Exhibit
1.1
2,010,487
ASPEN INSURANCE
HOLDINGS LIMITED
Ordinary
Shares
UNDERWRITING
AGREEMENT
May 13, 2008
Credit
Suisse Securities (USA) LLC
As Representative of
the several
Underwriters named in
Schedule 2
11 Madison
Avenue
New York, NY
10010
Dear Sirs:
1.
Introductory. The
shareholders listed in Schedule 1 hereto (the ‘‘
Selling
Shareholders ’’) propose severally
to sell an aggregate of 2,010,487 outstanding shares of
the ordinary shares, par value $.0015144558 per share (the
‘‘ Ordinary Shares
’’), of
Aspen Insurance Holdings Limited, a Bermuda company (the
‘‘ Company ’’). The Selling
Shareholders shall sell 2,010,487 Ordinary Shares (the
‘‘ Offered Securities
’’)
subject to the terms and conditions set forth herein. The Selling
Shareholders hereby agree pursuant to this agreement (the
‘‘ Agreement ’’) with the Company
and with the several Underwriters named in Schedule 2 hereto (the
‘‘ Underwriters
’’) as
follows:
2.
Representations and Warranties of the Company and the Selling
Shareholders .
(a) The
Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) A
registration statement (No. 333-148245) relating to the
Offered Securities, including a prospectus (the
‘‘ initial registration
statement ’’) has been filed
with the Securities and Exchange Commission (the
‘‘ Commission
’’) and
has been declared effective under the Securities Act of 1933, as
amended (the ‘‘ Act ’’) and either (A) is
not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. Either (A) an additional
registration statement (the ‘‘ additional registration
statement ’’) relating to the
Offered Securities may have been filed with the Commission pursuant
to Rule 462(b) (‘‘
Rule 462(b) ’’) under the Act (if
available) and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities have been duly
registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement
or (B) such an additional registration statement is proposed to be
filed with the Commission pursuant to Rule 462(b) (if available)
and will become effective upon filing pursuant to such Rule, and
upon such filing, the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the
Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed
and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) (‘‘
Rule 462(c) ’’) under the Act or,
in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, ‘‘
Effective
Time ’’ with respect to
the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional
registration statement means (A) if the Company has advised
the Representative that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the
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execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c), or (B) if the Company has advised the Representative
that it proposes to file an amendment or post-effective amendment
to such registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective
by the Commission. If an additional registration statement has not
been filed prior to the execution and delivery of this Agreement
but the Company has advised the Representative that it proposes to
file one, ‘‘ Effective Time
’’ with
respect to such additional registration statement means the date
and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). ‘‘
Effective
Date ’’ with respect to
the initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof.
The initial registration statement, as amended at its Effective
Time, including all material incorporated by reference therein and
including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement (if any) pursuant to the General
Instructions of the Form on which it is filed, is hereinafter
referred to as the ‘‘ Initial Registration
Statement ’’. The additional
registration statement (if any), as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein, is hereinafter referred to as
the ‘‘ Additional Registration
Statement ’’.
‘‘
Registration
Statement ’’ as of any time
means the Initial Registration Statement and any Additional
Registration Statement in the form then filed with the Commission,
including any amendment thereto, any document incorporated by
reference therein and any prospectus deemed or retroactively deemed
to be a part thereof that has not been superseded or modified.
‘‘ Registration Statement
’’
without reference to a time means the Registration Statement as of
the time of the first contract of sale for the Offered Securities,
which time shall be considered the ‘‘effective
time’’ of the Registration Statement. For purposes of
this definition, information contained in a form of prospectus or
prospectus supplement that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Registration Statement as of the
time specified in Rule 430B.
‘‘
Statutory
Prospectus ’’ as of any time
means the prospectus relating to the Offered Securities included in
the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any
basic prospectus deemed to be a part thereof that has not been
superseded or modified. For purposes of this definition,
information contained in a form of prospectus (including a
prospectus supplement) that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Statutory Prospectus as of the
actual time that form of prospectus (including a prospectus
supplement) is filed with the Commission pursuant to Rule 424(b)
(‘‘
Rule 424(b) ’’) under the
Act.
