Exhibit
4.7


 


EXECUTION
COPY


 




 





 


PURCHASE
AGREEMENT


 


 


Between


 


 


ABB HOLDING AG, ZURICH,


 


as Seller


 


 


and


 


 


LAGRUMMET
DECEMBER NR 919 AB

(under change of name to “FUND AMERICAN HOLDINGS AB”),


 


as
Purchaser


 


 


Dated as of December 8, 2003


 


 




 


 








7-11 Moorgate


London EC2R 6HH


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1 INTERPRETATION AND RELATED MATTERS

  	
   

  
	
  1.1.

  	
  Definitions

  	
   

  
	
  1.2.

  	
  Other Terms

  	
   

  
	
  1.3.

  	
  Interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2 SALE AND PURCHASE OF U.S. SHARES AND INTERNATIONAL SHARES

  	
   

  
	
  2.1.

  	
  Sale and Purchase

  	
   

  
	
  2.2.

  	
  Title

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3
  PURCHASE PRICE AND ADJUSTMENT

  	
   

  
	
  3.1.

  	
  Purchase Price

  	
   

  
	
  3.2.

  	
  Payment of U.S. Purchase
  Price

  	
   

  
	
  3.3.

  	
  Payment of
  International Purchase Price

  	
   

  
	
  3.4.

  	
  Closing
  Financial Statements; Disputes

  	
   

  
	
  3.5.

  	
  Adjustments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 CLOSING

  	
   

  
	
  4.1.

  	
  Date and Place

  	
   

  
	
  4.2.

  	
  Deliveries at the U.S.
  Closing

  	
   

  
	
  4.3.

  	
  Deliveries at the Closing

  	
   

  
	
  4.4.

  	
  Escrow

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5 REPRESENTATIONS AND WARRANTIES OF ABB

  	
   

  
	
  5.1.

  	
  Organization

  	
   

  
	
  5.2.

  	
  Authority

  	
   

  
	
  5.3.

  	
  Capital Stock

  	
   

  
	
  5.4.

  	
  Subsidiaries and Branch
  Offices

  	
   

  
	
  5.5.

  	
  Financial Information

  	
   

  
	
  5.6.

  	
  Compliance with Law

  	
   

  
	
  5.7.

  	
  Personal Property

  	
   

  
	
  5.8.

  	
  Real Property

  	
   

  
	
  5.9.

  	
  Intellectual Property

  	
   

  
	
  5.10.

  	
  Contracts

  	
   

  
	
  5.11.

  	
  Employees

  	
   

  
	
  5.12.

  	
  Employee Benefit Plans

  	
   

  
	
  5.13.

  	
  Taxes

  	
   

  
	
  5.14.

  	
  Litigation

  	
   

  
	
  5.15.

  	
  Environmental
  Matters

  	
   

  
	
  5.16.

  	
  Insurance

  	
   

  
	
  5.17.

  	
  Agents

  	
   

  
	
  5.18.

  	
  Accounts with
  Financial Institutions

  	
   

  
	
  5.19.

  	
  Continuing Business
  Relationships

  	
   

  
	
  5.20.

  	
  Brokers

  	
   

  
	
  5.21.

  	
  Solvency

  	
   

  
	
  5.22.

  	
  Alstom Instruments

  	
   

  



 


i

















 


	
  5.23.

  	
  ABB Instruments

  	
   

  
	
  5.24

  	
  Sirius America Contracts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6 REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
   

  
	
  6.1.

  	
  Organization

  	
   

  
	
  6.2.

  	
  Authority

  	
   

  
	
  6.3.

  	
  Financing

  	
   

  
	
  6.4.

  	
  Employees

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7
  COVENANTS

  	
   

  
	
  7.1.

  	
  General

  	
   

  
	
  7.2.

  	
  Conduct of Business

  	
   

  
	
  7.3.

  	
  Access to Information

  	
   

  
	
  7.4.

  	
  Reasonable
  Efforts

  	
   

  
	
  7.5.

  	
  Employee Benefit Plans

  	
   

  
	
  7.6.

  	
  Taxes

  	
   

  
	
  7.7.

  	
  Replacement of
  Directors and Auditors

  	
   

  
	
  7.8.

  	
  No Solicitation/No
  Hire of Employees

  	
   

  
	
  7.9.

  	
  No
  Solicitation of Offers

  	
   

  
	
  7.10.

  	
  Notice of Certain Matters

  	
   

  
	
  7.11.

  	
  Intercompany Accounts

  	
   

  
	
  7.12.

  	
  Investment Portfolio

  	
   

  
	
  7.13.

  	
  Assignment of
  Confidentiality Agreements

  	
   

  
	
  7.14.

  	
  Amendment of Leases

  	
   

  
	
  7.15.

  	
  Sirius Belgium

  	
   

  
	
  7.16.

  	
  Access to Purchaser
  Auditors

  	
   

  
	
  7.17.

  	
  Facility Agreement

  	
   

  
	
  7.18.

  	
  Purchaser Disclosure
  Procedures

  	
   

  
	
  7.19.

  	
  Dividends

  	
   

  
	
  7.20.

  	
  ABB Intellectual Property

  	
   

  
	
  7.21.

  	
  Amendments to Certain
  Contracts

  	
   

  
	
  7.22.

  	
  Employees

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 CONDITIONS TO
  CLOSING

  	
   

  
	
  8.1.

  	
  Conditions of Both Parties

  	
   

  
	
  8.2.

  	
  Additional
  Conditions of Purchaser

  	
   

  
	
  8.3.

  	
  Additional Conditions of
  ABB

  	
   

  
	
  8.4.

  	
  Frustration of
  Closing Conditions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9
  LIABILITY AND RELATED MATTERS

  	
   

  
	
  9.1.

  	
  Indemnification by ABB

  	
   

  
	
  9.2.

  	
  Indemnification by
  Purchaser

  	
   

  
	
  9.3.

  	
  Termination of
  Indemnification

  	
   

  
	
  9.4.

  	
  Procedures
  Relating to Third Party and Direct Indemnification Claims

  	
   

  
	
  9.5.

  	
  Assignment of Rights

  	
   

  
	
  9.6.

  	
  Tax
  Indemnification and Related Matters

  	
   

  
	
  9.7.

  	
  Indemnity Payments

  	
   

  



 


ii

















 


	
  9.8.

  	
  Scandinavian Re Indemnity

  	
   

  
	
  9.9.

  	
  Special
  Indemnity in Respect of Alstom Instruments

  	
   

  
	
  9.10.

  	
  Special
  Indemnity in Respect of ABB Instruments

  	
   

  
	
  9.11.

  	
  Other
  Limitations; Indemnity Provisions

  	
   

  
	
  9.12.

  	
  Survival
  of Representations and Warranties and Covenants

  	
   

  
	
  9.13.

  	
  Reliance on
  Representations and Warranties

  	
   

  
	
  9.14.

  	
  ABB’s Disclosure

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 TERMINATION, AMENDMENT AND WAIVER

  	
   

  
	
  10.1.

  	
  Termination

  	
   

  
	
  10.2.

  	
  Amendments and Waivers

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 GENERAL PROVISIONS

  	
   

  
	
  11.1.

  	
  No Announcement;
  Confidentiality

  	
   

  
	
  11.2.

  	
  Cooperation

  	
   

  
	
  11.3.

  	
  Entire Agreement

  	
   

  
	
  11.4.

  	
  Severability

  	
   

  
	
  11.5.

  	
  No Third Party
  Beneficiaries

  	
   

  
	
  11.6.

  	
  Assignment

  	
   

  
	
  11.7.

  	
  Notices

  	
   

  
	
  11.8.

  	
  Governing Law

  	
   

  
	
  11.9.

  	
  Pre-Closing Dispute
  Resolution

  	
   

  
	
  11.10.

  	
  Post-Closing Dispute
  Resolution

  	
   

  
	
  11.11.

  	
  Enforcement

  	
   

  
	
  11.12.

  	
  Costs,
  Expenses, Transfer Taxes and Fees

  	
   

  
	
  11.13.

  	
  No Set-Off

  	
   

  
	
  11.14.

  	
  Further Assurances

  	
   

  
	
  11.15.

  	
  Certain Insurance

  	
   

  



 


iii

















 


SCHEDULES AND
ANNEXES


 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  1.1(1)

  	
  Financial Statements

  
	
  1.1(2)

  	
  Investment Guidelines

  
	
  1.1(3)

  	
  Permitted Encumbrances

  
	
  1.3.4

  	
  ABB’s Knowledge

  
	
  3.4.1(1)

  	
  Net Equity Statement —
  Adjustments

  
	
  3.4.1(2)

  	
  Form of Closing
  Financial Statements

  
	
  3.4.2

  	
  Form of Business
  Auditors’ Opinions

  
	
  7.2.1

  	
  Conduct of Business

  
	
  7.5(1)

  	
  Transferred Plans

  
	
  7.5(2)

  	
  Retained Plans

  
	
  7.21

  	
  Amendments to Certain
  Contracts

  
	
  8.1

  	
  Governmental Approvals

  
	
  11.6

  	
  Merger Schedule

  
	
   

  	
   

  
	
  Disclosure Schedule

  
	
   

  	
   

  
	
  Annexes

  	
   

  
	
  1

  	
  ABB Bank Guaranty

  
	
  2

  	
  Escrow Agreement

  
	
  3

  	
  ABB and ABB Ltd Legal
  Opinion

  
	
  4

  	
  Purchaser Legal Opinion

  
	
  5

  	
  Transitional Services
  Agreement

  
	
  6

  	
  White Mountains
  Insurance Group, Ltd. Opinion

  



 


iv

















 


PURCHASE
AGREEMENT


 


This Purchase Agreement
(the “Agreement”) is entered into as of this 8th day of
December 2003 between the following parties:


 


ABB HOLDING AG, ZURICH, a
company organized and existing under the laws of Switzerland with its principal
office at Affolternstrasse 44, 8050 Zurich, Switzerland (“ABB”); and


 


LAGRUMMET DECEMBER NR 919
AB (under change of name to “FUND AMERICAN HOLDINGS AB”), a company organized
and existing under the laws of Sweden (Reg. No. 556651-1084 with its principal
office at Bohusgatan 14, SE 106 60 Stockholm, Sweden (“Purchaser”).


 


WITNESSETH:


 


WHEREAS, ABB owns 100% of
the issued and outstanding shares (the “International Shares”) of ABB
Insurance Holding Sweden AB, a company organized and existing under the laws of
Sweden (“Sirius Holding”);


 


WHEREAS, Sirius Holding
owns: (i) 100% of the issued and outstanding shares of Sirius International
Insurance Corporation, a company organized and existing under the laws of
Sweden (“Sirius International”); and (ii) 100% of the issued and
outstanding shares of Sirius Rückversicherungs Service GmbH, a company
organized and existing under the laws of Germany (“Sirius Rück”);


 


WHEREAS, Sirius
International owns: (i) 100% of the issued and outstanding shares (the “U.S.
Shares”) of Sirius America Insurance Company, a company organized and
existing under the laws of the State of Delaware (“Sirius America”);
(ii) 100% of the issued and outstanding shares of Sirius Belgium Reassurances
S.A., a Company organized and existing under the laws of Belgium (“Sirius
Belgium”); and (iii) 100% of the issued and outstanding shares of
Scandinavian Reinsurance Company Ltd (Bermuda), a company organized and existing
under the laws of Bermuda (“Scandinavian Re”), and together with Sirius
Holding, Sirius International, Sirius Rück, Sirius Belgium and Sirius America,
(the “Acquired Group”, and each of which, an “Acquired Company”);


 


WHEREAS, ABB desires to sell, and Purchaser desires to
purchase, the International Shares, in each case on the terms and conditions
herein set forth; and


 


WHEREAS, Purchaser
desires to cause Folksamerica Reinsurance Company, a company organized and
existing under the laws of New York with its principal office at One Liberty
Plaza, New York, New York 10006, U.S.A. (“U.S. Purchaser”) to purchase
the U.S. Shares from Sirius International, and ABB desires to cause Sirius
International to sell the U.S. Shares to U.S. Purchaser, in each case at the
U.S. Closing and on the terms and conditions herein set forth (the “U.S.
Transaction”);


 


NOW, THEREFORE, in
consideration of the mutual covenants, representations and warranties herein
contained, and subject to and on the terms and conditions herein set forth, the
parties hereto agree as follows:


 


1

















 


ARTICLE 1

INTERPRETATION AND RELATED MATTERS


 


1.1.                                                                              Definitions


 


Unless the context of this Agreement provides
otherwise, the following terms                   shall have the meanings set out below:


 


“ABACUS Financial Statements” shall have the
meaning set out in Section 7.19(a).


 


“ABACUS Net Equity” shall have the meaning set
out in Section 7.19(a).


 


“ABACUS Net Equity Statement” shall have the
meaning set out in Section 7.19(a).


 


“ABB” shall have the meaning set out in the
preamble to this Agreement.


 


“ABB Distribution” shall have the meaning set
out in Section 7.19(b).


 


“ABB Distribution Amount” shall have the
meaning set out in Section 7.19(b).


 


“ABB Group” means ABB Ltd, being an Affiliate
of ABB and a company organized and existing under the laws of Switzerland with
its principal office at Affolternstrasse 44, PO Box 8131, CH-8050 Zurich,
Switzerland, and each of its Affiliates.


 


“ABB Instruments” shall have the meaning set
out in Section 5.23.


 


“ABB Specified Claims” shall have the meaning
set out in Section 9.1.


 


“Acquired Company” shall have the meaning set
out in the recitals to this Agreement.


 


“Acquired Group” shall have the meaning set out
in the recitals to this Agreement.


 


“Affiliate” means, with respect to any Person,
any other Person directly or indirectly, through one or more intermediaries,
controlling, controlled by, or under common control with such Person.


 


“Affiliate Contracts” shall have the meaning
set out in Section 5.5.5.


 


“Alstom Group” shall have the meaning set out
in Section 5.22.


 


“Alstom Indemnified Parties” shall have the
meaning set out in Section 9.9(a).


 


“Alstom Instruments” shall have the meaning set
out in Section 5.22.


 


“Alstom Losses” shall have the meaning set out
in Section 9.9(a).


 


2

















 


“Assumed Reinsurance Agreements” means all
Contracts pursuant to which any Acquired Company has provided reinsurance or
retrocessional coverage to another Person (other than another Acquired
Company).


 


“Audited Closing Financial Statements” shall
have the meaning set out in Section 3.4.2(a)(i).


 


“Audited Closing Net Equity Statement” shall
have the meaning set out in Section 3.4.2(a)(ii).


 


“Audited Deficiency Amount” means the amount,
if any, by which the Audited Net Equity is less than the Guaranteed Net Equity.


 


“Audited Excess Amount” means the amount, if
any, by which Audited Net Equity exceeds the Guaranteed Net Equity.


 


“Audited Net Equity” means the amount of Net
Equity, determined on the basis of the Audited Closing Financial Statements.


 


“Belgian Tax Reassessments” shall have the
meaning set out in Section 9.6.4(b).


 


“Branded Assets” shall have the meaning set out
in Section 7.20.1.


 


“Business” means the insurance and reinsurance
business operations conducted by the Acquired Group.


 


“Business Auditors” means Ernst & Young,
auditors to the Acquired Group.


 


“Business Day” means any day that is not a
Saturday, a Sunday or other day on which banks are required or authorized by
applicable Law to be closed in Stockholm, Sweden or New York, New York.


 


“Ceded Reinsurance Agreements” means all
Contracts pursuant to which any Acquired Company has ceded or transferred to
any Person (other than another Acquired Company) any of its obligations or
liabilities under any assumed insurance or assumed reinsurance agreement.


 


“Closing” means the completion of the matters
set forth in Section 4.3 after the satisfaction or waiver of the conditions set
forth in Article 8.


 


“Closing Date” means the date on which the
Closing occurs in accordance with this Agreement.


 


“Closing Financial Statements” means the
Unaudited Closing Financial Statements, the Audited Closing Financial
Statements and the Final Closing Financial Statements.


 


“Code” means the United States Internal Revenue
Code of 1986, as amended.


 


“Confidential Information” shall have the
meaning set out in the Confidentiality Agreement.


 


3

















 


“Confidentiality Agreement” shall have the
meaning set out in Section 11.3.


 


“Contract” means a loan or credit agreement,
bond, debenture, note, mortgage, indenture, guarantee, lease or other contract,
commitment, agreement, arrangement, understanding, obligation, undertaking,
instrument, permit, concession, franchise or license (other than any permit or
license granted by any governmental authority), whether oral or written, in
each case that is legally binding or intended to be legally binding (including
all amendments thereto).


 


“Direct Claim” shall have the meaning set out
in Section 9.4.2.


 


“Direct Insurance Agreement” means all
Contracts pursuant to which an Acquired Company has provided insurance to
another Person (other than another Acquired Company).


 


“Disclosed Insurance Agreements” shall have the
meaning set out in Section 5.10.1(g).


 


“Disclosure Schedule” means the disclosure
schedule delivered by ABB to Purchaser concurrently with the execution and
delivery of this Agreement.


 


“Disputed Net Equity” means the difference
between the Audited Net Equity and the Net Equity proposed by Purchaser in the
Objection Notice (or, if Purchaser does not propose a Net Equity in the
Objection Notice, the lowest Net Equity that may be reasonably derived from the
objections raised by Purchaser in the Objection Notice).


 


“Disputes Auditors” shall have the meaning set
out in Section 3.4.6.


 


“Employee” means each employee actively
employed by an Acquired Company as of the Closing, including any employee of an
Acquired Company on leave of absence or short-term disability (but not
long-term disability) (or whenever the term “Employee” is used herein with
respect to any date prior to the Closing Date, each individual who would be an
Employee were the Closing to occur on such date).


 


“Employee Benefit Plan” shall have the meaning
set out in Section 5.12.1.


 


“Encumbrance” means a lien, pledge, mortgage,
security interest, assessment, claim, lease, charge, option, right of first
refusal, imperfection of title, easement, transfer restriction under any
shareholder or similar agreement or other encumbrance of any kind whatsoever.


 


“Environmental Claims”
shall have the
meaning set out in Section 5.15.


 


“Environmental Laws” shall have the meaning set out in Section
5.15.


 


“ERISA” shall have the meaning set out in Section
5.12.1.


 


“Escrow Agent” shall have the meaning set out
in Section 4.4.


 


“Escrow Agreement” shall have the meaning set
out in Section 4.4.


 


4

















 


“Facility Agreement” means the Facility
Agreement dated as of June 26, 2003, among Sirius Holding, Skandinaviska
Enskilda Banken AB (publ) and FöreningsSparbanken AB (publ).


 


“Final Closing Financial Statements” shall have
the meaning set out in Section 3.4.10(b).


 


“Final Deficiency Amount” means the amount, if
any, by which the Final Net                       Equity is less than the Guaranteed Net
Equity.


 


“Final Excess Amount” means the amount, if any,
by which Final Net Equity exceeds the Guaranteed Net Equity.


 


“Final Net Equity” means the amount of Net
Equity, determined on the basis of the Final Closing Financial Statements.


 


“Financial Risks Business” means the issuance
by the Acquired Group of project bonds, performance bonds and financial
products relating to trade credit risks, political risks, credit derivative
risks, and export finance risks.


 


“Financial Statements” means the audited
consolidated financial statements of the Acquired Group (excluding Sirius
Holding and Sirius Rück) as of December 31, 2002, including the balance sheet
of the Acquired Group (excluding Sirius Holding and Sirius Rück) as of December
31, 2002, and the notes thereto, and the related income statements and
statements of cash flow for the twelve month period then ended, in each case
prepared in accordance with U.S. GAAP, copies of which are attached as Schedule
1.1(1).


 


“Former Employee” means each employee who was
formerly employed by an Acquired Company with respect to whom any Acquired
Company or any Employee Benefit Plan transferred to Purchaser or its Affiliates
in connection with the transactions contemplated hereby (including any Employee
Benefit Plan sponsored by any Acquired Company) has any liability.


 


“Gain” shall have the meaning set out in
Section 9.8.2(b).


 


“Guaranteed Net Equity” means SEK 3.566
billion.


 


“Hazardous Material” means (i) any petroleum or
petroleum products, radioactive materials or wastes, asbestos in any form, urea
formaldehyde foam insulation and polychlorinated biphenyls; and (ii) any other
chemical, material, substance or waste that is prohibited, limited or regulated
under any Environmental Law.


 


“HSR Act” means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations thereunder.


 


“IMG” means International Medical Group, Inc.


 


“Indemnified Party” shall have the meaning set
out in Section 9.4.1.


 


“Indemnifying Party” shall have the meaning set
out in Section 9.4.1.


 


5

















 


“Insurance Agreement Claims” shall have the
meaning set out in Section 9.1.


 


“Insurance Policy” means each policy and binder
currently-in-effect held by ABB and its Affiliates (including the Acquired
Group) under which any Acquired Company or any assets of the Business are
insured (excluding, for the avoidance of doubt, insurance coverage relating to
areas such as life, medical and disability which are contained in any Employee
Benefit Plan).


 


“Intellectual Property” means trade names,
service marks, trademarks, logos, patents, copyrights, rights in Know-How and
other similar proprietary rights which may subsist in any part of the world,
whether registered or not.


 


“International Purchase Price” shall have the
meaning set out in Section 3.1(a).


 


“International Shares” shall have the meaning
set out in the recitals to this Agreement.


 


“Investment Guidelines” means the investment
guidelines of the Acquired Group as of the date of this Agreement set out in Schedule
1.1(2).


 


“Investment Portfolio” means all investments,
including stocks, bonds, cash and limited partnership interests, owned,
directly or indirectly, by the Acquired Group, other than shares in an Acquired
Company, IMG or the LUC.


 


“Know-How” means any technical, industrial and
commercial information and techniques in any tangible form.


 


“KPMG Report” shall have the meaning set out in
Section 3.4.4.


 


“Law” means any statute, law, code, ordinance,
regulation, directive or other national or supra-national legally binding
requirement or rule as in effect (i) wherever such term is used in Article 5 or
6, as at the date(s) the relevant warranty is made pursuant to this Agreement
and, in any event, no later than the Closing Date, (ii) wherever such term is
used in Article 7, as at the date any permitted, required or prohibited action
is taken, and in any event (other than with respect to Sections 7.4.2 and
7.7.1) no later than the Closing Date and (iii) wherever such term is otherwise
used in this Agreement, from time to time in force.


 


“Leased Real Property” shall have the meaning
set out in Section 5.8.3.


 


“Lenders” means Skandinaviska Enskilda Banken
AB (publ) and FöreningsSparbanken AB (publ) and any other Persons that have
agreed to make available to Sirius Holding a term loan facility under the
Facility Agreement.


 


“Lenders’ Payment” shall have the meaning set
out in Section 8.2(d).


 


“Licensed Intellectual Property” shall have the
meaning set out in Section 5.9.4.


 


“Loss” means any actual loss, claim, damage,
liability, cost, expense, obligations, judgments, Encumbrances, injunctions,
charges, orders, decrees, rulings,


 


6

















 


dues, assessments, Taxes, fines, penalties, fees and
amounts paid in settlement (including reasonable fees and expenses of counsel),
but excluding special, indirect, incidental, consequential and punitive
damages.


 


“Losses In Excess Of Reserves” shall have the
meaning set out in Section 9.8.1(b).


 


“LUC” means the real property located at the
London Underwriting Centre, Minster Court, London EC3.


 


“Material Adverse Effect” means any change in,
or effect on, the Acquired Group or the Business which, individually or in the
aggregate is, or which is reasonably likely to be, materially adverse to the
properties, assets, liabilities, results of operations or financial condition
of the Acquired Group, taken as a whole or, in relation to references to “Material
Adverse Effect” in Sections 5.2.2, 5.2.3, 5.3, 5.6.1 and 5.14(ii)(z) only,
will or is reasonably likely to prevent the material transactions contemplated
hereby, including the acquisition of the International Shares.


 


“Material Contract” shall have the meaning set
out in Section 5.10.2.


 


“Measurement Date” means December 31, 2003.


 


“Measurement Date Representations and Warranties”
means the representations and warranties in: Section 5.5.3, Section 5.5.4,
Section 5.6.2, Section 5.7, the second sentence of Section 5.8.1, Section
5.8.2, Section 5.8.3, Section 5.9.2(b), Section 5.9.2(d)(ii), Section 5.9.2(e),
Section 5.9.3(a), Section 5.9.3(b)(ii), Section 5.11.2, Section 5.12.2 (except
(i) thereof), Section 5.14 and Section 5.15.


 


“Net Equity” means, as of the Measurement Date,
the total shareholders’ equity value in Swedish kronor of the Acquired Group
from the Closing Financial Statements, calculated in accordance with U.S. GAAP
consistently applied to the Financial Statements (so long as the Financial
Statements were in accordance with U.S. GAAP) and the adjustments set out in
Schedule 3.4.1(1).  In calculating Net
Equity, there will be no accrual, provision or reserve in respect of any costs,
liabilities, charges or events to be incurred after the Measurement Date in
respect of the disposal, closure, reorganization or restructuring of any
operations initiated by Purchaser or any of its Affiliates, other than those
duly authorized by ABB and/or its Affiliates prior to the Measurement Date and
recognizable in accordance with U.S. GAAP.


 


“Objection Notice” shall have the meaning set
out in Section 3.4.5.


 


“Order” shall have the meaning set out in
Section 5.2.2.


 


“Other Intellectual Property” shall have the
meaning set out in Section 5.9.3.


 


“Outstanding Retained Amount” shall have the
meaning set out in Section 3.5.3.


 


“Owned Real Property” shall have the meaning
set out in Section 5.8.2.


 


“Permits” shall have the meaning set out in
Section 5.6.2.


 


7

















 


“Permitted ABB Distribution Amount “ shall have
the meaning set out in Section 7.19(b).


 


“Permitted Encumbrances” means: (i) rights of
first refusal and similar rights of governmental authorities under applicable
Law; (ii) mechanics’, carriers’, workmen’s, repairmen’s and other like
Encumbrances arising or incurred in the ordinary course of business; (iii)
Encumbrances for Taxes, assessments and other governmental charges not yet due
and payable or that may thereafter be paid without penalty (with the applicable
Encumbrance thereby released) or that are being contested in good faith by
appropriate proceedings; and (iv) Encumbrances related to deposits to secure
policyholders’ obligations as required by the insurance regulators of various
jurisdictions to the extent that such deposits and the corresponding
Encumbrances are listed on Schedule 1.1(3).


 


“Person” means any individual, company,
partnership or other entity of any kind or governmental authority.


 


“Pledge Agent” means Skandinaviska Enskilda
Banken AB (publ) or any other Person serving as the agent for the financing
parties under the Pledge Agreement.


 


“Pledge Agreement” means the Pledge Agreement
dated as of June 26, 2003, between Sirius Holding and Skandinaviska Enskilda
Banken AB (publ).


 


“Pre-Measurement Tax Period” shall have the
meaning set out in Section 9.6.1(a).


 


“Prior ABB Payments” shall have the meaning set
out in Section 9.11.5.


 


“Property” means real, personal or mixed
property, tangible or intangible, including any leased real property.


 


“Property Taxes” shall have the meaning set out
in Section 9.6.1(b).


 


“Purchaser” shall have the meaning set out in
the preamble to this Agreement.


 


“Purchaser Specified Claims” shall have the
meaning set out in Section 9.2.


 


“Reinsurance Pools” shall have the meaning set
out in Section 5.10.1(d).


 


“Registered Intellectual Property” shall have
the meaning set out in Section 5.9.2(a).


 


“Release” means any actual or threatened
release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into or through the
environment or within any building, structure, facility or fixture.


 


“Reserves” means: (i) all loss reserves for
losses relating to the Business, consisting of case reserves and reserves for
incurred but not reported losses, including unallocated and allocated reserves
for loss adjustment expenses; and (ii) all reserves for unearned premiums
relating to the Business.


 


8

















 


“Retained Amount” means an amount in Swedish
kronor equal to $30,000,000 based on the closing mid-point rate calculated on
the basis of the exchange rates between U.S. Dollars and Swedish kronor
published in The Financial Times
five (5) Business Days prior to the Closing.


 


“Retained Plans” shall have the meaning set out
in Section 7.5(b).


 


“Retirement Benefits” shall have the meaning
set out in Section 7.5(a).


 


“Rules” shall have the meaning set out in
Section 11.10.1.


 


“Scandinavian Re” shall have the meaning set
out in the recitals to this Agreement.


 


“Scandinavian Re Affiliate Commitment” means
any capital, property, asset or right, or commitment to provide capital,
properties, assets or rights that is legally binding or intended to be legally
binding, provided by an Acquired Company (other than Scandinavian Re) to
another Person to support the obligations of Scandinavian Re under any
Contract.


 


“Scan Re Agreements” shall have the meaning set
out in Section 5.10.1(e).


 


“Scan Re Disputes” shall have the meaning set
out in Section 9.8.1(a).


 


“Scan Re Memo” shall have the meaning set out
in Section 9.8.1(a).


 


“Senior Executive” means a managing director of
an Acquired Company and all managers of such Acquired Company who report
directly to him or her.


 


“Sirius America” shall have the meaning set out
in the recitals to this Agreement.


 


“Sirius Belgium” shall have the meaning set out
in the recitals to this Agreement.


 


“Sirius Holding” shall have the meaning set out
in the recitals to this Agreement.


 


“Sirius Holding Dividend” means the dividend to
be declared and paid by Sirius Holding prior to the Measurement Date in the
amount of Three Hundred and Forty-Five Million Swedish kronor
(SEK 345,000,000).


 


“Sirius International” shall have the meaning
set out in the recitals to this Agreement.


 


“Sirius Rück” shall have the meaning set out in
the recitals to this Agreement.


 


“Straddle Period” shall have the meaning set
out in Section 7.6(b).


 


“Subsidiary” means, as to any Person, any other
Person 50% or more of whose voting shares are owned or controlled, directly or
indirectly, through one or more intermediaries, by such first Person.


 


9

















 


“Swedish kronor” and “SEK” means the
lawful currency of the Kingdom of Sweden.


 


“Tax Claim” shall have the meaning set out in Section
9.6.3.


 


“Tax Return” means any return, declaration of
estimated tax payments, report, estimate, information return or statement,
including any related or supporting information with respect to any of the
foregoing, filed or to be filed with any taxing authority in connection with
the determination, assessment, collection or administration of any Taxes.


 


“Taxes” means all taxes, fees, duties and other
assessments imposed by any government or political subdivision or taxing
authority thereof or therein, including any income, estimated, premium,
profits, windfall profits, environmental, alternative, minimum, license,
import, transfer, registration, stamp, franchise, sales, use, value added,
gross receipts, excise, utility, property (real or personal), severance, ad
valorem, net proceeds, deed, lease, service, capital, customs, occupation,
payroll wage, workman’s compensation, employment, withholding and social
security taxes, including all interest, fines, assessments, penalties or
additions to taxes imposed in connection therewith or with respect thereto.


