EXHIBIT 1.1
EXECUTION COPY
XL CAPITAL LTD
CLASS A ORDINARY SHARES
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UNDERWRITING AGREEMENT
December 6, 2005
Goldman, Sachs & Co.
Citigroup Global Markets Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
XL Capital
Ltd, a Cayman Islands exempted limited company (the "Company"),
proposes, subject to the terms and
conditions stated herein, to issue and sell
to the Underwriters named in Schedule I
hereto (the "Underwriters") an aggregate
of 33,846,000 shares (the "Firm
Securities") and, at the election of the
Underwriters on the terms described in
Section 2 below, up to 5,076,900
additional shares (the "Optional
Securities") of the Company's Class A Ordinary
Shares, par value $0.01 per share ("Stock")
(the Firm Securities and the
Optional Securities that the Underwriters
elect to purchase pursuant to Section
2 hereof being collectively called the
"Securities"). Any references in this
Agreement to "you" relate to Goldman, Sachs
& Co. and Citigroup Global Markets
Inc. as representatives of the several
Underwriters named in Schedule I hereto.
1.
The
Company represents and warrants to, and agrees with, each of
the
Underwriters that:
(a) An
"automatic shelf registration statement" as defined under
Rule 405
under the Securities Act of 1933, as amended (the "Act"), on
Form
S-3 (File No.
333-130036) in respect of the Securities has been filed with
the
Securities and Exchange Commission (the "Commission") not earlier
than
three
years prior to the date hereof; such registration statement, and
any
post-effective amendment thereto, became effective on filing; and
no stop
order
suspending the effectiveness of such registration statement or
any
part
thereof has been issued and no proceeding for that purpose has
been
initiated
or threatened by the Commission, and no notice of objection of
the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Act
has been
received by the Company (the base prospectus filed as part of
such
registration statement, in the form in which it has most
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recently
been filed with the Commission on or prior to the date of this
Agreement,
is hereinafter called the "Basic Prospectus"; any preliminary
prospectus
(including any preliminary prospectus supplement) relating to
the
Securities filed with the Commission pursuant to Rule 424(b) under
the
Act is
hereinafter called a "Preliminary Prospectus"; the various parts
of
such
registration statement, including all exhibits thereto but
excluding
Form T-1
and including any prospectus supplement relating to the
Securities
that is filed with the Commission and deemed by virtue of Rule
430B to be part of such
registration statement, each as amended at the
time such
part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
Basic
Prospectus, as amended and supplemented immediately prior to
the
Applicable
Time (as defined in Section 1(c) hereof), is hereinafter called
the
"Pricing Prospectus"; the form of the final prospectus relating to
the
Securities
filed with the Commission pursuant to Rule 424(b) under the Act
in
accordance with Section 5(a) hereof is hereinafter called the
"Prospectus"; any reference herein to the Basic Prospectus, the
Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed
to refer to and
include the documents incorporated by reference therein
pursuant
to Item 12 of Form S-3 under the Act, as of the date of the
respective
prospectus; any reference to any amendment or supplement to the
Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall
be
deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to
the
Securities
filed with the Commission pursuant to Rule 424(b) under the Act
and any
documents filed under the Securities Exchange Act of 1934, as
amended
(the "Exchange Act"), and incorporated by reference therein, in
each case
after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as
the case may be; any reference to any
amendment
to the Registration Statement shall be deemed to refer to and
include
any annual report of the Company filed pursuant to Section
13(a)
or 15(d)
of the Exchange Act after the effective date of the
Registration
Statement
that is incorporated by reference in the Registration
Statement;
and any
"issuer free writing prospectus" as defined in Rule 433 under
the
Act
relating to the Securities is hereinafter called an "Issuer
Free
Writing
Prospectus");
(b) No order
preventing or suspending the use of any Preliminary
Prospectus
or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of
filing
thereof,
conformed in all material respects to the requirements of the
Act
and the
rules and regulations of the Commission thereunder, and did not
contain an
untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the
statements
therein,
in the light of the circumstances under which they were made,
not
misleading; provided, however, that this representation and
warranty shall
not apply
to any statements or omissions made in reliance upon and in
conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(c) For the
purposes of this Agreement, the "Applicable Time" is
6:00 pm
(Eastern time) on the date of this Agreement; the Pricing
Prospectus
as supplemented by the final term sheet prepared and filed
pursuant
to Section 5(a) hereof, taken together (collectively, the
"Pricing
Disclosure Package") as of the Applicable Time, did not include
any untrue
statement of a material fact or omit to
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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; and each Issuer Free Writing Prospectus listed on
Schedule
II(a)
hereto does not conflict with the information contained in the
Registration Statement, the Pricing Prospectus or the Prospectus
and each
such
Issuer Free Writing Prospectus, as supplemented by and taken
together
with the
Pricing Disclosure Package as of the Applicable Time, did not
include
any untrue statement of a material fact or omit 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;
provided,
however, that this representation and warranty shall not apply
to
statements or omissions made in an Issuer Free Writing Prospectus
in
reliance
upon and in conformity with information furnished in writing to
the
Company by an Underwriter through Goldman, Sachs & Co.