‘‘
Prospectus
’’ means
the Statutory Prospectus that discloses the public offering price
and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
‘‘
Issuer Free
Writing Prospectus ’’ means any
‘‘issuer free writing prospectus,’’ as
defined in Rule 433, relating to the Offered Securities in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
‘‘
General Use Issuer
Free Writing Prospectus ’’ means any Issuer
Free Writing Prospectus that is intended for general distribution
to prospective investors, as evidenced by its being specified in a
schedule to this Agreement.
‘‘
Limited Use Issuer
Free Writing Prospectus ’’ means any Issuer
Free Writing Prospectus that is not a General Use Issuer Free
Writing Prospectus.
‘‘
Applicable
Time ’’ means 8:00 A.M.
(New York City time) on the day after the date of this
Agreement.
(ii) On
the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects
to the requirements of the Act and the rules and
2
regulations of the
Commission (‘‘ Rules and Regulations
’’) and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading. On the Effective
Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading. On the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of
the Prospectus pursuant to Rule 424(b), each Registration
Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading. The four preceding sentences
do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood
and agreed that the only such information is that described as such
in Section 8(b) hereof.
(iii) (A)
At the time of filing of the Registration Statement, (B) at time of
the most recent amendment of the Registration Statement for the
purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the ‘‘ Exchange Act
’’), or
form of prospectus), and (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Offered Securities
in reliance on the exemption of Rule 163, the Company was a
‘‘well-known seasoned issuer’’ as defined
in Rule 405, including not having been an
‘‘ineligible issuer’’ as defined in Rule
405.
(iv) As of
the Applicable Time, neither (a) the General Use Issuer Free
Writing Prospectus(es) issued at or prior to the Applicable Time,
the Statutory Prospectus, the information on Schedule 3 hereto, all
considered together (collectively, the ‘‘
General Disclosure
Package ’’), nor (b) any
individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 8(c)
hereof.
(v) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Offered Securities or until any earlier date that the
Company notified or notifies the Representative as described in the
next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any
time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(a) the Company has promptly notified or will promptly notify the
Representative and (b) the Company has promptly amended or will
promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue
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statement or
omission. The foregoing two sentences do not apply to statements in
or omissions from any Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 8(b)
hereof.
(vi) Neither
the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business (exclusive of reinsurance treaties
and insurance policies covering third-party risks) from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in any Registration Statement and the
Prospectus, there has not been any material adverse change in the
capital stock, the capital or surplus or long-term debt of the
Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus.
(vii) Neither
the Company nor any of Aspen Insurance UK Limited
(‘‘ Aspen U.K .’’) nor Aspen
Insurance Limited (‘‘ Aspen Bermuda
’’)
(together with Aspen U.K., the ‘‘
Designated
Subsidiaries ’’) hold title to any
real property; all of the leases, subleases and licenses under
which the Company or any of its Designated Subsidiaries holds real
properties described in the Prospectus are in full force and
effect, and neither the Company nor any Designated Subsidiary has
any notice of any claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any Designated
Subsidiary under any of the leases, subleases or licenses mentioned
above, or affecting or questioning the rights of the Company or
such Designated Subsidiary to the continued possession of the
leased, subleased or licensed premises under any such lease or
sublease, except where the failure to have such leases in full
force and effect or the failure to have any such notice of any such
claim would not, individually or in the aggregate, result in a
material adverse change in the condition, financial or otherwise,
or in the earnings, results of operations, business affairs,
shareholders’ equity or business prospects of the Company and
its subsidiaries, taken as a whole (a ‘‘
Material Adverse
Effect ’’).
(viii) The
Company has been duly incorporated and is validly existing as an
exempted company in good standing under the laws of Bermuda, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the
failure to so qualify would not result in a Material Adverse
Effect; each of the Designated Subsidiaries has been duly organized
or incorporated and is validly existing as a company or corporation
in good standing (including, in the case of Aspen Insurance
Limited, as an exempted company) under the laws of its jurisdiction
of organization or incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign company or corporation for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the
failure to so qualify would not result in a Material Adverse
Effect; and except for Aspen Specialty Insurance Company
(‘‘ Aspen U.S .’’), Aspen (UK)
Holdings Limited (‘‘ Aspen U.K. Holdings
’’),
Aspen Insurance UK Services Limited (‘‘
Aspen U.K.