 


“Third Party Claim” shall have the meaning set
out in Section 9.4.1.


 


“Tillinghast Report” shall have the meaning set
out in Section 3.4.4.


 


“Transfer Taxes” means all transfer,
documentary, registration, stamp and similar Taxes (including all applicable
real estate transfer Taxes and stock transfer Taxes) and related fees
(including any penalties, interest or additions to Tax) arising out of, in
connection with or attributable to this Agreement and the transactions
contemplated hereby.  For the avoidance
of doubt, Transfer Taxes shall not include any income Taxes arising out of, in
connection with or attributable to this Agreement or the transactions
contemplated hereby, such as any capital gains Taxes.


 


“Transferred Plan” shall have the meaning set
out in Section 7.5(a).


 


“U.S. Closing” means the completion of the
matters set forth in Section 4.2.


 


“U.S. GAAP” means generally accepted accounting
principles in the United States of America.


 


“U.S. Dollars” or “$” means the lawful
currency of the United States of America.


 


“U.S. Purchase Price” shall have the meaning
set out in Section 3.2.


 


“U.S. Purchaser” shall have the meaning set out
in the recitals to this Agreement.


 


“U.S. Shares” shall have the meaning set out in
the recitals to this Agreement.


 


“U.S. Transaction” shall have the meaning set
out in the recitals to this Agreement.


 


10

















 


“Unaudited Closing Financial Statements” shall
have the meaning set out in Section 3.4.1(a).


 


“Unaudited Closing Net Equity Statement” shall
have the meaning set out in Section 3.4.1(a).


 


“Unaudited Net Equity” means the amount of Net
Equity, determined on the basis of the Unaudited Closing Financial Statements.


 


1.2.                                                                              Other Terms


 


Other terms may be defined elsewhere in this Agreement
(including in any Annex or Schedule hereto) and, unless otherwise indicated,
shall have the respective meanings there ascribed to such terms.


 


1.3.                                                                              Interpretation


 


The following provisions shall apply in connection
with the interpretation of this Agreement:


 


1.3.1        Any reference to Articles, Sections,
clauses, Annexes and Schedules are, unless otherwise stated, references to
Articles, Sections, clauses, Annexes and Schedules of or to this Agreement. The
headings in this Agreement have been inserted for convenience only and shall
not be taken into account in its interpretation.


1.3.2        All Annexes and Schedules form an
integral part of this Agreement and are equally binding therewith. Any
reference to “this Agreement” shall include such Annexes and Schedules.


1.3.3        If any period is referred to in this
Agreement by way of reference to a number of days, the days shall be reckoned
exclusively of the first and inclusively of the last day unless the last day
falls on a day that is not a Business Day, in which case the last day shall be
the next succeeding Business Day.


1.3.4        Whenever any reference is made in this
Agreement to ABB’s knowledge, information, belief or awareness, it shall be
deemed to mean the knowledge of the individuals identified in Schedule 1.3.4
in relation to the subject matter in question.


1.3.5        Whenever the words “include”, “includes”
or “including” are used in this Agreement, they shall be deemed to be followed
by the words “without limitation”.


1.3.6        Any reference to the “stock”, “capital
stock”, “shares” or “share capital” of a Person shall refer to all voting and
non-voting equity securities and other ownership and voting interests with
respect to such Person.


1.3.7        Whenever the term “or its foreign
currency equivalent” is used in this Agreement, it shall be deemed to refer to
such foreign currency equivalent (i) as calculated as of the date of delivery
of notice of a Direct Claim or Third Party Claim under Article 9 or (ii)
otherwise as calculated as at the date of this Agreement.


 


11

















 


ARTICLE 2

SALE AND PURCHASE OF U.S. SHARES AND INTERNATIONAL SHARES


 


2.1.                                                                              Sale and Purchase


 


2.1.1                                                                        U.S.
Shares


 


Upon the terms and subject to the conditions of this
Agreement, ABB shall cause Sirius International to transfer and deliver to U.S.
Purchaser, and Purchaser shall cause U.S. Purchaser to purchase and take
delivery of, the U.S. Shares at the U.S. Closing, free and clear of all
Encumbrances and with all rights attached and accruing to such U.S. Shares, in
exchange for the U.S. Purchase Price (paid in accordance with Section
4.2.2).  For purposes of the making of
the representations and warranties set forth in Articles 5 and 6 below at
Closing, the U.S. Transaction shall be deemed not to have occurred, and for
purposes of the covenants set forth in Section 7.2.4 below, Purchaser shall be
deemed to have provided prior written consent with respect to the U.S.
Transaction.


 


2.1.2                                                                        International
Shares


 


Upon the terms and subject to the conditions of this
Agreement, ABB shall transfer and deliver to Purchaser, and Purchaser shall
purchase and take delivery of, the International Shares at the Closing, free
and clear of all Encumbrances and with all rights attached and accruing to such
International Shares, in exchange for the International Purchase Price (paid in
accordance with Section 4.3.2(a)).


 


2.2.                                                                              Title


 


2.2.1                                                                        U.S.
Shares


 


Subject to Purchaser having caused U.S. Purchaser to
pay the U.S. Purchase Price in accordance with Section 4.2.2, title of
ownership to the U.S. Shares shall transfer to U.S. Purchaser at the U.S.
Closing.


 


2.2.2                                                                        International
Shares


 


Subject to Purchaser having paid, or caused to be
paid, to the extent applicable, the amounts set forth in Section 4.3.2(a),
title of ownership to the International Shares shall transfer to Purchaser at
the Closing.


 


 


ARTICLE 3

PURCHASE PRICE AND ADJUSTMENT


 


3.1.                                                                              Purchase Price


 


(a)                                  The purchase price for the International
Shares (the “International Purchase Price”) shall equal (i) the sum of
(a) Three Billion Two Hundred and Twenty Million Swedish kronor (SEK
3,220,000,000), (b) the Final Excess Amount, if any, and (c) the interest
amounts payable by Purchaser to ABB pursuant to Section 3.5.5 less (ii) the sum
of (x) the amount of the ABB Distribution, if any, (y) the Final Deficiency
Amount, if any, and (z) the interest amounts payable by ABB to Purchaser
pursuant to Section 3.5.5, if any.


 


12

















 


(b)                                 The International Purchase Price and the
U.S. Purchase Price are each exclusive of any Transfer Taxes, 75% of which
shall be borne by ABB and 25% of which shall be borne by Purchaser.


 


3.2.                                                                              Payment of U.S. Purchase Price


 


The purchase price for the U.S. Shares (the “U.S.
Purchase Price”) shall be the U.S. GAAP book value of Sirius America as of
the Measurement Date (in U.S. Dollars). 
Purchaser shall cause U.S. Purchaser to pay the U.S. Purchase Price in
full at the U.S. Closing in accordance with Section 4.2.2.


 


3.3.                                                                              Payment of International Purchase Price


 


Purchaser
shall pay, or shall cause to be paid, to the extent applicable, the amounts set
forth in Section 4.3.2(a) at the Closing.


 


3.4.                                                                              Closing Financial Statements; Disputes


 


3.4.1                                                                        Unaudited
Closing Financial Statements


 


(a)                                  As
soon as reasonably practicable after the Measurement Date: (i) ABB, assisted by
the Business Auditors, shall prepare in good faith: (x) in accordance with U.S.
GAAP consistently applied to the Financial Statements (so long as the Financial
Statements were in accordance with U.S. GAAP), in Swedish kronor and in the
form of Schedule 3.4.1(2), a consolidated balance sheet of the Acquired
Group as of December 31, 2003, together with related consolidated income
statements and statements of cash flow for the twelve month period then ended
(collectively, the “Unaudited Closing Financial Statements”); and (y) a
statement showing the calculation of Net Equity, determined on the basis of the
Unaudited Closing Financial Statements and taking into account the adjustments
set out in Schedule 3.4.1(1) (the “Unaudited Closing Net Equity
Statement”); and (ii) ABB shall prepare consolidating financial statements
with respect to each Acquired Company related to the Unaudited Closing
Financial Statements in each case in the form of Schedule 3.4.1(2).  ABB shall deliver the Unaudited Closing
Financial Statements, the Unaudited Closing Net Equity Statement and the
consolidating financial statements described in sub-clause (ii) above to
Purchaser within five (5) days of such statements being finalized by the
Acquired Group and ABB.


 


(b)                                 ABB
shall:


 


(i)                                     cause
the Acquired Group to retain Reserves as of the Measurement Date relating to
(x) the EPIX/Hartford dispute identified as Treaty 260, all underwriting years,
in the Scan Re Memo, (y) the Reliance Re dispute identified as Treaty 189, all
underwriting years, in the Scan Re Memo and (z) each Scan Re Dispute, in each
case at a minimum value equal to the highest value of such Reserves as of
December 31, 2002, March 31, 2003, June 30, 2003 and September 30, 2003,
provided that the value of such Reserves with respect to the disputes
identified in clauses (x), (y) and (z) of this Section 3.4.1(b)(i) as of the
Measurement Date may be (A) lowered to nil if any amount is paid in a full and
final settlement of such Scan Re Dispute, on or prior to the Measurement Date,
(B) lowered to the amount proposed by the third party in writing to such
dispute to be paid in full and final settlement 


 


13

















 


thereof if such settlement remains outstanding for
acceptance as at the Measurement Date or to the amount adjudicated, on or prior
to the Measurement Date, by a court or arbitrator to be due to the third party
to such dispute in full and final adjudication of all claims under such dispute
or (C) lowered by the amount of any payments made, on or prior to the
Measurement Date, in partial settlement of such Scan Re Dispute; and


 


(ii)                                  set
forth the value of each Reserve described in sub-clause (i) above in an
appendix to the balance sheet included in the Unaudited Closing Financial
Statements.


 


Purchaser and ABB hereby
agree that establishing the value of each Reserve described in sub-clause (i)
above in accordance with such sub-clause is in accordance with U.S. GAAP.


 


3.4.2                                                                        Audit
of Closing Financial Statements


 


(a)                                  The
Unaudited Closing Financial Statements shall be audited by the Business
Auditors in accordance with generally accepted auditing standards in the United
States and the Unaudited Closing Net Equity Statement shall be reviewed by the
Business Auditors.  Upon completion of
the audit, the Business Auditors shall deliver to ABB and Purchaser:


 


(i)                                     (x)
a copy of the Unaudited Closing Financial Statements, including the requisite
footnotes thereto, all as adjusted to reflect any changes resulting from the
Business Auditors’ audit of such statements and (y) the Business Auditors’
executed opinion thereon in the form set out in Schedule 3.4.2(1) stating that
the Unaudited Closing Financial Statements were prepared in accordance with
U.S. GAAP consistently applied to the Financial Statements (so long as the
Financial Statements were in accordance with U.S. GAAP) and the audit was
conducted in accordance with generally accepted auditing standards in the
United States, which opinion shall be unqualified if delivered and dated on or
after the Closing Date or, if delivered prior to the Closing and qualified,
such qualified opinion shall be reissued as unqualified at the Closing
(collectively, the “Audited Closing Financial Statements”); and


 


(ii)                                  a
copy of the Unaudited Closing Net Equity Statement, as adjusted to reflect any
changes resulting from the Business Auditors’ review of such statement, and the
Business Auditors’ unqualified and executed opinion in the form set out in
Schedule 3.4.2(2) (collectively, the “Audited Closing Net Equity Statement”).


 


(b)                                 ABB
shall cause the Business Auditors, as part of their audit, to perform audit
procedures as to the adequacy of the values and allowances for the Reserves
relating to (i) the EPIX/Hartford dispute identified as Treaty 260, all
underwriting years, in the Scan Re Memo, (ii) the Reliance Re dispute
identified as Treaty 189, all underwriting years, in the Scan Re Memo, (iii)
the receiveables/recoverables of the Acquired Group, (iv) each Scan Re Dispute
and (v) the deferred tax assets of the Acquired Group, in each case as set
forth in the Unaudited Closing Financial Statements.


 


(c)                                  Provided
that Purchaser has complied with its obligation to provide access pursuant to
Section 3.4.3(a) as is reasonably required by ABB or the Business


 


14

















 


Auditors to perform their obligations under this
Section 3.4.2, ABB shall procure that the Business Auditors deliver the Audited
Closing Financial Statements and the Audited Closing Net Equity Statement to
ABB and Purchaser no later than ninety (90) days after the Measurement
Date.  The fees and expenses of the
Business Auditors in connection with the Audited Closing Financial Statements
and the Audited Closing Net Equity Statement shall be borne by ABB.


 


(d)                                 Simultaneously
with the delivery of the Audited Closing Financial Statements and the Audited
Closing Net Equity Statement by the Business Auditors pursuant to Section
3.4.2(c), ABB shall deliver to Purchaser consolidating financial statements
with respect to each Acquired Company related to the Audited Closing Financial
Statements, all as adjusted to reflect any changes resulting from the Business
Auditors’ audit of the Unaudited Closing Financial Statements, and in the form
of Schedule 3.4.1(2).


 


3.4.3                                                                        Access


 


(a)                                  Following
the Closing, until the Audited Closing Financial Statements and the Audited
Closing Net Equity Statement become the Final Closing Financial Statements,
Purchaser shall, and shall cause its Affiliates to, provide reasonable access
on reasonable notice during normal business hours to ABB’s employees and
representatives to the Acquired Group’s and each member of the Acquired Group’s
respective offices, employees agents, accountants (including the Business
Auditors) and actuaries and to premises, properties, books, accounting records
and other documents (including supporting contractual documentation) of the
Acquired Group or available to the Acquired Group reasonably required for the
purpose of agreeing or settling any dispute in relation to the Audited Closing
Financial Statements or the Audited Closing Net Equity Statement and allow ABB
to take copies of such documents. 
Neither Purchaser nor any of its Affiliates shall be under any
obligation to disclose to ABB’s employees or representatives any information
the disclosure of which, according to the advice of Purchaser’s legal counsel,
is restricted by confidentiality obligations or applicable Law or would
jeopardize the legal privilege, if any, accorded to any documents produced or
prepared by the legal representatives of Purchaser or its Affiliates.


 


(b)                                 Prior
to the Closing, and following delivery of the Audited Closing Financial
Statements and the Audited Closing Net Equity Statement pursuant to Section
3.4.2, ABB shall, and shall cause its Affiliates to provide reasonable access
on reasonable notice during normal business hours to Purchaser’s auditors,
employees and representatives to the Acquired Group’s and each member of the
Acquired Group’s respective officers, employees, agents, accountants (including
the Business Auditors) and actuaries and to the premises, properties, books,
accounting records and other documents (including supporting contractual
documentation and the work papers of the Business Auditors relating to the
audit of the Financial Statements and the Audited Closing Financial Statements,
provided that Purchaser’s auditors, employees and representatives have
signed any release letter reasonably required by the Business Auditors in
connection therewith) of the Acquired Group or available to the Acquired Group
reasonably required for the purpose of reviewing the Audited Closing Financial
Statements and the Audited Closing Net Equity Statement and/or the purpose of
agreeing or settling any dispute in relation to the Audited Closing Financial
Statements or the Audited Closing Net Equity Statement and allow Purchaser and
its auditors to take copies of such documents. 
Neither ABB or any of its Affiliates shall be under any obligation to
disclose to Purchaser’s auditors, employees and representatives any information
the disclosure of which, according to the advice of ABB’s legal counsel, is
restricted by


 


15

















 


confidentiality obligations or applicable Law or would
jeopardize the legal privilege, if any, accorded to any documents produced or
prepared by the legal representatives of ABB or its Affiliates.


 


3.4.4                                                                        Actuarial
Review of Reserves


 


As soon as reasonably practicable after the
Measurement Date, ABB shall cause:


 


(a)                                  Tillinghast
(i) to perform a loss and loss adjustment expense reserve review of each
Acquired Company (other than Scandinavian Re and Sirius America) as of the
Measurement Date, with the same scope as Tillinghast’s loss and loss adjustment
expense reserve review of each Acquired Company as of December 31, 2002 and
(ii) to deliver to ABB a report on such Reserves in the form of the report
issued to Eric Elzvik on 8 April 2003 (the “Tillinghast Report”); and


 


(b)                                 KPMG
LLP (i) to perform a loss and loss adjustment expense reserve review of Sirius
America as of the Measurement Date, with the same scope as KPMG LLP’s loss and
loss adjustment expense reserve review of Sirius America as of December 31,
2002, and (ii) deliver to ABB a report on such Reserves in the form of the
report issued to the board of directors of Sirius America on March 14, 2003
(the “KPMG Report”).


 


Prior to or concurrently with the delivery of the
Audited Closing Financial Statements and the Audited Closing Net Equity
Statement, ABB shall deliver to Purchaser the Tillinghast Report and the KPMG
Report.  ABB shall cause the Business
Auditors, as part of their audit, to perform audit procedures as to the
adequacy of the Reserves of Scandinavian Re.


 


3.4.5                                                                        Objection
Notice


 


The Audited Closing Financial Statements and the
Audited Closing Net Equity Statement shall be binding and conclusive upon ABB
and Purchaser unless Purchaser shall have notified ABB in writing within forty-five
(45) days after receipt of the Audited Closing Financial Statements and Audited
Closing Net Equity Statement of any objections thereto (an “Objection Notice”);
provided, however, that no objections may be made with respect to
amounts in the income statements and statements of cash flow contained in the
Audited Closing Financial Statements other than to the extent that such amounts
affect amounts included in the Audited Closing Net Equity Statement.  A notice under this Section 3.4.5 shall be
given in accordance with Section 11.7 and shall: (i) specify in reasonable
detail the items or issues relating to the Audited Closing Financial Statements
or the Audited Closing Net Equity Statement which are the subject of a dispute
and provide a description in reasonable detail of the reasons for such dispute;
and (ii) expressly state that such objections have been made by Purchaser in
good faith and taking into account the adjustments set forth in Schedule
3.4.1(1).


 


3.4.6                                                                        Disputes
Auditors


 


If any dispute between ABB and Purchaser relating to
objections validly made pursuant to Section 3.4.5 to the Audited Closing
Financial Statements or the Audited Closing Net Equity Statement is not
resolved by them within thirty (30) days after ABB’s receipt of


 


16

















 


an Objection Notice,
Purchaser and ABB shall submit such dispute to the Washington, D.C. office of
Deloitte & Touche LLP or, in the event Deloitte & Touche LLP is unable
or unwilling to act, to the Washington, D.C. office of such other international
accounting firm agreed between ABB and Purchaser (or, failing such agreement
within seven (7) days of written notice by ABB or Purchaser to the other party,
such other international accounting firm nominated by Deloitte & Touche LLP
(or its designee)) (the “Disputes Auditors”).


 


3.4.7                                                                        Procedures


 


(a)                                  Before
referring a matter to the Disputes Auditors, ABB and Purchaser shall agree on
procedures to be followed by the Disputes Auditors (including procedures for
presentation of evidence).  If ABB and
Purchaser are unable to agree upon procedures within seven (7) days of notice
to the other party that procedures need to be agreed pursuant to this Section
3.4.7(a), the Disputes Auditors shall establish the procedures giving due
regard to the provisions of this Article 3 and the intention of ABB and
Purchaser to resolve disputes as quickly, efficiently and inexpensively as
reasonably possible.


 


(b)                                 ABB
and Purchaser shall, as promptly as practicable, submit evidence in accordance
with the procedures agreed upon or established by the Disputes Auditors, and
the Disputes Auditors shall decide the dispute in accordance therewith as
promptly as practicable.  At all times
pending resolution of any matter submitted to the Disputes Auditors pursuant to
this Section 3.4, ABB and Purchaser shall, and shall cause their respective
Affiliates to afford to, the Disputes Auditors reasonable access on reasonable
notice during normal business hours, subject to the Disputes Auditors
undertaking to preserve the confidentiality thereof, to all personnel,
properties, books, contracts, records, electronically stored material,
schedules, analyses and working papers of or relating to the Business for the
purposes of deciding the dispute.


 


3.4.8                                                                        Disputes
Auditors’ Decision


 


The Disputes Auditors shall act as experts and not as
arbitrators, shall review only the objections to the Audited Closing Financial
Statements or Audited Closing Net Equity Statement as to which ABB and
Purchaser are in dispute as set out in the Objection Notice and shall make
their determination based upon the terms and conditions set forth in this
Article 3 and within the range of (i) the Net Equity stated in the Audited Net
Equity Statement; and (ii) the Net Equity proposed by Purchaser in the
Objection Notice (or, if Purchaser does not propose a Net Equity in the
Objection Notice, the lowest Net Equity that may be reasonably derived from the
objections raised by Purchaser in the Objection Notice).  ABB and Purchaser agree that they will
require the Disputes Auditors to render a draft of their decision within
twenty-eight (28) days after referral of the dispute to the Disputes Auditors
for a decision pursuant hereto and their final decision two (2) days later.  ABB or Purchaser may query manifest
arithmetic errors in the draft decision of the Disputes Auditor; provided,
however, that the Disputes Auditors shall respond to any such queries in
their sole discretion.  The final
decision of the Disputes Auditors shall be final and binding on ABB and
Purchaser.


 


3.4.9                                                                        Fees
and Expenses


 


All fees and expenses of the Disputes Auditors shall
be borne by ABB and Purchaser equally.


 


17

















 


3.4.10                                                                  Final
Closing Financial Statements


 


(a)                                  The
Audited Closing Financial Statements and the Audited Closing Net Equity
Statement shall become final and binding in total on ABB and Purchaser upon the
earliest to occur of:


 


(i)                                     if
no Objection Notice has been given, the expiration of the period within which
Purchaser may notify ABB of any objections thereto pursuant to Section 3.4.5;


 


(ii)                                  the
written agreement by ABB and Purchaser that such Audited Closing Financial
Statements and Audited Closing Net Equity Statement, together with any
modifications thereto agreed by them, are final and binding; and


 


(iii)                               if a dispute has been
submitted to the Disputes Auditors in accordance with Section 3.4.6, the date
on which the Disputes Auditors have issued their final decision with respect to
such dispute.


 


(b)                                 The
Audited Closing Financial Statements and Audited Closing Net Equity Statement,
as adjusted, where applicable, pursuant to any agreement between the parties or
pursuant to the decision of the Disputes Auditors, when final and binding on
the parties in accordance with clause (a) above, are herein referred to as the
“Final Closing Financial Statements”. 
Notwithstanding any other provision of this Agreement to the contrary,
the parties’ agreement on or determination of the Final Closing Financial
Statements shall not affect (i) each party’s rights under Article 9, including
rights relating to any breach of any of the representations and warranties set
forth in Articles 5 and 6 or (ii) the content of such representations and
warranties.


 


3.4.11                                                                  Exclusive Remedy


 


Notwithstanding any other provision of this Agreement
to the contrary, the procedures set out in this Section 3.4 shall be each
party’s exclusive remedy against the other party to this Agreement with respect
to any disputes relating to an adjustment to the International Purchase Price
under this Article 3.


 


3.5.                                                                              Adjustments


 


3.5.1                                                                        Closing
Adjustments for Audited Amounts


 


If the U.S. Closing and the Closing occur prior to the
date when the Audited Closing Financial Statements and the Audited Closing Net
Equity Statement become the Final Closing Financial Statements pursuant to
Section 3.4.10, then:


 


(a)                                  if
there has been an ABB Distribution:


 


(i)                                     in
excess of the Audited Excess Amount, the aggregate amount payable by Purchaser
at the Closing shall be decreased by the total of (x) the amount by which the
ABB Distribution Amount exceeds the Audited Excess Amount and (y) the Retained
Amount; or


 


(ii)                                  of
less than the Audited Excess Amount, the aggregate amount payable by Purchaser
at the Closing shall be (x) increased by the difference


 


18

















 


between the Audited Excess Amount and the ABB
Distribution Amount and (y) decreased by the Retained Amount; or


 


(iii)                               equal
to the Audited Excess Amount, the aggregate amount payable by Purchaser at the
Closing shall be decreased by the Retained Amount; or


 


(iv)                              and
there is an Audited Deficiency Amount, the aggregate amount payable at the
Closing shall be decreased by the total of (x) the Audited Deficiency Amount,
(y) the ABB Distribution Amount and (z) the Retained Amount; or


 


(v)                                 and
there is neither an Audited Excess Amount nor an Audited Deficiency Amount, the
aggregate amount payable by Purchaser at the Closing shall be decreased by the
total of (x) the ABB Distribution Amount and (y) the Retained Amount; or


 


(b)                                 if
there has not been an ABB Distribution:


 


(i)                                     and
there is an Audited Excess Amount, the aggregate amount payable by Purchaser at
the Closing shall be (x) increased by the Audited Excess Amount and (y)
decreased by the Retained Amount; or


 


(ii)                                  and
there is an Audited Deficiency Amount, the aggregate amount payable by
Purchaser at the Closing shall be decreased by the total of (x) the Audited
Deficiency Amount and (y) the Retained Amount; or


 


(iii)                               and
there is neither an Audited Excess Amount nor an Audited Deficiency Amount, the
aggregate amount payable by Purchaser at the Closing shall be decreased by the
Retained Amount.


 


3.5.2                                                                        Closing
Adjustments for Final Amounts


 


If the U.S. Closing and the Closing occur on or after
the date when the Audited Closing Financial Statements and the Audited Closing
Net Equity Statement become the Final Closing Financial Statements pursuant to
Section 3.4.10, then at the Closing:


 


(a)                                  if
there is a Final Excess Amount, the aggregate amount payable by Purchaser at
the Closing shall be (i) increased by an amount equal to the Final Excess
Amount and (ii) decreased by the ABB Distribution Amount, if any; or


 


(b)                                 if
there is a Final Deficiency Amount, the aggregate amount payable by Purchaser
at the Closing shall be decreased by an amount equal to the total of the Final
Deficiency Amount and the ABB Distribution Amount, if any; or


 


(c)                                  if
there is neither a Final Excess Amount nor a Final Deficiency Amount, the
aggregate amount payable by Purchaser at the Closing shall be decreased by the
ABB Distribution Amount, if any.


 


19

















 


3.5.3                                                                        Retained
Amount Adjustment


 


If Section 3.5.1 applies to the Closing, then within
three (3) Business Days after delivery of an Objection Notice, if any,
Purchaser shall pay to ABB, in Swedish kronor, by electronic transfer in
immediately available funds and to the account designated by ABB in writing,
any amount by which the Retained Amount exceeds the Disputed Net Equity (the amount
of the Retained Amount outstanding after such payment, if any, being referred
to hereinafter as the “Outstanding Retained Amount”).


 


3.5.4                                                                        Post-Closing
Adjustments for Final Amounts


 


If Section 3.5.1 applies to the Closing, then within
three (3) Business Days after the Audited Closing Financial Statements and the
Audited Closing Net Equity Statement have become the Final Closing Financial
Statements pursuant to Section 3.4.10:


 


(a)                                  if
there is a Final Excess Amount which is:


 


(i)                                     less
than the Audited Excess Amount, (x) ABB shall pay to Purchaser, in Swedish
kronor, by electronic transfer in immediately available funds and to the
account designated by Purchaser in writing, an amount equal to the amount, if
any, by which the difference between the Audited Excess Amount and the Final
Excess Amount is greater than the Outstanding Retained Amount or (y) Purchaser
shall pay to ABB in Swedish kronor, by electronic transfer in immediately
available funds and to the account designated by ABB in writing, an amount
equal to the amount, if any, by which the Outstanding Retained Amount exceeds
the difference between the Audited Excess Amount and the Final Excess Amount;
or


 


(ii)                                  greater
than the Audited Excess Amount, Purchaser shall pay to ABB, in Swedish kronor,
by electronic transfer in immediately available funds and to the account
designated by ABB in writing, an amount equal to the total of (x) the
difference between the Final Excess Amount and the Audited Excess Amount and
(y) the Outstanding Retained Amount; or


 


(iii)                               equal
to the Audited Excess Amount, Purchaser shall pay to ABB the Outstanding
Retained Amount in Swedish kronor in immediately available funds to the account
designated by ABB in writing; or


 


(b)                                 if there is a Final Excess
Amount and there was an Audited Deficiency Amount, Purchaser shall pay to ABB,
in Swedish kronor, by electronic transfer in immediately available funds and to
the account designated by ABB in writing, an amount equal to the total of the
Audited Deficiency Amount, the Final Excess Amount and the Outstanding Retained
Amount; or


 


(c)                                  if there is a Final Excess
Amount and there was neither an Audited Excess Amount nor an Audited Deficiency
Amount, then Purchaser shall pay to ABB, in Swedish kronor, by electronic
transfer in immediately available funds and to the account designated by ABB in
writing, an amount equal to the total of (i) the Final Excess Amount and (ii)
the Outstanding Retained Amount; or


 


(d)                                 if
there is a Final Deficiency Amount which is:


 


20

















 


(i)                                     greater
than the Audited Deficiency Amount, (x) ABB shall pay to Purchaser, in Swedish
kronor, by electronic transfer in immediately available funds and to the
account designated by Purchaser in writing, an amount equal to the amount, if
any, by which the difference between the Final Deficiency Amount and the
Audited Deficiency Amount is greater than the Outstanding Retained Amount or
(y) Purchaser shall pay to ABB in Swedish kronor, by electronic transfer in
immediately available funds and to the account designated by ABB in writing, an
amount equal to the amount, if any, by which the Outstanding Retained Amount
exceeds the difference between the Audited Deficiency Amount and the Final
Deficiency Amount; or


 


(ii)                                  less
than the Audited Deficiency Amount, Purchaser shall pay to ABB in Swedish
kronor, by electronic transfer in immediately available funds and to the
account designated by Purchaser in writing, an amount equal to the total of (x)
the difference between the Final Deficiency Amount and the Audited Deficiency
Amount and (y) the Outstanding Retained Amount; or


 


(iii)                               equal
to Audited Deficiency Amount, Purchaser shall pay to ABB, in Swedish kronor, by
electronic transfer in immediately available funds and to the account designated
by ABB in writing, the Outstanding Retained Amount; or


 


(e)                                  if
there is a Final Deficiency Amount and there was an Audited Excess Amount,
then:


 


(i)                                     ABB
shall pay to Purchaser, in Swedish kronor, by electronic transfer in
immediately available funds and to the account designated by Purchaser in
writing, the amount, if any, by which (i) the total of the Final Deficiency
Amount and the Audited Excess Amount is greater than (ii) the Outstanding
Retained Amount; or


 


(ii)                                  Purchaser
shall pay to ABB, in Swedish kronor, by electronic transfer in immediately
available funds and to the account designated by ABB in writing, the amount, if
any, by which (i) the Outstanding Retained Amount is greater than (ii) the
total of the Final Deficiency Amount and the Audited Excess Amount; or


 


(f)                                    if
there is a Final Deficiency Amount and there was neither an Audited Excess
Amount nor an Audited Deficiency Amount, then:


 


(i)                                     Purchaser
shall pay to ABB, in Swedish kronor, by electronic transfer in immediately
available funds and to the account designated by ABB in writing, an amount
equal to the amount, if any, by which the Outstanding Retained Amount exceeds
the Final Deficiency Amount; or


 


(ii)                                  ABB
shall pay to Purchaser, in Swedish kronor, by electronic transfer in immediately
available funds and to the account designated by Purchaser in writing, the
amount, if any, by which the Final Deficiency Amount exceeds the Outstanding
Retained Amount; or


 


21

















 


(g)                                 if
there is neither a Final Excess Amount nor a Final Deficiency Amount and there
was an Audited Excess Amount:


 


(i)                                     less
than the Outstanding Retained Amount, Purchaser shall pay to ABB, in Swedish
kronor, by electronic transfer in immediately available funds and to the account
designated by ABB in writing, an amount equal to the difference between the
Outstanding Retained Amount and the Audited Excess Amount; or


 


(ii)                                  greater
than the Outstanding Retained Amount, ABB shall pay to Purchaser, in Swedish
kronor, by electronic transfer in immediately available funds and to the
account designated by Purchaser in writing, an amount equal to the difference
between the Outstanding Retained Amount and the Audited Excess Amount; or


 


(h)                                 if
there is neither a Final Excess Amount nor a Final Deficiency Amount and there
was an Audited Deficiency Amount, then Purchaser shall pay to ABB, in Swedish
kronor, by electronic transfer in immediately available funds and to the
account designated by ABB in writing, an amount equal to the total of the
Outstanding Retained Amount and the Audited Deficiency Amount; or


 


(i)                                     if
there is neither a Final Excess Amount nor a Final Deficiency Amount and there
was neither an Audited Excess Amount nor an Audited Deficiency Amount,
Purchaser shall pay to ABB, in Swedish kronor, by electronic transfer in
immediately available funds and to the account designated by ABB in writing,
the Outstanding Retained Amount.


