basis and shall be payable when the Preference Dividend
in relation to the Preference Shares in respect of which the relevant
Subscription Monies were received is payable (or, if earlier, is paid).


9.4     In addition to any amount payable pursuant to clauses 9.1 to 9.3 MDU shall
pay to Converium at the time when the Preference Dividend in relation to any
Preference Shares is payable (or, if earlier, paid) an amount equal to the
difference between the amount of Preference Dividend payable and the amount
that would have been payable had paragraph A.2 of Schedule 2 (and therefore the
rights attaching to the Preference Shares) included the words “, shall compound
on an annual basis” after the words “daily basis” in the first line.



	10.	 	TERMINATION



This Agreement may be terminated with immediate effect:



	(a)	 	by written agreement between the parties; or
	 
	(b)	 	by written notice from Converium to MDUI if:




	 	(i)	 	there is any breach of the warranties set out in
clause 7;



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	 	(ii)	 	there is any breach of the negative covenants set
out in clause 8 which is not wholly remedied within 30 days;
	 
	 	(iii)	 	the Shortfall Reinsurance Contract between Zurich
Insurance Company and MDU Insurance Limited dated 1 May 2000 or
the Shareholders’ Agreement is terminated or is no longer
valid.




	11.	 	NON-ASSIGNMENT



11.1     Neither party may assign or transfer any of its rights or obligations
under this Agreement in whole or in part.



	12.	 	AMENDMENTS



12.1     This Agreement may be amended only by an instrument in writing signed by
duly authorised representatives of each party.



	13.	 	NOTICES



13.1     Any notice to be given by one party to the other under, or in connection
with, this Agreement shall be in writing and signed by or on behalf of the
party giving it. Any such notice may be served by delivering it by hand or
sending it by pre-paid recorded delivery, special delivery or registered post
to the address and for the attention of the relevant party set out in clause
13.2 (or as otherwise notified from time to time in accordance with the
provisions of this clause 13). Any notice so served by hand or post shall be
deemed to have been duly given:



	(a)	 	in the case of delivery by hand, when delivered;
	 
	(b)	 	in the case of prepaid recorded delivery, special delivery or registered
post, on the date of delivery



PROVIDED that in each case where delivery by hand occurs after 6 p.m. on a
Business Day or on a day which is not a Business Day, service shall be deemed
to occur at 9 a.m. on the next following Business Day. References to time in
this clause are to local time in the country of the addressee.


Address of notices


13.2     The addresses of the parties for the purpose of clause 13.1 are as follows:



	(a)	 	Converium

Address:

General Guisan-Quai 26

8022 Zurich

Switzerland

For the attention of: Chris Bell
	 
	(b)	 	MDUI

Address:



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	 	 	230 Blackfriars Road

London SE1 8PJ

United Kingdom

For the attention of: The Company Secretary

	 
	(c)	 	The Medical Defence Union Limited

Address:

230 Blackfriars Road

London SE1 8PJ

United Kingdom

For the attention of: The Company Secretary



Change of notice details



13.3     A party may notify the other party to this Agreement of a change to its
name, relevant addressee or address for the purposes of this clause 13,
provided that such notice shall only be effective on:



	(a)	 	the date specified on the notice as the date on which the change is to
take place; or
	 
	(b)	 	if no date is specified or the date specified is less than five Business
Days after the date on which notice is given, the date following five
Business Days after notice of any change has been given.
	 
	14.	 	COUNTERPARTS



14.1     This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which shall be an original, but
all of which together shall constitute one and the same instrument.



	15.	 	NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999



15.1     A person who is not a party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.



	16.	 	GOVERNING LAW



16.1     This agreement shall be governed by and construed in accordance with
English law and the parties shall submit to the exclusive jurisdiction of the
English courts.


AS WITNESS this agreement has been signed by the duly authorised
representatives of the parties the day and year first before written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	SIGNED by CHRISTOPHER BELL
	 	)	 	/s/  	CHRISTOPHER BELL	 	/s/  	ANDREW DEIGHTON
	 	 	for and on behalf of
	 	)	 	 	 	 	 	 
	 	 	
CONVERIUM AG
	 	)	 	 	 	 	 	ANDREW DEIGHTON



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SIGNED by ILLEGIBLE
	 	)	 
	 	 	
for and on behalf of
	 	)	 
	 	 	
MDU Investments Limited
	 	)	 
	 	 	 	 	 	 
	 	 	
SIGNED by ILLEGIBLE
	 	)	 
	 	 	
for and on behalf of The
	 	)	 
	 	 	
Medical Defence Union Limited
	 	)	 



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SCHEDULE 1



DISCLOSURE AGAINST THE WARRANTIES IN CLAUSE 7



Professor Spurrett



This is an action brought by the next friend of a minor (the plaintiff), in New
South Wales, who, it is alleged, suffered brain damage at birth as a
consequence of Professor Spurrett’s negligence. The estate of Professor
Spurrett, the MDU’s member, now deceased, has retained lawyers in Sydney who
have submitted a plea of plene administravit which, if successful, would mean
that the liability the MDU would choose to accept would be limited to the value
of the estate, about AUS$160,000.