expressly for
use
therein;
(d) The
documents incorporated by reference in the Pricing
Prospectus
and the Prospectus, when they became effective or were filed
with the
Commission, as the case may be, conformed in all material
respects
to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder,
and none
of such documents contained an untrue statement of a material
fact or
omitted to state a material fact required to be stated therein
or
necessary
to make the statements therein not misleading; any further
documents
so filed and incorporated by reference in the Prospectus or any
further
amendment or supplement thereto, when such documents become
effective
or are filed with the Commission, as the case may be, will
conform in
all material respects to the requirements of the Act or the
Exchange
Act, as applicable, and the rules and regulations of the
Commission
thereunder and will not contain an untrue statement of a
material
fact or omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading; and no
such
documents were filed with the Commission since the Commission's
close
of
business on the business day immediately prior to the date of
this
Agreement
and prior to the execution of this Agreement, except as set
forth on
Schedule II(b) hereto;
(e) The
Registration Statement conforms, and the Prospectus and
any
further amendments or supplements to the Registration Statement
and
the
Prospectus will conform, in all material respects to the
requirements
of the Act
and the rules and regulations of the Commission thereunder and
do not and
will not, as of the applicable effective date as to each part
of the
Registration Statement and as of the applicable filing date as
to
the
Prospectus and any amendment or supplement thereto, contain an
untrue
statement
of a material fact or omit to state a material fact required to
be stated
therein or necessary to make the statements in the Registration
Statement
not misleading and the statements in the Prospectus in the
light
of the
circumstances under which they were made not misleading;
provided,
however,
that this representation and warranty shall not apply to any
statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through
Goldman,
Sachs & Co. expressly for use therein;
(f) Neither the
Company nor any of its Significant Subsidiaries
(as
defined below) has sustained since the date of the latest
audited
financial
statements included or incorporated by reference in the Pricing
Prospectus
any loss or interference with its business from fire,
explosion,
flood or other calamity,
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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 Pricing Prospectus, which loss or interference
would
have a
Material Adverse Effect (as defined below), or would reasonably
be
expected
to have a prospective Material Adverse Effect; and, since the
respective
dates as of which information is given in the Registration
Statement
and the Pricing Prospectus, there has not been any change in
the
capital
stock (other than changes resulting from the exercise of stock
options or
the conversions of warrants or capital stock which were
outstanding as of such date, or from the exercise of options
granted after
such date
in the ordinary course of business or from repurchases of
capital
stock) or long-term debt of the Company or any of its
Significant
Subsidiaries or any material adverse change, or any development
that would
reasonably
be expected to involve a prospective material adverse change,
in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its
Significant Subsidiaries, taken as a whole, otherwise than as set
forth or
contemplated in the Pricing Prospectus;
(g) The Company
has been duly incorporated and is validly existing
as an
exempted limited company in good standing under the laws of the
Cayman
Islands, with full power and authority to own its properties
and
conduct
its business as described in the Pricing Prospectus and has
been
duly
qualified as a foreign company 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 such failure to be so qualified in any
such
jurisdiction or to have any such power or authority would not have
a
material
adverse effect on the current or future condition (financial or
other),
business, properties or results of operations of the Company
and
its
Subsidiaries taken as a whole or the transactions contemplated by
this
Agreement
(a "Material Adverse Effect"); and each Significant Subsidiary
of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction
of
incorporation;
(h) The Company
had, on September 30, 2005, an authorized
capitalization as set forth in the Pricing Prospectus under the
caption
"Actual"
under the heading "Capitalization", and all of the issued
shares
of capital
stock of the Company have been duly and validly authorized and
issued and
are fully paid and non-assessable and conform to the
description of the Stock contained in the Pricing Disclosure
Package and
the
Prospectus;
(i) The
Securities have been duly and validly authorized and, when
issued and
delivered against payment therefor as provided herein, will be
duly and
validly issued and fully paid and non-assessable and will
conform
to the
description of the Securities contained in the Pricing
Disclosure
Package
and the Prospectus; the stockholders of the Company have no
preemptive