 


3.5.5                                                                        Interest


 


(a)                                  The
aggregate amount payable by Purchaser at the Closing shall be increased by the
amount of simple interest accrued on Three Billion Two Hundred and Twenty
Million Swedish kronor (SEK 3,220,000,000) at an annual rate of three percent
(3%), calculated on the basis of the actual number of days elapsed over 365,
from January 1, 2004 to the Closing Date, compounded annually.


 


(b)                                 Any
amount payable by Purchaser pursuant to Section 3.5.3 or 3.5.4 shall be paid
with simple interest thereon at an annual rate of three percent (3%),
calculated on the basis of the actual number of days elapsed over 365, from the
Closing Date to the date of actual payment, compounded annually.  Any amount payable by ABB pursuant to
Section 3.5.4 shall be paid with simple interest thereon at an annual rate of
three percent (3%), calculated on the basis of the actual number of days
elapsed over 365, from the Closing Date to the date of actual payment,
compounded annually.


 


22

















 


ARTICLE 4

CLOSING


 


 


4.1.                                                                              Date and Place


 


4.1.1                                                                        U.S.
Closing


 


The U.S. Closing shall take place at the offices of
White Mountains Insurance Group, Ltd. at Crawford House, 23 Church Street,
Hamilton HM 11, Bermuda on the Closing Date immediately prior to the Closing.


 


4.1.2                                                                        Closing


 


The Closing shall take place at the offices of White
Mountains Insurance Group, Ltd. at Crawford House, 23 Church Street, Hamilton
HM 11, Bermuda, at 10:00 a.m. on a date agreed by ABB and Purchaser that is not
earlier than two (2) Business Days and not later than ten (10) Business Days
following the satisfaction or waiver of the conditions set forth in Article 8
(other than those conditions that by their terms are to be satisfied or waived
at or immediately prior to the Closing); provided, however, that
if all the conditions set forth in Article 8 shall not have been satisfied or
waived on such a date, then the Closing shall take place on the first Business
Day on which all such conditions shall have been satisfied or waived.


 


4.2.                                                                              Deliveries at the U.S. Closing


 


4.2.1                                                                        Deliveries
by ABB


 


At the U.S. Closing, ABB shall cause Sirius
International to deliver to U.S. Purchaser (duly executed where appropriate)
all certificates or other instruments representing the U.S. Shares, in each
case duly signed and/or endorsed and/or accompanied by other documents required
under applicable Law in order to transfer title to such U.S. Shares to U.S.
Purchaser free and clear of all Encumbrances.


 


4.2.2                                                                        Deliveries
by Purchaser


 


At the U.S. Closing, Purchaser shall cause U.S.
Purchaser to deliver to Sirius International, an amount equal to the U.S.
Purchase Price, in U.S. Dollars, by electronic transfer in immediately
available funds and to the account of Sirius International designated by ABB in
writing at least three (3) Business Days prior to the U.S. Closing (such
payment to be evidenced by confirmation to Sirius International from the
relevant bank that such funds have been credited to such account).


 


4.3.                                                                              Deliveries at the Closing


 


4.3.1                                                                        Deliveries
by ABB


 


At the Closing, ABB shall (or shall cause its
Affiliates to) deliver to Purchaser (duly executed where appropriate):


 


(a)                                  all
certificates or other instruments representing the International Shares, in
each case duly signed and/or endorsed and/or accompanied by other


 


23

















 


documents required under applicable Law in order to
transfer title to such International Shares to Purchaser free and clear of all
Encumbrances;


 


(b)                                 unless
otherwise requested by Purchaser at least seven (7) Business Days prior to the
Closing, resignations, effective as of the Closing, of (i) each member and
deputy member of the board of directors (or other comparable managing body) of
each Acquired Company (other than any employee representative and any
representative appointed by the Swedish Financial Supervisory Authority or any
insurance or regulatory authority in any other jurisdiction) and (ii) the
auditors of each Acquired Company;


 


(c)                                  a
certificate signed by an authorized officer of ABB, dated as of the Closing
Date, to the effect that the conditions set out in Sections 8.2(a), (b) and (f)
are satisfied, provided that any certifications therein with respect to
Measurement Date Representations and Warranties shall only be made for the
purpose of Section 8.2(a) and not Article 9;


 


(d)                                 a
good standing certificate for Sirius America and certified commercial register
extracts for Sirius Holding, Sirius International and Sirius Rück, in each case
from the appropriate government official and dated as of a date not earlier
than ten (10) Business Days prior to the Closing Date;


 


(e)                                  a
clean, irrevocable letter of credit or bank guaranty, issued in favor of
Purchaser by a bank or financial institution reasonably satisfactory to
Purchaser in the amount of $40,000,000, substantially in the form set out in
Annex 1; and


 


(f)                                    a
transitional services agreement duly executed by ABB, substantially in the form
attached as Annex 5.


 


4.3.2                                                                        Deliveries
by Purchaser


 


At the Closing, Purchaser shall (or shall cause its
Affiliates to) deliver to ABB (duly executed where appropriate):


 


(a)                                  Three
Billion Two Hundred and Twenty Million Swedish kronor, (SEK 3,220,000,000),
subject to adjustment pursuant to Section 3.5, plus interest pursuant to
Section 3.5.5(a), by electronic transfer in immediately available funds and to
the account designated by ABB in writing at least three (3) Business Days prior
to the Closing (such payment to be evidenced by confirmation to ABB from the
relevant bank that such funds have been credited to such account);


 


(b)                                 a
certificate signed by an authorized officer of Purchaser, dated as of the
Closing Date, to the effect that the conditions set out in Sections 8.3(a) and
(b) are satisfied; and


 


(c)                                a
transitional services agreement duly executed by Purchaser substantially in the
form set out in Annex 5.


 


4.4.                                                                              Escrow


 


If Section 3.5.1 applies to the Closing, on the
Closing Date, Purchaser and ABB shall enter into an escrow agreement with
Citibank N.A., or such other nationally


 


24

















 


recognized financial
institution mutually acceptable to Purchaser and ABB (the “Escrow Agent”),
in substantially the form attached as Annex 2 (the “Escrow Agreement”),
and, upon consummation of the Closing, Purchaser shall deposit, or cause to be
deposited, with the Escrow Agent pursuant to the Escrow Agreement an amount
equal to the Retained Amount.


 


ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF ABB


 


ABB represents and warrants to Purchaser, as of the
date of this Agreement and as of the Closing Date, as follows; provided,
however, that, solely with respect to Purchaser’s indemnification rights
under Article 9, the Measurement Date Representations and Warranties instead
shall be deemed to be made only as of the date of this Agreement and as of the
Measurement Date.


 


5.1.                                                                              Organization


 


Each of ABB and each Acquired Company is a company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization (except, in the case of good standing, for
entities organized under the laws of any jurisdiction that does not recognize
such concept) and has all requisite corporate or company power and authority to
own its properties and assets and to carry on its business as presently being
conducted.  ABB has delivered to
Purchaser complete and correct copies of (i) the organizational documents of
each Acquired Company, in each case as amended through the date of this
Agreement and (ii) the share transfer books and minute books from January 1,
1999 to June 30, 2003, and if applicable, certificates of good standing for
each Acquired Company.


 


5.2.                                                                              Authority


 


5.2.1                                                                        Corporate
Power and Authority


 


ABB has all requisite corporate power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.  The execution and
delivery by ABB of this Agreement, the consummation by ABB of the transactions
contemplated hereby and the performance by ABB of the provisions of this
Agreement have been duly authorized by all necessary corporate action
(including actions of the board of directors and, if required, the
shareholders) on the part of ABB.  This
Agreement has been duly executed and delivered by ABB and, assuming the due
authorization, execution and delivery of this Agreement by Purchaser, this
Agreement constitutes a legal, valid and binding obligation of ABB enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors
rights generally from time to time in effect and, where applicable, to general
principles of equity.


 


5.2.2                                                                        No
Conflicts


 


The execution and delivery by ABB of this Agreement,
the consummation by ABB of the transactions contemplated hereby and the
performance by ABB of the provisions of this Agreement do not conflict with, or
result in any violation or breach of, or default (with or without notice or
lapse of time or both) under, or give rise to a right of, or result in,


 


25

















 


termination, cancellation
or acceleration of any obligation or to a loss of a material benefit under, or
result in the creation of any Encumbrance on any of the properties or assets of
the Acquired Group under, or give rise to any increased, additional or
accelerated rights or entitlements under, any provision of: (i) the
organizational documents of ABB or any Acquired Company; or (ii) subject to the
governmental filings and other matters referred to in Section 5.2.3 below, any
(x) Law or (y) order, writ, injunction, decree, or judgment by or legally
binding agreement or stipulation with any governmental authority (an “Order”),
in each case, applicable to ABB or any Acquired Company or any of their
respective properties or assets, except, in the case of clause (ii), for any
such conflict, violation, breach or default, which, individually or in the
aggregate, has not had and is not reasonably likely to result in a Material
Adverse Effect.


 


5.2.3                                                                        Governmental
Authorization


 


No consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required to be obtained or made by or with respect to ABB or any
of its Affiliates in connection with the execution and delivery by ABB of this
Agreement, the consummation by ABB of the transactions contemplated hereby or
the performance by ABB of the provisions of this Agreement, except for: (i)
approvals under applicable competition Law, including the HSR Act, the German
“Gesetz gegen Wettbewerbsbeschränkungen” (act against restraints of
competition) and Law No. 8884/1994 and Resolution No. 15/98 (of August 1998) of
the Federative Republic of Brazil; (ii) the approval of the Swedish Financial
Supervisory Authority, the Malaysian insurance regulator, the Bermuda insurance
regulator, the Delaware Insurance Department, the New York Insurance Department
and the insurance department of any State in the United States where any
Acquired Company is deemed commercially domiciled under such State’s Law; and
(iii) those the failure of which to obtain or make, individually or in the
aggregate, have not had and are not reasonably likely to result in a Material
Adverse Effect.


 


5.3.                                                                              Capital Stock


 


5.3.1                                                                        Capital
Stock


 


The registered share capital of Sirius Holding amounts
to SEK 100,000 and consists of 1,000 shares issued at a par value per share of
SEK 100. The maximum share capital permitted by the current articles of
association of Sirius Holding is SEK 400,000. 
The registered share capital of Sirius International amounts to SEK
800,000,000 and consists of 8,000,000 shares issued at a par value per share of
SEK 100.  The maximum share capital
permitted by the current articles of association of Sirius International is SEK
1,000,000,000.  The issued and outstanding
capital stock of Sirius Rück consists of 2 common shares.  The authorized capital stock of Sirius
America consists of 50,000 ordinary shares, of which 42,000 are issued and
outstanding.  The issued and outstanding
capital stock of Sirius Belgium consists of 700,000 common shares.  The authorized, issued and outstanding capital
stock of Scandinavian Re consists of 50,000,000 common shares and 1,000
preference shares.  All outstanding
shares of capital stock of each Acquired Company have been duly authorized and
validly issued and are fully paid and non-assessable and not subject to
preemptive rights.  There are no bonds,
debentures, notes or other indebtedness of ABB, any Acquired Company or any of
their Affiliates having the right to vote (or convertible into, or exchangeable
for, securities having the right to vote) on any matters on which holders of
the capital stock of any Acquired Company may vote.  Except as set forth above, there are no securities, options,
warrants, calls, rights or other Contracts of any kind obligating any Acquired
Company, or


 


26

















 


obligating ABB or any of
its Affiliates to cause any Acquired Company, to issue, deliver or sell, or
cause to be issued, delivered or sold, shares of capital stock or other
securities of any Acquired Company or obligating any Acquired Company, or
obligating ABB or any of its Affiliates to cause any Acquired Company, to
issue, grant, extend or enter into any such security, option, warrant, call,
right or other Contract.  There are no
outstanding contractual or other legally binding obligations, or obligations
intended to be legally binding, of any Acquired Company to repurchase, redeem
or otherwise acquire any shares of capital stock or other securities of any
Acquired Company.  Except as set forth
in Section 5.3.1 of the Disclosure Schedule, ABB owns the International Shares
free and clear of any and all Encumbrances and Sirius Holding owns 100% of the
issued and outstanding shares of Sirius International and Sirius Rück, in each
case free and clear of any and all Encumbrances.  All of the issued and outstanding shares of capital stock of
Sirius America, Sirius Belgium (in liquidation) and Scandinavian Re are owned
by Sirius International, in each case free and clear of any and all
Encumbrances.  For the avoidance of
doubt, any right over such capital stock created in favor of Purchaser or its
Affiliates by the agreement to sell the International Shares and the U.S.
Shares pursuant to terms of this Agreement shall not be deemed an Encumbrance.


 


5.3.2                                                                        Capital Maintenance


 


The capital
contributions for all of the capital stock of Sirius Rück have not been repaid,
in part or in full, in violation of any applicable capital maintenance Laws and
other similar Laws.


 


5.4.                                                                              Subsidiaries and Branch Offices


 


Section 5.4 of the Disclosure Schedule sets forth: (i)
the Subsidiaries (other than Sirius International, Sirius Rück, Sirius America,
Sirius Belgium and Scandinavian Re) of each Acquired Company as of December 31,
2002 and the date of this Agreement; and (ii) the location of each branch office
of each Acquired Company as of the date of this Agreement.


 


5.5.                                                                              Financial Information


 


5.5.1                                                                        Financial
Statements


 


The Financial Statements have been prepared from the
books and records of the Acquired Group (other than Sirius Holding and Sirius
Rück) and have been prepared in accordance with U.S. GAAP.  The Financial Statements fairly present in
all material respects the consolidated financial condition of the Acquired
Group (excluding Sirius Holding and Sirius Rück) as of the date thereof and the
results of operations of the Acquired Group (excluding Sirius Holding and
Sirius Rück) for the period then ended, in each case in accordance with U.S.
GAAP.  Subject to Section 9.13, nothing
in this representation and warranty shall be deemed to constitute a warranty as
to the adequacy of any Reserves.


 


5.5.2                                                                        Sirius
Holding and Sirius Rück


 


Sirius Holding was duly registered on November 26,
2002 and, since that date, has not engaged in any business or activity other
than the ownership of shares of capital stock of Sirius International and
Sirius Rück, activities incidental thereto and entry into the Facility
Agreement and the Pledge Agreement. 
Sirius Holding has no properties or assets other than


 


27

















 


the capital stock of
Sirius International and Sirius Rück. 
As of the date of this Agreement, except as set forth in Section 5.5.2
of the Disclosure Schedule or in this Section 5.5.2, Sirius Holding has no
debts, liabilities, obligations or commitments of any kind whatsoever, whether
accrued, fixed or unfixed, choate or inchoate, liquidated or unliquidated,
secured or unsecured, contingent, absolute, known or unknown, determined,
determinable or otherwise.  Except as
set forth in Section 5.5.2 of the Disclosure Schedule, Sirius Rück has no
debts, liabilities, obligations or commitments of any kind whatsoever, whether
accrued, fixed or unfixed, choate or inchoate, liquidated or unliquidated,
secured or unsecured, contingent, absolute, known or unknown, determined, determinable
or otherwise, as of December 31, 2002 that would be required to be reflected on
a balance sheet (or in the notes thereto) prepared in accordance with generally
accepted accounting principles in Germany.


 


5.5.3                                                                        Undisclosed
Liabilities


 


There are no debts, liabilities, obligations or
commitments of the Acquired Group of any kind whatsoever, whether accrued,
fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or
unsecured, contingent, absolute, known or unknown, determined, determinable or
otherwise, that would be required, as of the date(s) this warranty is made, to
be reflected on a consolidated balance sheet (or in the notes thereto) prepared
in accordance with U.S. GAAP, other than liabilities or obligations:


 


(a)                                  reflected
or reserved against on the audited balance sheet (or in the notes thereto)
included in the Financial Statements or the unaudited balance sheet (or in the
notes thereto) included in Section 5.5.2(2) of the Disclosure Schedule;


 


(b)                                 incurred
since December 31, 2002 in the ordinary course of business and not otherwise in
violation of this Agreement;


 


(c)                                  for
Taxes for periods in respect of which ABB is obliged to indemnify Purchaser
under Section 9.6; or


 


(d)                                 reasonably
evident from any documents or matters disclosed in the Disclosure Schedule, or
which are otherwise liabilities or obligations to the extent arising from items
specifically addressed by any other warranties in this Article 5 but are not
required to be disclosed pursuant to such warranties (whether because they do
not rise to the materiality threshold in such warranties or fall outside any
date limitations in such warranties or are not required to be disclosed due to
knowledge limitations in such warranties or otherwise).


 


Subject to Section 9.13,
nothing in this representation and warranty shall be deemed to constitute a
guarantee of the adequacy of the Reserves.


 


5.5.4                                                                        Investments


 


Except as set forth in Section 5.5.4(1) of the
Disclosure Schedule, the Acquired Group has good and marketable title to all of
the investments constituting the Investment Portfolio, free and clear of all
Encumbrances other than Permitted Encumbrances.  The execution and delivery by ABB of this Agreement, the
consummation by ABB of the transactions contemplated hereby and the performance
by ABB of the provisions of this Agreement do not, and will not, result in the
creation of any Encumbrance, other than a Permitted Encumbrance, on any of the
investments constituting the Investment Portfolio.


 


28

















 


Section 5.5.4(2) of the
Disclosure Schedule sets forth a true and correct list of all investments
constituting the Investment Portfolio as of October 31, 2003, the issuer of
such investments, the nominal amount owned of such investments and the market
value with respect to public investments (or estimated market value with
respect to private investments, determined on a basis consistent with the past
practice of the Acquired Group since January 1, 2002 of the Acquired Group) of
such investments as of such date. 
Except as set forth in Section 5.5.4(3) of the Disclosure Schedule, as
of the date of this Agreement, none of the investments constituting the
Investment Portfolio which are directly held by an Acquired Company is in
default in the payment of principal or interest or dividends.  As of the date of this Agreement, all such
investments comply with the Investment Guidelines.


 


5.5.5                                                                        Affiliate
Contracts


 


Section 5.5.5 of the Disclosure Schedule sets forth a
true and correct list, as of the date of this Agreement, of all Contracts
representing future liabilities or receivables in excess of SEK 500,000 (or its
foreign currency equivalent) (other than: (i) Assumed Reinsurance Agreements or
Ceded Reinsurance Agreements with an effective date commencing prior to January
1, 2001 or Direct Insurance Agreements with an effective date commencing prior
to January 1, 2002 (but not any such Contracts between members of the Acquired
Group, which shall be disclosed); (ii) Disclosed Insurance Agreements (but not
any such Disclosed Insurance Agreements between members of the Acquired Group,
which shall be disclosed); (iii) Insurance Policies; and (iv) the ABB
Instruments), between any Acquired Company, on the one hand, and ABB or any of
its Affiliates, on the other hand (collectively, the “Affiliate Contracts”).  All of the Affiliate Contracts are valid,
binding and enforceable against each member of the ABB Group party thereto in
accordance with their terms and conditions, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors
rights generally from time to time in effect and, where applicable, to general
principles of equity.


 


5.5.6                                                                        Affiliate
Instruments


 


There are no commercial paper, notes, debentures,
securities, options, warrants, calls, puts, rights and other similar financial
instruments, issued by ABB or any of its Affiliates (“Affiliate Instruments”)
and held or owned by an Acquired Company as of the date of this Agreement.


 


5.5.7                                                                        Subsequent
Events


 


Except as set forth in Section 5.5.7 of the Disclosure
Schedule, from December 31, 2002 to the date of this Agreement, the Acquired
Group has conducted the Business in all material respects in the ordinary
course of the Acquired Group (other than as a result of ABB’s agreement in
Section 7.2.4(dd) not to enter into any Contracts in respect of the Financial
Risks Business or the reaction of third parties, whether prior to or after the
date of this Agreement, to the Acquired Group’s decision not to enter into any
such Contracts).  Except as set forth in
Section 5.5.7 of the Disclosure Schedule, from December 31, 2002 to the date of
this Agreement, there has not occurred any circumstance, change in, or effect
on the Acquired Group, taken as a whole, that, individually or the aggregate,
has had or is reasonably likely to result in a Material Adverse Effect, other
than changes or effects resulting from (i) changes in general economic
conditions or financial market conditions (including currency rate fluctuations
and interest rate changes), (ii) any decline in the value of the Investment
Portfolio, or (iii) catastrophe events with an impact in the ordinary course of


 


29

















 


the Business.  Without limiting the generality of the first
sentence, Section 5.5.7 of the Disclosure Schedule sets forth a description of
each action taken by any Acquired Company on or after January 1, 2003 and on or
prior to the date of this Agreement that would have been restricted pursuant to
Section 7.2.4(d), (f), (g), (i), (j)(iii), (w) or (z) if this Agreement were in
effect during such period.


 


5.5.8                                                                        Insurance
Reserves


 


(a)                                  None
of the Reserves reflected on the audited balance sheet included in the
Financial Statements have been discounted. 
Subject to Section 9.13, nothing in this representation and warranty
shall be deemed to constitute a warranty as to the adequacy of any Reserves.


 


(b)                                 ABB
has delivered to Purchaser true and complete copies of any and all actuarial
reports, actuarial certificates, loss and loss adjustment expense reserve
reports and other reports prepared by any third party actuarial consultant
prior to the date of this Agreement on behalf of or made available to ABB or
any of its Affiliates, including any Acquired Company, in each case relating to
the adequacy or determination of the Reserves as of any date after January 1,
2002.


 


5.5.9                                                                        Scandinavian
Re Affiliate Commitments


 


Section 5.5.9 of the Disclosure Schedule sets forth
(i) a true and correct list of each Scandinavian Re Affiliate Commitment, (ii)
details of the liability as of November 30, 2003, of each Acquired Company
under each Scandinavian Re Affiliate Commitment, (iii) the amount of the
maximum potential liability of each Acquired Company under each Scandinavian Re
Affiliate Commitment and (iv) details of any Encumbrances on the properties or
assets of any Acquired Company relating to each Scandinavian Re Affiliate
Commitment.


 


5.6.                                                                              Compliance with Law


 


5.6.1                                                                        Applicable
Law


 


Each Acquired Company and its respective properties,
assets, operations and businesses have been and are in compliance with: (i) the
terms of such Acquired Company’s organizational documents; (ii) in all material
respects, all Laws applicable to such Acquired Company or its operations or business,
or by which any of its properties or assets are bound; (iii) all applicable
orders and finally binding writs, judgments, injunctions, awards and decrees of
any court or other governmental authority or any arbitrator; and (iv) such
Acquired Company’s Permits, except, in the case of clauses (iii) and (iv),
where the failure to comply, individually or in the aggregate, has not had, and
is not reasonably likely to result in, a Material Adverse Effect.


 


5.6.2                                                                        Permits


 


Section 5.6.2(1) of the Disclosure Schedule sets forth
all governmental licenses, permits, approvals, determinations of eligibility
and authorizations (“Permits”) held by the Acquired Group as of the date
of this Agreement, which are all the Permits required in connection with the
conduct of the Business as currently conducted by the Acquired Group and are,
in all material respects, valid and in full force and effect.  For each Acquired


 


30

















 


Company, Section 5.6.2(2)
of the Disclosure Schedule lists all jurisdictions in which such Acquired
Company is licensed and authorized to write, and writes, insurance or
reinsurance as of the date of this Agreement. 
Between January 1, 2001 and the date of this Agreement, no insurance
regulator in any jurisdiction (other than the jurisdiction in which it is
incorporated) has notified any Acquired Company, in writing, that such Acquired
Company is commercially domiciled in such jurisdiction.  Neither ABB nor any of its Affiliates has
received, between January 1, 2001 and the date of this Agreement, any written
notice from any governmental authority that it has engaged in any activity
which will cause non-renewal, revocation or suspension of any Permit of the
Acquired Group.  All material
registrations and filings between January 1, 2001 and the date of this
Agreement to insurance regulatory authorities in relation to Permits by or on
behalf of each Acquired Company have complied in all material respects with
applicable Law in effect when filed, and no material deficiencies have been
asserted in writing between January 1, 2001 and the date of this Agreement by
any such regulatory authority with respect to such registrations or filings
that have not been satisfied.


 


5.6.3                                                                        Notice
of Violations


 


Except as set forth in Section 5.6.3 of the Disclosure
Schedule, between January 1, 2001 and the date of this Agreement, neither ABB
nor any of its Affiliates has received any written notice from any governmental
authority alleging any violation in any material respect of any applicable Law
by any Acquired Company which remains unresolved.


 


5.6.4                                                                        Judgments,
Decrees and Orders


 


None of the Acquired Companies nor, to the knowledge
of ABB, any of the directors of the Acquired Companies or Senior Executives (in
their capacity as such) is a party to or subject to any judgment, decree,
order, award, or injunction of any governmental authority or arbitrator that
would restrict in any material respect the future conduct of the Business.


 


5.6.5                                                                        Areas
Covered by Other Provisions


 


This Section 5.6 does not relate to labor and
employment matters (to which Section 5.11 is applicable), employee benefits
matters (to which Section 5.12 is applicable), Tax matters (to which Section
5.13 is applicable), litigation matters (to which Section 5.14 is applicable),
or environmental matters (to which Section 5.15 is applicable).


 


5.7.                                                                              Personal Property


 


Each Acquired Company has valid title to, or
subsisting leasehold interests in or licenses to, all material tangible
personal property used or held for use by it. 
Except as set forth in Section 5.7(1) of the Disclosure Schedule, all
such material personal property which is owned by such Acquired Company is held
by it free and clear of any and all Encumbrances other than Permitted
Encumbrances.  With respect to all
leases for material personal property to which an Acquired Company is a party:
(i) all such leases are valid and subsisting and in full force and effect,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting creditors rights generally from time to time in effect
and, where applicable, to general principles of equity; and (ii) neither ABB
nor any of its Affiliates has received between January 1, 2001 and the date of
this Agreement any written notice that it is, nor, to the knowledge of ABB, is
any other party, in material breach of or in


 


31

















 


material default under
any such lease.  Except as set forth in
Section 5.7(2) of the Disclosure Schedule, there is no tangible personal
property which is owned, leased or licensed by ABB or any of its Affiliates
(other than an Acquired Company) and used by the Acquired Group and is
necessary for the operation of the Business as operated by the Acquired Group
as at the date of this Agreement that will no longer be permitted to be used by
the Acquired Group following the consummation of the transactions contemplated
hereby on substantially the same terms as applicable to the Acquired Group
immediately prior to the Closing.


 


5.8.                                                                              Real Property


 


5.8.1                                                                        List
of Real Property


 


Section 5.8.1 of the Disclosure Schedule sets forth a
description of all real property owned, leased or used by each Acquired Company
as of the date of this Agreement, describing: (i) any Acquired Company holding
interests in such real property; (ii) the street address of such real property;
(iii) whether such real property is owned or leased; (iv) any interests of ABB
or any of its Affiliates (other than the Acquired Group) in such real property;
and (v) any Encumbrances (other than Permitted Encumbrances and the
Encumbrances set forth in clauses (ii) and (iii) of Section 5.8.2) on such
Acquired Company’s interest in such real property.  Except as set forth in Section 5.8.1 of the Disclosure Schedule,
no portion of any real property owned, leased or used by the Acquired Group is
leased by the relevant member of the Acquired Group to any third party.


 


5.8.2                                                                        Owned
Real Property


 


The Acquired Group has valid title to all real
property owned by it (“Owned Real Property”), in each case free and
clear of any and all Encumbrances other than: (i) Permitted Encumbrances;
(ii) easements, covenants, rights-of-way and similar restrictions that do not
materially affect the (x) use or (y) book value of such Owned Real Property if
such restrictions existed at the time it was acquired or the market value of
such Owned Real Property if such restrictions arose after it was acquired by
the Acquired Group; and (iii) zoning and building restrictions.


 


5.8.3                                                                        Leased
Real Property


 


With respect to all real property leased by the
Acquired Group and all real property owned or leased by ABB or any of its
Affiliates and used by the Acquired Group (collectively, “Leased Real
Property”), ABB has delivered to Purchaser true and complete copies of all
related leases, including all amendments and modifications thereto.  With respect to each Leased Real Property:
(i) each lease is valid and subsisting and in full force and effect, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors rights generally from time to time in effect and where
applicable to general principles of equity; and (ii) neither ABB nor any of its
Affiliates has received between January 1, 2001 and the date of this Agreement any
written notice that it is, nor, to the knowledge of ABB is any other party
thereto, in material breach of or in material default under any lease relating
to such Leased Real Property.


 


32

















 


5.9.                                                                              Intellectual Property


 


5.9.1                                                                        Jointly
Used Intellectual Property


 


Except as set forth in
Section 5.9.1 of the Disclosure Schedule, there is no Intellectual Property
owned or licensed by ABB or any of its Affiliates (other than an Acquired
Company) which is used by the Acquired Group and is necessary for the operation
of the Business as operated by the Acquired Group as at the date of this
Agreement that will no longer be permitted to be used by the Acquired Group
following the consummation of the transactions contemplated hereby on
substantially the same terms as applicable to the Acquired Group immediately
prior to the Closing.  There is no other
material Intellectual Property (other than shrink-wrap, off-the-shelf or other
software readily available commercially) which is used by the Acquired Group
and is necessary for the operation of the Business as operated by the Acquired
Group as at the date of this Agreement that will no longer be permitted to be
used by the Acquired Group following the consummation of the transactions
contemplated hereby on substantially the same terms as applicable to the
Acquired Group immediately prior to the Closing.