The plaintiff has brought proceedings against the Wentworth Area Health
Authority whose insurers, the GIO, have sought to issue and serve proceedings
against and on the MDU in London. The GIO is seeking to establish that the MDU
is estopped from denying an indemnity to the estate of Professor Spurrett. It
has never explained, including at a recent hearing, the legal basis for this
(not least how the GIO, rather than the member, could rely on an estoppel).


As a secondary matter the GIO seeks to rely on s6 of the Law Reform
(Miscellaneous Provisions) Act in support of its claim to a statutory charge
and its entitlement to enforce that charge, in respect of what this Act refers
to as “insurance moneys” which are payable in respect of any liability. There
are a number of grounds of opposition to this point, including the fact that
the MDU is not an insurer, and that accordingly this Act has no application
here.


These proceedings are currently the subject of an application by the MDU that
they be struck out on the basis that there is no claim recognisable in law that
the Health Authority can bring against the MDU and that, in any event, there
are procedural obstacles to service of such a claim outside the jurisdiction.


That application was heard on 31 July 2002 and judgement has been reserved.
Even if successful, the claim against Professor Spurrett’s estate continues and
the MDU’s discretionary liability is the value of the claim should the plea of
plene administravit fail.


The value of the plaintiff’s claim is between AUS$6m and AUS$8m.


Dr Barry



Dr Barry is seeking a declaration that he is entitled to be indemnified by the
MDU in respect of any judgment, order for payment of damages and/or costs in a
number of actions against him and that he is entitled to be indemnified for
defence costs in respect of such actions. The actions are 44 civil claims where
patients are claiming damages arising from allegations of inappropriate conduct
by Dr Barry.


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The underlying issues are the subject of criminal proceedings and the MDU’s
view is that these claims are not as a result of his clinical practice. The
MDU is not assisting Dr Barry with defence costs due to his complete lack of
cooperation. Included also are disciplinary proceedings and judicial review
proceedings being brought in respect of such disciplinary proceedings. In
addition, Dr Barry is claiming aggravated/exemplary damages.


The cost to the MDU of defending this claim is estimated at £650,000 which
includes an estimate of any costs which the MDU may have to pay on behalf of Dr
Barry but does not include an estimate of amounts the MDU may be required to
pay in the unlikely event that the MDU is required to assist Dr Barry.


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SCHEDULE 2



PREFERENCE SHARE RIGHTS



The rights attaching to the Preference Shares are as follows:


Dividends



A.1     The holders of Preference Shares shall be entitled, in priority to the
holders of any other class of share in the Company’s share capital, to receive
out of the profits of the Company available for distribution (before any sum is
transferred to reserves) a fixed cumulative preferential dividend (the
Preference Dividend) at the rate of [     ] per cent. per annum (exclusive of any
associated tax credit) on the nominal amount of each Preference Share held by
them respectively.


A.2     The Preference Dividend shall accrue on a daily basis and shall be payable
and immediately due as a debt from the Company (automatically and without any
declaration or resolution of the Directors of the Company) when the relevant
Preference Shares are redeemed or on 31 December 2011 (whichever is the
earlier). The Preference Dividend shall be paid to the holders of the
Preference Shares whose names appear on the register immediately before the
relevant Preference Shares are redeemed. Any part of the Preference Dividend
may be paid prior to the date on which it is payable without penalty. For the
avoidance of doubt, if any part of the Preference Dividend is paid prior to the
date on which it is payable, that part of the Preference Dividend shall cease
to accrue from the date on which it is paid.


A.3     The Preference Dividend shall be payable in priority to the payment of any
dividend on any other class of shares of the Company.


Capital



A.5     On a distribution of assets of the Company among its members on a winding
up or other return of capital the holders of the Preference Shares shall be
entitled, in priority to any holder of any other class of shares, to receive an
amount equal to the aggregate of the capital paid up or credited as paid up on
each Preference Share (including any share premium) and a sum equal to any
arrears and accruals of the Preference Dividend (whether earned or declared or
not) payable on such share calculated up to and including the date of the
commencement of the winding up or (in any other case) the date of the return of
capital.