or similar rights with respect to the Securities and no
shareholder consents are required in connection with the
Company's
issuance
and sale of the Securities;
(j) This
Agreement has been duly authorized, executed and
delivered
by the Company;
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(k) The Stock is
listed on the New York Stock Exchange (the
"Exchange");
(l) The issue
and sale of the Securities, the execution and
delivery
of this Agreement and the compliance by the Company with all of
the
provisions of this Agreement and the consummation of the
transactions
contemplated herein will not conflict with or result in a breach
or
violation
of any of the terms or provisions of, or constitute a default
under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement
or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant
Subsidiaries is bound or to which any of the property or assets of
the
Company or
any of its Significant Subsidiaries is subject, nor will such
action
result in any violation of the provisions of the Articles of
Association or the Memorandum of Association (or similar
organizational
documents)
of the Company or any of its Significant Subsidiaries or any
statute or
any order, rule or regulation of any court or governmental
agency or
body (a "Governmental Agency") having jurisdiction over the
Company or
any of its Significant Subsidiaries or any of its respective
properties
except in each case (other than with respect to such Articles
of
Association or Memorandum of Association (or similar
organizational
documents)) for such conflicts, violations, breaches or defaults
which
would not
result in a Material Adverse Effect;
(m) No consent,
approval, authorization, order, filing,
registration or qualification of or with any Governmental Agency
(a
"Governmental Authorization") is required for the issue and sale by
the
Company of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have
been, or
will have
been prior to the first Time of Delivery, obtained under the
Act
and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws
in
connection with the purchase and distribution of the Securities by
the
Underwriters;
(n) All of the
issued share capital of each Significant Subsidiary
of the
Company which is a corporation has been duly and validly
authorized
and
issued, is fully paid and non-assessable and (except for (i) a
15%
ownership
interest in XL Financial Assurance Ltd. owned by a third party
and (ii)
directors' qualifying shares) is owned directly or indirectly
by
the
Company, free and clear of all liens, encumbrances, equities or
claims
(for
purposes of this Agreement, "Subsidiary" means, as applied to
any
person,
any corporation, limited or general partnership, trust,
association or other business entity of which an aggregate of
greater than
50% of the
outstanding Voting Shares of such person is, at any time,
directly
or indirectly, owned by such person and/or one or more
subsidiaries of such person and "Significant Subsidiary" shall have
the
meaning of
"significant subsidiary" as set forth in Regulation S-X under
the Act;
for purposes of the definition of " Subsidiary," "Voting
Shares"
means,
with respect to any corporation, the capital stock having the
general
voting power under ordinary circumstances to elect at least a
majority
of the board of directors (irrespective of whether or not at
the
time stock
of any other class or classes shall have or might have voting
power by
reason of the happening of any contingency));
(o) Prior to the
date hereof, neither the Company nor, to the
Company's
knowledge, any of its affiliates has taken any action which is
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designed
to or which has constituted or which might have been expected
to
cause or
result in stabilization or manipulation of the price of any
security
of the Company in connection with the offering of the
Securities
in
violation of the Exchange Act;
(p) Other than
as set forth or incorporated by reference in the
Pricing
Prospectus prior to the date hereof, or as encountered in the
ordinary
course of business in the Company's claims activities, there
are
no legal
or governmental actions, suits or proceedings pending to which
the
Company or any of its Significant Subsidiaries is a party or of
which
any
property of the Company or any of its Significant Subsidiaries is
the
subject,
which would individually or in the aggregate reasonably be
expected
to have a Material Adverse Effect on the operations of the
Company
and its Significant Subsidiaries; and, to the best of the
Company's
knowledge, no such proceedings are threatened or contemplated
by
governmental authorities or threatened by others;
(q) The
financial statements of the Company and its consolidated
Subsidiaries incorporated by reference in the Pricing Prospectus
and the
Prospectus
present fairly the financial position of the Company and its
consolidated Subsidiaries as of the dates shown and their results
of
operations
and cash flows for the periods shown, and except as otherwise
disclosed
in the Pricing Prospectus, such financial statements have been
prepared
in conformity with generally accepted accounting principles in
the United
States applied on a consistent basis;
(r) The Company
and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental
agencies
or bodies necessary to conduct the business now operated by
