Platinum Underwriters Holdings, Ltd.
(par value $.01 per share)
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As Representatives of the several Underwriters
named in Schedule I hereto,
4 World Financial Center, 25
th
Floor
New York, New York 10281-1209
Platinum Underwriters Holdings, Ltd.,
a Bermuda company (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to the
several Underwriters named in Schedule I hereto (the
“Underwriters”), 3,316,750 Common Shares, par value
$.01 per share (the “Common Shares”) of the Company,
and RenaissanceRe Holdings, Ltd., a Bermuda company (the
“Selling Shareholder”) proposes, subject to the terms
and conditions stated herein, to sell to the Underwriters 3,960,000
Common Shares (such Common Shares to be sold by the Selling
Shareholder, together with the Common Shares to be issued and sold
by the Company, collectively, the “Underwritten
Shares”). The Company also proposes to grant to the
Underwriters an option to purchase up to 1,091,513 additional
Common Shares to cover over-allotments (the “Option
Shares”, and together with the Underwritten Shares, the
“Shares”).
The Company also proposes to offer
concurrently with the offering of the Shares, pursuant to a
separate underwriting agreement (the “Mandatory Convertible
Preferred Shares Underwriting Agreement”) to be entered into
by and among the Company and the underwriters named therein (the
“Mandatory Convertible Preferred Shares Underwriters”),
5,000,000 6.00% Series A Mandatory Convertible Preferred
Shares, par value $.01 per share (the “Mandatory Convertible
Preferred Shares”) and to grant to the Mandatory Convertible
Preferred Shares Underwriters an option to purchase up to 750,000
additional Mandatory Convertible Preferred Shares to
cover-allotments.
The Company conducts its business
through its wholly-owned direct or indirect operating subsidiaries,
Platinum Underwriters Reinsurance, Inc., a Maryland corporation
(“Platinum US”), Platinum Re (UK) Limited, a U.K.
company (“Platinum UK”), and Platinum Underwriters
Bermuda, Ltd., a Bermuda company (“Platinum Bermuda”).
The Company owns Platinum US and Platinum UK through its
wholly-owned intermediate subsidiary, Platinum Regency Holdings, an
Irish company (“Platinum Ireland” and, together with
Platinum UK and Platinum Bermuda, the “Non-U.S.
Subsidiaries”). Platinum US is owned directly by Platinum
Underwriters Finance, Inc., a Delaware corporation (“Platinum
Finance”), which is a wholly-owned subsidiary of Platinum
Ireland.
To the extent there are no additional
Underwriters listed on Schedule I other than you, the term
“Representatives” as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. The
Company, the Selling Shareholder and the Underwriters agree that
the representations of the Company set forth in this Agreement with
respect to the Pricing Disclosure Package (as defined in Section
1(c) herein) will become effective upon the filing with the
Securities and Exchange Commission (the “Commission”)
of the Final Term Sheet (as defined in Section (6)(a) herein), and
such other Issuer Represented Free Writing Prospectuses (as defined
in Section 1(a) herein) that are listed in Schedule II(a)
hereto, which the Company agrees shall occur no later than
December 1, 2005.
1. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) Two registration statements
on Form S-3 as amended by any pre-effective amendments thereto on
or before the date hereof (File Nos. 333-113823 and 333-129182)
(collectively, the “Original Registration Statements”)
in respect of the Shares have been filed with the Securities and
Exchange Commission (the “Commission”); the Original
Registration Statements and any post-effective amendment thereto,
each in the form heretofore delivered to you, have been declared
effective by the Commission in such form, and other than a
registration statement, if any, increasing the size of the offering
(a “Rule 462(b) Registration Statement”), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the “Act”), which became effective upon
filing, no other document with respect to the Original Registration
Statements or document incorporated by reference therein has
heretofore been filed with the Commission (other than prospectuses
filed pursuant to Rule 424(b) under the Act, each in the form
heretofore delivered to you); and no stop order suspending the
effectiveness of any of the Original Registration Statements, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (the base prospectuses filed as part
of such registration statements, in the form in which they have
most recently been filed with the Commission on or prior to the
date of this Agreement, are hereinafter called the “Basic
Prospectus”; the preliminary prospectus supplement, if any,
heretofore filed with the Commission, together with any preliminary
prospectuses included in the Original Registration Statements or
filed with the Commission pursuant to Rule 424(a) under the Act are
hereinafter called a “Preliminary Prospectus”; the
various parts of the Original Registration Statements, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and
(i) including the information contained in the form of final
prospectuses filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 6(a) hereof and deemed by
virtue of Rule 430B under the Act to be part of the
Original
2
Registration Statements at the time they were declared effective
and (ii) the documents incorporated by reference in the
prospectuses contained in the Original Registration Statements at
the time such part of the Original Registration Statements became
effective, each as amended at the time such part of the Original
Registration Statements became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the
“Registration Statements”; the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(c) hereof), is hereinafter called the
“Statutory Prospectus”; promptly after the execution
and delivery of this Agreement, the Company will prepare and file a
final prospectus supplement in accordance with Rule 424(b) under
the Act and such final prospectus supplement in the form heretofore