Services ’’), Aspen U.S.
Holdings, Inc. (‘‘ Aspen U.S. Holdings
’’),
Aspen Specialty Insurance Management Inc. (‘‘
Aspen
Specialty ’’), Aspen Insurance
U.S. Services Inc. (‘‘ Aspen U.S. Services
’’), AIUK
Trustees Limited, Aspen Re America, Inc. (‘‘
Aspen Re
America ’’), Aspen Management
Agency Limited and Aspen Underwriting Limited
(‘‘ Aspen Lloyd’s
’’), none
of which, other than Aspen U.K. Holdings, is a
‘‘significant subsidiary’’ of the Company
as that term
4
is defined in Rule
1-02(w) of Regulation S-X of the Rules and Regulations, the
Designated Subsidiaries are the only subsidiaries of the
Company.
(ix) The
Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company, including the Offered Securities, have been duly and
validly authorized and issued, are fully paid and non-assessable
and conform to the description of share capital contained in the
Prospectus; and all of the currently issued and outstanding shares
of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and, except as set forth in the Prospectus, are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; the holders of outstanding
shares of capital stock of the Company are not entitled to
preemptive or other rights which have not been complied with; other
than the Offered Securities, there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or
options to purchase Ordinary Shares from the Company, or
obligations of the Company to issue, Ordinary Shares or any other
class of capital stock of the Company (except for (V) up to 870,000
Ordinary Shares provided to eligible employees of the Company and
its designated subsidiaries under the Employee Share Purchase Plan
and 2008 Sharesave Scheme, as approved by shareholders at the
annual general meeting held on April 30, 2008, (W) the
options to purchase Ordinary Shares issued to the Appleby Trust
(Bermuda) Limited, as trustee, which holds the securities for
certain members of Syndicate 2020, (X) the options to purchase
Ordinary Shares issued pursuant to the Company’s 2003 Share
Incentive Plan, (Y) the options to purchase Ordinary Shares issued
pursuant to the Company’s 2006 Stock Option Plan for
Non-Employee Directors, and (Z) the conversion rights associated
with the Company’s 5.625% Perpetual Preferred Income Equity
Replacement Securities); except as disclosed in the Prospectus,
there are no restrictions on subsequent transfers of the Offered
Securities under the laws of Bermuda, as long as the Ordinary
Shares are listed on the New York Stock Exchange (the
‘‘ NYSE ’’), and of the
United States; and except as disclosed in the Prospectus, no party
has the right to require the Company to register
securities.
(x) This
Agreement has been duly authorized, executed and delivered by the
Company.
(xi) There
are no currency exchange control laws or withholding taxes, in each
case of Bermuda or the United Kingdom (or any political subdivision
or taxing authority thereof) that would be applicable to the
payment of dividends (A) on the Offered Securities by the Company
(other than as may apply to residents of Bermuda for Bermuda
exchange control purposes) or (B) by any of the Company’s
subsidiaries to the Company; the Bermuda Monetary Authority (the
‘‘ BMA ’’) has designated
the Company and Aspen Bermuda as non-resident for exchange control
purposes and has granted permission for the issue and free
transferability of the Offered Securities pursuant to the
Registration Statement, as long as the Ordinary Shares are listed
on the NYSE, to and among persons who are non-residents of Bermuda
for exchange control purposes (including permission for the issue
and free transferability of up to 20% of the Offered Securities to
and among persons who are residents of Bermuda for exchange control
purposes); such permission has not been revoked and is in full
force and effect, and the Company has no knowledge of any
proceedings planned or threatened for the revocation of such
permission; the Company and Aspen Bermuda are
‘‘exempted companies’’ under Bermuda law
and have not (V) acquired and do not hold any land for their
respective business in Bermuda, other than that held by way of
lease or tenancy for terms of not more than 50 years, without the
express authorization of the Bermuda Minister of Finance, (W)
acquired and do not hold land by way of lease or tenancy for terms
of not more than 21 years in order to provide accommodation or
recreational facilities for their officers and employees, without
the express authority of the Bermuda Minister of Finance, (X) taken
mortgages on land in Bermuda to secure an amount in excess of
$50,000, without the consent of the Bermuda Minister of Finance,
(Y) acquired any bonds or debentures secured by any land in
Bermuda, except bonds or debentures issued by the government of
Bermuda or a public authority of Bermuda, or (Z) conducted their
business in a manner that is prohibited for ‘‘exempted
companies’’ under Bermuda law; neither the Company nor
Aspen Bermuda has received notification from the BMA or any other
Bermuda governmental authority
5
of proceedings
relating to the modification or revocation of its designation as
non-resident for exchange control purposes, its permission to issue
and transfer the Ordinary Shares or its status as an
‘‘exempted company’’.
