EXHIBIT 1.2
EXECUTION COPY
XL CAPITAL LTD
7.00% EQUITY SECURITY UNITS
--------
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 29,800,000 of its 7.00% Equity Security
Units (the "Units"). Each Unit has a
stated amount of $25 and will initially
consist of (a) a purchase contract
pursuant to which the Company agrees to
sell and the holder agrees to purchase,
for $25, a number of Class A Ordinary
Shares, par value $0.01 per share of the
Company ("Ordinary Shares") on February 15,
2009 (the "Purchase Contracts") to
be determined by the settlement rate set
forth in the Purchase Contract
Agreement and (b) a 1/40, or 2.5%,
ownership interest in a senior note of the
Company (the "Underlying Note") due
February 15, 2011 with a principal amount of
$1,000. 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.
The terms
and rights of the Units shall be as specified in this Agreement
and in or pursuant to the Purchase Contract
Agreement, to be dated December 9,
2005, between the Company and The Bank of
New York, as Purchase Contract Agent
(the "Purchase Contract Agreement"), the
indenture, dated June 2, 2004 between
the Company and The Bank of New York, as
trustee, including the supplemental
indenture relating to the Underlying Notes,
to be dated December 9, 2005
(collectively, the "Indenture"), the
Purchase Contracts, the pledge agreement,
to be dated December 9, 2005, between the
Company and The Bank of New York as
Purchase Contract Agent and The Bank of New
York as Collateral Agent, Custodial
Agent and Securities Intermediary (the
"Pledge Agreement"), the Underlying Notes
and the remarketing agreement to be entered
into between the Company, The Bank
of New York as Purchase Contract Agent and
a nationally recognized investment
bank, as Remarketing Agent (the
"Remarketing Agreement").
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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 Units 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
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 Units
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 Units 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 Units 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 Units 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
Units 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
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Commission, and each Preliminary Prospectus, at the time of
filing
thereof,
conformed in all material respects to the requirements of the
Act
and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
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 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;
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(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 Trust Indenture 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, 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
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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 ; the Ordinary Shares
issuable
pursuant to the terms of the Purchase Contracts (the
"Underlying
Shares")
have been duly and validly authorized and reserved for issuance
and, when
issued and delivered in accordance with the provisions of such
Purchase
Contracts, will be duly and validly issued, fully paid and
non-assessable; the stockholders of the Company have no preemptive
or
similar
rights with respect to such Underlying Shares and no
shareholder
consents
are required in connection with the Company's issuance and sale
of
Ordinary Shares to be issued pursuant to the Purchase Contracts;
and
the
Underlying Shares will conform to the description of the Stock
contained
in the Pricing Disclosure Package and the Prospectus;
(i) This
Agreement has been duly authorized, executed and
delivered
by the Company;
(j) Each of the
Purchase Contract Agreement and the Pledge
Agreement
referred to therein have been duly authorized by the Company;
and, at
the Time of Delivery, will be duly executed and delivered by
the
Company,
and will constitute valid and legally binding obligations of
the
Company,
enforceable against the Company in accordance with their terms,
subject,
as to enforcement, to bankruptcy, insolvency, fraudulent
transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
remedies and
to general
equity principles; and each of the Purchase Contract Agreement
and the
Pledge Agreement will conform in all material respects, to the
descriptions thereof contained in the Pricing Disclosure Package
and the
Prospectus;
(k) The
Remarketing Agreement referred to therein has been duly
authorized
by the Company; and, when duly executed and delivered by the
Company,
will constitute a valid and legally binding obligation of the
Company,
enforceable against the Company in accordance with its terms,
subject,
as to enforcement, to bankruptcy, insolvency, fraudulent
transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
remedies and
to general
equity principles; and the Remarketing Agreement will conform
in all
material respects, to the description thereof contained in the
Pricing
Disclosure Package and the Prospectus;
(l) The Purchase
Contracts included in the Units shall have been
duly and
validly authorized by the Company and, at the Time of Delivery
will be
duly executed, authenticated and delivered in accordance with
the
related
Purchase Contract Agreement and paid for in accordance with the
terms of
this Agreement and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance
with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent
transfer, reorganization, moratorium and similar laws of
general
applicability relating to or affecting creditors' rights and
remedies
and to general equity principles; the issuance of
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the
Purchase Contracts is not subject to any preemptive or similar
rights;
and the
Purchase Contracts will conform in all material respects to the
description thereof contained in the Pricing Disclosure Package and
the
Prospectus;
(m) The
Underlying Notes included in the Units have been duly and
validly
authorized, and, when such Underlying Notes are issued and
delivered,
such Underlying Notes will have been duly executed,
authenticated and delivered and will constitute valid and legally
binding
obligations of the Company, enforceable against the Company in
accordance
with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
remedies and
to general
equity principles and entitled to the benefits provided by the
Indenture;
(n) The
Indenture is substantially in the form filed as an exhibit
to the
Registration Statement; the Indenture has been duly authorized
by
the
Company and duly qualified under the Trust Indenture Act and, at
the
Time of
Delivery for such Underlying Notes (as defined in Section 4
hereof),
will be duly executed and delivered by the Company and will
constitute
a valid and legally binding instrument, enforceable against the
Company in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium
and other
laws of general applicability relating to or affecting
creditors'
rights and remedies and to general equity principles; and the
Indenture
and such Underlying Notes will conform, in all material
respects,
to the descriptions thereof in the Pricing Disclosure Package
and in the
Prospectus as amended or supplemented with respect to the
Units;
(o) The Units
have been duly and validly authorized, and, when the
Units are
issued and delivered pursuant to the related Purchase Contract
Agreement and
this Agreement such Units will be duly and validly executed,