 


5.9.2                                                                        Registered
Intellectual Property


 


(a)                                  Section
5.9.2(1) of the Disclosure Schedule contains a true and correct list of all
patents, patent applications, registered trademarks, trademark applications,
registered designs and applications for registered designs and Internet domain
names of each Acquired Company as of the date of this Agreement (collectively,
“Registered Intellectual Property”).


 


(b)                                 The
Registered Intellectual Property is owned by the Acquired Group, free and clear
of any and all Encumbrances other than Permitted Encumbrances.


 


(c)                                  All
registration, renewal and other maintenance fees in respect of the Registered
Intellectual Property due and payable have been paid in full.


 


(d)                                 Except
as set forth in Section 5.9.2(2) of the Disclosure Schedule: (i) none of ABB
and its Affiliates has received written notice of any legal proceedings
instituted or threatened in writing against an Acquired Company in relation to
any Registered Intellectual Property which is pending as of the date of this
Agreement; and (ii) to the knowledge of ABB, the use by any Acquired Company of
the Registered Intellectual Property does not infringe the Intellectual
Property of any third Person.


 


(e)                                  To
the knowledge of ABB, all Registered Intellectual Property is valid and
enforceable, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors rights generally from time to
time in effect and, where applicable, to general principles of equity and is
not being infringed or opposed by any Person.


 


(f)                                    No
Acquired Company has granted to any Person, including ABB or any of its
Affiliates (other than an Acquired Company), any license to use any Registered
Intellectual Property.


 


33

















 


5.9.3                                                                        Other
Intellectual Property


 


(a)                                  All
Intellectual Property used in the Business other than the Registered
Intellectual Property (“Other Intellectual Property”) is owned by, or
licensed to or, to the knowledge of ABB, used under the authority of the owner
by, an Acquired Company.


 


(b)                                 (i)
Neither ABB nor any of its Affiliates has received written notice of any legal
proceedings instituted against an Acquired Company in relation to any Other
Intellectual Property which is pending as of the date of this Agreement; and
(ii) to the knowledge of ABB, the use by any Acquired Company of any Other
Intellectual Property does not infringe in any material respect the
Intellectual Property of any third Person.


 


(c)                                  No
Acquired Company has granted to any Person, including ABB or any of its
Affiliates (other than an Acquired Company), any express written license to use
any Other Intellectual Property.


 


5.9.4                                                                        Licensed
Intellectual Property


 


(a)                                  Section
5.9.4 of the Disclosure Schedule contains a true and correct list as of the
date of this Agreement of all material express licenses from any Person under
which Other Intellectual Property is used in the Business by any Acquired
Company as of the date of this Agreement (other than shrink wrap or
off-the-shelf software freely available commercially) (the “Licensed
Intellectual Property”) and, except to the extent indicated in such Section
5.9.4 of the Disclosure Schedule, ABB has delivered to Purchaser true and
complete copies of all related licenses, including all amendments and
modifications thereto.


 


(b)                                 No
notice of a material default has been sent or received, between January 1, 2001
and the date of this Agreement, by ABB or any of its Affiliates under any such
license which remains uncured as of the date of this Agreement.


 


5.10.                                                                        Contracts


 


5.10.1                                                                  Direct
Insurance and Reinsurance Agreements


 


(a)                                  Set
forth in Section 5.10.1(1) of the Disclosure Schedule is a list, true and
correct in all material respects, as of November 30, 2003, of each Direct
Insurance Agreement with an effective date commencing on or after January 1,
2002 pursuant to which any Acquired Company (other than Scandinavian Re) has continuing
obligations or rights as of the date of this Agreement, including a description
of the name of either the insured (if such information is available), or the
agent, the name of the broker, type of contract, inception date, estimated
premium and limits.


 


(b)                                 Set forth in Section
5.10.1(2) of the Disclosure Schedule is a true and correct list, as of November
30, 2003, of each Assumed Reinsurance Agreement with an effective date
commencing on or after January 1, 2001 pursuant to which any Acquired Company
(other than Scandinavian Re) has continuing obligations or rights as of the
date of this Agreement, including a description of the name of the ceding
company, the name of the broker, type of contract, inception date, estimated
premium and limits.


 


(c)                                  Set forth in Section
5.10.1(3) of the Disclosure Schedule is a true and correct list, as of November
30, 2003, of each Ceded Reinsurance Agreement with an effective date commencing
on or after January 1, 2001 pursuant to which any Acquired


 


34

















 


Company
(other than Scandinavian Re) has continuing obligations or rights as of the
date of this Agreement, including a description of the name of the reinsurers
and retrocessionaires, type of contract, inception date, estimated premium and
limits.


 


(d)                                 Set forth in Section
5.10.1(4) of the Disclosure Schedule is a true and correct list, as of November
30, 2003, of (i) each reinsurance pool to which an Acquired Company has assumed
reinsurance risks currently in force and (ii) all assigned pools in which an
Acquired Company is participating arising from the requirements of insurance
Laws (collectively, “Reinsurance Pools”).


 


(e)                                  Set forth in Section
5.10.1(5) of the Disclosure Schedule is a true and correct list of (i) each
Direct Insurance Agreement and each Assumed Reinsurance Agreement to which
Scandinavian Re is or has ever been a party and (ii) as of November 30, 2003,
each Ceded Reinsurance Agreement to which Scandinavian Re is a party,
including, in the case of sub-clauses (i) and (ii) above, a description of the
cedant or broker, the type of contract, inception date, estimated premium,
limits and whether any Acquired Company has any continuing rights or
obligations thereunder (in which case, such contract has been described as “In
force” in Section 5.10.1(5) of the Disclosure Schedule) (collectively, the “Scan
Re Agreements”).


 


(f)                                    Except as set forth in
Section 5.10.1(6) of the Disclosure Schedule, as of the date of this Agreement,
(i) to the knowledge of ABB or any Acquired Company, no reinsurer or
retrocessionaire of an Acquired Company is the subject of a rehabilitation,
liquidation, conservatorship, receivership or bankruptcy proceeding, and (ii)
no written notice of intended cancellation has been received by ABB or any of
its Affiliates from any reinsurer or retrocessionaire of an Acquired Company
with respect to any Ceded Reinsurance Agreement.


 


(g)                                 The
Direct Insurance Agreements, the Assumed Reinsurance Agreements, the Ceded
Reinsurance Agreements, Reinsurance Pools and the Scan Re Agreements required
to be listed in Sections 5.10.1(1), 5.10.1(2), 5.10.1(3), 5.10.1.(4) and
5.10.1(5) respectively, of the Disclosure Schedule are collectively referred to
hereinafter as the “Disclosed Insurance Agreements”.


 


(h)                                 All
of the Disclosed Insurance Agreements are valid, binding and enforceable
against the applicable Acquired Company and, to the knowledge of ABB or any
Acquired Company, against the other parties thereto in accordance with their
respective terms, subject in each case to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors
rights generally from time to time in effect and, where applicable, to general
principles of equity.  Except as set
forth in Section 5.10.1(7) of the Disclosure Schedule, neither ABB nor any of
its Affiliates has received (x) between January 1, 2002 and the date of this
Agreement with respect to Direct Insurance Agreements or (y) between January 1,
2001 and the date of this Agreement with respect to Assumed Reinsurance
Agreements, Ceded Reinsurance Agreements, Reinsurance Pool and Scan Re
Agreements, any written notice that it is, nor to the knowledge of ABB or any
Acquired Company, is any other party thereto, in default or breach (save in
relation to the timely payment of premiums or a liquidation, conservatorship,
receivership or bankruptcy proceeding to which a reinsurer or retrocessionaire
is subject and otherwise disclosed in Section 5.10.1(6) of the Disclosure
Schedule), under:


 


35

















 


(i)                                     any
Direct Insurance Agreement required to be listed in Section 5.10.1(1) of the
Disclosure Schedule, except for defaults or breaches which are not material, in
the aggregate, with respect to the total amount of annual premiums derived by
the Acquired Group from the particular agent to which such Direct Insurance
Agreement relates;


 


(ii)                                  any
Assumed Reinsurance Agreement required to be listed in Section 5.10.1(2) of the
Disclosure Schedule, except for defaults or breaches which are not material
with respect to such Assumed Reinsurance Agreement; or


 


(iii)                               any Ceded Reinsurance
Agreement, Reinsurance Pool or Scan Re Agreement required to be listed in
Section 5.10.1(3), Section 5.10.1(4) or Section 5.10.1(5), respectively, of the
Disclosure Schedule, except for defaults or breaches which are not material
with respect to such Ceded Reinsurance Agreement; provided that, for the
avoidance of doubt, defaults or breaches that affect the collectibility of such
Ceded Reinsurance Agreement (other than arising from the liquidation,
conservatorship, receivership or bankruptcy proceeding to which a reinsurer or
retrocessionaire is subject and otherwise disclosed in Section 5.10.1(6) of the
Disclosure Schedule) shall be deemed material.


 


5.10.2                                                                  Material
Contracts


 


(a)                                  Set
forth in Section 5.10.2(1) of the Disclosure Schedule is a true and correct
list, as of the date of this Agreement, of Contracts of the following types
under which, as of the date of this Agreement, any obligation or liability
exists (but excluding any Assumed Reinsurance Agreements, Ceded Reinsurance
Agreements, Direct Insurance Agreements or Reinsurance Pools) and to which, at
the date of this Agreement, any Acquired Company is a party (each, a “Material
Contract”):


 


(i)                                     a
Contract with any managing general agent, agent, reinsurance intermediary,
claims adjuster or claims administrator or broker of an Acquired Company
pursuant to which such party received compensation or commissions of (x) SEK
8,000,000 (or its foreign currency equivalent) or more in the fiscal year ended
December 31, 2002 or (y) SEK 4,000,000 (or its foreign currency equivalent) in
the period from January 1, 2003 to June 30, 2003 or (z) to whom any
underwriting or claims settlement authority is delegated;


 


(ii)                                  a
Contract: (x) containing a provision limiting the ability of any Acquired
Company to engage in any line of insurance or reinsurance business in any
geographical area or to compete with any Person; or (y) providing for
“exclusivity” as a result of which any Acquired Company is restricted with
respect to distribution and marketing;


 


(iii)                               a
Contract which is otherwise required to be disclosed under this Section 5.10.2
and pursuant to which the consummation of any of the transactions contemplated
hereby or the execution and delivery, performance or effectiveness of this
Agreement will conflict with, result in a violation or breach of, or constitute
a default under (with or without notice or lapse of time


 


36

















 


or both), or give rise under such Contract to any
right of, or result in, a termination, right of first refusal, amendment,
revocation, cancellation or acceleration, or loss of material benefit, or to
increased, additional or accelerated rights or entitlements of any Person;


 


(iv)                              a
Contract preventing the solicitation for employment of third parties by the
applicable Acquired Company;


 


(v)                                 a
“standstill” Contract prohibiting an Acquired Company from acquiring the assets
or securities of any person;


 


(vi)                              a
partnership, joint venture, shareholders or other similar Contract with any
Person;


 


(vii)                           all
Contracts relating to the borrowing of money or the deferred purchase price of
Property in an amount in excess of SEK 4,000,000 (or its foreign currency
equivalent) (other than repurchase agreements and reverse repurchase agreements
entered into in the ordinary course of managing an Acquired Company’s
investments and consistent with past practice), or the direct guarantee of any
obligation for, or Contracts to service the repayment of, borrowed money or any
other liability in respect of indebtedness for borrowed money in an amount in
excess of SEK 4,000,000 (or its foreign currency equivalent) of any other
Person;


 


(viii)                        a lease,
sublease, license (excluding computer software or Contracts disclosed in
Section 5.9 of the Disclosure Schedule) or rental or use Contract to which an
Acquired Company is a party with respect to personal property used by an
Acquired Company in the conduct of its Business, operations or affairs and
providing for annual rental or license payments to be paid by or on behalf of
an Acquired Company in excess of SEK 4,000,000 (or its foreign currency
equivalent);


 


(ix)                                a
Contract relating to the future disposition or acquisition, after the date of
this Agreement, of any investment in any Person or of any interest in any
business enterprise (other than the disposition or acquisition of investments
in the ordinary course of the business of the applicable Acquired Company,
including the acquisition of investments to form part of the Investment
Portfolio), or requiring an Acquired Company to purchase in the future, after
the date of this Agreement, any security (other than the disposition or
acquisition of investments in the ordinary course of business of the applicable
Acquired Company, including the acquisition of investments to form part of the
Investment Portfolio);


 


(x)                                   a
Contract with a Person other than an Acquired Company relating to computer
software licenses (other than licences disclosed in Sections 5.9.3 or 5.9.4 of
the Disclosure Schedule), data processing, information technology or other
corporate administrative services or computer hardware leases representing
non-terminable future liabilities in excess of SEK 4,000,000 (or its foreign
currency equivalent);


 


37

















 


(xi)                                a
power of attorney given to a Person other than a director, officer or Employee
of an Acquired Company which is currently effective and outstanding, other than
powers of attorney which are required by Law or which have been granted
pursuant to requirements of applicable insurance or securities rules and
regulations;


 


(xii)                             a
Contract under which an Acquired Company has continuing obligations entered
into in connection with the settlement or other resolution of any claim,
action, suit, investigation, arbitration or legal, administrative or other
proceeding (other than settlements or resolutions relating to a Direct
Insurance Agreement, Assumed Reinsurance Agreement, Ceded Reinsurance
Agreement, Reinsurance Pool or Scan Re Agreement); and


 


(xiii)                          a
Contract (other than Contracts cancelable at will or with no more than 90 days’
notice, in each case without penalty) not listed in clauses (i) to (xii) above,
representing future liabilities or receivables of more than SEK 8,000,000 (or
its foreign currency equivalent).


 


(b)                                 All
of the Material Contracts are valid, binding and enforceable against the
applicable Acquired Company and, to the knowledge of ABB or any Acquired Company,
against the other parties thereto in accordance with their respective terms
subject, in each case, to applicable bankruptcy, reorganization, moratorium and
other laws affecting creditors rights generally from time to time in effect
and, where applicable, to general principles of equity.  Neither ABB nor any of its Affiliates has
received between January 1, 2001 and the date of this Agreement any written
notice which remains outstanding that it is, nor, to the knowledge of ABB or
any Acquired Company, is any other party thereto, in material breach or
material default under any Material Contract.


 


5.11.                                                                        Employees


 


5.11.1                                                                  Agreements


 


Section 5.11.1 of the Disclosure Schedule lists, as of
the date of this Agreement: (i) each and every employment agreement relating to
a current or former Senior Executive under which any Acquired Company has any
outstanding future or contingent obligations or liabilities; and (ii) each and
every labor and collective bargaining agreement (other than national or
industry wide standard collective bargaining agreements or collective
bargaining agreements imposed by applicable Law) applicable to any Employee or
Former Employee under which any Acquired Company has any outstanding future or
contingent obligations or liabilities. 
ABB has delivered true and complete copies of each agreement listed in
Section 5.11.1 of the Disclosure Schedule to Purchaser.


 


5.11.2                                                                  Labor
Relations


 


There is no pending or, to the knowledge of ABB,
threatened in writing and since January 1, 2002, there has been no: (i) labor
strike, work stoppage or lockout against any Acquired Company; (ii) unfair
labor practice charge or complaint against any Acquired Company before any
governmental authority; (iii) material union grievance against any Acquired
Company; (iv) representation or certification proceeding or petition seeking a
representation or certification proceeding involving any Acquired Company; (v)
material employment discrimination charge (including as to pay or other
employment conditions)


 


38

















 


against any Acquired
Company; or (vi) other material claim or proceeding against any Acquired
Company by an Employee or Former Employee, in each case that has not been fully
and finally resolved as of the date of this Agreement.  Each Acquired Company is in material
compliance with all Laws related to labor, employment, employment standards,
discrimination (including as to pay or other employment conditions) and health
and safety.


 


5.11.3                                                                  Employees


 


Section 5.11.3 of the Disclosure Schedule sets out (i)
the following information, as of October 31, 2003 with respect to each
Employee: name, title, principal place of employment, base salary or wage rate
and target bonus amount and (ii) the aggregate annual base salary payroll as of
October 31, 2003 for each Acquired Company.


 


5.11.4                                                                  No
Changes in Compensation


 


Except as set forth in Section 5.11.4 of the
Disclosure Schedule or as required by applicable Law or currently effective
collective bargaining agreements, since December 31, 2002, no Acquired Company
has (i) except as permitted by Section 7.2.4(d), increased the salary or wage
rate of any Employee, other than increases in the ordinary course of the
business of the applicable Acquired Company, (ii) granted any increase in the
basis of calculation of any bonus entitlement for any Employee, or (iii) agreed
or committed to take any of the actions described in this Section 5.11.4.


 


5.12.                                                                        Employee Benefit Plans


 


5.12.1                                                                  List
of Employee Benefit Plans


 


Section 5.12.1(1) of the Disclosure Schedule contains
a true and correct list as of the date of this Agreement of all employee
benefit plans (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), whether or not such plans
are covered by ERISA) and all other material pension, retirement, termination
indemnity, early retirement, savings, deferred compensation, profit sharing,
severance, change in control, retention, bonus, incentive, stock option,
restricted stock, stock appreciation right, stock purchase, phantom equity,
welfare benefit, retiree medical and supplemental retirement, plans, programs
or arrangements that currently apply to (i) any group of Employees, (ii) any
Senior Executive listed in Section 5.12.1(2) of the Disclosure Schedule or
(iii) with respect to any such plan in Switzerland relating to Sirius
International, a single Employee, in each case in respect of any Employee’s
employment by any Acquired Company or with respect to which any Acquired
Company has any actual or contingent liability, excluding any plan, program or
arrangement sponsored by any government, or governmental entity, union or
employee organization or any other Person other than a member of the ABB Group,
such as social security or similar programs or government-mandated programs
(each, an “Employee Benefit Plan”). 
There are no plans, programs or arrangements providing Retirement
Benefits for the Employees which will transfer to Purchaser or its Affiliates
after Closing by operation of laws or otherwise other than the Transferred
Plans.  No Employee Benefit Plan shall
partially transfer to Purchaser after the Closing by operation of Law or
otherwise.  Each Employee Benefit Plan
that is not maintained or sponsored by ABB or any of its Affiliates is indicated
as such in Section 5.12.1 of the Disclosure Schedule.  ABB has delivered to Purchaser with data, records or information
reasonably sufficient to identify those Employee Benefit Plans that (i) provide
defined benefit pension benefits, or (ii) are intended to qualify for favorable
Tax status


 


39

















 


conferred by the taxing authorities under the Laws of any jurisdiction
that are similar to Section 401(a) of the Code.  ABB has delivered to Purchaser copies of, to the extent
applicable: (v) the currently effective plan document (including all amendments
thereto) and the most recent summary plan description for each Employee Benefit
Plan (or the most recent employee handbook containing a description thereof), (w)
a written description of each unwritten Employee Benefit Plan, (x) any trust,
insurance, group annuity contract or other agreement related to the funding or
financing of each Employee Benefit Plan, (y) all filings required to be made
with any governmental authority during the three calendar years preceding the
date of this Agreement with respect to each Employee Benefit Plan, and (z) the
three most recent financial or actuarial valuations or funding reports prepared
with respect to each Employee Benefit Plan.


 


5.12.2                                                                  Compliance
and Claims


 


Except as set forth in Section 5.12.2 of the
Disclosure Schedule: (i) each Employee Benefit Plan has been administered in
all material respects in accordance with its terms and complies in all material
respects with all applicable Laws; (ii) there are no pending, or to the
knowledge of ABB, claims or proceedings threatened in writing related to any
Employee Benefit Plan (other than claims for benefits in the ordinary course);
(iii) there are no pending, or to the knowledge of ABB, investigations by any
governmental authority threatened in writing in respect of any Employee Benefit
Plan; (iv) no event or condition has occurred or is reasonably likely to occur
that has or is reasonably likely to result in material liability under any
Employee Benefit Plan, other than for contributions or benefit payments in the
ordinary course of the applicable Acquired Company; (v) to the knowledge of
ABB, each Employee Benefit Plan that is intended to qualify for favorable Tax
benefits under the Laws of any jurisdiction is so qualified and, to the
knowledge of ABB, no event or condition exists that is reasonably likely to
result in the loss or revocation of such status; (vi) neither ABB nor any of
its Affiliates nor, to the knowledge of ABB, any other Person, has engaged in a
transaction with respect to any Employee Benefit Plan that is reasonably likely
to give rise to any material Tax or penalty under Chapter 43 of the Code or
ERISA; and (vii) all required consents and releases in connection with the
amendment, modification or termination of any Employee Benefit Plan have been validly obtained and are effective.  To the extent that this Section 5.12.2
relates to any Employee Benefit Plan that is not maintained or sponsored by ABB
or its Affiliates, the representations contained herein are made to the
knowledge of ABB.


 


5.12.3                                                                  Contributions
and Funding


 


All benefits, contributions and premiums relating to
each Employee Benefit Plan have been timely paid or made or accrued in
accordance with the terms of such Employee Benefit Plan and the terms of all
applicable Laws and no request has been made to waive or defer payment of any
benefits, contributions or premiums that would otherwise be required to be made
to any Employee Benefit Plan.  Section
5.12.3 of the Disclosure Schedule identifies each Transferred Plan that is not
required to be funded under applicable Law.


 


5.12.4                                                                  Post-Retirement
Welfare Arrangements


 


Except as set forth in Section 5.12.4 of the
Disclosure Schedule or as required by applicable Law, no Employee Benefit Plan
maintained or sponsored by an Acquired Company provides life or medical
insurance benefits after the termination of employment.


 


40

















 


No provision of any Employee Benefit Plan required to be included in
Section 5.12.4 of the Disclosure Schedule under the preceding sentence or
communication by ABB or its Affiliates to Employees with respect to any such
Employee Benefit Plan would prevent the amendment, modification or termination
after the Closing Date of any such Employee Benefit Plan without material
liability to any Acquired Company.


 


5.12.5                                                                  Severance
and Change in Control Arrangements


 


(a)                                  There
are no payments, benefits or rights or increased and/or accelerated payments,
benefits or rights, to which any Employee or Former Employee may be entitled as
a result of any adjustment to the Purchase Price pursuant to any provision of
this Agreement.


 


(b)                                 Except
as set forth in Section 5.12.5 of the Disclosure Schedule, (i) no Employee or
Former Employee will be entitled to any payment, benefit or right from an
Acquired Company, or any increased and/or accelerated payment, benefit or
right, as a result of (x) such Employee’s or Former Employee’s exercise of
his/her right to terminate employment with any Acquired Company or its
respective Affiliates at any time before or after the Closing Date (other than
pension or retirement benefits under an Employee Benefit Plan) arising as a
result of the execution of this Agreement or the consummation of the
transactions contemplated hereby or (y) the execution of this Agreement or the
consummation of the transactions contemplated hereby and (ii) the execution of
this Agreement or the consummation of the transactions contemplated hereby will
not require accelerated funding of any Employee Benefit Plan or give rise to
any material liability in connection with any Employee Benefit Plan, other
than, in the case of (i) and (ii), pursuant to applicable Law.  No Employee or Former Employee is or will be
entitled to receive after the Closing any payment or benefit from Purchaser,
any Acquired Company or any of their Affiliates pursuant to any Contract or
Employee Benefit Plan in effect on the date of this Agreement that would not be
deductible to such entity for U.S. Federal income tax purposes as a result of
such payment or benefit constituting an “excess parachute payment” within the
meaning of Section 280G of the Code in connection with a change in the
ownership or effective control, of a corporation, or a substantial portion of
the assets or a corporation (within the meaning of Sections 280G of the Code,
in each case arising out of or resulting from the consummation of the
transactions contemplated by this Agreement.


 


(c)                                  Any
amounts due as set forth in Section 5.12.5 of the Disclosure Schedule shall be
paid as required by Section 7.5.


 


(d)                                 No
Employee or Former Employee will be entitled to any payment, benefit or right
from ABB or any Affiliate of ABB (other than an Acquired Company) in connection
with the execution of this Agreement or the consummation of the transactions
contemplated hereby, provided that any amounts described in Section 7.5 which
are required to be paid by the Acquired Group are duly paid.


 


5.13.                                                                        Taxes


 


5.13.1                                                                  Tax
Returns


 


Except as set forth in Section 5.13.1 of the
Disclosure Schedule, all material Tax Returns that are required to be filed on
or prior to the date of this Agreement with respect to the assets, income or
operations of any Acquired Company have been filed when due,


 


41

















 


including any period of extension, and have been true, correct and
complete in all material respects.


 


5.13.2                                                                  Payment
of Taxes


 


All material Taxes with respect to taxable periods
covered by the Tax Returns referred to in Section 5.13.1 have been paid when
due and payable, after giving effect to any applicable extensions.


 


5.13.3                                                                  Tax
Controversies


 


Except as set forth in Section 5.13.3 of the
Disclosure Schedule: (i) since January 1, 2001 and until the date of this
Agreement, there have been no audits that resulted in a material adjustment to
Taxes of the Acquired Group; (ii) no audits or administrative proceedings or
court proceedings are pending as of the date of this Agreement with regard to
Taxes or Tax Returns of any Acquired Company; (iii) since January 1, 2001 and
until the date of this Agreement, no written notice of such audit,
administrative proceeding or court proceeding has been received by ABB or any
of its Affiliates that relates to any Acquired Company.


 


5.13.4                                                                  Tax
Withholdings


 


Each Acquired Company has, within the time and manner
prescribed by Law, withheld and paid over to the proper governmental
authorities all amounts required to be so withheld and paid over by such
Acquired Company under applicable Laws.


 


5.13.5                                                                  Extensions


 


No Acquired Company has entered into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
Taxes of any Acquired Company that has not expired.


 


5.13.6                                                                  Tax
Sharing Agreements


 


No Acquired Company is party to or bound by any
written Tax sharing agreement, Tax indemnity obligation or other similar
Contract with respect to Taxes, pursuant
to which Purchaser or any Acquired Company could have Tax liability after the
Measurement Date.  Except as set forth
in Section 5.13.6 of the Disclosure Schedule, no Acquired Company has
been included in any “consolidated,” “unitary” or “combined” Tax Return
provided for under the law of the United States, any foreign jurisdiction or
any state or locality with respect to Taxes for any taxable period for which
the statute of limitations has not expired (other than a group of which the
members of the Acquired Group are the only members).


 


5.13.7                                                                  Inclusions
Attributable to Prior Periods


 


Sirius America will not be required to include in a
taxable period ending after the Measurement Date taxable income attributable to
income that accrued in a prior taxable period but was not recognized in any
prior taxable period as a result of the installment method of accounting, the
long-term contract method of accounting, the cash method of accounting or
Section 481 of the Code or comparable provisions of applicable Law, or for any
other reason.


 


42

















 


5.13.8                                                                  Jurisdictions


 


Since January 1, 2001 and until the date of this
Agreement, no written claim has been made by any taxing authority in a
jurisdiction in which an Acquired Company does not file Tax Returns that it is
or may be subject to material Taxes in that jurisdiction.


 


5.13.9                                                                  Distributions


 


Since January 1, 2001, Sirius America has not
constituted either a “distributing corporation” or a “controlled corporation”
as such terms are defined in Section 355(a)(1)(A) of the Code in a distribution
of stock or securities intended to qualify for Tax-free treatment (in whole or
in part) under Section 355 of the Code.


 


5.14.                                                                        Litigation


 


Except as set forth in Section 5.14 of the Disclosure
Schedule, there are no claims, actions, suits, investigations of which ABB has
knowledge, arbitrations or legal, administrative or other proceedings pending
and, to the knowledge of ABB, none are presently threatened in writing against
any Acquired Company before or by any court, governmental authority or
arbitrator, except for any action, suit, proceeding or investigation (i) with
respect to claims under Direct Insurance Agreements to which Sirius America is
a party arising in the ordinary course of the business of Sirius America; or
(ii) which if adversely determined, individually, is not reasonably likely to
(x) require monetary payments by the Acquired Group, in the aggregate, of more
than SEK 5,000,000 (or its foreign currency equivalent); (y) result in an
order, injunction or other equitable relief or relief for non-monetary damages
against an Acquired Company which is reasonably likely to impede to any
material extent the operation of the Business as operated by such Acquired
Company at the date of this Agreement; or (z) result in a Material Adverse
Effect.  Since January 1, 2003, except
with respect to payments made in the ordinary course in connection with Assumed
Reinsurance Agreements, Ceded Reinsurance Agreements, Direct Insurance
Agreements or Reinsurance Pools, there have been no payments in excess of the
sum of SEK 5,000,000 (or its foreign currency equivalent) with respect to any
threatened or previously outstanding individual action, suit, arbitration or
other legal proceeding made by or on behalf of any Acquired Company.


 


5.15.                                                                        Environmental Matters


 


Other than pursuant to its obligations under Direct
Insurance Agreements, Assumed Reinsurance Agreements, Ceded Reinsurance
Agreements or Reinsurance Pools: (i) each Acquired Company is in compliance
with, and since January 1, 2001 has been in compliance with, all applicable
Laws and Orders relating to human health or the environment (“Environmental
Laws”), and none of the Acquired Companies has received (x) any written
communication from a governmental authority that alleges that the Acquired
Company is in violation of, or has liability under, any Environmental Law or
(y) any written request for information under any Environmental Law; (ii) each
Acquired Company has obtained, and is in compliance with, all Permits required
under such Environmental Laws; (iii) there are no proceedings, actions, claims,
demands, investigations of which ABB has knowledge or written notices of
noncompliance or violation arising out of or relating to Environmental Law (“Environmental
Claims”) by any governmental authority or by any other Person pending or, to
the knowledge of ABB, threatened in writing against any Acquired Company; and
(iv) there has been no Release of any Hazardous Material that would reasonably
be expected to


 


43

















 


form the basis of an Environmental Claim against any of the Acquired
Companies, or against any Person whose liabilities for such Environmental
Claims an Acquired Company has, or may have, retained or assumed, either
contractually or by operation of Law.


 


5.16.                                                                        Insurance


 


(a)                                  Section
5.16 of the Disclosure Schedule contains a true and correct list, as of the
date of this Agreement, of all Insurance Policies (excluding, for the avoidance
of doubt, any Assumed Reinsurance Agreements, Ceded Reinsurance Agreements,
Direct Insurance Agreements or Reinsurance Pools) in force as of the date of
this Agreement.  All such Insurance
Policies are, in all material respects, in full force and effect, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors rights generally from time to time in effect and, where
applicable, to general principles of equity.