(xii) The
execution, delivery and performance of this Agreement, the
compliance by the Company with all of the provisions hereof and the
consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (A) the
certificate of incorporation, memorandum of association, articles
of association, bye-laws, by-laws or other organizational document,
as amended (any such document, a ‘‘
Constitutional
Document ’’), as the case may
be, of the Company or any of its subsidiaries, (B) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject, or (C) any statute or any order, rule
or regulation of any court or governmental agency or body, any
stock exchange authority or any other regulatory authority
(hereinafter referred to as a ‘‘ Governmental Agency
’’)
having jurisdiction over the Company or any of its subsidiaries or
any of their properties, except, in the case of clause (C), as
would not, individually or in the aggregate, result in a Material
Adverse Effect.
(xiii) No
consent, approval, authorization, order, registration or
qualification of or with any Governmental Agency (hereinafter
referred to as the ‘‘ Governmental
Authorizations ’’) is required for
the sale of the Offered Securities or the consummation by the
Company of the transactions contemplated hereby, except (A) the
registration under the Act of the Offered Securities, (B) such
Governmental Authorizations as have been duly obtained and are in
full force and effect and copies of which have been furnished to
the Representative, (C) such Governmental Authorizations as may be
required under state securities laws, Blue Sky laws, insurance
securities laws or any laws of jurisdictions outside the United
States in connection with the purchase and distribution of the
Offered Securities by or for the respective accounts of the
Underwriters, (D) such consents, approvals or authorizations
required by the NYSE in connection with the listing of the Offered
Securities, (E) the filing of the Prospectus with the Registrar of
Companies in Bermuda in accordance with Bermuda law and (F) such
consents, approvals, authorizations, registrations or
qualifications as may be required and have been obtained from the
BMA.
(xiv) Neither
the Company nor any of the Designated Subsidiaries is (A) in
violation of any of its Constitutional Documents or (B) in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement, or instrument to
which it is a party or by which it or any of its properties may be
bound, except, in the case of clause (B), for any such defaults or
violations that would not, individually or in the aggregate, result
in a Material Adverse Effect or as otherwise waived or consented to
by the parties or shareholders to which the Company or the
Designated Subsidiaries owes any obligations under such agreements
or documents.
(xv) No
stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on
behalf of any Underwriter to Bermuda or any political subdivision
or taxing authority thereof or therein in connection with (A) the
sale and delivery of the Offered Securities to or for the
respective accounts of the Underwriters or (B) the sale and
delivery outside Bermuda by the Underwriters of the Offered
Securities to the initial purchasers thereof.
(xvi) Except
as disclosed in the Prospectus, the Company has no knowledge of any
threatened or pending downgrading of the rating accorded the debt
securities or preferred shares of the Company or the financial
strength or claims-paying ability of the Company or any of the
Designated Subsidiaries by A.M. Best Company, Inc., Standard &
Poor’s Ratings Service, a Division of The McGraw-Hill
Companies, Inc. (‘‘ S&P ’’), or Moody’s
Investors Services, Inc. (collectively, the ‘‘
Ratings
Agencies ’’ and, individually,
a ‘‘ Rating Agency
’’), with
the exception of
6
S&P, which has
reviewed and provisionally affirmed the ratings of the
Company’s preferred shares, which affirmation is subject to
the satisfaction of certain conditions. The Ratings Agencies are
the only ‘‘nationally recognized statistical rating
organizations,’’ as that term is defined by the
Commission for purposes of Rule 463(g)(2) under the Act, which
currently rate the debt securities or preferred shares of the
Company or the financial strength or claims-paying ability of the
Company or any of the Designated Subsidiaries. None of the Ratings
Agencies and no other nationally recognized statistical rating
organization currently rates any other securities of the Company or
any securities of its subsidiaries.