authenticated and delivered and will constitute valid and legally
binding
obligations of the Company, enforceable against the Company in
accordance
with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
remedies and
to general
equity principles and entitled to the benefits provided by such
Purchase
Contract Agreement; the Units and the Underlying Shares will be
duly
registered under the Exchange Act and will be authorized for
listing
on the
Exchange subject to official notice of issuance, in each case,
prior to
the Time of Delivery; and the Units will conform in all
material
respects
to the descriptions thereof contained in the Pricing Disclosure
Package
and the Prospectus;
(p) The issue
and sale of the Units, the Underlying Notes and the
Underlying
Shares, the execution and delivery of this Agreement and the
compliance
by the Company with all of the provisions of this Agreement,
the
Remarketing Agreement, the Purchase Contract Agreement, the
Pledge
Agreement,
the Indenture, the Purchase Contracts and the Units and the
consummation of the transactions contemplated herein and therein
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
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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;
(q) 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 Units or the consummation by the Company of the
transactions contemplated by this Agreement, or the Indenture, or
the
Remarketing Agreement, or the Purchase Contract Agreement, or the
Purchase
Contracts,
or the Pledge Agreement, except such as have been, or will have
been prior
to the Time of Delivery, obtained under the Act and the Trust
Indenture
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 Units by
the
Underwriters and other filings, if any, required to be made under
the New
York
Uniform Commercial Code to perfect the Company's security interest
as
contemplated by the Pledge Agreement and the filing of any
registration
statements
required in connection with the remarketing of the Underlying
Notes as
contemplated by the Purchase Contract Agreement;
(r) 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));
(s) None of the
transactions contemplated to be performed by the
Company by
this Agreement (including, without limitation, the use of the
proceeds
from the sale of the Units) will violate or result in a
violation
of Section
7 of the Exchange Act, or any regulation promulgated
thereunder, including,
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<PAGE>
without
limitation, Regulations T, U, and X of the Board of Governors
of
the
Federal Reserve System;
(t) Prior to the
date hereof, neither the Company nor, to the
Company's
knowledge, any of its affiliates has taken any action which is
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 Units in
violation
of the Exchange Act;
(u) 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;
(v) 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;
(w) 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;
(x) 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;
(y) The
statements set forth in the Pricing Prospectus and the
Prospectus
under the captions "Description of the Equity Security Units,"
"Description of the Senior Notes," "Prospectus Supplement
Summary,"
"Description of XL Capital Share Capital," "Description of XL
Capital
Ordinary
Shares," "Description of XL Capital Ordinary Share Purchase
Contracts
and Ordinary Share Purchase Units" and "Description of XL
Capital
Debt Securities," insofar as they purport to constitute a
summary
of the
terms of the Units, the
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Underlying
Notes, the Purchase Contracts, the Underlying Shares and the
other
transaction documents described therein and the statements set
forth
under the caption "Certain Tax
Considerations" 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;
(z) The Company
is not and, after giving effect to the offering
and sale
of the Units, will not be an "investment company", as such term
is defined
in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(aa)
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;
(bb) 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 Units (including the Underlying
Shares
and the
Underlying Notes) or (B) the sale or delivery outside the
Cayman
Islands by
the Underwriters of the Units (including the Underlying Shares
and the
Underlying Notes) 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;
(cc) (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 Units
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
Units, the
Company was not an "ineligible issuer" as defined in Rule 405
under the
Act;
(dd) 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;
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<PAGE>
(ee) 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;
(ff) 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 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,
Units 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
(gg) 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 Unit of $24.25, the
number of Units set forth opposite the
name of such Underwriter in Schedule I
hereto.
As part of the offering contemplated by this Agreement, the
Underwriters have agreed to reserve out of
the Units set forth opposite each
Underwriter's name on Schedule I to this
Agreement, up to 80,000 Units, for sale
to the Company's officers, and directors
(collectively, "Participants"), as set
forth in the Prospectus under the heading
"Underwriting" (the "Directed Share
Program"). The Units 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 Units, the
several Underwriters propose to offer the
Units for sale upon the terms and
conditions set forth in the Prospectus.
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<PAGE>
4.
(a)
The Units to be
purchased by each Underwriter hereunder will
be represented by one or more definitive
global Units 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 Units
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
Units to the account of Goldman, Sachs
& Co. at DTC. The Company will, upon
request by Goldman, Sachs & Co., cause
the certificates representing the Units
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 Units,
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. Such time and
date for delivery of the Units is herein
called the "Time of Delivery".
(b) The
documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to
Section 8 hereof, including the
cross-receipt for the Units 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
Units will be delivered at the
Designated Office, all at the 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 the 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 Agreement;
to make no further amendment or any
supplement to the Registration Statement,
the Basic Prospectus or the Prospectus
prior to the 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
Units, 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 Units; to
advise you, promptly after it
receives notice thereof, of the issuance by
the Commission prior to the
completion of the distribution of the Units
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
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<PAGE>
suspending the use of any preliminary
prospectus or other prospectus in respect
of the Units, 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 Units 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
Units contemplated by this Agreement
for the amending or supplementing of the
Registration Statement or Prospectus or
f