 


(b)                                 Since
January 1, 2003, no Acquired Company, or any Person acting on its behalf, has
failed to give any material notice or to present any material claim under any
Insurance Policy or surety bond in due and timely fashion, except where such
failure has not, and is not reasonably likely to, materially adversely affect
the right to recover under such Insurance Policy.  ABB has delivered to Purchaser the reports, if any, prepared
since December 31, 2002 for the Acquired Group on: (i) accidents, casualties or
damages occurring on or to the properties or assets of the Acquired Group; and
(ii) claims by the Acquired Group for damages, reimbursement of losses,
contribution or indemnification under any Insurance Policy and settlements or
negotiations of settlements relating thereto.


 


5.17.                                                                        Agents


 


Section 5.17(1) of the Disclosure Schedule sets
forth each agent, broker, intermediary or producer who produced business for an
Acquired Company during either of the years ended December 31, 2001 and 2002
(other than those brokers recorded in the Quantel system, which brokers
generated aggregate premia of less than SEK 10 million, in the two year period
to December 31, 2002).  Except as
otherwise set forth in Section 5.17(2) of the Disclosure Schedule, between
January 1, 2002 and the date of this Agreement, no Person listed in Section
5.17(1) of the Disclosure Schedule has given written notice of termination to,
or been given written notice of termination by, ABB or any Acquired Company and
neither ABB nor any of its Affiliates has received written notice that any of
the foregoing is not duly licensed.


 


5.18.                                                                        Accounts with Financial Institutions


 


Section 5.18 of the Disclosure Schedule sets forth a
true and correct list, as of the date of this Agreement, of all safe deposit
boxes, active bank accounts and other time or demand deposits of the Acquired
Group, together with the names and addresses of the applicable financial
institution or other depository, the account number, the contact person at the
applicable financial institution and the names of all persons who are
authorized to draw thereon by any Acquired Company.


 


5.19.                                                                        Continuing Business Relationships


 


Except as set forth in Section 5.19 of the Disclosure
Schedule, neither ABB nor any of its Affiliates has received, as at the date of
this Agreement, any written notice


 


44

















 


from any insured, reinsured, retrocedent or retrocessionaire of the
Acquired Group accounting for, or relating to, more than five percent (5%) of
the gross written premiums for the Acquired Group in 2002 that such entity will
cease to do business or materially adversely change its volume of business with
any Acquired Company as a result of this Agreement or the consummation of the
transactions contemplated hereby.


 


5.20.                                                                        Brokers


 


Except for Deutsche Bank AG, no broker, finder or
investment banker is entitled to any brokerage, finder’s or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of ABB or any of its
Affiliates.  ABB and its Affiliates
(other than the Acquired Group) are solely responsible for the fees and expenses
of Deutsche Bank AG.


 


5.21.                                                                        Solvency


 


Neither ABB
nor any of its parent companies has ceased payment of its debts when they fall
due and none of them are insolvent or unable to pay its debts according to the
Federal Act of Switzerland of 11 April 1889 on Debt Enforcement and
Bankruptcy.  No order has been notified and no resolution has been
passed for the winding up of ABB or any of its parent companies or for a
provisional liquidator to be appointed in respect of ABB or any of its parent
companies and no petition has been presented and no meeting has been convened
for the purpose of winding up ABB or any of its parent companies.  No receiver, including an administrative
receiver, has been appointed in respect of ABB, any of its parent companies or all
or any of their respective assets. 
Neither ABB nor any of its parent companies is subject to a composition
plan or a moratorium and no commissioner has been appointed in this respect.


 


5.22.                                                                        Alstom Instruments


 


Section 5.22 of the Disclosure Schedule sets forth (i)
a true and correct list of each bond, note, debenture, security, right or other
financial instrument or financial guarantee that has been issued by any member
of the Acquired Group in connection with the Financial Risks Business and
provides insurance, reinsurance, indemnification or any other obligation (other
than a Direct Insurance Agreement providing first-party insurance coverage of
the property or assets of Alstom Schweiz AG, Alstom Sweden AB or their
Affiliates, successors and assigns (the “Alstom Group”)) for the
financial obligations, losses or commitments of any Person who was a member of
the Alstom Group at the time such financial instrument or financial guarantee
was issued (collectively, the “Alstom Instruments”) and (ii) the face
value or policy limit of each Alstom Instrument.


 


5.23.                                                                        ABB Instruments


 


Section 5.23 of the Disclosure Schedule sets forth (i)
a true and correct list of each bond, note, debenture, security, right or other
financial instrument or financial guarantee that has been issued by any member
of the Acquired Group and provides insurance, reinsurance, indemnification or
any other obligation (other than a Direct Insurance Agreement providing
first-party insurance coverage of the property or assets of any member of the
ABB Group) for the financial obligations, losses or commitments of any Person
who was a member of the ABB Group at the time such financial instrument or
financial guarantee


 


45

















 


was issued (other than an Acquired Company) (collectively, the “ABB
Instruments”) and (ii) the face value or policy limit of each ABB
Instrument.


 


5.24.                                                                        Sirius
America Contracts


 


Except as set forth in Section 5.24 of the Disclosure
Schedule, Sirius America is not a party to any Contract: (i) containing a
provision limiting the ability of Sirius America or any Affiliate of Sirius
America to engage in any line of insurance or reinsurance business in any
geographical area or to compete with any Person; or (ii) providing for “exclusivity”
as a result of which Sirius America or any Affiliate of Sirius America is
restricted with respect to distribution and marketing.


 


ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF PURCHASER


 


Purchaser represents and warrants to ABB, as of the
date of this Agreement and as of the Closing Date, as follows:


 


6.1.                                                                              Organization


 


Purchaser is a company duly organized, validly
existing and in good standing under the laws of Sweden and has all requisite
corporate power and authority to own its properties and assets and to carry on
its business as presently being conducted.


 


6.2.                                                                              Authority


 


6.2.1                                                                        Company
Power and Authority


 


Purchaser has all requisite company power and
authority to execute, deliver and perform this Agreement, and to consummate the
transactions contemplated hereby.  The
execution and delivery by Purchaser of this Agreement, the consummation by
Purchaser of the transactions contemplated hereby and the performance by
Purchaser of the provisions of this Agreement have been duly authorized by all
necessary company action (including action of the board of directors and, if
required, the shareholders) on the part of Purchaser.  This Agreement has been duly executed and delivered by Purchaser
and, assuming the due authorization, execution and delivery of this Agreement
by ABB, this Agreement constitutes a legal, valid and binding obligation of
Purchaser enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors rights generally from time to time in effect and, where
applicable, to general principles of equity.


 


6.2.2                                                                        No
Conflicts


 


The execution and delivery by Purchaser of this
Agreement, the consummation by Purchaser and U.S. Purchaser of the transactions
contemplated hereby and the performance by Purchaser and U.S. Purchaser of the
provisions of this Agreement do not conflict with, or result in any violation
or breach of, or default (with or without notice or lapse of time or both)
under, or give rise to a right of, or result in, termination, cancellation or
acceleration of any obligation or to a loss of a material benefit under, or
result in the creation of any Encumbrance on any of the properties or assets of
Purchaser under, or give rise to any


 


46

















 


increased, additional or accelerated rights or entitlements under, any
provision of: (i) the organizational documents of Purchaser or U.S. Purchaser;
or (ii) subject to the governmental filings and other matters referred to
in Section 6.2.3 below, any Law or Order, in each case, applicable to Purchaser
or U.S. Purchaser or any of their respective properties or assets, except, in
the case of clause (ii) for any such conflict, violation, breach or default
which, individually or in the aggregate, does not and is not reasonably
expected to materially adversely affect the ability of Purchaser or U.S.
Purchaser to complete the transactions contemplated hereby.


 


6.2.3                                                                        Governmental
Authorization


 


No consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any governmental
authority is required to be obtained or made by or with respect to Purchaser or
any of its Affiliates in connection with the execution and delivery by Purchaser
of this Agreement, the consummation by Purchaser of the transactions
contemplated hereby or the performance by Purchaser of the provisions of this
Agreement, except for: (i) approvals under applicable competition Law,
including the HSR Act, the German “Gesetz gegen Wettbewerbsbeschränkungen” (act
against restraints of competition) and Law No. 8884/1994 and Resolution No.
15/98 (of August 1998) of the Federative Republic of Brazil; (ii) the approval
of the Swedish Financial Supervisory Authority, the Malaysian insurance
regulator, the Bermuda insurance regulator, the Delaware Insurance Department,
the New York Insurance Department and the insurance department of any State in
the United States where any Acquired Company is deemed commercially domiciled
under such State’s Law; and (iii) those the failure of which to obtain or make,
individually or in the aggregate, do not and are not reasonably expected to
materially impair the ability of Purchaser or any of its Affiliates to perform
its obligations under this Agreement.


 


6.3.                                                                              Financing


 


Purchaser has sufficient funds for the financing of
the payment in full of the International Purchase Price and the U.S. Purchase
Price and all other amounts payable by U.S. Purchaser and Purchaser hereunder
at the U.S. Closing and the Closing.


 


6.4.                                                                              Employees


 


As of the date of this Agreement, neither Purchaser
nor any of its Affiliates has entered into any Contract with any Employee.


 


ARTICLE 7

COVENANTS


 


7.1.                                                                              General


 


Without limiting the generality of any other provision
of this Agreement, each of the parties will use all reasonable efforts to take
all action and to do all things necessary, proper or advisable (including
executing and delivering documents and papers) in order to consummate and make
effective the transactions contemplated hereby and to cause the Closing to
occur as promptly as practicable (including satisfaction, but not waiver, of
the closing conditions set forth in Article 8).


 


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7.2.                                                                              Conduct of Business


 


7.2.1                                                                        Ordinary
Course


 


From the date hereof until the Measurement Date,
except as described in Schedule 7.2.1 or except as otherwise
specifically provided in or specifically contemplated by this Agreement or to
the extent that Purchaser shall have otherwise given its prior written consent
(which consent shall not be unreasonably withheld or delayed), ABB shall cause
each Acquired Company to carry on the Business in the ordinary course of its
business.  From the Measurement Date
until the Closing, except as described in Schedule 7.2.1 or except as otherwise
specifically provided in or specifically contemplated by this Agreement or to
the extent that Purchaser shall have otherwise given its prior written consent
(which consent may be granted or withheld at Purchaser’s sole discretion), ABB
shall cause each Acquired Company to carry on the Business in the ordinary
course of its business.


 


7.2.2                                                                        Preserve
Business


 


Except as otherwise specifically provided in this
Agreement, from the date hereof until the Closing, ABB will cause each Acquired
Company: (i) to use all reasonable efforts to preserve its business
organization, goodwill and Permits; (ii) to take all reasonable steps to retain
the services of its Employees who comply with their employment contracts; (iii)
to comply in all material respects with all Laws applicable to such Acquired
Company; (iv) to take all reasonable steps to preserve the current
relationships of such Acquired Company with its brokers, reinsurance
intermediaries, ceding companies, reinsurers, agents, managing general agents
or underwriters, service providers, suppliers and other Persons with whom such
Acquired Company has significant business relationships; and (v) to use its
reasonable efforts to perform its obligations under all Contracts to which it
is a party or by or to which its Properties or assets are bound or subject; provided,
however, that nothing in clause (iv) above shall require an Acquired
Company to take any action, or desist from any action, which is contrary to the
commercial interests of the Acquired Company.


 


7.2.3                                                                        Maintain
Books, Records and Properties


 


Prior to the Closing, ABB will cause each Acquired
Company to: (i) maintain its books and records in the usual, regular and
ordinary manner consistent with past practice; (ii) continue in full force and
effect the Insurance Policies listed in Section 5.16 of the Disclosure
Schedule, or comparable substitute Insurance Policies, and will promptly notify
Purchaser of any cancellation or non-renewal of such Insurance Policies; and
(iii) use reasonable efforts to maintain all of its properties and assets in
such repair, working order and operating condition as is consistent with past
practice of the Business (subject only to ordinary wear and tear).


 


7.2.4                                                                        Certain
Restrictions


 


Without
limiting the generality of Section 7.2.1, except as otherwise specifically
provided in or specifically contemplated by this Agreement or as described in
Schedule 7.2.1, ABB shall ensure that the Acquired Group will not do any of the
following from the date hereof until the Measurement Date without the prior
written consent of Purchaser (which consent shall not be unreasonably withheld
or delayed):


 


48

















 


(a)                                  merge
or consolidate any Acquired Company with or into any Person or sell, lease or
otherwise dispose of any properties or assets with a value, in the aggregate,
in excess of SEK 5,000,000 (or its foreign currency equivalent) (other than
ordinary course trading of the Investment Portfolio);


 


(b)                                 acquire
any properties or assets with a value in the aggregate in excess of SEK
5,000,000 (or its foreign currency equivalent), except (i) in the ordinary
course of business for fair value and (ii) in ordinary course trading of the
Investment Portfolio consistent with the Investment Guidelines;


 


(c)                                  amend
the certificate of incorporation or by-laws or similar organizational documents
of any Acquired Company;


 


(d)                                 make
any wage or salary increase for, or otherwise amend or terminate the employment
agreement of, any Senior Executive, other than (i) wage or salary increases in
the ordinary course of the business of the applicable Acquired Company and not
in excess of five percent (5%) per annum in the aggregate or (ii) pursuant to a
Contract in existence on the date hereof or entered into after the date of this
Agreement and not in violation of this Agreement;


 


(e)                                  make,
change or revoke any material Tax election or enter into any Contract or
settlement regarding material Taxes with any Tax authority or amend any material
Tax Returns;


 


(f)                                    change
the fiscal year or accounting methods, principles or practices of any Acquired
Company, except as required by generally accepted accounting principles
applicable in the jurisdiction of such Acquired Company (provided that such
revised principles or practices shall not affect the preparation of the Closing
Financial Statements) or, to the extent inconsistent therewith, the statutory
accounting rules applicable to Sirius America;


 


(g)                                 change
in any material respect its underwriting, reinsurance, marketing, establishment
or release of Reserves, establishment or release of safety reserves, investment
or claims adjustment policies or practices or the Investment Guidelines,
except, in each case, as required by Law or by any applicable insurance or
other regulatory authority;


 


(h)                                 declare,
set aside or pay any dividend or other distribution (whether in cash, stock,
property or any combination thereof) in respect of any securities of any
Acquired Company (except (i) dividends paid or distributions made only to
another Acquired Company, (ii) the ABB Distribution and (iii) the Sirius
Holding Dividend) or redeem, repurchase or otherwise acquire any equity
securities of any Acquired Company;


 


(i)                                     revalue
any of its properties or assets, including writing off notes or accounts
receivable, other than in the ordinary course of the business of the applicable
Acquired Company, or as required by applicable Law or generally accepted
accounting principles applicable in the jurisdiction of the applicable Acquired
Company (provided that such revaluations shall not affect the preparation of
the Closing Financial Statements);


 


49

















 


(j)                                     except
as required by applicable Law or collective bargaining agreement or other
Contract: (i) enter into any new employment, bonus, incentive or deferred
compensation, severance or termination agreement with any Senior Executive or
director of such Acquired Company; (ii) establish, adopt or enter into any
collective bargaining agreement, or adopt or amend in any material respect any
Employee Benefit Plan; or (iii) accelerate the vesting of any benefit provided
under, or the funding of, any Employee Benefit Plan;


 


(k)                                  create,
incur, assume or permit to come into existence any Encumbrances on any property
or asset of the Acquired Group other than Permitted Encumbrances and, with
respect to real property, Encumbrances described in Sections 5.8.2(ii) and
(iii);


 


(l)                                     create,
incur or assume any liabilities or obligations in relation to indebtedness for
borrowed money in excess of an aggregate of SEK 1,000,000 (or its foreign
currency equivalent);


 


(m)                               (excluding
any obligation under Contracts entered into in accordance with clause (q)
below) guarantee to a third party the liabilities or obligations of another
Person, enter into any “keep well” or other agreement to maintain the financial
condition of another Person or enter into any Contract having the economic
effect of any of the foregoing;


 


(n)                                 except
as permitted by Section 7.2.4(bb), pay or discharge any material claim,
liability or Encumbrance (whether absolute, accrued, contingent or otherwise),
or waive any material right, in each case other than in the ordinary course of
the business of the applicable Acquired Company or pursuant to binding
contractual obligations of an Acquired Company in existence on the date hereof
or otherwise permitted to be entered into after the date of this Agreement;


 


(o)                                 hire
any new employees or consultants, except for (i) ten such employees or consultants
each earning less than SEK 800,000
(or its foreign currency equivalent) per annum who are hired in the ordinary
course of business, (ii) employees earning less than SEK 800,000 (or its
foreign currency equivalent) per annum hired to replace departed employees or
(iii) any new employees hired to replace a departed Senior Executive whose
replacement is reasonably necessary for the operation of the Business;


 


(p)                                 make
capital expenditures in fixed assets in excess of an aggregate of SEK 1,000,000 (or its foreign currency
equivalent);


 


(q)                                 enter
into any Contract (other than (i) Assumed Reinsurance Agreements, Ceded
Reinsurance Agreements, Direct Insurance Agreements or Reinsurance Pools
entered into in the ordinary course of the business of the applicable Acquired
Company and consistent with the underwriting guidelines of the Acquired Group
as of the date of this Agreement, or (ii) Contracts with managing general
agents, agents or brokers entered into in the ordinary course of the business
of the applicable Acquired Company and not otherwise prohibited by clause (dd)
below) which, if it existed on the date hereof, would be required to be listed
in Section 5.10.2 of the Disclosure Schedule;


 


50

















 


(r)                                    other
than in the ordinary course of the business of the applicable Acquired Company
and, if applicable, consistent with the underwriting guidelines of the Acquired
Group as of the date of this Agreement, amend in any material respect or
terminate any existing Direct Insurance Agreement, Assumed Reinsurance
Agreement, Ceded Reinsurance Agreement, Reinsurance Pool or any Material
Contract;


 


(s)                                  commute
any Direct Insurance Agreement, Assumed Reinsurance Agreement or Ceded
Reinsurance Agreement, other than in connection with the cessation of the
Financial Risks Business, resulting in a gain or loss to such Acquired Company
in excess of SEK 2,000,000 (or its foreign currency equivalent), other than as
required by Law or by any applicable insurance or other regulatory authority;


 


(t)                                    make
any investment in any Affiliate Instrument;


 


(u)                                 make
any investment in non-investment grade securities;


 


(v)                                 abandon,
waive, terminate or otherwise change any of the Permits of the Acquired Group,
except as may be required by Law or by any applicable insurance or other
regulatory authority;


 


(w)                               make
any loan, advance or capital contribution to any Person (other than an Acquired
Company);


 


(x)                                   enter
into or modify any Contract with ABB, any of its Affiliates or any officer,
director or employee of ABB or any of its Affiliates (other than the Acquired
Group);


 


(y)                                 make
any payment or distribution to, or abandon, waive, terminate or otherwise
change any right with respect to, ABB, any of its Affiliates (except the
Acquired Companies) or any officer, director or employee of ABB or any of its
Affiliates (except the Acquired Companies), other than pursuant to binding
contractual obligations of an Acquired Company in existence on the date hereof
or otherwise permitted to be entered into after the date of this Agreement;


 


(z)                                   other
than with respect to Sirius Belgium, adopt a plan of complete or partial
liquidation, dissolution, rehabilitation, restructuring, recapitalization,
re-domestication or other reorganization;


 


(aa)                            enter
into any joint venture, partnership or similar Contract with any Person;


 


(bb)                          settle
or compromise any claims against an Acquired Company resulting in a gain or
loss to such Acquired Company in excess of SEK 5,000,000 (or its foreign
currency equivalent) or any order, injunction or equitable relief reasonably
likely to impede, to any material extent, the business of such Acquired Company
(other than the settlement of claims relating to Direct Insurance Agreements or
under Assumed Reinsurance Agreements, Ceded Reinsurance Agreements or
Reinsurance Pools, in each case in the ordinary course of the business of the
applicable Acquired Company);


 


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(cc)                            solely with respect to
Sirius Holding, engage in any business or activity or create, incur or assume
any liability or obligation, in each case other than (i) the ownership of
shares of capital stock of Sirius International and Sirius Rück and activities
incidental thereto, (ii) the distribution of the Sirius Holding Dividend, (iii)
the payment of Taxes, and (iv) activities necessary to perform its obligations
under the Facility Agreement and Pledge Agreement or to effect the termination
or release of such obligations;


 


(dd)                          enter
into any Contracts relating to the Financial Risks Business, provided that this
provision shall not limit the Acquired Group’s ability to enter into new Ceded
Reinsurance Agreements relating to Contracts in the Financial Risks Business in
existence on or prior to the date of this Agreement or to commute existing
Contracts relating to the Financial Risks Business;


 


(ee)                            take
any action that is reasonably likely to result in any representation or
warranty of ABB contained herein being inaccurate in any material respect at
the Closing or omit to take any action necessary to prevent any such
representation or warranty from being inaccurate in any material respect at
such time; or


 


(ff)                                agree
or make an offer capable of acceptance, whether in writing or otherwise, to do
any of the foregoing.


 


7.2.5                                                                        Purchaser’s
Representatives


 


Purchaser hereby designates Raymond Barrette and
Robert L. Seelig acting severally with authority to grant the approvals on
behalf of Purchaser that may be requested under this Section 7.2.  Purchaser agrees to act promptly in
responding to requests for approvals.


 


7.2.6                                                                        Conduct
of Business After the Measurement Date


 


Without limiting the generality of Section 7.2.1,
except as otherwise specifically provided in or specifically contemplated by
this Agreement, ABB shall ensure that the Acquired Group will not do any of the
following from the Measurement Date until the Closing without the prior written
consent of Purchaser (which consent may be granted or withheld at Purchaser’s
sole discretion):


 


(a)                                  enter
into, amend, commute or terminate any Ceded Reinsurance Agreement (other than
in connection with the cessation of the Financial Risks Business) or any
Reinsurance Pool, other than as required by Law or by any applicable insurance
or regulatory authority;


 


(b)                                 change
in any respect its underwriting, reinsurance, marketing, establishment or
release of Reserves, establishment or release of safety reserves, investment or
claims adjustment policies or practices or the Investment Guidelines, except,
in each case, as required by Law or by any applicable insurance or other
regulatory authority;


 


(c)                                  decrease
the value of the Reserves relating to (i) the EPIX/Hartford dispute identified
as Treaty 260, all underwriting years, in the Scan Re Memo, (ii) the Reliance
Re dispute identified as Treaty 189, all underwriting years, in the Scan Re


 


52

















 


Memo, or (iii) any Scan Re Dispute, in each case below
the value of such Reserve as of the Measurement Date; or


 


(d)                                 take
any action described in Section 7.2.4, provided that (i) the actions
taken by the Acquired Group from the date of this Agreement to the Measurement
Date shall be included, as applicable, in calculating the aggregate values
described in Section 7.2.4 and (ii) any written consent of Purchaser provided
under Section 7.2.4 shall not apply to this Section 7.2.6, including this
clause (d).


 


7.3.                                                                              Access to Information


 


From the date hereof until the Closing, upon
reasonable advance notice, ABB shall: (i) to the extent within its control,
afford the officers, employees and authorized agents and representatives of
Purchaser such reasonable access as Purchaser may from time to time reasonably
request, during normal business hours and in a manner which is not disruptive
to the operations of the Business or the business of ABB or any of its
Affiliates, to the offices, properties, assets, books and records of the
Acquired Group and to its and each member of the Acquired Group’s respective
officers, employees, agents, accountants and actuaries, in each case solely for
the purposes of enabling Purchaser to (w) evaluate the satisfaction of the
conditions set forth in Article 8, (x) prepare for its assumption of
operational responsibility for the Business as from the Closing Date, (y)
prepare for the practicalities of consummating the transactions contemplated by
this Agreement and (z) prepare for implementing disclosure controls and
procedures and internal controls over financial reporting to its satisfaction
from the Closing; and (ii) furnish to Purchaser the following information: (x)
the monthly financial management reports regularly prepared for Sirius
International; (y) the monthly financial management reports regularly prepared
for Sirius America and Scandinavian Re; and (z) the unaudited quarterly
financial reports for the Acquired Group which have been prepared from the ABB
Group’s ABACUS information, and such other information regarding the assets,
properties, goodwill and Business of each member of the Acquired Group as (A)
may exist (in the form in which it already exists), or (B) shall have been
prepared or compiled by or for ABB or any Acquired Company, or (C) which is
reasonably requested from time to time by Purchaser and in ABB’s good faith and
reasonable judgment can be prepared by ABB or any Acquired Company without
undue burden or expense or disruption to the operations of the Business or
other matters required to be performed in accordance with this Agreement.  Neither ABB nor any of its Affiliates shall
be under an obligation to disclose to Purchaser or its representatives any
information the disclosure of which, according to the advice of ABB’s legal
counsel, is restricted by confidentiality obligations or applicable Law or
would jeopardize the legal privilege, if any, accorded to any documents
produced or prepared by the legal representatives of ABB or its
Affiliates.  No investigation or access
to information pursuant to this Section 7.3 shall affect any representation or
warranty or covenant made by ABB to Purchaser hereunder or otherwise affect the
rights and remedies available to Purchaser hereunder.


 


7.4.                                                                              Reasonable
Efforts


 


7.4.1                                                                        Approvals


 


Each party hereto will use all reasonable efforts to
obtain all exemptions, authorizations, consents, orders, approvals and waivers
of all governmental authorities and third parties that are required by Law or
which ABB and Purchaser, acting reasonably, agree are necessary, for its
execution and delivery of, and the performance of its obligations


 


53

















 


pursuant to, this Agreement, and will reasonably cooperate fully with
the other party in promptly seeking to obtain all exemptions, authorizations,
consents, orders, approvals and waivers that are required by Law or which ABB
and Purchaser, acting reasonably, agree are necessary, of all governmental
authorities and third parties for such other party’s execution and delivery of,
and the performance of such other party’s obligations pursuant to, this
Agreement.  Each party hereto agrees to
make an appropriate filing of a Notification and Report Form pursuant to the
HSR Act and, to the extent required by Law, comparable filings and
notifications required to be made by such party under other competition Laws
with respect to the transactions contemplated hereby, in each case as soon as
reasonably practicable after the date hereof, and to supply promptly any
additional information and documentary material that may be requested pursuant
to the HSR Act or such other competition Laws. 
ABB and Purchaser each agree to make all other appropriate filings as
such party may be required to make with the New York Insurance Department, the
Delaware Insurance Department, the Swedish Financial Supervisory Authority and
the Bermuda insurance regulator and such other filings as such party may be required
to make under the insurance and other applicable Laws of the insurance
department of any State in the United States where any Acquired Company is
deemed commercially domiciled under such State’s Law.  The parties hereto will not knowingly take any action that will
have the effect of materially delaying, impairing or impeding the receipt of
any required approvals.  Notwithstanding
the foregoing or any other provision of this Agreement to the contrary, in no
event shall any party hereto be obligated to: (i) agree or proffer to divest or
hold separate, or enter into any licensing or similar arrangement with respect
to, (x) any properties or assets (whether tangible or intangible), or any
portion of any business, of Purchaser or any of its Affiliates; or (y) any
properties or assets (whether tangible or intangible), or any portion of any
business, of any Acquired Company or any Subsidiary of an Acquired Company; or
(ii) litigate any suit, claim, action, investigation or proceeding, whether
judicial or administrative, brought by any governmental entity or third party,
(x) challenging or seeking to restrain or prohibit the consummation of any of
the transactions contemplated hereby; (y) seeking to prohibit or limit in any
material respect the ownership or operation by any Acquired Company, Purchaser
or any of their respective Affiliates, of a portion of the business or
properties or assets of any Acquired Company, Purchaser or any of their
respective Affiliates or to require any such Person to dispose of or hold
separate any portion of the business or properties or assets of any Acquired
Company, Purchaser or any of their respective Affiliates as a result of the
transactions contemplated hereby; or (z) seeking to prohibit Purchaser, any
Acquired Company or any of their respective Affiliates from effectively
controlling in any respect the business or operations of any Acquired Company.


 


7.4.2                                                                        Information,
Assistance and Cooperation


 


(a)                                  Each
party shall furnish to the other party such necessary information and reasonable
assistance as the other party may request in connection with its preparation of
any filing, registration or declaration which is necessary under applicable
Law; provided, however, that no party shall be obligated with
respect to such assistance: (i) to expend any funds except the payment of
the fees and expenses of any applicable attorneys, consultants or other
advisors retained by it and applicable filing fees; or (ii) to take any
actions with respect to its respective businesses or the Business which, in its
reasonable judgment, is materially adverse. 
Each party shall provide the
other party with drafts of all notifications intended to be submitted to any
governmental authorities in connection with Section 7.4.1, shall give the
other party a reasonable opportunity to comment on such draft notifications,
shall consider in good faith such comments and shall not submit such
notifications without the prior approval


 


54

















 


of the other party (which approval shall not be unreasonably withheld
or delayed).  Each party shall be entitled to attend any meetings with the
relevant governmental authorities and each party shall keep the other party
informed on a timely basis of all developments or discussions with such
governmental authorities.


 


(b)                                 Notwithstanding
anything to the contrary, Purchaser shall, and shall cause the Acquired Group
to, in accordance with applicable Law or if none is applicable, the document
retention policy of Purchaser and its Affiliates, retain all books, records and
other documents pertaining to the businesses of the Acquired Group in existence
on the Closing Date and to make the same available for inspection and copying
by ABB or its Affiliate or representatives thereof during reasonable business
hours, upon reasonable request and upon reasonable notice.  No such books, records or documents shall be
destroyed after the Closing Date by Purchaser or a member of the Acquired Group
without first advising ABB in writing and giving ABB a reasonable opportunity
to obtain possession thereof.  Without
limiting the generality of the foregoing, Purchaser shall, and shall cause the
Acquired Group to, make available to ABB, its Affiliates and representatives
all information reasonably deemed necessary or desirable by ABB, its Affiliates
or their representatives in connection with (i) preparing their respective
financial statements and Tax Returns and conducting any audits in connection
therewith or (ii) claims, proceedings, actions, investigations, audits and
other regulatory or legal proceedings involving the operation of the businesses
of the Acquired Group before or after the Closing.


 


(c)                                  Notwithstanding anything to
the contrary, ABB shall, and shall cause the ABB Group to, in accordance with
applicable Law or, if none is applicable, the ABB Group’s document retention
policy, retain all books, records and other documents pertaining to the
businesses of the Acquired Group in existence on the Closing Date and which are
held by ABB or any of its Affiliates (other than an Acquired Company) and to
make the same available for inspection and copying by Purchaser or any of its
Affiliates or representatives thereof during reasonable business hours, upon
reasonable request and upon reasonable notice. 
No such books, records or documents shall be destroyed after the Closing
Date by ABB or any member of the ABB Group without first advising Purchaser in
writing and giving Purchaser a reasonable opportunity to obtain possession
thereof.  Without limiting the generality
of the foregoing, ABB shall, and shall cause the ABB Group to, make available
to Purchaser, its Affiliates and their representatives all information
reasonably deemed necessary or desirable by Purchaser, its Affiliates or their
representatives in connection with (i) preparing their respective financial
statements and Tax Returns and conducting any audits in connection therewith or
(ii) claims, proceedings, actions, investigations, audits and other regulatory
or legal proceedings involving the operation of the businesses of the Acquired
Group (before or after the Closing).