(xvii) There
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, result in a
Material Adverse Effect; and, to the best of the Company’s
knowledge, no such proceedings are threatened or contemplated by
any Governmental Agency or threatened by others.
(xviii) The
Company is not and, after giving effect to the offering and sale of
the Offered Securities, will not be an ‘‘investment
company’’ as defined in the Investment Company Act of
1940, as amended.
(xix) Each
of the Designated Subsidiaries and Aspen Specialty is duly licensed
as an insurance brokerage company, insurer or reinsurer, as the
case may be, under the insurance laws and the rules, regulations
and interpretations of the insurance regulatory authorities
thereunder (collectively, ‘‘ Insurance Laws
’’) of
each jurisdiction in which the conduct of its existing business as
described in the Prospectus requires such licensing, except for
such jurisdictions in which the failure to be so licensed would
not, individually or in the aggregate, result in a Material Adverse
Effect; each of the Company, the Designated Subsidiaries and Aspen
Specialty has made all required filings under applicable holding
company statutes or other Insurance Laws in each jurisdiction where
such filings are required, except for such jurisdictions in which
the failure to make such filings would not, individually or in the
aggregate, result in a Material Adverse Effect; except as described
in the Prospectus, each of the Company, the Designated Subsidiaries
and Aspen Specialty has all other necessary authorizations,
approvals, orders, consents, certificates, licenses, permits,
registrations and qualifications of and from all insurance
regulatory authorities necessary to conduct their respective
existing businesses as described in the Prospectus and all of the
foregoing are in full force and effect, except where the failure to
have such authorizations, approvals, orders, consents,
certificates, permits, registrations or qualifications or their
failure to be in full force and effect would not, individually or
in the aggregate, result in a Material Adverse Effect; none of the
Company, the Designated Subsidiaries or Aspen Specialty has
received any notification from any insurance regulatory authority
or other governmental authority in the United States, Bermuda, the
United Kingdom or elsewhere to the effect that any additional
authorization, approval, order, consent, certificate, permit,
registration or qualification is needed to be obtained by either
the Company, the Designated Subsidiaries or Aspen Specialty to
conduct its existing business as described in the Prospectus; and
except as otherwise described in the Prospectus, no insurance
regulatory authority has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by the Company
or any of the Designated Subsidiaries.
(xx) Each
of the Company and the Designated Subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management’s general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (C)
access to assets is permitted only in accordance with
management’s general or specific authorization; and (D)
assets as recorded are compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(xxi) Each
of the Company and the Designated Subsidiaries has filed all
statutory financial returns, reports, documents and other
information required to be filed pursuant to the
applicable
7
Insurance Laws of the
United States and the various states thereof, Bermuda, the United
Kingdom and each other jurisdiction applicable thereto, except
where the failure, individually or in the aggregate, to file such
return, report, document or information would not result in a
Material Adverse Effect; and each of the Company and the Designated
Subsidiaries maintains its books and records in accordance with,
and is otherwise in compliance with, the applicable Insurance Laws
of the United States and the various states thereof, Bermuda, the
United Kingdom and each other jurisdiction applicable thereto,
except where the failure to so maintain its books and records or be
in compliance would not, individually or in the aggregate, result
in a Material Adverse Effect.
(xxii) (A)
Any tax returns required to be filed by the Company or any of its
subsidiaries, other than Aspen U.S., Aspen U.K. and Aspen U.K.