them
and have
not received any written notice of proceedings relating to the
revocation
or modification of any such certificate, authority or permit
that
would, individually or in the aggregate, reasonably be expected
to
have a
Material Adverse Effect;
(s) Neither the
Company nor any of its Significant Subsidiaries is
in
violation of its Articles of Association or Memorandum of
Association
(or
similar organizational documents) or in default in the performance
or
observance
of any material 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 for such defaults which would
not result
in a Material Adverse Effect;
(t) The
statements set forth in the Pricing Prospectus and the
Prospectus
under the captions "Description of XL Capital Ordinary Shares"
insofar as
they purport to constitute a summary of the terms of the Stock
and the
other transaction documents described therein, and the
statements
set forth
under the caption "Certain Tax Consequences" in the Pricing
Prospectus
and the Prospectus, insofar as they purport to describe the
provisions
of the laws referred to therein, are accurate, complete and
fair in
all material respects;
(u) The Company
is not and, after giving effect to the offering
and sale
of the Securities, will not be an "investment company", as such
term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(v)
PricewaterhouseCoopers LLP, who have certified certain
financial
statements of the Company and its Subsidiaries, and have
audited
the
Company's internal control over financial reporting and
management's
assessment
thereof, are an independent registered public accounting firm
as
required by the Act and the rules and regulations of the
Commission
thereunder;
(w) 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
the Underwriters to the Cayman Islands or any political
subdivision or taxing authority thereof or therein in connection
with (A)
the
issuance, sale and delivery by the Company to or for the
respective
accounts
of the Underwriters of the Securities or (B) the sale or
delivery
outside
the Cayman Islands by the Underwriters of the Securities to the
initial
purchasers thereof, other than as described in the opinion of
Appleby
Spurling Hunter delivered pursuant to Section 8(d) of this
Agreement;
(x) (A) (i) At
the time of filing the Registration Statement, (ii)
at the
time of the most recent amendment thereto 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 Exchange Act or form of prospectus), and (iii) at the
time
the
Company or any person acting on its behalf (within the meaning,
for
this
clause only, of Rule 163(c) under the Act) made any offer relating
to
the
Securities in reliance on the exemption of Rule 163 under the Act,
the
Company
was a "well-known seasoned issuer" as defined in Rule 405 under
the Act;
and (B) at the earliest time after the filing of the
Registration
Statement
that the Company or another offering participant made a bona
fide offer
(within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an "ineligible issuer" as defined
in Rule
405 under
the Act;
(y) The Company
and its Subsidiaries maintain a system of
"internal
control over financial reporting" (as such term is defined in
Rule
13a-15(f) under the Exchange Act). The Company's and its
Subsidiaries' internal control over financial reporting is
effective and
the
Company and its Subsidiaries are not aware of any material
weaknesses
in its
internal control over financial reporting;
(z) The Company
and its Subsidiaries maintain "disclosure controls
and
procedures" (as such term is defined in Rule 13a-15(e) under
the
Exchange
Act); such disclosure controls and procedures are effective;
(aa) The Registration
Statement, the Prospectus, the Pricing
Disclosure
Package, any Preliminary Prospectus and any other materials
prepared
by or with the consent of the Company for distribution to the
Participants in connection with the Directed Share Program comply,
and any
further
amendments or supplements thereto will comply, with any
applicable
laws or
regulations of foreign jurisdictions in which the Prospectus,
the
Pricing
Disclosure Package, any Preliminary Prospectus, as amended or
supplemented, if applicable, and any other materials prepared by or
with
the
consent of the Company for distribution to the Participants in
connection
with the Directed Share Program are distributed in connection
with the
Directed Share Program, and no authorization, approval,
consent,
license,
order, registration or qualification of or
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with any
government, governmental instrumentality or court, other than
such as
have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares
are
offered
outside the United States. The Company has not offered, or
caused
the
Underwriters to offer, Securities to any person pursuant to the
Directed
Share Program with the specific intent to unlawfully influence
(i) a
customer or supplier of the Company to alter the customer's or
supplier's level or
type of business with the Company, or (ii) a trade
journalist
or publication to write or publish favorable information about
the
Company or its products; and
(bb) Except for the
materials attached hereto in Annex I, the
Company
has not provided or consented to the distribution of any
written
materials
to the Participants in connection with the Directed Share
Program.