 


7.5.                                                                              Employee Benefit Plans


 


(a)                                  Schedule
7.5(1) sets forth each plan, program or arrangement providing benefits with
respect to retirement, death, disability or voluntary withdrawal from, or
involuntary termination of, employment (“Retirement Benefits”) (whether
funded or unfunded) which transfers to Purchaser or its Affiliates in its
entirety at or after the Closing by operation of law (each, a “Transferred
Plan”).  With respect to the three
pension plans set forth in relation to Germany on Schedule 7.5(1), ABB
shall include, as an accrued liability, the amount derived in accordance with
the accounting principles set forth on Schedule 7.5(1) in the Unaudited
Closing Financial Statements.


 


55

















 


(b)                                 Schedule
7.5(2) sets forth each plan, program and arrangement providing Retirement
Benefits (whether funded or unfunded) maintained by ABB or its Affiliates in
which Employees or Former Employees participate but which will be retained by
ABB following the Closing (“Retained Plans”).  With regard to the Retained Plans, each Employee who participates
in such Retained Plans shall cease to be an active participant under each such
plan effective as of the Closing Date. 
ABB shall calculate and the parties shall use all reasonable efforts to
agree to a transfer payment amount with respect to each Employee who
participates in such Retained Plans in accordance with each such Retained
Plans’ respective rules and applicable Law. 
Following the Closing, such transfer payment amount shall be payable by
ABB to an available plan operated by the Purchaser or any of its Affiliates, of
which the relevant Employee is a member, or to another plan or arrangement
nominated by such Employee.


 


(c)                                  ABB
shall cause the Acquired Group to include as an accrued liability on the
Audited Closing Financial Statements to the extent required by U.S. GAAP any
bonuses (other than those set forth on Section 5.12.5 of the Disclosure Schedule)
payable by an Acquired Company after the Measurement Date to Employees in
respect of periods prior to January 1, 2004.


 


(d)                                 All
liabilities of the Acquired Group as of the Measurement Date relating to any
payment, benefit or right or increased and/or accelerated payment, benefit or
right to which any Employee or Former Employee may be entitled as a result of
(i) any adjustment to the Purchase Price pursuant to any provision of this
Agreement or (ii) the execution of this Agreement or the consummation of the
transactions contemplated hereby, shall be fully accrued on the Audited Closing
Financial Statements to the extent required by U.S. GAAP. Upon request and
proof of payment, ABB shall reimburse the relevant Acquired Company for any and
all payments made after the Measurement Date and not accrued on the Audited
Closing Financial Statements required to be paid by an Acquired Company under
the arrangements set forth on Section 5.12.5 of the Disclosure Schedule, except
for payments made as a result of (i) the termination by an Acquired Company of
an Employee’s employment with such Acquired Company after the Closing, (ii) the
termination by an Acquired Company of an Employee’s employment with such
Acquired Company prior to the Closing if done with the prior written consent of
Purchaser, or (iii) the requirements of collective bargaining agreements
disclosed in Section 5.12.5 of the Disclosure Schedule.


 


7.6.                                                                              Taxes


 


(a)                                  ABB
shall, in a manner consistent with past practice, cause, and shall have the
exclusive authority to cause, each Acquired Company to: (i) file when due (x)
all Tax Returns which are required to be filed with respect to taxable periods
ending on or prior to the date of this Agreement and (y) any other Tax Returns
that ABB determines are due on or prior to the Closing Date, with respect to
the assets, income or operations of each Acquired Company; and (ii) pay all
Taxes shown on such Tax Returns due and payable on or prior to the Closing
Date; provided, however, that ABB shall permit Purchaser to
review and comment on any Tax Return (to the extent, and only to the extent, it
relates to any period after the Measurement Date) prior to filing and no Tax
Returns which relate to any period after the Measurement Date shall be filed
without the written consent of Purchaser (which consent shall not be
unreasonably withheld or delayed).


 


(b)                                 Except
as provided in paragraph (a) of this Section 7.6, Purchaser shall, after the
Closing Date, file all other Tax Returns of the Acquired Group; provided,


 


56

















 


however, that with respect to Tax
Returns covering a taxable period beginning on or prior to the Measurement Date
and ending after the Measurement Date (“Straddle Period”), Purchaser
shall treat items on such Tax Returns in accordance with past practice of ABB
and the Acquired Group and shall allow ABB to review and comment on such Tax
Returns prior to filing and no such Tax Returns shall be filed without the
prior written consent of ABB (which consent shall not be unreasonably withheld
or delayed).


 


(c)                                  ABB
shall cause each Acquired Company to terminate and discharge on or prior to the
Closing Date, without further liability or obligation thereunder, any Tax
sharing agreement, Tax indemnity obligation or similar Contract of any Acquired
Company with respect to Taxes.


 


(d)                                 ABB
shall cause Sirius International to furnish to Purchaser, on or before the
Closing Date, a certificate described in Treasury Regulation Section
1.1445-2(c)(3)(i) stating that Sirius America is not a “United States real
property holding corporation” within the meaning of Section 897(c)(2) of the
Code.


 


7.7.                                                                              Replacement of Directors and Auditors


 


7.7.1                                                                        Election
of New Board and Auditors


 


Promptly after the Closing and subject to applicable
Law, Purchaser shall cause each Acquired Company to hold such shareholders’
meetings and take such other actions as may be required in order to elect a new
board of directors (or other comparable managing body) and elect new auditors.  Purchaser shall ensure that, promptly
thereafter, each Acquired Company makes all necessary filings with the relevant
governmental authorities and takes all other necessary action to register in
the applicable public registry, if required, the resignation of the retiring
board members and the matters decided pursuant to this Section 7.7.1.


 


7.7.2                                                                        Discharge
of Directors


 


Purchaser shall procure that, at the first
shareholders’ meeting or otherwise whenever the question of discharge is raised
after the Closing, each member of the board and, where applicable, the managing
director of each Acquired Company is discharged in full from any liability as a
member of the board or managing director, as the case may be, in relation to
the period prior to the Closing, provided that the auditor of such Acquired
Company has recommended such discharge.


 


7.8.                                                                              No Solicitation/No Hire of Employees


 


For a period of eighteen (18) months from the Closing,
ABB shall not, and shall cause its Affiliates not to, directly or indirectly,
solicit for employment or employ any Employee, without the prior written
consent of Purchaser; provided that: (i) the placing of an advertisement
of a post available to a member of the public generally, the hiring of any
Employee in response to such an advertisement shall not constitute a breach of
this Section 7.8; and (ii) this obligation shall not prevent ABB or any of its
Affiliates from employing, mandating or otherwise engaging any Employee whose
employment with Purchaser or its relevant Affiliate has been terminated by Purchaser
or any of its Affiliates.


 


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7.9.                                                                              No
Solicitation of Offers


 


From the
date of this Agreement, ABB shall not, nor shall it permit any of its
Affiliates to, nor shall they authorize any of their directors, officers or
employees or any investment banker, financial advisor, attorney, accountant or
other representative retained by them or any of their Affiliates to, and they
shall use all reasonable efforts to ensure that such persons do not, directly or
indirectly, (i) solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed to facilitate, any inquiries or
the making of any proposal which constitutes, or is likely to lead to any
proposal to acquire all or any significant portion of any Acquired Company or
(ii) participate in any discussions or negotiations regarding any such
proposal.


 


7.10.                                                                        Notice of Certain Matters


 


7.10.1                                                                  Notices
by ABB


 


(a)                                  Up to the Closing Date, ABB
covenants and agrees to give prompt notice in writing to Purchaser of:  (i) any information evidencing that any
representation or warranty given by it herein was not true and correct as of
the date hereof or will not be true and correct as of the Measurement Date or
the Closing Date, as applicable; (ii) the occurrence of any event which will,
or is reasonably likely to, result in the failure to satisfy a condition
specified in Section 8.1 or 8.2; (iii) any written notice or other written
communication from any third party alleging that the consent of such third
party is required in connection with the transactions contemplated by this
Agreement; (iv) except as prohibited by applicable Law, any notice or other
communication from any governmental entity in connection with the transactions
contemplated by this Agreement; (v) any written notice of, or other written
communication relating to, any default under any Disclosed Insurance Agreement
within the terms of Section 5.10.1(h) or any Material Contract; or (vi) any
change in the officers or directors of any Acquired Company.


 


(b)                                 ABB
covenants and agrees to notify Purchaser of any governmental complaints,
investigations or hearings or adjudicatory proceedings involving any material
property or asset of any Acquired Company and will keep Purchaser reasonably
informed of such events and permit Purchaser’s representatives reasonable
access to all materials prepared by or on behalf of ABB or its Affiliates in
connection therewith (except where, in the good faith judgment of ABB, the
disclosure of any documents produced or prepared by the legal representatives
of ABB or its Affiliates would reasonably be expected to jeopardize the legal
privilege otherwise accorded such documents).


 


7.10.2                                                                  Notices
by Purchaser


 


Purchaser covenants and agrees to give prompt notice
in writing to ABB of:  (i) any
information evidencing that any representation or warranty given by it herein
was not true and correct as of the date hereof or will not be true and correct
as of the Closing Date; (ii) the occurrence of any event which will, or is
reasonably likely to, result in the failure to satisfy a condition specified in
Section 8.1 or 8.3; or (iii) any written notice or other written
communication from any third party alleging that the consent of such third
party is or may be required in connection with the transactions contemplated by
this Agreement.


 


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7.10.3                                                                  Consequences
of Notices


 


The giving of any notice under this Section 7.10 shall
in no way change or modify ABB’s or Purchaser’s representations and warranties
and covenants or the conditions to any party’s obligations contained herein or
otherwise affect the remedies available to Purchaser or ABB hereunder.


 


7.11.                                                                        Intercompany Accounts


 


Except as otherwise specifically provided in this
Agreement, ABB shall cause all intercompany accounts receivable or payable
(whether or not currently due or payable) in an aggregate amount in excess of
SEK 800,000 (or its foreign currency equivalent), including any amounts
receivable or payable in connection with any Affiliate Contract, other than
Direct Insurance Agreements, Assumed Reinsurance Agreements or Ceded
Reinsurance Agreements, between (i) any member of the Acquired Group, on the
one hand, and (ii) ABB, any of its Affiliates (other than the Acquired
Companies), or any of their respective officers, directors or employees, on the
other hand to be settled in full (without any premium or penalty) at or prior
to the Closing.  Within five (5)
Business Days prior to the Closing, ABB shall prepare and deliver to Purchaser
a preliminary statement setting out in reasonable detail the calculation of all
such intercompany account balances as of such date based upon the latest
available financial information as of such date.  ABB shall deliver to Purchaser reasonable supporting
documentation verifying the underlying intercompany charges and transactions.


 


7.12.                                                                        Investment Portfolio


 


Prior to the Closing Date, ABB shall deliver to
Purchaser, within fifteen (15) Business Days after the end of each calendar
month, a true and correct list of all investments constituting the Investment
Portfolio as of the end of such month, the issuer of such investments, the
nominal amount owned and the market value with respect to public investments
(or book value with respect to private investments) of such investments as of
the end of such month.


 


7.13.                                                                        Assignment of Confidentiality
Agreements


 


Prior to or at the Closing, ABB shall cause any
confidentiality agreements entered into by ABB or any of its Affiliates since
January 1, 2002 relating solely to the Business or any properties, assets,
liabilities or activities of any Acquired Company in connection with a sale or
disposition of the Business or a part thereof that are not agreements to which
an Acquired Company is a party to be assigned to an Acquired Company unless
prohibited by the terms of such confidentiality agreement.


 


7.14.                                                                        Amendment of Leases


 


Prior to the Closing, ABB shall use its reasonable
efforts to cause the leases under which ABB or any of its Affiliates (other
than an Acquired Company) leases any real property used by an Acquired Company
immediately prior to the execution of this Agreement to be amended, to the
extent necessary, to permit such Acquired Company to directly lease such real
property after the Closing on terms and conditions consistent in all material
respects with the terms under which ABB or its Affiliates lease such property.


 


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7.15.                                                                        Sirius Belgium


 


After the Closing, Purchaser agrees that: (i) it shall
not liquidate Sirius Belgium prior to the full realization of all refunds,
credits or offsets of Taxes described in Section 9.6.4(b) (including the final
settlement of any Tax Claims relating thereto); and (ii) it shall reasonably
cooperate with ABB and follow ABB’s reasonable instructions (at the expense of
ABB) in the liquidation of Sirius Belgium as soon as practicable after its
receipt of any refunds, credits or offsets contemplated in clause (i) above.


 


7.16.                                                                        Access to Purchaser Auditors


 


From the
delivery of the Audited Closing Financial Statements to ABB and Purchaser
pursuant to Section 3.4.2 until the Closing, ABB shall afford Purchaser’s
auditors, employees and representatives such reasonable access as they may from
time to time reasonably request, during normal business hours and in a manner
which is not disruptive to the operations of the Business or the business of
ABB or any of its Affiliates to the Acquired Group’s and each member of the
Acquired Group’s respective officers, employees, agents, accountants (including
the Business Auditors) and actuaries and to the premises, properties, books,
accounting records and other documents (including supporting contractual
documentation and the work papers of the Business Auditors relating to the
audit of the Financial Statements and the Audited Closing Financial Statements,
provided that Purchaser’s auditors, employees and representatives have
signed any release letter reasonably required by the Business Auditors in
connection therewith) of the Acquired Group or available to the Acquired Group,
in each case solely for the purpose of enabling Purchaser’s auditors, employees
and representatives to prepare and audit a consolidated balance sheet of the
Acquired Group as of December 31, 2003, together with related consolidated
income statements and statements of cash flow for the twelve month period then
ended.


 


7.17.                                                                        Facility Agreement


 


ABB shall promptly after the date of this Agreement
commence such actions as shall be reasonably necessary to enable it to obtain
the certificates from the Pledge Agent and Lenders required to be delivered
pursuant to Section 8.2(d).


 


7.18.                                                                        Purchaser Disclosure Procedures


 


Prior to the Closing, ABB shall permit Purchaser to
liaise with the Senior Executives to ensure that such controls and procedures
as Purchaser intends to implement for the Acquired Group as and from the
Closing to satisfy its obligations under Rules 13a-15(e) and (f) and 15d-15(e)
and (f) promulgated under the U.S. Securities Exchange Act of 1934, as amended,
can reasonably be implemented with effect from the Closing.  Nothing in this Section 7.18 shall require
ABB to implement any such controls and procedures prior to the Closing.


 


7.19.                                                                        Dividends


 


(a)                                  In
the event that ABB proposes to authorize any Acquired Company to make the ABB
Distribution prior to the delivery by ABB of the Unaudited Closing Financial
Statements pursuant to Section 3.4.1, ABB shall prepare in good faith and in
consultation with the Business Auditors: (i) an unaudited consolidated balance
sheet of the Acquired Group as of December 31, 2003, together with a related
unaudited consolidated income


 


60

















 


statement for the twelve month period then ended, each in accordance with
U.S. GAAP, as applied by the ABB Group in its U.S. GAAP ABACUS reporting system
and in the form of Schedule 3.4.1(2) (the “ABACUS Financial
Statements”); and (ii) a statement showing the calculation of Net Equity
(the “ABACUS Net Equity”), determined on the basis of the ABACUS
Financial Statements and taking into account the adjustments set out in
Schedule 3.4.1(1) (the “ABACUS Net Equity Statement”), and shall deliver
such ABACUS Financial Statements and ABACUS Net Equity Statement to Purchaser
at least five (5) Business Days prior to the date of the ABB Distribution.


 


(b)                                 Within
30 days after the Measurement Date, ABB, after consulting with its auditors,
shall deliver to Purchaser a certificate setting forth the maximum amount, in
Swedish kronor (the “Permitted ABB Distribution Amount”), that ABB in
its good faith and reasonable judgment believes that the Acquired Group may
distribute to ABB or any of its Affiliates (other than the Acquired Companies)
under applicable Law.  ABB shall cause a
member of the Acquired Group to pay a dividend or other distribution (the “ABB
Distribution”) to ABB or any of its Affiliates (other than an Acquired
Company) after the Measurement Date and prior to the Closing but no earlier
than five (5) Business Days after delivery of (i) the Unaudited Closing
Financial Statements and Unaudited Closing Net Equity Statement pursuant to
Section 3.4.1 or (ii) the ABACUS Financial Statements and ABACUS Net Equity
Statement pursuant to this Section 7.19, which ABB Distribution shall be in an
amount (the “ABB Distribution Amount”) equal to the lesser of:


 


(x)                                 the Permitted ABB Distribution Amount;


 


(y)                               (A) the amount by which the ABACUS Net
Equity exceeds the Guaranteed Net Equity if the Unaudited Closing Financial
Statements have not been delivered to Purchaser at least five (5) Business Days
prior to the date of the ABB Distribution; (B) the amount by which the
Unaudited Net Equity exceeds the Guaranteed Net Equity, if the Audited Closing
Financial Statements have not been delivered to Purchaser at least five (5)
Business Days prior to the date of the ABB Distribution; (C) the amount by
which the Audited Net Equity exceeds the Guaranteed Net Equity, if the Final
Closing Financial Statements have not been delivered to Purchaser at least five
(5) Business Days prior to the date of the ABB Distribution; or (D) the amount
by which the Final Net Equity exceeds the Guaranteed Net Equity, if the Final
Closing Financial Statements have been delivered to Purchaser at least five (5)
Business Days prior to the date of the ABB Distribution; or


 


(z)                                   such lesser amount as ABB proposes and
has been approved by Purchaser (such approval not to be unreasonably withheld
or delayed); provided, however, that, without prejudice to
Purchaser’s right of approval generally, it shall not be unreasonable for
Purchaser to withhold its consent if it or any of its Affiliates would (i)
suffer any economic loss (other than an immaterial loss) or (ii) incur any
financing costs.


 


(c)                                  The
parties agree that, notwithstanding any other provisions of this Agreement,
Sirius Holding may pay the Sirius Holding Dividend to ABB or any of its
Affiliates prior to the Measurement Date.


 


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7.20.                                                                        ABB Intellectual Property


 


7.20.1                                                                  Branded
Assets


 


To the extent any trademarks, registered or
unregistered (including logos or other devices), or any trading names owned by
ABB or any of its Affiliates (other than the Acquired Companies) (including,
for the avoidance of doubt, the words “ABB”, “BBC”, “Asea”, “Brown” or
“Boveri”) are included in any business stationery, brochures, technical
literature, drawings and other documents, or are displayed on any premises,
signs, vehicles or uniforms, which are owned by any Acquired Company
(collectively, “Branded Assets”), Purchaser may, for a period of sixty (60)
days after the Closing Date, use such Branded Assets, after which date
it shall cross out, mark over or otherwise cover or redact such references and
otherwise clearly indicate on such Branded
Assets that the Business is no longer owned by ABB or any of its Affiliates
(other than the Acquired Companies).


 


7.20.2                                                                  No
Other Use


 


Except as permitted by Section 7.20.1, Purchaser shall
not, and shall procure that none of its Affiliates shall, after the Closing,
use in any way whatsoever any registered or unregistered trademarks, including
any logos or other devices, or any trading names which are owned by ABB or any
of its Affiliates (other than the Acquired Companies) (including, for the
avoidance of doubt, any reference to “ABB”, “BBC”, “Asea”, “Brown” or
“Boveri”).


 


7.21.                                                                        Amendments to Certain Contracts


 


ABB shall use its
reasonable efforts to cause each Contract set forth on Schedule 7.21 to
be amended, effective as of the Closing, to permit each Acquired Company that
is a party thereto to directly lease the personal property subject to such
Contract directly from the lessor on the terms applicable to each Acquired
Company under such Contract as at the date of this Agreement; provided, however,
that if amending any such Contract will cause the aggregate amounts payable,
determined on a monthly basis, by the Acquired Companies that are a party to
such amended Contract to increase by more than 20% over the aggregate amounts
payable, determined on a monthly basis, by or on behalf of the same Acquired
Companies under the applicable Contract as at the time immediately prior to the
Closing, ABB shall be responsible for 50% of such excess monthly amounts
payable for a period starting from the Closing Date and ending on the date on
which such amended Contract would have terminated in accordance with its terms
and without penalty to any Acquired Company that is a party thereto, assuming a
notice of termination was provided under such amended Contract on the Closing
Date.


 


7.22.                                                                        Employees


 


Purchaser agrees to promptly inform ABB of any
Contract with any Employee that it or any of its Affiliates enters into between
the date of this Agreement and the Closing Date that provides for any payments
or benefits to such Employee as a result of any adjustment to the Purchase
Price pursuant to any provision of this Agreeement.


 


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ARTICLE 8

CONDITIONS TO CLOSING


 


8.1.                                                                              Conditions of Both Parties


 


The obligation of each of ABB and Purchaser to
consummate the transactions contemplated hereby is subject to the fulfillment
of each of the following conditions prior to or at the Closing:


 


(a)                                  no
injunction, restraining order or other order issued by any court of competent
jurisdiction or governmental authority or other legal or regulatory restraint
or prohibition preventing the consummation of the transactions contemplated
hereby shall be in effect;


 


(b)                                 the
consents and authorizations by or of, and filings with and notifications to, governmental
authorities set forth in Schedule 8.1 shall have been obtained or
effected, and all applicable waiting periods set forth in Schedule 8.1
shall have expired or been terminated and, in the case of such consents and
authorizations, shall be in full force and effect;


 


(c)                                  the
U.S. Closing shall have occurred immediately prior to the Closing; and


 


(d)                                 at least fifteen (15) days
shall have passed since the Business Auditors delivered the Audited Closing
Financial Statements and Audited Closing Net Equity Statement to ABB and
Purchaser.


 


8.2.                                                                              Additional Conditions of Purchaser


 


The obligation of Purchaser to consummate the
transactions contemplated hereby is subject to the fulfillment of the following
conditions prior to or at the Closing (which may be waived by Purchaser in
writing in its sole discretion):


 


(a)                                  the
representations and warranties of ABB set forth herein shall be true and
correct, both when made and as of the Closing Date, as if made at and as of
such time (except to the extent expressly made as of an earlier date, in which
case as of such date), except where the failure of such representations and
warranties to be so true and correct, individually or in the aggregate, has not
had and is not reasonably likely to result in a Material Adverse Effect (it
being agreed that for the purpose of calculating whether the effect of breaches
of such representations and warranties have had or are reasonably likely to
result in a Material Adverse Effect, but not for the determination of breaches
themselves, such representations and warranties shall be deemed not qualified
by any references therein to materiality or Material Adverse Effect);


 


(b)                                 ABB
shall have performed and complied in all material respects with all of its
undertakings and agreements required by this Agreement to be performed or
complied with by it prior to the Closing;


 


(c)                                  ABB
shall have delivered to Purchaser a legal opinion from Froriep Renggli, counsel
to ABB and ABB Ltd, substantially in the form of Annex 3,


 


63

















 


addressed to Purchaser and White Mountains Insurance
Group, Ltd. and dated the Closing Date;


 


(d)                                 ABB
shall have delivered to Purchaser either (i) if the Facility Agreement and
Pledge Agreement have not been terminated prior to the Closing, certificates
from the Pledge Agent and each Lender stating: (x) the total amount required to
be paid to the Lenders to cause them to terminate in full the Facility
Agreement and the Pledge Agreement (the “Lenders’ Payment”); and (y)
that the Facility Agreement and Pledge Agreement shall be deemed terminated as
of the Closing Date upon the Lenders receipt of the Lenders’ Payment on such
date, or (ii) if the Facility Agreement and Pledge Agreement have been
terminated prior to Closing, certificates from the Pledge Agent and each Lender
stating: (x) the Facility Agreement and Pledge Agreement have been terminated;
and (y) neither the Facility Agent nor any Lender has any Encumbrances over the
shares of Sirius International;


 


(e)                                  there
shall not be pending any suit, action or proceeding brought by any governmental
authority (i) challenging or seeking to restrain or prohibit the consummation
of any of the transactions contemplated hereby; (ii) seeking to prohibit
or limit in any material respect the ownership or operation by any Acquired
Company, Purchaser or any of their respective Affiliates of a portion of the
business, Properties or assets of any Acquired Company, any Subsidiary of an
Acquired Company, Purchaser or any Affiliate of Purchaser or to require any
such Person to dispose of or hold separate any portion of the business,
Properties or assets of any Acquired Company, any Subsidiary of an Acquired
Company, Purchaser or any Affiliate of Purchaser as a result of the
transactions contemplated hereby; or (iii) seeking to prohibit Purchaser,
any Acquired Company or any of their Affiliates from effectively controlling in
any respect the business or operations of any Acquired Company or any
Subsidiary of an Acquired Company; provided that Purchaser or such of
its Affiliates as are party to such suit, action or proceeding shall use their
reasonable efforts to obtain settlement or discharge of such suit, action or
proceeding, but provided further that Purchaser or its Affiliates shall
not be required to dispose of or hold separate any portion of their businesses
or properties or assets, or those of the Acquired Group, or to accept any
limitations upon the ownership or operation by Purchaser or its Affiliates or
any Acquired Company of a portion of any of the business, properties or assets,
in connection with any such settlement or discharge; and


 


(f)                                    since
the date of this Agreement, there shall not have occurred any change in, or
effect on, the Acquired Group which individually or in the aggregate is, or is
reasonably likely to be, materially adverse to the financial condition of the
Acquired Group, taken as a whole, other than changes or effects resulting from
(i) changes in general economic conditions or financial market conditions
(including currency rate fluctuations and interest rate changes), (ii) any
decline in the value of the Investment Portfolio, (iii) catastrophe events with
an impact in the ordinary course of the Business, (iv) legal or regulatory
changes affecting the property and casualty insurance or reinsurance industry
generally that do not specifically relate to any Acquired Company or
disproportionately affect any Acquired Company (by way of example and not by
way of limitation, the full extent of any change that specifically relates to any
Acquired Company or disproportionately affects any Acquired Company shall be
considered in determining whether there is, or is reasonably likely to be, a
material adverse change or effect on the financial condition of the Acquired


 


64

















 


Group) or (v) the announcement of this Agreement or
the consummation of the transactions specifically contemplated hereby,
including the cessation of the Financial Risks Business pursuant to Section
7.2.4(dd).


 


8.3.                                                                              Additional Conditions of ABB


 


The obligation of ABB to consummate the transactions
contemplated hereby is subject to the fulfillment of the following conditions
prior to or at the Closing (which may be waived by ABB in writing in its sole
discretion):


 


(a)                                  the
representations and warranties of Purchaser set forth herein shall be true and
correct, both when made and as of the Closing Date, as if made at and as of
such time (except to the extent expressly made as of an earlier date, in which
case as of such date) except where the failure of such representations and
warranties to be so true and correct, individually or in the aggregate, has not
materially adversely affected and is not reasonably likely to materially
adversely affect the ability of Purchaser to complete the transactions
contemplated hereby (it being agreed that for the purpose of calculating
whether the effect of breaches of such representations and warranties has
materially adversely affected or is reasonably likely to materially adversely
affect the ability of Purchaser to complete the transactions contemplated
hereby, but not for the determination of breaches themselves, such
representations and warranties shall be deemed not qualified by any references
therein to materiality);


 


(b)                                 Purchaser
shall have performed and complied in all material respects with all of its
undertakings and agreements required by this Agreement to be performed or
complied with by it prior to the Closing;


 


(c)                                  Purchaser
shall have delivered to ABB a legal opinion from Advokatfirman Vinge KB,
counsel to Purchaser, substantially in the form of Annex 4, addressed to ABB
and dated the Closing Date; and


 


(d)                                 Purchaser
shall have delivered to ABB a legal opinion from Conyers, Dill & Pearman,
counsel to White Mountains Insurance Group, Ltd., substantially in the form of
Annex 6, addressed to ABB and dated the Closing Date.


 


8.4.                                                                              Frustration of Closing Conditions


 


No party may rely on the failure of any condition set
forth in Section 8.1, 8.2 or 8.3, as the case may be, to be satisfied if such
failure was caused by such party’s failure, subject to the terms and conditions
of this Agreement, to use reasonable efforts to consummate the transactions
contemplated by this Agreement.


 


ARTICLE 9

LIABILITY AND RELATED MATTERS


 


9.1.                                                                              Indemnification by ABB


 


From and after the Closing, ABB shall indemnify
Purchaser and its Affiliates (including, for the avoidance of doubt, the
Acquired Companies) and each of their respective officers, directors,
employees, heirs, successors and assigns against and hold them harmless


 


65

















 


from (whether in connection with a Third Party Claim or a Direct Claim)
any Loss (payable promptly upon agreement between ABB and Purchaser or upon
final determination of ABB’s liability pursuant to the provisions of Section
11.10, for such Third Party Claim or Direct Claim) by any such Indemnified
Party caused by or resulting from:


 


(a)                                  any
breach of any representation or warranty of ABB contained in Article 5 or in
any certificate delivered by or on behalf of ABB at the Closing (it being
agreed that for purposes of such indemnification, the representations and
warranties of ABB shall, with respect to calculation of Losses only (but not
for determination of breaches), be deemed not qualified by any references
therein to materiality or to the occurrence or reasonable likelihood of a
Material Adverse Effect);


 


(b)                                 any
breach of any obligation of ABB contained in this Agreement;


 


(c)                                  the
liabilities of Sirius Holding on a stand-alone basis (disregarding any
obligations or liabilities of any other Acquired Company) incurred prior to the
Closing;


 


(d)                                 the
Facility Agreement and the Pledge Agreement;


 


(e)                                  the
liabilities of Sirius Belgium (other than liabilities incurred by Sirius
Belgium after the Closing Date as a result of actions taken after the Closing
Date by Purchaser or its Affiliates (including any Acquired Company) and not
authorized in writing by ABB);


 


(f)                                    any
breaches of Law or Contract resulting from the Sirius International Swedish defined
contribution funded Retirement Plan having been converted from a defined
benefit plan to a defined contribution plan (any claims alleged in connection
with any such breaches to be administered in accordance with Section 9.4);


 


(g)                                 any
obligation or liabilities relating exclusively to the ABB Group (excluding the
Acquired Group) for which Purchaser or any of its Affiliates (including, for
the avoidance of doubt, any Acquired Company) becomes liable (excluding, for
the avoidance of doubt, any obligations or liabilities arising out of Contracts
to which an Acquired Company is a party); or


 


(h)                                 any
Retained Plan, other than a Loss resulting from liabilities and obligations
included in the calculation of the transfer payment amounts applicable to such
Retained Plan and agreed by Purchaser and ABB in accordance with Section
7.5(b);


 


provided, however, that ABB shall not be
required to indemnify or hold harmless any Person, and shall not have any
liability:


 


(i)                                     under
clause (a) of this Section 9.1, other than any liability relating to a
representation or warranty of ABB contained in Sections 5.1, 5.2.1, 5.3, 5.4,
5.20 or 5.21 of this Agreement (collectively, the “ABB Specified Claims”),
(x) unless the aggregate of all Losses relating thereto for which ABB would,
but for this proviso, be liable exceeds on a cumulative basis an amount equal
to SEK 55 million, and then only to the extent of any


 


66

















 


such excess; and (y) for any individual breach
where the Loss with respect to such individual breach is less than SEK 5
million, provided, that (i) the term “individual breach” shall mean each
individual breach of a particular warranty and not the aggregation of
individual breaches of a particular warranty into a single breach (e.g.,
if ABB failed to disclose five contracts under a particular warranty, and
the failure to disclose any one of those contracts would be a breach, then the
five contracts together would be considered multiple breaches, of which each
such undisclosed contract would be an “individual breach”), and (ii) for
purposes of the calculation of the Loss with respect to such
individual breach, a series of separate Losses caused by or resulting from
the same individual breach shall be aggregated (e.g., if an
individual breach causes or results in two separate Losses of SEK 3
million each, such Losses shall be aggregated to a sum of SEK 6 million for
purposes of determining whether the “Loss with respect to such
individual breach” is less than SEK 5 million), provided,  however,
that this clause (i) shall not apply with respect to Losses in respect of a
failure to disclose in Section 5.10.1(1), 5.10.1(2), 5.10.1(3), 5.10.1.(4) or
5.10.1(5) of the Disclosure Schedule any Direct Insurance Agreement, Assumed
Reinsurance Agreement, Ceded Reinsurance Agreement, Reinsurance Pool or Scan Re
Agreement required to be disclosed by ABB pursuant to Section 5.10.1 (the “Insurance
Agreement Claims”); and


 


(ii)                                  under
clause (a) of this Section 9.1 for any Losses in excess of an amount equal to
80% of the International Purchase Price; provided, however, that
this limitation shall not apply to any Losses relating to an ABB Specified
Claim.