Services, in any jurisdiction have been accurately prepared and
timely filed and any taxes, including any withholding taxes, excise
taxes, franchise taxes and similar fees, sales taxes, use taxes,
penalties and interest, assessments and fees and other charges due
or claimed to be due from such entities have been paid, other than
any of those being contested in good faith and for which adequate
reserves have been provided or any of those currently payable
without penalty or interest and (B) to the Company’s
knowledge, any tax returns required to be filed by Aspen U.S.,
Aspen U.K. and Aspen U.K. Services in any jurisdiction have been
accurately prepared and timely filed and any taxes, including any
withholding taxes, excise taxes, franchise taxes and similar fees,
sales taxes, use taxes, penalties and interest, assessments and
fees and other charges due or claimed to be due from Aspen U.S.
have been paid, other than any of those being contested in good
faith and for which adequate reserves have been provided or any of
those currently payable without penalty or interest, in either case
(1) except to the extent that the failure to so file or pay would
not result in a Material Adverse Effect and (2) other than those
tax returns that would be required to be filed or taxes that would
be payable by the Company or any of its subsidiaries if (a) any of
them was characterized as a ‘‘personal holding
company’’ as defined in Section 542 of the Internal
Revenue Code of 1986, as amended (the ‘‘
Code
’’), (b)
any of them other than Aspen Specialty, Aspen U.S., Aspen U.S.
Holdings, Aspen U.S. Services and Aspen Re America (collectively,
the ‘‘ U.S. Subsidiaries
’’) was
characterized as engaged in a U.S. trade or business, and (c) any
of them other than Aspen U.K., Aspen U.K. Holdings and Aspen U.K.
Services (collectively, the ‘‘ U.K. Subsidiaries
’’) was
characterized as resident, managed and controlled or carrying on a
trade through a branch or agency in the United Kingdom; no
deficiency assessment with respect to a proposed adjustment of the
Company’s or any of its subsidiaries’ taxes is pending
or, to the best of the Company’s knowledge, threatened; and
there is no tax lien, whether imposed by any federal, state, or
other taxing authority, outstanding against the assets, properties
or business of the Company or any of its subsidiaries, in either
case, which would have a Material Adverse Effect.
(xxiii) Each
of the Company and Aspen Bermuda have received from the Bermuda
Minister of Finance an assurance under the Exempted Undertakings
Tax Protection Act 1966, as amended, of Bermuda to the effect set
forth in the Prospectus under the caption ‘‘Material
Tax Considerations — Taxation of Aspen Holdings and
Subsidiaries — Bermuda,’’ and the Company has not
received any notification to the effect (and is not otherwise
aware) that such assurance may be revoked or otherwise not honored
by the Bermuda government.
(xxiv) Based
upon and subject to the assumptions and qualifications set forth in
the Prospectus under the caption ‘‘Material Tax
Considerations,’’ the Company does not believe (A) that
either the Company or any of its subsidiaries currently should be,
or upon the sale of the Offered Securities contemplated hereby
should be, (1) treated as a ‘‘passive foreign
investment company’’ as defined in Section 1297(a) of
the Code, (2) characterized as a ‘‘personal holding
company’’ as defined in Section 542 of the Code, (3)
except for the U.S. Subsidiaries, considered to be engaged in a
trade or business within the United States for purposes of Section
864(b) of the Code (although the Internal Revenue Service may be
able to successfully assert that Aspen U.K. has a U.S. trade or
business and a U.S. permanent establishment as a result of the
binding authorities previously granted to Aspen Re America, Aspen
Specialty, Aspen Re America
8
California, LLC, and
Aspen Specialty Insurance Solutions LLC by Aspen U.K. and likely
will be able to successfully assert that Aspen U.K. has a U.S.
trade or business and a permanent establishment as a result of the
binding authorities granted to Aspen Re America by Aspen U.K.), or
(4) except for the U.K. Subsidiaries, characterized as resident,
managed or controlled or carrying on a trade through a branch or
agency in the United Kingdom or (B) that any U.S. person who owns
shares of capital of the Company directly or indirectly through
foreign entities should be treated as owning (directly, indirectly
through foreign entities or by attribution pursuant to Section
958(b) of the Code) 10% or more of the total voting power of the
Company or any of its foreign subsidiaries; and to the best of the
Company’s knowledge, in the event that the Internal Revenue
Service were to be successful in asserting that Aspen U.K. has a
U.S. trade or business as a result of the binding authorities
previously granted to Aspen Re America, Aspen Specialty, Aspen Re
America California, LLC, and Aspen Specialty Insurance Solutions
LLC by Aspen U.K., it would not result in a Material Adverse
Effect.