The Company will not issue any such materials to the
Participants
without
the prior written consent of Goldman, Sachs & Co. and
Citigroup
Global
Markets Inc.
2.
Subject to
the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of
the Underwriters, and each of the
Underwriters agrees, severally and not
jointly, to purchase from the Company, at
a purchase price per share of $63.05, the
number of Firm Securities set forth
opposite the name of such Underwriter in
Schedule I hereto and (b) in the event
and to the extent that the Underwriters
shall exercise the election to purchase
Optional Securities as provided below, the
Company agrees to issue and sell to
each of the Underwriters, and each of the
Underwriters agrees, severally and not
jointly, to purchase from the Company, at
the purchase price per share set forth
in clause (a) of this Section 2, that
portion of the number of Optional
Securities as to which such election shall
have been exercised (to be adjusted
by you so as to eliminate fractional
shares) determined by multiplying such
number of Optional Securities by a
fraction, the numerator of which is the
maximum number of Optional Securities which
such Underwriter is entitled to
purchase as set forth opposite the name of
such Underwriter in Schedule I hereto
and the denominator of which is the maximum
number of Optional Securities that
all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to
purchase
at their election up to 5,076,900 Optional
Securities, at the purchase price per
share set forth in the paragraph above, for
the sole purpose of covering sales
of shares in excess of the number of Firm
Securities, provided that the purchase
price per Optional Share shall be reduced
by an amount per share equal to any
dividends or distributions, if any,
declared by the Company and payable on the
Firm Securities but not payable on the
Optional Securities. Any such election to
purchase Optional Securities may be
exercised only by written notice from
Goldman, Sachs & Co. to the Company,
given within a period of 30 calendar days
after the date of this Agreement, setting
forth the aggregate number of Optional
Securities to be purchased and the date on
which such Optional Securities are to
be delivered, as determined by Goldman,
Sachs & Co. but in no event earlier than
the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and
the Company otherwise agree in writing,
earlier than two or later than ten
business days after the date of such
notice.
As part of the offering contemplated by this Agreement, the
Underwriters have agreed to reserve out of
the Securities set forth opposite
your name on Schedule I to this Agreement,
up to $2,000,000 of shares of Stock,
for sale to the Company's officers, and
directors (collectively,
"Participants"), as set forth in the
Prospectus under
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the heading "Underwriting" (the "Directed
Share Program"). The Securities to be
sold by the Underwriters pursuant to the
Directed Share Program (the "Directed
Shares") will be sold by the Underwriters
pursuant to this Agreement at the
public offering price. Any Directed Shares
not orally confirmed for purchase by
any Participants by 7:30 a.m. New York City
time on the business day following
the date on which this Agreement is
executed will be offered to the public by
the Underwriters as set forth in the
Prospectus.
3.
Upon the
authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer
the Firm Securities for sale upon the
terms and conditions set forth in the
Prospectus.
4.
(a) The
Securities to be purchased by each Underwriter hereunder
will be represented by one or more
definitive global Securities in book-entry
form which will be deposited by or on
behalf of the Company with The Depository
Trust Company ("DTC") or its designated
custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for
the account of each Underwriter, against
payment by or on behalf of such Underwriter
of the purchase price therefor by
wire transfer of Federal (same-day) funds
to the account specified by the
Company to Goldman, Sachs & Co. at
least twenty-four hours in advance, by
causing DTC to credit the Securities to the
account of Goldman, Sachs & Co. at
DTC. The Company will, upon request by
Goldman, Sachs & Co., cause the
certificates representing the Securities to
be made available to Goldman, Sachs
& Co. for checking at least twenty-four
hours prior to the Time of Delivery (as
defined below) with respect thereto at the
office of DTC or its designated
custodian (the "Designated Office"). The
time and date of such delivery and
payment shall be, with respect to the Firm
Securities, 9:30 a.m., New York City
time, on December 9, 2005 or such other
time and date as Goldman, Sachs & Co.
and the Company may agree upon in writing,
and, with respect to the Optional
Securities, 9:30 a.m., New York City time,
on the date specified by Goldman,
Sachs & Co. in the written notice given
by Goldman, Sachs & Co. of the
Underwriters' election to purchase such
Optional Securities, or such other time
and date as Goldman, Sachs & Co. and
the Company may agree upon in writing. Such
time and date for delivery of the Firm
Securities is herein called the "First
Time of Delivery", such time and date for
delivery of the Optional Securities,
if not the First Time of Delivery, is
herein called the "Second Time of
Delivery", and each such time and date for
delivery is herein called a "Time of
Delivery".