Class consents



A.6     The written consent of the holders of three-quarters in nominal value of
the issued Preference Shares or the sanction of an extraordinary resolution
passed at a separate general meeting of the holders of the Preference Shares is
required:



	A.6.1	 	if the special rights and privileges attaching to the Preference
Shares are to be varied or abrogated or otherwise directly affected
in any way;



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	A.6.2	 	if any shares or securities are to be created, allotted or issued by
the Company which rank in priority to or equally with the Preference
Shares (or any right to call for the allotment or issue of such
shares or securities is to be granted by the Company).



A.7     All provisions of the Articles relating to general meetings of the Company
shall apply mutatis mutandis to every general meeting of the holders of the
Preference Shares.


Redemption



	B.1	 	Subject to the Companies Act 1985, the Company shall:
	 
	B.1.1	 	have the right at any time to redeem any Preference Share (provided
that it is credited as fully paid) by giving to the registered
holder not less than 4 weeks and not more than 8 weeks written
notice of its intention to do so (the Redemption Notice); and
	 
	B.1.2	 	in any event on 31 December 2011 redeem all of the Preference Shares
which are still in issue at that date (and the Company shall serve a
Redemption Notice in respect of all such shares not less than 2
weeks and not more than 4 weeks prior to 31 December 2011); and if,
in accordance with the Companies Act 1985, the Preference Shares
shall not on any such date be capable of being redeemed by the
Company, such redemption shall be effected as soon as is possible
after the Preference Shares shall have become capable of being
redeemed.



B.2     The Redemption Notice must specify the number of Preference Shares to be
redeemed, the amount payable on redemption and the time (Redemption Date) and
place in England or Switzerland at which:



	B.2.1	 	the share certificates in respect of the Preference Shares must
delivered to the Company for cancellation; and
	 
	B.2.2	 	the Company shall pay to the registered holders of the Preference
Shares to be redeemed by bankers draft or telegraphic transfer the
amount per share set out in Article B.3 below and, if some but not
all of the Preference Shares are being redeemed, shall issue such
registered holders with a balance share certificate for the
Preference Shares that are not redeemed



and the holders of the Preference Shares to be redeemed shall be bound by the
Redemption Notice.


B.3     The amount to be paid on redemption of each Preference Share shall equal
the amount credited as paid up on it (including any share premium) together
with all arrears or accruals of the Preference Dividend calculated up to and
including the Redemption Date and
in the case of a partial redemption proportionately in respect of each holding
of Redeemable Preference Shares.


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B.4     The Preference Dividend shall cease to accrue on any Preference Shares to
be redeemed on the Redemption Date except on any share for which the Company
has failed or refused to pay the redemption amount on due presentation of the
certificate(s) (or an indemnity in a reasonably satisfactory form)


B.5     If any holder of a Preference Share to be redeemed fails or refuses to
surrender the share certificate(s) or indemnity for such Preference Share (or
fails or refuses to accept the redemption money payable in respect of it), the
Company shall retain such money and hold it and the interest earned thereon on
trust for such holder.


B.6     No Preference Share redeemed by the Company shall be capable of re-issue.


B.7     If at any time before redemption the Company by reason of a restriction
arising under statute fails to redeem all of the Preference Shares due to be
redeemed, without prejudice to any remedies open to the holders of the
Preference Shares by reason of such failure (including the right to petition
the Court for the winding up of the Company), the Company shall at such time
redeem such of those Preference Shares as it is at liberty to redeem and shall
redeem the remainder of such Preference Shares so soon thereafter as the
Company is at liberty to do so.


Restrictions



C.1     So long as any Preference Share remains in issue and other than solely for
the purpose of funding the redemption of the Preference Shares the Company
shall be subject to the following restrictions unless it shall have obtained
the consent in writing of the holders of three-quarters in nominal value of the
Preference Shares then in issue:



	C.1.1	 	the Company shall not authorise or create, or increase the amount
of, any shares of any class or any securities convertible into any
shares of any class ranking as regards participation in the profits
or assets of the Company in priority to or pari passu with the
Preference Shares or being in any circumstances redeemable in whole
or in part on a date earlier than one day after the date when all
the Preference Shares have been redeemed; and
	 
	C.1.2	 	the Company shall not reduce its share capital or any share premium
account or capital redemption reserve and neither the Company nor
any of its subsidiaries shall purchase or provide any financial
assistance for the acquisition of shares in the Company other than
Preference Shares.



General



D.1     The Preference Shares shall be transferable by instrument of transfer in
any usual or common form or in any other form which may be approved by the
Directors.


D.2     The provisions of the Articles relating to variation of share rights and to
transfers and transmission of shares save for the first sentence in Article 24
of Table A shall apply to the Preference Shares.


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D.3     The Company shall send to the holders of the Preference Shares a copy of
every document sent by the Company to the holders of its Ordinary Shares at the
same time as such document is sent to the holders of its Ordinary Shares.



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