 


This Section 9.1 shall not apply to any claim for
indemnification with respect to any Taxes, which claims shall be governed by
Section 9.6.


 


9.2.                                                                              Indemnification by Purchaser


 


From and after the Closing, Purchaser shall indemnify
ABB and its Affiliates, officers, directors, employees, heirs, successors and
assigns against and hold them harmless from (whether in connection with a Third
Party Claim or a Direct Claim) any Loss payable promptly upon agreement between
ABB and Purchaser or upon final determination of Purchaser’s liability pursuant
to the provisions of Section 11.10, as applicable, for such Third Party Claim
or Direct Claim by any such Indemnified Party caused by or resulting from:


 


(a)                                  any
breach of any representation or warranty of Purchaser contained in Article 6 or
any certificate delivered by or on behalf of Purchaser at the Closing (it being
agreed that for the purposes of such indemnification, the representations and
warranties of Purchaser shall, with respect to calculation of Losses only (but
not for determination of breaches), be deemed not qualified by any references
therein to materiality); or


 


(b)                                 any
breach of any obligation of Purchaser contained in this Agreement;


 


(c)                                  any
of the employee benefit, bonus, incentive compensation, severance, salary
continuation, termination or retention pay, death benefit, welfare benefit (including
all obligations under Section 4980B of the Code and Part 6 of Subtitle B of
Title I of the Employee Retirement Income Security Act of 1974, as


 


67

















 


amended), profit-sharing, pension, retirement, deferred
compensation, medical, life insurance, disability, accident, accrued leave,
vacation, sick pay, sick leave, unemployment benefit and fringe benefit plans,
programs and arrangements and employment, consulting, termination, retirement
and severance contracts and agreements, including the Transferred Plans, which
transfer to Purchaser or its Affiliates in their entirety at or after the
Closing by operation of Law, other than (i) Losses caused by a failure by ABB
and its Affiliates (including the Acquired Group) prior to the Closing to
comply with Law or the terms of such plans, programs, arrangements, contracts
or agreements or (ii) Losses for which ABB has agreed to indemnify the
Purchaser under Section 9.1;


 


provided, however, that Purchaser shall
not be required to indemnify or hold harmless any Person, and shall not have
any liability:


 


(i)                                     under
clause (a) of this Section 9.2, other than any liability relating to a
representation or warranty of Purchaser contained in Section 6.1 or 6.2.1 of
this Agreement (collectively, the “Purchaser Specified Claims”), (x)
unless the aggregate of all Losses relating thereto for which Purchaser would,
but for this proviso, be liable exceeds on a cumulative basis an amount equal
to SEK 55 million, and then only to the extent of any such excess; and (y) for
any individual breach where the Loss with respect to such
individual breach is less than SEK 5 million, provided, that (i) the
term “individual breach” shall mean each individual breach of a particular
warranty and not the aggregation of individual breaches of a particular
warranty into a single breach (e.g., if Purchaser failed to disclose five
contracts under a particular warranty, and the failure to disclose any one of
those contracts would be a breach, then the five contracts together would be
considered multiple breaches, of which each such undisclosed contract would be
an “individual breach”), and (ii) for purposes of the calculation of the
Loss with respect to such individual breach, a series of separate Losses
caused by or resulting from the same individual breach shall be
aggregated (e.g., if an individual breach causes or results in two
separate Losses of SEK 3 million each, such Losses shall be aggregated to a sum
of SEK 6 million for purposes of determining whether the “Loss with respect to
such individual breach” is less than SEK 5 million); and


 


(ii)                                  under
clause (a) of this Section 9.2 for any Losses in excess of an amount equal to
80% of the International Purchase Price; provided, however, that
this limitation shall not apply to any Losses relating to a Purchaser Specified
Claim.


 


9.3.                                                                              Termination of Indemnification


 


The obligations to indemnify and hold harmless any
party:


 


(a)                                  pursuant
to clause (a) of each of Sections 9.1 and 9.2, other than such obligations
relating to the Insurance Agreement Claims, the ABB Specified Claims or the
Purchaser Specified Claims, shall terminate on the second anniversary of the
Closing Date; provided, however, that such obligations to
indemnify and hold harmless shall not terminate with respect to any item as to
which the Person to be indemnified


 


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shall have, before the second anniversary of the
Closing Date, provided notice with respect to a Third Party Claim or Direct
Claim, as applicable;


 


(b)                                 pursuant
to clause (a) of Section 9.1 for obligations relating to the Insurance
Agreement Claims shall terminate on the fifth anniversary of the Closing Date; provided,
however, that such obligations to indemnify and hold harmless shall not
terminate with respect to any item as to which the Person to be indemnified
shall have, before the fifth anniversary of the Closing Date, provided notice
with respect to a Third Party Claim or Direct Claim, as applicable; and


 


(c)                                  pursuant
to: (i) clause (a) of Sections 9.1 and 9.2 for ABB Specified Claims or
Purchaser Specified Claims; (ii) pursuant to the clauses of Sections 9.1 and
9.2 other than clause (a); (iii) Section 9.8; (iv) Section 9.9; and (v) Section
9.10 shall not terminate with respect to any item as to which the Person to be
indemnified shall have, before the expiration of the applicable statute of
limitations, if any, provided notice with respect to a Third Party Claim or
Direct Claim, as applicable.


 


9.4.                                                                              Procedures Relating to Third Party
and Direct Indemnification Claims


 


9.4.1                                                                        Third
Party Claims


 


(a)                                  In
order for a Person (the “Indemnified Party”) to be entitled to any
indemnification pursuant to this Article 9 in respect of, arising out of or
involving a claim or demand (other than a claim or demand relating to Taxes)
made by any Person other than a party hereto against the Indemnified Party (a “Third
Party Claim”), such Indemnified Party must notify the Person obligated to
provide indemnification pursuant to this Article 9 (the “Indemnifying Party”)
in writing of the Third Party Claim promptly, and in any event within thirty
(30) days, after receipt by such Indemnified Party of written notice of the
Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided under this Agreement
except to the extent the Indemnifying Party shall have been actually and
materially prejudiced as a result of such failure.  Such written notice shall describe in reasonable detail the facts
and circumstances known to the Indemnified Party with respect to the subject
matter of such Third Party Claim. 
Thereafter, the Indemnified Party shall deliver to the Indemnifying
Party promptly, and in any event within ten (10) Business Days after the Indemnified
Party’s receipt thereof, copies of all notices and documents (including court
papers) received by the Indemnified Party relating to the Third Party Claim; provided,
however, that failure to make such delivery shall not affect the
indemnification provided under this Agreement except to the extent the
Indemnifying Party shall have been actually and materially prejudiced as a
result of such failure.


 


(b)                                 If
a Third Party Claim is made against an Indemnified Party, the Indemnifying
Party shall be entitled to participate in the defense thereof and, if it so
chooses and acknowledges its obligation to fully indemnify the Indemnified
Party therefor in accordance with this Agreement, to assume and control the
defense thereof with counsel selected by the Indemnifying Party, the selection
of whom shall be subject to prior consultation and cooperation with the
Indemnified Party for a period of no less than ten (10) days (but not the
consent of the Indemnified Party) unless the Third Party Claim seeks an order
or injunction or other relief requiring a response from the Indemnifying Party
in less than ten (10) days, provided that the Indemnifying Party keeps
the Indemnified Party and its attorneys reasonably informed as to the progress
of the defense and any proposed settlement. 
If the Indemnifying Party so elects to assume the defense of a Third
Party Claim, the


 


69

















 


Indemnifying Party shall not be liable to the Indemnified Party for
legal expenses subsequently incurred by the Indemnified Party in connection
with the defense thereof.  If the
Indemnifying Party assumes such defense, the Indemnified Party shall have the
right to participate in the defense thereof and to employ at its own expense
counsel not reasonably objected to by the Indemnifying Party separate from the
counsel employed by the Indemnifying Party, it being understood that the
Indemnifying Party shall control such defense, subject to the remaining terms
of this Section 9.4.1.


 


(c)                                  The
Indemnifying Party shall be liable for the reasonable fees and expenses of one
primary counsel, and to the extent reasonably required in connection with such
Third Party Claim, one or more local counsel, and such other counsel as may be
reasonably required due to a conflict of interest among Indemnified Parties, in
each case employed by the Indemnified Party for any period during which the
Indemnifying Party has not assumed the defense thereof.


 


(d)                                 If
the Indemnifying Party chooses to defend or prosecute any Third Party Claim,
all the parties hereto shall reasonably cooperate and shall cause their
Affiliates to reasonably cooperate in the defense or prosecution thereof.  Such cooperation shall include the retention
and (upon the Indemnifying Party’s request) the provision to the Indemnifying
Party of records and information that are reasonably relevant to such Third
Party Claim, and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder.


 


(e)                                  Whether
or not the Indemnifying Party assumes the defense of a Third Party Claim, the
Indemnified Party shall not admit any liability with respect to, or settle,
compromise or discharge, such Third Party Claim without the Indemnifying
Party’s prior written consent (which consent shall not be unreasonably withheld
or delayed).  If the Indemnifying Party
assumes the defense of a Third Party Claim, the Indemnified Party shall agree
to any settlement, compromise or discharge of such Third Party Claim that the
Indemnifying Party may recommend and that by its terms (or pursuant to a
binding commitment of the Indemnifying Party) obligates the Indemnifying Party
to pay the full amount (subject to any limitation on payment contained in this
Article 9) of such liability in connection with such Third Party Claim which
releases the Indemnified Party completely in connection with such Third Party
Claim.


 


(f)                                    Notwithstanding
anything to the contrary in this Section 9.4.1, the Indemnified Party may
assume the exclusive right to defend any Third Party Claim (and the
Indemnifying Party shall be liable for the reasonable fees and expenses of one
primary counsel, and to the extent reasonably required in connection with such
Third Party Claim, one or more local counsel, and such other counsel as may be
reasonably required due to a conflict of interest among Indemnified Parties,
incurred by the Indemnified Party in defending such Third Party Claim) if the
Third Party Claim seeks an order, injunction or other equitable relief or relief
for non-monetary damages against the Indemnified Party that cannot be separated
from any related claim for money damages; provided that upon the
non-appealable grant or dismissal of all such applications for an order,
injunction or other equitable relief or relief for non-monetary damages, the
Indemnifying Party may resume the exclusive right to defend such Third Party
Claim.  If all of such injunctive,
equitable and other non-monetary relief portions of the Third Party Claim can
be so separated from that for money damages, the Indemnifying Party shall be
entitled to assume the defense of the portion relating to money damages.  In the event the Indemnified Party assumes
the exclusive right to defend any such Third Party Claim under this Section
9.4.1, the Indemnifying Party will not be bound by any


 


70

















 


determination of such claim or proceeding so defended or any compromise
or settlement effected without its consent (which may not be unreasonably
withheld or delayed).


 


(g)                                 If
the Indemnifying Party shall fail to defend any claim or proceeding for which
it has assumed the defense hereunder, or if, after commencing or undertaking
any such defense, the Indemnifying Party fails to diligently prosecute and defend
or withdraws from such defense, then the Indemnified Party may notify the
Indemnifying Party of this circumstance, and the Indemnifying Party shall have
fifteen (15) days to rectify this failure. 
If such failure is not rectified within such period, then the
Indemnified Party shall have the right to defend such Third Party Claim by
giving the Indemnifying Party written notice of such decision within fifteen
(15) days after the expiration of the fifteen-day cure period referred to in
the previous sentence; provided, however, that the Indemnified
Party shall not admit any liability or consent to the entry of any judgment or
enter into any settlement without the prior written consent of the Indemnifying
Party (which consent shall not be unreasonably withheld or delayed).  If the Indemnified Party assumes the defense
of a Third Party claim pursuant to this Section 9.4.1, the Indemnifying Party
shall be entitled to (i) participate in the defense of such Third Party Claim,
and (ii) employ counsel, at its own expense, separate from the counsel employed
by Indemnified Party.


 


9.4.2                                                                        Direct
Claims


 


In the event any Indemnified Party should have an
indemnification claim against any Indemnifying Party under this Agreement that
does not involve a Third Party Claim being asserted against or sought to be
collected from such Indemnified Party (a “Direct Claim”), the
Indemnified Party shall promptly deliver notice of such Direct Claim to the
Indemnifying Party, which notice must refer to this Section 9.4.2 and expressly
state that the Indemnifying Party’s failure to dispute any such Direct Claim
within thirty (30) days following the Indemnifying Party’s receipt of such
notice shall result in such Direct Claim being conclusively deemed a liability
of the Indemnifying Party pursuant to this Section 9.4.2.  The failure by any Indemnified Party so to
notify the Indemnifying Party shall not relieve the Indemnifying Party from any
liability that it may have to such Indemnified Party, except to the extent that
the Indemnifying Party has been actually and materially prejudiced by such
failure.  If the Indemnifying Party does
not notify the Indemnified Party within thirty (30) days following its receipt
of such notice that the Indemnifying Party disputes such Direct Claim, such
Direct Claim specified by the Indemnified Party in such notice shall be
conclusively deemed a liability of the Indemnifying Party under this Article 9,
and the Indemnifying Party shall pay the amount of such liability to the
Indemnified Party on demand, or in the case of any notice in which the amount
of the Direct Claim is estimated, on such later date when the amount of such
Direct Claim is finally determined; provided that in any such case such
payment shall be made in accordance with Section 9.7.  If the Indemnifying Party disputes its liability with respect to
such Direct Claim in a timely manner, the Indemnifying Party and the
Indemnified Party shall proceed in good faith to negotiate a resolution of such
dispute; provided, however, that either party may at any time
refer such dispute to arbitration pursuant to Section 11.10.


 


9.5.                                                                              Assignment of Rights


 


Promptly upon request by the Indemnifying Party after
having paid in full the Indemnified Party for any Loss in accordance with this
Article 9, the Indemnified Party shall use reasonable efforts to assign, or
cause to be assigned, to the Indemnifying Party or its designated Affiliate any
and all rights (including any rights to indemnification and


 


71

















 


reimbursement) of the Indemnified Party and its Affiliates against any
Person (other than an Affiliate of the Indemnified Party) in relation to and to
the extent of the Loss so indemnified by the Indemnifying Party.


 


9.6.                                                                              Tax Indemnification and Related
Matters


 


Notwithstanding anything in this Agreement to the
contrary:


 


9.6.1                                                                        Tax
Indemnification


 


(a)                                  ABB
shall indemnify Purchaser and its Affiliates and each of their respective
officers, directors, employees, heirs, successors and assigns against and hold
them harmless on an after-Tax basis from (i) all liability for Taxes of each
Acquired Company (including Taxes resulting from any Tax sharing, allocation,
indemnification or similar agreement between any Acquired Company and any other
Person) and each affiliated group of which any Acquired Company is or has been
a member with respect to any taxable period ending on or before the Measurement
Date or with respect to the portion ending on the Measurement Date of any
taxable period that includes (but does not end on) such date (each, a “Pre-Measurement
Tax Period”), to the extent such Taxes are not reflected in the Final
Closing Financial Statements, (ii) all Taxes imposed on the Acquired Companies,
as a result of United States Treasury Regulation Section 1.1502-6(a) (or a similar
provision of state, local or foreign law), (iii) any Taxes in the form of value
added tax imposed by any taxing authority in Switzerland upon any Acquired
Company after the Measurement Date in connection with the Acquired Group being
an Affiliate of the ABB Group prior to the Closing, (iv) all liability for
Taxes of ABB, the Acquired Group and all of their Affiliates arising (directly
or indirectly) as a result of any merger, consolidation or other restructuring
described in Schedule 11.6 prior to the Closing and, except as provided in
Section 11.12.2, all liability for Taxes of ABB, the Acquired Group and all of
their Affiliates arising (directly or indirectly) as a result of the ABB
Distribution or the sale by ABB of the International Shares (but not, for the
avoidance of doubt, the sale of the U.S. Shares), (v) any breach of any
representation or warranty contained in Section 5.13 or a similar provision of
state, local or foreign law, and (vi) all liability for reasonable legal fees
and expenses for any item attributable to any item in clauses (i) through (v).


 


(b)                                 In
the case of a Straddle Period: (i) real, personal and intangible property Taxes
(“Property Taxes”) for the Pre-Measurement Tax Period shall be equal to
the amount of such Property Taxes for such entire Straddle Period multiplied by
a fraction, the numerator of which is the number of days during the Straddle
Period that are in the Pre-Measurement Tax Period and the denominator of which
is the number of days in the Straddle Period; and (ii) all other Taxes for the
Pre-Measurement Tax Period shall be determined based on an actual closing of
the books as if such taxable period ended as of the close of business on the
Measurement Date and, in the case of any Taxes attributable to the ownership of
any equity interest in any partnership or other “flow through” entity, based on
an actual closing of the books as if the taxable period of such partnership or
other “flow through” entity ended as of the close of business on the
Measurement Date.


 


9.6.2                                                                        Tax
Indemnity Payments


 


(a)                                  Any
Tax indemnity payment to be made hereunder shall be paid in accordance with
Section 9.7 and within ten (10) days after the Indemnified Party makes written
demand upon the Indemnifying Party, but in no case earlier than five (5)
Business


 


72

















 


Days prior to the date on which the relevant Taxes are required to be
paid to the relevant taxing authority (including as estimated Tax payments).


 


(b)                                 For the avoidance of doubt, all indemnity
payments under this Section 9.6 shall be made on a one-for-one basis, without
regard to any caps, floors, baskets or other similar limitations.


 


9.6.3                                                                        Tax
Claims


 


(a)                                  If
a claim shall be made by any taxing authority, which, if successful, might
result in an indemnity payment to the Indemnified Party pursuant to this
Section 9.6, the Indemnified Party shall notify in writing the Indemnifying
Party reasonably promptly of such claim (a “Tax Claim”); provided,
however, that the failure to give such prompt written notice shall not
affect the indemnification provided hereunder except to the extent the
Indemnifying Party has actually and materially been prejudiced as a result of
such failure.


 


(b)                                 With
respect to any Tax Claim relating to Taxes with respect to any taxable period
ending on or before the Measurement Date, ABB shall control all proceedings and
may make all decisions in connection with such Tax Claim, including initiating
any claim for refund, amending any Tax Return and contesting, resolving and defending
against any assessment for additional Taxes, notice of Tax deficiency or other
adjustment of Taxes, provided that Purchaser, and counsel of Purchaser’s own
choosing, shall have the right to comment on all aspects of the prosecution or
defense of such Tax Claim that could affect the Taxes of Purchaser or any
Acquired Company after the Measurement Date, and provided further that ABB
shall not settle any Tax Claim that could affect the Taxes of Purchaser or any
Acquired Company after the Measurement Date without the prior written consent
of Purchaser (which consent shall not be unreasonably withheld or
delayed).  Except as provided in the
preceding sentence, Purchaser shall control all proceedings with respect to all
other Tax Claims and may make all decisions in connection with such Tax Claims;
provided, however, that Purchaser or any Affiliate or
representative thereof shall not settle any Tax Claim that could affect the Tax
liability of ABB or any Affiliate thereof before the Measurement Date without
prior written consent of ABB (which consent shall not be unreasonably withheld
or delayed).


 


9.6.4                                                                        Tax
Refunds


 


(a)                                  Except
as provided in Section 9.6.4(b), the amount or economic benefit of any refunds,
credits or offsets of Taxes (including any interest in respect thereof) of any
Acquired Company (including any foreign tax credits for taxes incurred during
any Pre-Measurement Tax Period) for any Pre-Measurement Tax Period, to the
extent not reflected in the Final Closing Financial Statements, shall be for
the account of ABB.  Notwithstanding the
foregoing and provided that Sirius America cannot elect to waive a carryback
without causing its U.S. Affiliates to also waive a carryback, any such
refunds, credits or offsets of income Taxes shall be for the account of
Purchaser to the extent that such refunds, credits or offsets of income Taxes
are attributable (determined on a marginal basis) to the carryback from a
taxable period beginning after the Measurement Date (or the portion of a
Straddle Period that begins on the day after the Measurement Date) of items of
loss, deductions, or other Tax items, of any Acquired Company (or any of their
respective Affiliates, including Purchaser). 
The amount or economic benefit of any refunds, credits or


 


73

















 


offsets of Taxes of any Acquired Company for any taxable period
beginning after the Measurement Date shall be for the account of
Purchaser.  The amount or economic
benefit of any refunds, credits or offsets of Taxes of any Acquired Company for
any Straddle Period shall be equitably apportioned between ABB and Purchaser; provided,
however, that any refunds, credits or offsets of Taxes (including any
interest in respect thereof) reflected in the Closing Financial Statements
shall be excluded from any such apportionment.


 


(b)                                 Notwithstanding
anything to the contrary, the amount or economic benefit of any refunds,
credits or offsets of Taxes (including any interest in respect thereof)
attributable to or resulting from Tax repayments claimed by Sirius Belgium with
respect to reassessments of Taxes with the Belgian tax authorities for any
Pre-Measurement Tax Period (the “Belgian Tax Reassessments”) shall be
for the account of ABB.  ABB and
Purchaser agree that ABB shall prepare and file all amended Tax Returns with
respect to the Belgian Tax Reassessments and shall control any Tax Claim
arising therefrom. Purchaser shall cooperate, so long as such cooperation in
Purchaser’s good faith and reasonable judgment can be made without undue burden
or expense or disruption to the operations of the Business, with ABB’s
reasonable requests for information held by an Acquired Company in order to
enable ABB to prepare the Tax Returns with respect to the Belgian Tax
Reassessments.  Purchaser shall be under
no obligation to utilize any refunds, credits or offsets of Taxes attributable
to or resulting from the liquidation of Sirius Belgium.  If Purchaser, in its sole discretion,
determines that, after first taking into account all other items of income,
gain, loss, deduction, credit or reserve (including safety reserve) that are
available for the relevant taxable period or periods, Sirius International or
any affiliate or successor thereto actually utilized any credits or offsets
resulting from the liquidation of Sirius Belgium and either (i) such
utilization actually reduces the amount of Taxes that Sirius International or
any affiliate or successor thereto otherwise would have been required to pay to
a taxing authority had it not utilized such credits or offsets or (ii) Sirius
International or any affiliate or successor thereto receives a refund or credit
against its Taxes from a taxing authority that it would not otherwise have
received had it not utilized such credits or offsets, then the amount of such
reduction of Taxes paid or the amount of such refund or credit shall be 80
percent for the account of ABB and 20 percent for the account of Purchaser; provided,
however, that ABB agrees to repay to Purchaser its 80 percent portion of
the amount of such reduction or the amount of such refund or credit (plus any
penalties, interest or other charges imposed by a taxing authority) in the
event that (x) it is determined by a taxing authority that Sirius International
was not entitled to such reduction of Taxes paid or (y) Sirius International or
any affiliate or successor thereto is required to repay such refund to a taxing
authority.  ABB and Purchaser agree that
(i) ABB will provide reasonable instructions in the preparation and filing of
all Tax Returns that relate to the liquidation of Sirius Belgium and (ii) all
expenses relating to the liquidation of Sirius Belgium and the preparation of
such Tax Returns shall be borne solely by ABB. 
For the avoidance of doubt, the amount or economic benefit of any
refunds, credits or offsets of Taxes attributable to or resulting from the
Belgian Tax Reassessments or the liquidation of Sirius Belgium shall not in any
way increase Net Equity.


 


(c)                                  Each
party shall forward, and shall cause its Affiliates to forward, to the party
entitled pursuant to this Section 9.6.4 to receive the amount or economic
benefit of a refund, credit or offset to Tax the amount of such refund, or the
economic benefit of such credit or offset to Tax, within 10 days after such
refund is received or after such credit or offset is allowed or applied against
another Tax liability, as the case may be.


 


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9.6.5                                                                        Amended
Tax Returns


 


None of Purchaser and the Acquired Group and any
Affiliate thereof shall file any amended Tax Returns with respect to any
Pre-Measurement Tax Period without prior written consent of ABB (which consent
shall not be unreasonably withheld or delayed).


 


9.6.6                                                                        Termination
of Tax Indemnification


 


The representations and warranties contained in
Section 5.13 shall terminate upon the expiration of the applicable statute of
limitations period.  The obligations to
indemnify and hold harmless a party hereto pursuant to this Section 9.6 shall
terminate at the time the applicable statutes of limitations with respect to
the Tax liabilities in question expire (giving effect to any extension
thereof); provided, however, that such obligations to indemnify
and hold harmless shall not terminate with respect to any Tax as to which the
Indemnified Party shall have, before the expiration of the statute of
limitations, previously made a claim by delivering a notice of such claim
(stating in reasonable detail the basis of such claim) to the Indemnifying
Party.


 


9.7.                                                                              Indemnity Payments


 


Any indemnity payment hereunder (i) shall be made to
Purchaser or ABB, as the case may be, by wire transfer to an account specified
by the Indemnified Party in Swedish kronor in immediately available funds
together with interest thereon from the date of delivery of notice of the Third
Party Claim or Direct Claim, as applicable, by any Indemnified Party to the
date of payment at an annual rate of 3% (such interest shall be calculated on
the basis of a year of 365 days and the actual number of days elapsed),
compounded annually and (ii) shall be treated as an adjustment to the
International Purchase Price for all Tax purposes to the extent permitted by
Law.


 


9.8.                                                                              Scandinavian Re Indemnity


 


9.8.1                                                                        Indemnity
by ABB


 


(a)                                  After
the Closing and subject to clause (c) below, ABB agrees to indemnify Purchaser
and its Affiliates (including, for the avoidance of doubt, the Acquired
Companies) and each of their respective officers, directors, employees, heirs,
successors and assigns against, and hold them harmless from, eighty percent (80%)
of all Losses In Excess Of Reserves (as defined below) incurred by any of them
arising out of or relating to the following disputes involving Scandinavian Re
(the “Scan Re Disputes”):


 


(i)                                     the
BCS Insurance/NAWS dispute identified as item 180 in the Scandinavian Re
Running Reserve Memo dated July 22, 2003 (the “Scan Re Memo”);


 


(ii)                                  the
BIG/Superior National dispute identified as Treaty 201, all underwriting years,
in the Scandinavian Re Memo;


 


(iii)                               the
Gerling dispute identified as Treaty 193, all underwriting years, in the Scan
Re Memo; and


 


(iv)                              the
Verzekerd dispute identified as Treaty 176, all underwriting years, in the Scan
Re Memo.


 


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(b)                                 The
term “Losses In Excess Of Reserves” means all Losses incurred by
Purchaser and any of its Affiliates (including the Acquired Group) with respect
to any Scan Re Dispute after the Measurement Date which are in excess of any
net loss Reserves and any net payables/receivables which are specifically set
forth in the balance sheet included in the Final Closing Financial Statements
with respect to the applicable Scan Re Dispute.


 


(c)                                  Notwithstanding
the fact that, pursuant to clause (a) above, Purchaser shall be liable for
twenty percent (20%) of all Losses In Excess Of Reserves, if the aggregate
liability of Purchaser and its Affiliates and each of their respective
officers, directors, employees, heirs, successors and assigns for such twenty
percent (20%) of Losses In Excess Of Reserves should exceed $4,000,000, then
ABB agrees to indemnify Purchaser and its Affiliates and each of their
respective officers, directors, employees, heirs, successors and assigns for
the portion of all amounts in excess of such $4,000,000.


 


9.8.2                                                                        Payments
by Purchaser


 


(a)                                  After
the Closing, Purchaser agrees that it shall pay to ABB eighty percent (80%) of
all Gains (as defined below) obtained or otherwise recognized by Purchaser or
any of its Affiliates (including the Acquired Group).  Such payment shall be made to ABB or, at ABB’s discretion, one of
its Affiliates, in Swedish kronor, by electronic transfer in immediately
available funds and to the account designated by ABB, within five (5) Business
Days after such Gain has been obtained. 
A Gain shall be deemed to have been “obtained” by Purchaser or its
Affiliates at the time that a final, non-appealable and binding settlement or
resolution of a Scan Re Dispute has been paid.


 


(b)                                 A
“Gain” means the difference (assuming a positive number) between: (i)
the total amount of any net loss Reserves and any net payables/receivables
which have been established in the Final Closing Financial Statements with
respect to any Scan Re Dispute; and (ii) the amount of Losses, if any, actually
incurred or recognized by Scandinavian Re after the Measurement Date under any
final, non-appealable and binding settlement or resolution of such Scan Re
Dispute.  For the avoidance of doubt, in
no case shall the Gain with respect to any Scan Re Dispute be greater than the
total amount of any net loss Reserves and any net payables/receivables which
have been established in the Final Closing Financial Statements with respect to
such Scan Re Dispute.


 


9.8.3                                                                        Prosecution
and Settlement of Scan Re Disputes


 


(a)                                  Notwithstanding
anything to the contrary contained in this Agreement, ABB shall have the right,
in its sole and absolute discretion, to settle or compromise any of the Scan Re
Disputes prior to the Measurement Date; provided, however, that
ABB shall not enter into any such settlement that imposes any injunctive or similar
equitable obligations on any Acquired Company without the prior written consent
of Purchaser (which consent shall not be unreasonably withheld or delayed).