(b) The
documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to
Section 8 hereof, including the
cross-receipt for the Securities and any
additional documents requested by the
Underwriters pursuant to Section 8(n)
hereof, will be delivered at the offices
of Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York
10017 (the "Closing Location"), and the
Securities will be delivered at the
Designated Office, all at such Time of
Delivery. A meeting will be held at the
Closing Location at 4:30 p.m., New York
City time, on the New York Business Day
next preceding such Time of Delivery, at
which meeting the final drafts of the
documents to be delivered pursuant to the
preceding sentence will be available
for review by the parties hereto.
5.
The
Company agrees with each of the Underwriters:
(a) To prepare
the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule
424(b) under the Act not later than the
Commission's close of business on the
second business day following the
execution and delivery of this
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Agreement; to make no further amendment or
any supplement to the Registration
Statement, the Basic Prospectus or the
Prospectus prior to the last Time of
Delivery which shall be disapproved by you
promptly after reasonable notice
thereof; to advise you, promptly after it
receives notice thereof, of the time
when any amendment to the Registration
Statement has been filed or becomes
effective or any amendment or supplement to
the Prospectus has been filed and to
furnish you with copies thereof; to prepare
a final term sheet containing a
description of the Securities, in a form
approved by you and to file such term
sheet pursuant to Rule 433(d) under the Act
within the time required by such
Rule; to file promptly all other material
required to be filed by the Company
with the Commission pursuant to Rule 433(d)
under the Act; to file promptly all
reports and any definitive proxy or
information statements required to be filed
by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so
long as the delivery of a prospectus (or in
lieu thereof, the notice referred to
in Rule 173(a) under the Act) is required
in connection with the offering or
sale of the Securities; to advise you,
promptly after it receives notice
thereof, of the issuance by the Commission
prior to the completion of the
distribution of the Securities contemplated
by this Agreement (the date of which
shall be confirmed to the Company by you)
of any stop order or of any order
preventing or suspending the use of any
preliminary prospectus or other
prospectus in respect of the Securities, of
any notice of objection of the
Commission to the use of the Registration
Statement or any post-effective
amendment thereto pursuant to Rule
401(g)(2) under the Act, of the suspension of
the qualification of the Securities for
offering or sale in any jurisdiction, of
the initiation or threatening of any
proceeding for any such purpose, or of any
request by the Commission prior to the
completion of the distribution of the
Securities contemplated by this Agreement
for the amending or supplementing of
the Registration Statement or Prospectus or
for additional information; and, in
the event of the issuance of any stop order
or of any order preventing or
suspending the use of any preliminary
prospectus or other prospectus or
suspending any such qualification, to
promptly use its best efforts to obtain
the withdrawal of such order; and in the
event of the issuance of any such
notice of objection, promptly to amend the
Registration Statement in such manner
as may be required to permit offers and
sales of the Securities;
(b) If required
by Rule 430B(h) under the Act in connection with
the offering of the Securities contemplated
by this Agreement, to prepare a form
of prospectus in a form approved by you and
to file such form of prospectus
pursuant to Rule 424(b) under the Act not
later than may be required by Rule
424(b) under the Act; and to make no
further amendment or supplement to such
form of prospectus which shall be
disapproved by you promptly after reasonable
notice thereof;
(c) Promptly
from time to time to take such action as you may
reasonably request to qualify the
Securities for offering and sale under the
securities laws of such jurisdictions as
you may reasonably request and to
comply with such laws so as to permit the
continuance of sales and dealings
therein in such jurisdictions for as long
as may be necessary to complete the
distribution of the Securities, provided
that in connection therewith the
Company shall not be required to qualify as
a foreign corporation or to file a
general consent to service of process in
any jurisdiction;
(d) If by the
third anniversary (the "Renewal Deadline") of the
initial effective date of the Registration
Statement, any of the Securities
remain unsold by the Underwriters, the
Company will file, if it has not already
done so and is eligible to do so, a new
automatic shelf registration statement
relating to the Securities, in a form
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satisfactory to you. If at the Renewal
Deadline the Company is no longer
eligible to file an automatic shelf
registration statement and the distribution
of the Securities contemplated by this
Agreement has not yet been completed, the
Company will, if it has not already done
so, file a new shelf registration
statement relating to the Securities, in a
form satisfactory to you and