(xxv) Aspen
U.K. and Aspen Bermuda intend to operate in a manner that is
intended to ensure that the ‘‘related person insurance
income’’ (as defined in Section 953(c)(2) of the Code)
of either of Aspen U.K. or Aspen Bermuda does not equal or exceed
20% of each such company’s gross insurance income for any
taxable year in the foreseeable future.
(xxvi) The
audited consolidated financial statements included or incorporated
by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly, in
all material respects, the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the
statement of operations, shareholders’ equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified; except as otherwise disclosed in the Registration
Statement and Prospectus, said consolidated financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States (‘‘
U.S.
GAAP ’’) applied on a
consistent basis throughout the periods involved; the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly, in all material respects, in accordance
with U.S. GAAP, the information required to be stated therein; and
the selected financial data and the summary financial information
included or incorporated by reference in the Registration Statement
and Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
or incorporated by reference in the Registration
Statement.
(xxvii) KPMG
Audit plc, who has certified certain financial statements of the
Company and its subsidiaries, is an independent public accountant
as required by the Act and the Rules and Regulations.
The Company is
subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and files reports with the
Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system. Any documents filed with or furnished to
the Commission under the Exchange Act, when they were or are filed
with or furnished to the Commission, (A) conformed or will conform
in all material respects to the applicable requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder and (B) did not or will not, as of their
respective dates, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(xxviii)
The Company and, to the knowledge of the Company, the
Company’s directors and officers, in their capacities as
such, are in compliance with the currently applicable provisions of
the Sarbanes-Oxley Act of 2002.
(xxix) The
Ordinary Shares have been registered pursuant to Section 12 of the
Exchange Act and the outstanding Ordinary Shares, including the
Offered Securities, have been listed on the NYSE. The Company has
taken no action designed to, or likely to have the effect of,
terminating the registration of the Ordinary Shares under the
Exchange Act or delisting the
9
Ordinary Shares from
the NYSE, nor has the Company received any notification that the
Commission or the NYSE is contemplating terminating such
registration or listing.
(xxxi) No action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency is pending or,
to the knowledge of the Company, threatened.
(b) Each
Selling Shareholder, severally and not jointly, represents and
warrants to, and agrees with the several Underwriters and the
Company as to itself and not as to any other Selling Shareholder
that:
(i) This
Agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Shareholder;
(ii) Neither
such Selling Shareholder nor any person acting on behalf of such
Selling Shareholder (other than, if applicable, the Company and the
Underwriters) has used or referred to any ‘‘free
writing prospectus’’ (as defined in Rule 405), relating
to the Ordinary Shares;
(iii) Such
Selling Shareholder has, or the general partner of such Selling
Shareholder, as applicable, has, one or more or all of the general
partners of such Selling Shareholder, as the case may be, has, and
immediately prior to any Closing Date (as defined in Section 3(e)
herein) on which such Selling Shareholder is selling Offered
Securities, such Selling Stockholder will have, good and valid
title to, or a valid ‘‘security
entitlement’’ within the meaning of Section 8-501 of
the Uniform Commercial Code the (‘‘
UCC
’’) in
respect of, the Ordinary Shares to be sold by such Selling
Shareholder hereunder on such Delivery Date, free and clear of all
liens, encumbrances, equities or claims.
(iv) On or
about the date hereof, the custody agreement (each, a
‘‘ Custody Agreement
’’ and,
together with the custody agreements of each other Selling
Shareholder, the ‘‘ Custody Agreements
’’) and,
on the date hereof, the power of attorney (a ‘‘
Power of
Attorney ’’) of such Selling
Shareholder have been duly authorized, executed and delivered by
such Selling Shareholder and constitute valid and legally binding
obligations of each such Selling Shareholder enforceable in
accordance with their terms, except as to rights to indemnification
thereunder, which may be limited by public policy, and subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of
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