 


(b)                                 After
the Measurement Date and up to the Closing Date, ABB shall not settle or
compromise any of the Scan Re Disputes without the prior written consent of
Purchaser (which consent shall not be unreasonably withheld or delayed).


 


(c)                                  After
the Closing Date, the provisions of Section 9.4 shall apply, mutatis mutandis, in connection with the
defense and prosecution of any remaining Scan Re Disputes; provided, however,
that (i) Purchaser shall have the sole right to control the defense


 


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and prosecution of any remaining Scan Re Disputes and ABB shall not be
able to assume the defense or prosecution of any such Scan Re Dispute and (ii)
Purchaser’s obligation to obtain ABB’s consent (which shall not be unreasonably
withheld or delayed) prior to settling, compromising, or discharging any Scan
Re Dispute shall be conditional on ABB’s diligent review on an ongoing basis of
the facts and law with respect to such Scan Re Dispute and ABB’s employment (at
ABB’s sole expense) of counsel qualified in insurance and reinsurance
litigation to review facts and law with respect to such Scan Re Dispute on
behalf of ABB (the selection of which counsel shall be subject to the prior
consultation and cooperation with Purchaser (but not the consent of Purchaser))
for a period of no less than ten (10) days unless the proposed settlement,
comprise or discharge of such Scan Re Dispute requires a response from ABB in
less than ten (10) days. 
Notwithstanding any other provision of this Agreement, if Purchaser does
not accept any settlement, compromise or discharge of any Scan Re Dispute due
to ABB withholding its consent with respect to such settlement, compromise or
discharge, ABB shall indemnify Purchaser for 100% of any Losses resulting from
the applicable Scan Re Dispute that are in excess of the Losses that would have
resulted from such Scan Re Dispute had such settlement, compromise or discharge
been accepted.


 


9.9.                                                                              Special Indemnity in Respect of
Alstom Instruments


 


(a)                                  After
the Closing, ABB agrees to indemnify Purchaser and its Affiliates (including,
for the avoidance of doubt, the Acquired Companies) and each of their
respective officers, directors, employees, heirs, successors and assigns (the “Alstom
Indemnified Parties”) against, and hold them harmless from, all Losses (the
“Alstom Losses”) arising out of or relating to each Alstom Instrument
listed or required to be listed in Section 5.22 of the Disclosure Schedule,
other than Losses resulting from any action taken by the Alstom Indemnified
Parties to transfer their obligations under such Alstom Instrument to any Person
other than an Affiliate.


 


(b)                                 Notwithstanding
clause (a) above, ABB shall have no obligation to indemnify Purchaser and its
officers, directors, employees, heirs, successors and assigns against, and hold
them harmless from, any Alstom Losses unless Purchaser and its Affiliates shall
have exhausted all remedies available to them (including prosecuting an action
or otherwise litigating), whether in law and/or equity, to prevent such Alstom
Losses from arising or to recover such Alstom Losses from the Alstom Group; provided,
however, that if any member of the Alstom Group should become the
subject of a rehabilitation, liquidation, conservatorship, receivership,
bankruptcy, proceeding for relief or composition of debts or similar proceeding
and such proceeding shall not have been terminated within sixty (60) days from
commencement, Purchaser and its Affiliates shall be deemed to have exhausted
all remedies available to them if Purchaser or any of its Affiliates files a
claim with respect to the Alstom Instrument in connection with such proceeding.


 


9.10.                                                                        Special Indemnity in Respect of ABB
Instruments


 


After the Closing, ABB agrees to indemnify Purchaser
and its Affiliates (including, for the avoidance of doubt, the Acquired
Companies) and each of their respective officers, directors, employees, heirs,
successors and assigns against, and hold them harmless from, all Losses arising
out of or relating to each ABB Instrument listed or required to be listed in
Section 5.23 of the Disclosure Schedule.


 


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9.11.                                                                        Other Limitations; Indemnity Provisions


 


9.11.1                                                                  Losses Accounted for in
Final Closing Financial Statements


 


ABB’s liability hereunder for Losses shall be reduced
to the extent of the amount of (i) any specific provision or reserve in respect
of the relevant Losses established in the Final Closing Financial Statements
and (ii) any general or bulk reserve pool in the Final Closing Financial
Statements that ABB demonstrates was established in respect of the relevant
Losses.


 


9.11.2                                                                  Insurance
Proceeds


 


The amounts which, but for this Section 9.11.2, would
be recoverable under this Agreement, shall be reduced when and to the extent
any insurance proceeds are recovered in respect thereof by the Indemnified
Party or any of its Affiliates under any policy of insurance carried by any of
them (net of all reasonable out-of-pocket expenses incurred in obtaining such
recovery and net of any increase in the relevant insurance premium directly
attributable to such recovery as verified in writing by the relevant insurance
carrier at the time of recovery).


 


9.11.3                                                                  Subsequent Recovery


 


If the
Indemnifying Party pays an amount in discharge of any claim under this
Agreement and the Indemnified Party or any of its Affiliates subsequently
recovers from a third Person a sum which is attributable to the subject matter
of the claim, the Indemnified Party shall promptly pay to the Indemnifying
Party an amount equal to all amounts recovered up to the aggregate amount thus
paid by the Indemnifying Party hereunder.


 


9.11.4                                                                  Claims Satisfied under Other
Provisions


 


For the
avoidance of doubt, it is understood and agreed that to the extent that a claim
with respect to a Loss has been satisfied under a provision of this Agreement,
a claim for indemnification or reimbursement for such Loss may not be made
under any other provision of this Agreement.


 


9.11.5                                                                  Tax Savings


 


The amounts which, but for this Section 9.11.5, would
be recoverable under this Article 9 from an Indemnifying Party shall be (i) increased
by any net Tax cost incurred by the Indemnified Party or any of its Affiliates
arising from receipt of indemnity payments hereunder and (ii) reduced by any
net Tax benefits arising from the incurrence or payment of any Loss.  In computing the amount of any such Tax cost
or Tax benefit, the Indemnified Party shall be deemed to recognize all other
items of income, gain, loss, deduction or credit before recognizing any item
arising from the receipt of any indemnified Loss.  Any indemnification payment hereunder shall initially be
calculated without regard to this Section 9.11.5 and shall be increased or
reduced to reflect any such net Tax cost or net Tax benefit only after the
Indemnified Party has actually realized such cost or benefit.  For purposes of this Agreement, an
Indemnified Party shall be deemed to have “actually realized” a net Tax cost or
a net Tax benefit when and to the extent that the amount of Taxes payable by
such Indemnified Party is increased above or reduced below, as the case may be,
the amount of Taxes that such Indemnified Party would be required to pay but
for the receipt of the


 


78

















 


indemnity payment or the incurrence or payment of such Loss.  If a Tax benefit arising from the incurrence
or payment of a Loss is actually realized prior to the fifth anniversary of the
date of the related payment or payments made by ABB under this Article 9 in
respect of such Loss (“Prior ABB Payments”), Purchaser shall pay to ABB
the amount of such Tax benefit (up to the amount of the Prior ABB Payments) no
later than 15 days after such Tax benefit is actually realized, and any excess
of such Tax benefit over the Prior ABB Payments shall be applied to reduce any
future payments to be made by ABB pursuant to Article 9; provided that
if Purchaser is required to refund any part of such Tax benefit to any taxing
authority for which ABB received the benefit prior to the fifth anniversary of
the related payment made under this Article 9, ABB shall reimburse Purchaser
for the amount of such refund.


 


9.11.6                                                                  Mitigation


 


Neither
party shall have liability hereunder for Losses from a breach of any of its
representations, warranties or covenants to the extent that such Losses would
not have arisen but for a failure by the other party or any of its Affiliates,
upon becoming aware of such breach, to use reasonable efforts to mitigate the
Losses resulting from such breach.


 


9.11.7                                                                  Changes in Laws


 


An
Indemnifying Party shall have no liability hereunder to the extent that any
alteration or repeal or enactment of any applicable Law after the Closing Date
increases the Losses resulting from a failure of any of its representations or
warranties in Article 5 or Article 6.


 


9.11.8                                                                  Right to Cure


 


Each party
agrees that it will promptly inform the other party of any breach of
representation, warranty or covenant in this Agreement by such other party
which may lead to a Direct Claim or a Third Party Claim upon becoming aware of
such breach, so that the other party may commence remedial action; provided,
however, that this Section 9.11.8 shall not in any way affect either
party’s right to indemnification under this Article 9.


 


9.11.9                                                                  Exclusive Remedy


 


Each party
acknowledges and agrees that its sole and exclusive remedy with respect to any
and all claims relating to the subject matter of this Agreement made after the
Closing shall be pursuant to the indemnification and other provisions set forth
in this Article 9, or elsewhere in this Agreement, and hereby waives, to the
fullest extent permitted under applicable Law, any and all rights, claims,
causes of action and remedies (including but not limited to any right to
rescind this Agreement) it may have against the other party under applicable
Law in connection with the transactions contemplated hereby (other than claims
for fraud).  Nothing in this Section
9.11.9 shall limit the right, if any, of such party to (i) obtain specific
performance of this Agreement in the event of the other party’s breach of its
obligations hereunder or (ii) pursue its rights under common law prior to the
Closing with respect to claims relating to the subject matter of this
Agreement.


 


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9.12.                                                                        Survival of Representations and
Warranties and Covenants


 


Except as otherwise expressly stated in this
Agreement, the representations, warranties, covenants and agreements of each
party contained in this Agreement shall survive the Closing indefinitely.


 


9.13.                                                                        Reliance on Representations and
Warranties


 


Each party acknowledges for purposes of any claim by
it with respect to this Agreement that it has not relied on any representations
or warranties of the other party in connection with the transactions
contemplated hereby other than those expressly made in this Agreement or any
certificate delivered by or on behalf of the other party at the Closing; provided
that this Section 9.13 shall not prejudice any rights Purchaser may have in
connection with claims for fraud under applicable Law in connection with the
transactions contemplated hereby.


 


9.14.                                                                        ABB’s Disclosure


 


Each representation or warranty given by ABB in
Article 5 is qualified by any matter which is fairly disclosed in or pursuant
to the Disclosure Schedule (but only to the extent that such disclosure
specifically refers to the Section of this Agreement containing such
representation or warranty) and any matter expressly provided for under the
terms of this Agreement.  Certain
information set forth in the Disclosure Schedule or other Schedules is included
for informational purposes and may not be required to be disclosed pursuant to
this Agreement.  The disclosure of any
information shall not be deemed to constitute an acknowledgement that such
information is required to be disclosed in connection with the representations
and warranties made by ABB in this Agreement or that it is material, nor shall
such information be deemed to establish a standard of materiality.


 


ARTICLE 10

TERMINATION, AMENDMENT AND WAIVER


 


10.1.                                                                        Termination


 


10.1.1                                                                  Termination
Events


 


Notwithstanding anything to the contrary in this
Agreement, this Agreement may be terminated and the transactions contemplated
hereby abandoned at any time prior to the Closing:


 


(a)                                  by
the written consent of ABB and Purchaser;


 


(b)                                 by
either ABB or Purchaser, if the Closing shall not have been consummated by July
31, 2004; provided, however, that the right to terminate this
Agreement under this clause (b) shall not be available to a party whose failure
to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date;


 


(c)                                  by
ABB, if Purchaser in any material respect shall have breached or failed to
perform or comply with any of its representations, warranties, covenants or


 


80

















 


other agreements contained in this Agreement, which
breach or failure to perform or comply: (i) would give rise to the failure of a
condition set forth in Section 8.3; and (ii) has not been, or is incapable of
being, cured by Purchaser within 30 days of Purchaser’s receipt of written
notice thereof from ABB;


 


(d)                                 by
Purchaser, if ABB in any material respect shall have breached or failed to
perform or comply with any of its representations, warranties, covenants or
other agreements contained in this Agreement, which breach or failure to
perform or comply: (i) would give rise to the failure of a condition set forth
in Section 8.2; and (ii) has not been, or is incapable of being, cured by ABB
within 30 days of ABB’s receipt of written notice thereof from Purchaser;


 


(e)                                  by
Purchaser, if there has occurred any change in, or effect on, the Acquired
Group which (i) would give rise to the failure of the condition set forth in
Section 8.2(f); and (ii) has not been, or is incapable of being, cured by ABB
within 30 days of ABB’s receipt of written notice thereof from Purchaser;


 


(f)                                    by
Purchaser, if any proceeding is instituted by ABB (or any parent company of
ABB), or ABB (or such parent company) publicly announces an intention to institute
such a proceeding, to adjudicate any of them bankrupt or insolvent, or seeking
liquidation, winding up or reorganization arrangements, or adjustment,
protection, relief or composition of its debts under any Law relating to
bankruptcy, insolvency or reorganization (but excluding, for the avoidance of
doubt, the merger contemplated by Schedule 11.6 of this Agreement); and


 


(g)                                 by
ABB, if any proceeding is instituted by Purchaser (or any parent company of
Purchaser), or Purchaser (or such parent company) publicly announces an
intention to institute such a proceeding, to adjudicate any of them bankrupt or
insolvent, or seeking liquidation, winding up or reorganization arrangement,
adjustment, protection, relief or composition of its debts under any Law relating
to bankruptcy, insolvency or reorganization.


 


10.1.2                                                                  Notice
of Termination


 


Termination by either party pursuant to this Section
10.1 shall be effected by the giving of written notice thereof to the other
party.


 


10.1.3                                                                  Effects
of Termination


 


If this Agreement is terminated and the transactions
contemplated hereby are abandoned as described in this Section 10.1, this
Agreement shall become null and void and of no further force and effect, except
for the provisions of this Agreement relating to expenses (including but not
limited to Section 11.12), this Section 10.1, and Articles 9 and 11. Nothing in
this Section 10.1 shall be deemed to release either party from any liability
for any breach by such party of the terms and provisions of this Agreement prior
to termination.


 


10.1.4                                                                  Return
or Destruction of Documents


 


If this Agreement is terminated and the transactions
contemplated hereby are abandoned as described in this Section 10.1, Purchaser
shall promptly return to ABB or certify the destruction of: (i) all documents
and other material received by Purchaser or any


 


81

















 


of its Affiliates from ABB and/or its Affiliates relating to such
transactions, whether so obtained before or after the execution hereof; and
(ii) all written information received by Purchaser with respect to the Business
and the other operations of ABB and/or its Affiliates (in each case together
with all copies thereof); provided, however, that Purchaser may
retain any documents that it reasonably determines are relevant in connection
with prosecuting or defending claims arising hereunder.


 


10.2.                                                                        Amendments and Waivers


 


10.2.1                                                                  Amendments


 


This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto by their
duly authorized representatives.


 


10.2.2                                                                  Waivers


 


No delay or failure on the part of any party to
exercise any right, power or remedy in respect of this Agreement shall
constitute a waiver thereof (other than a failure to provide a notice or take
any action which is subject to a time limit as specified in this Agreement).


 


ARTICLE 11

GENERAL PROVISIONS


 


11.1.                                                                        No Announcement; Confidentiality


 


11.1.1                                                                  No
Announcement


 


Each party hereto agrees to keep the existence and
content of this Agreement confidential and will make no public announcement or
other disclosure with respect thereto: (i) without the prior written approval
of the other party (such approval not to be unreasonably withheld or delayed);
(ii) except disclosure made in connection with an offering of notes,
debentures, equity or other securities by either party or any of its Affiliates
and deemed by such party’s counsel to be reasonably necessary or advisable to
comply with applicable Law or (iii) except as required by Law.  ABB, on behalf of itself and its Affiliates,
hereby consents to the disclosure of Confidential Information in respect of the
Acquired Group (but not any member of the ABB Group) by Purchaser and its
Affiliates in connection with the disclosure described in Section 11.1.1(ii).


 


11.1.2                                                                  Confidentiality


 


(a)                                  Neither
party hereto shall, and each party hereto shall use all reasonable efforts to
ensure that none of its Affiliates will, for a period of three (3) years from
the Closing Date, disclose any information of a confidential nature relating to
the Business or any Acquired Company (in the case of ABB) or to ABB (in the
case of Purchaser) to any third Person. 
The obligation of either party under this Section 11.1.2 shall not apply
to any of the following: (i) disclosure of such confidential information
required by applicable Law; (ii) disclosure of such confidential information to
such party’s professional advisors who have been made aware of the confidential
nature of such information; (iii) disclosure of such confidential information
for the purpose of defending any claim against the other party under


 


82

















 


this Agreement or enforcing its rights hereunder (including making any
claims or counterclaims against third parties pursuant to Section 9.4); or
(iv)  disclosure of such confidential
information which is or comes into the public domain other than as a result of
the breach by such party of this Section 11.1.2.


 


(b)                                 Each
party shall have the right to retain copies of all documents delivered or made
available by or to such party or its Affiliates in connection with the
transactions contemplated hereby to the extent reasonably required for the
purpose of defending any claim against it under this Agreement or enforcing its
rights hereunder (including making any claims or counterclaims against third
parties pursuant to Section 9.4).


 


(c)                                  Notwithstanding
any other provision of this Agreement to the contrary, any party to this
Agreement (and any employee, representative or other agent of such party) may
disclose to any and all persons, without limitation of any kind, the U.S.
federal, state and local income Tax treatment and U.S. federal income tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure, except that: (i) U.S.
federal, state and local income tax treatment and U.S. federal, state and local
income tax structure shall not include the identity of any existing or future
party (or any affiliate of such party) to this Agreement except to the extent
necessary to disclose the tax treatment or the tax structure of the
transactions contemplated by this Agreement; and (ii) this provision shall not
permit disclosure to the extent that nondisclosure is reasonably necessary in
order to comply with applicable securities Laws.  Nothing in this Agreement shall in any way limit any party’s
ability to consult any tax advisor (including a tax advisor independent from
all other entities involved in the transactions contemplated by this Agreement)
regarding the U.S. federal, state and local income tax treatment or U.S.
federal, state and local income tax structure of the transactions contemplated
by this Agreement.


 


11.2.                                                                        Cooperation


 


Unless otherwise expressly provided in this Agreement,
whenever the parties are required to cooperate for any particular purpose
hereunder, neither party, nor their respective Affiliates, shall be required to
make any material monetary expenditure, commence or be a plaintiff in any
litigation or offer or grant any material accommodation or concession
(financial or otherwise) to any Person.


 


11.3.                                                                        Entire Agreement


 


This Agreement and the confidentiality undertaking
dated March 20, 2003 given by White Mountains Insurance Group, Ltd. in favor of
Deutsche Bank AG (on behalf of ABB Asea Brown Boveri Ltd) (the “Confidentiality
Agreement”) contain the entire understanding of the parties hereto with
respect to the subject matter contained herein and supersede and cancel all
prior agreements and negotiations, of the parties, respecting such subject
matter.  There are no representations or
warranties of any party hereto with respect to the transactions contemplated hereby
other than those set forth in Articles 5 and 6 herein or made hereunder, in or
under the Confidentiality Agreement or in or under any certificate delivered by
or on behalf of either party at the Closing. There are no agreements of any
party hereto with respect to the transactions contemplated hereby other than
those set forth herein or made hereunder or in or under the Confidentiality
Agreement.


 


83

















 


11.4.                                                                        Severability


 


If at any time any provision of this Agreement is or
becomes invalid, illegal or unenforceable under the laws of the State of New
York, the validity, legality and enforceability of the remainder of this
Agreement shall not be affected. In the event any provision is held in any
proceeding pursuant to Section 11.9 or 11.10 to be invalid, illegal or
unenforceable, the parties shall replace that provision with a new provision
permitted by the laws of the State of New York and having an economic effect as
close as possible to the deficient provision.


 


11.5.                                                                        No Third Party Beneficiaries


 


Except for the provisions of this Agreement relating
to Indemnified Parties, this Agreement shall be directed and interpreted to the
advantage of the parties only and their permitted assignees, and no third Person
shall obtain any rights by virtue hereof.


 


11.6.                                                                        Assignment


 


Neither party may assign its rights or obligations
under this Agreement to any third Person without the prior written consent of
the other party; provided, however, that such consent shall not
be unreasonably withheld or delayed in relation to assignment of rights if the
assignment is to an Affiliate of such party. 
The parties agree that the merger under applicable Law of either party
with any of its Affiliates as described in Schedule 11.6 pursuant to which the
obligations under this Agreement vest in the surviving party shall not
constitute an assignment within this Section 11.6.


 


11.7.                                                                        Notices


 


All notices and other communications that are required
or permitted to be given under this Agreement shall be in writing, in the
English language and shall be deemed to have been duly give or made as of: (i)
the time delivered, if delivered personally against written receipt; or (ii)
the time faxed to the recipient (if the appropriate answerback or fax
confirmation shall have been received). 
All such notices and communications shall be delivered to the following
addresses or numbers (or at such other address or number for a party as shall
be specified by like notice):


 


If to ABB:


 


ABB Holding AG, Zurich

Affolternstrasse 44

8050 Zurich

Switzerland


 


	
  Fax No.:

  	
   

  	
  + 41 43 317 7958

  
	
  Attention:

  	
   

  	
  General Counsel

  



 


If to Purchaser :


 


Lagrummet December
nr 919 AB

(under change of name to “Fund American Holdings AB”)

Reg. No. 556651-1084

Bohusgatan 14,


 


84

















 


SE 10660
Stockholm,

Sweden


 


	
  Fax No.:

  	
   

  	
  + 46-8-714-7611

  
	
  Attention: 

  	
   

  	
  Lena Marie Kjellenberg
  Heynes

  



 


Copied to:


 


White
Mountains Insurance Group, Ltd.

80 South Main Street

Hanover, New Hampshire 03755-2053

U.S.A


 


	
  Fax No.:

  	
   

  	
  + 1 603 643 4592

  
	
  Attention: 

  	
   

  	
  Robert L. Seelig 

  Vice President & General Counsel

  



 


11.8.                                                                        Governing Law


 


This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.


 


11.9.                                                                        Pre-Closing Dispute Resolution


 


11.9.1                                                                  Jurisdiction;
Service of Process


 


Any action or proceeding initiated prior to the
Closing and arising out of or relating to this Agreement or any transaction
contemplated hereby shall be brought in the United States District Court for
the Southern District of New York, or, if a party cannot acquire jurisdiction
in such federal court, shall be brought in the courts of the State of New York,
County of New York, Borough of Manhattan (and the parties shall seek to have
the matter tried by the Special Commercial Part of the New York Supreme Court),
and each of the parties irrevocably submits to the exclusive jurisdiction of
each such court in any such action or proceeding, waives any objection it may
now or hereafter have to venue or to convenience of forum, agrees that all
claims in respect of the action or proceeding shall be heard and determined
only in any such court and agrees not to bring any action or proceeding arising
out of or relating to this Agreement or any transaction contemplated hereby in
any other court; provided, however, that any such action or
proceeding which remains outstanding at the Closing shall be withdrawn from
such court on or prior to the Closing Date and submitted to arbitration
pursuant to Section 11.10.1 without prejudicing in any way any claim of either
party thereto.  For the avoidance of
doubt, any action or proceeding brought under this Section 11.9.1 for which a
judgment has been rendered shall not be deemed an outstanding action or
proceeding at the Closing and neither party may submit such judgment to
arbitration under Section 11.10.1 after the Closing or otherwise appeal or seek
to review such judgment.  The parties
agree that any or all of them may file a copy of this paragraph with any court
as written evidence of the knowing, voluntary and bargained agreement among the
parties irrevocably to waive any objections to venue or to convenience of
forum.  Process in any action or
proceeding referred to in the first sentence of this Section may be served on
any party anywhere in the world.


 


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11.9.2                                                                  Waiver
of Jury Trial


 


Each party hereby waives, to the fullest extent permitted
by applicable Law, any right it may have to a trial by jury in respect of any
action or proceeding initiated prior to the Closing and arising out of or
relating to this Agreement or any transaction contemplated hereby.  Each party (i) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such party would not, in the event of any action, suit or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it
and the other parties have been induced to enter into this Agreement, by, among
other things, the mutual waiver and certifications in this Section 11.9.


 


11.10.                                                                  Post-Closing Dispute Resolution


 


11.10.1                                                            Arbitration


 


Subject to the last sentence of this Section 11.10.1, any
action or proceeding initiated after the Closing and out of or relating to this
Agreement or any transaction contemplated hereby shall be determined, at the
request of either party, by arbitration in the English language conducted in
London, England, in accordance with the then-existing International Arbitration
Rules of the American Arbitration Association (the “Rules”).  The arbitration shall be conducted by three
(3) arbitrators, of which each party shall appoint one (1) arbitrator and the
two (2) arbitrators thus appointed shall appoint the presiding arbitrator (the
“Chairman”).  The Chairman shall (i) be
admitted to practice as an attorney and counselor at law in the State of New
York; (ii) be a partner or of counsel or retired partner or retired of counsel
at a prominent United States-based law firm; and (iii) have expertise in
mergers and acquisitions and international arbitration.  The arbitrators shall permit the parties to
adduce expert testimony in connection with any action or proceeding under this
Section 11.10.1 and shall consider such expert testimony in rendering their
awards.  The arbitrators shall give
reasonably detailed justifications for their awards in any proceeding and any
judgment or award rendered by the arbitrator shall be final, binding and
unappealable and may be entered by any court having jurisdiction thereof.  The parties hereby agree to the institution
of any available “fast track” or other mechanisms or procedures that would have
the effect of streamlining or increasing the speed of the arbitration.  Subject to the last sentence of this Section
11.10.1, any controversy concerning whether a dispute is an arbitrable dispute,
whether arbitration has been waived, whether an assignee of this Agreement is
bound to arbitrate, or as to the interpretation or enforceability of this
paragraph shall be determined by the arbitrators.  In their award, the arbitrators shall allocate, in their
discretion, among the parties to the arbitration, all costs of the arbitration,
including the fees and expenses of the arbitration proceedings and reasonable
attorneys’ fees, costs and expert witness expenses of the parties.  The parties hereto agree to comply with any
award made in any such arbitration proceedings that has become final in
accordance with the Rules and agree to the entry of a judgment in any
jurisdiction upon any award rendered in such proceedings becoming final under
the Rules.  The arbitrators shall be
entitled, if appropriate, to award any remedy in such proceedings, including
monetary damages, specific performance and all other forms of legal and
equitable relief, including punitive damages (to the extent not prohibited by
this Agreement).  The provisions of this
Section 11.10.1 shall not apply to the matters provided for in
Section 3.4 of this Agreement.


 


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11.11.                                                                  Enforcement


 


The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached.


 


11.12.                                                                  Costs, Expenses, Transfer Taxes and Fees


 


11.12.1                                                            Costs
and Expenses


 


Unless otherwise expressly provided in this Agreement,
all costs and expenses incurred in connection with the preparation, negotiation
and implementation of this Agreement and the transactions contemplated hereby
shall be borne by the party incurring such costs and expenses.


 


11.12.2                                                            Transfer
Taxes and Fees


 


All Transfer Taxes and all notarial, registration and
filing fees incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne 25% by Purchaser and 75% by ABB whether or
not the Closing shall have occurred.


 


11.13.                                                                  No Set-Off


 


11.13.1                                                            No
Set-Off


 


Subject to Section 11.13.2, under no circumstances
shall any amounts payable by Purchaser or any of its Affiliates to ABB or any
of its Affiliates or by ABB or any of its Affiliates to Purchaser or any of its
Affiliates, pursuant to this Agreement be set off against each other.


 


11.13.2                                                            Exceptions


 


Each party hereto may set off a sum equal to the
amount of all claims it may have against the other party hereto pursuant to
this Agreement, provided such claims have either been agreed by such other
party or been finally determined to be due in accordance with the provisions of
Section 3.4 or finally adjudged by the arbitrators pursuant to Section 11.9,
against amounts payable by such first party to such other party pursuant to
this Agreement.


 


11.14.                                                                  Further Assurances


 


After the Closing Date, the parties shall execute such
other documents or take, or cause to be taken, such other actions to the extent
they have not been accomplished on or by the Closing Date, as may be required
to transfer the U.S. Shares to U.S. Purchaser or to transfer the International
Shares to Purchaser in accordance with the terms and conditions of this
Agreement.


 


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11.15.                                                                  Certain Insurance


 


11.15.1                                                            Purchaser
Insurance


 


Notwithstanding any provision of this Agreement to the
contrary, each of Purchaser, any of its Affiliates or any of their respective
officers, directors, employees, stockholders (or security or rights holders),
agents, representatives, heirs, successors and assigns under this Agreement may
enter into insurance policies or any other Contract or purchase or otherwise
acquire any financial instruments to indemnify Purchaser, any of its Affiliates
and/or any of their respective officers, directors, employees, stockholders (or
security or rights holders), agents, representatives, heirs, successors and
assigns under this Agreement from any liabilities, contingent or otherwise,
arising from or related to the transactions contemplated by this
Agreement.  Notwithstanding any
provision of this Agreement to the contrary, including Section 9.11.2, the
parties agree that no benefit from such insurance policies, Contracts or
financial instruments shall inure to the benefit of ABB or any of its
Affiliates (except for the Acquired Group).


 


11.15.2                                                            ABB
Insurance


 


Notwithstanding any provision of this Agreement to the
contrary, each of ABB, any of its Affiliates or any of its respective officers,
directors, employees, stockholders (or security or rights holders), agents,
representatives, heirs, successors and assigns under this Agreement may enter into
insurance policies or any other Contract or purchase or otherwise acquire any
financial instruments to indemnify ABB, any of its Affiliates and/or any of its
respective officers, directors, employees, stockholders (or security or rights
holders), agents, representatives, heirs, successors and assigns under this
Agreement from any liabilities, contingent or otherwise, arising from or
related to the transactions contemplated by this Agreement.  Notwithstanding any provision of this
Agreement to the contrary, including Section 9.11.2, the parties agree that no
benefit from such insurance policies, Contracts or financial instruments shall
inure to the benefit of Purchaser and its Affiliates.


 


[signature page
immediately follows]


 


88

















 


Each of the parties hereto has caused this Agreement
to be executed by its duly authorized representatives on the date first set
forth above.


 


	
   

  	
  ABB HOLDING AG, ZURICH

  	
  LAGRUMMET
  DECEMBER NR 919 AB

  (under change of name to “FUND

  AMERICAN HOLDINGS AB”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Erich Koefer

  	
   

  	
  By:

  	
  /s/ Raymond Barrette

  	
   

  
	
   

  	
   

  	
  Name:  Erich Koefer

  	
   

  	
  Name: Raymond Barrette

  
	
   

  	
   

  	
  Title:  Group Vice President

  	
   

  	
  Title: Director of the
  Board

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel Schindleman

  	
   

  	
  By:

  	
  /s/ Lena Kjellenberg
  Heynes

  	
   

  
	
   

  	
   

  	
  Name: Daniel
  Schindleman

  	
   

  	
  Name: Lena Kjellenberg
  Heynes

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Title:  Director of the Board