delivered to you, together with the final prospectuses included in
the Registration Statements, in the form first filed pursuant to
Rule 424(b) under the Act, are hereinafter called the
“Prospectus”; any reference herein to the Basic
Prospectus, the Statutory 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 such
prospectus, including the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2004, as amended
on Form 10-K/A (including information specifically incorporated by
reference into such Form 10-K from the Company’s definitive
Proxy Statement for its 2005 annual meeting of shareholders) (the
“Form 10-K”), Quarterly Report on Form 10-Q for the
quarter ended March 31, 2005 (the “March
Form 10-Q”), the Quarterly Report on Form 10-Q for the
quarter ended June 30, 2005, as amended on Form 10-Q/A (the
“June Form 10-Q”), the Quarterly Report on Form
10-Q for the quarter ended September 30, 2005 (the
“September Form 10-Q”) and all subsequent
documents filed with (but not furnished to) the Commission pursuant
to Section 13(a), 13(c) or 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) on or
prior to the date of the Preliminary Prospectus or Prospectus, as
the case may be; 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 Statements, any prospectus supplement
relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed after the date of such
Basic Prospectus, Preliminary Prospectus or Prospectus, as the case
may be, under the Exchange Act, and incorporated by reference in
such Basic Prospectus, Preliminary Prospectus or Prospectus, as the
case may be, and all subsequent documents filed with (but not
furnished to) the Commission pursuant to Section 13(a), 13(c)
or 15(d) of the Exchange Act after the date of the Basic
Prospectus, Preliminary Prospectus or Prospectus, as the case may
be, provided, however, such subsequently filed documents shall not
include any Current Reports on Form 8-K, or portions of such
reports, that are deemed furnished to, rather than filed with, the
Commission) and any reference to any amendment to the Registration
Statements shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a), 13(c)
or 15(d) of the Exchange Act after the applicable effective dates
of the Original Registration Statements that is incorporated by
reference in the Registration Statements; and any “issuer
free writing prospectus” as defined in Rule 433 under
the Act relating to the Shares is hereinafter called an
“Issuer Represented Free Writing Prospectus”); for
purposes of this Agreement, all references to any of the
Registration Statements, any Basic Prospectus, any Statutory
Prospectus, any Preliminary Prospectus, the Prospectus or
any
3
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system
(“EDGAR”).
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer
Represented 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 or on behalf of
any Underwriter through the Representatives expressly for use
therein or by the Selling Shareholder expressly for use in the
preparation of the answers therein to Item 7 of Form
S-3;
(c) For the purposes of this
Agreement, the “Applicable Time” is 9:30 a.m. (Eastern
time) on December 2, 2005, or such other time as agreed by the
Company and the Representatives; the Statutory Prospectus as
supplemented by those Issuer Represented Free Writing Prospectuses
and other documents listed in Schedule II(a) hereto, 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 the Issuer Represented Free Writing Prospectuses,
taken together, as listed on Schedule II(a) or
Schedule II(b) hereto, as of their issue date and at all
subsequent times through the completion of the public offer and
sale of the Shares or until any earlier date that the Company
notified or notifies the Representatives, did not, does not and
will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statements, the Statutory Prospectus or the Prospectus, including
any document incorporated by reference therein and any preliminary
or other prospectus deemed to be a part thereof that has not been
superseded or modified, and each such Issuer Represented 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; as of the time of the filing of the Final
Term Sheet (as defined in Section 6(a) herein), the Pricing
Disclosure Package, taken as a whole, including the Final Term
Sheet, will 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;
(d) At the time of filing the
Registration Statements, any 462(b) Registration Statement and any
post-effective amendments thereto, at the earliest time thereafter
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 Shares and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in
Rule 405 under the Act, including the Company or any other
subsidiary in the preceding three years not having been convicted
of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in
Rule 405.
4
(e) The documents incorporated
by reference in the Pricing Disclosure Package 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; and 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; 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 or on behalf of any
Underwriter through the Representatives expressly for use therein;
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(c) hereto;
(f) The Registration Statements
conform, and the Prospectus and any further amendments or
supplements to any of the Registration Statements or 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 dates as to the
Registration Statements and any amendment thereto 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 therein 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 or on
behalf of any Underwriter through the Representatives expressly for
use therein or by the Selling Shareholder expressly for use in the
preparation of the answers therein to Item 7 of Form
S-3;
(g) 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 Pricing Disclosure Package or the Prospectus any
material 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 Disclosure Package and the Prospectus;
and, since the respective dates as of which information is given in
the Registration Statements, the Pricing Disclosure Package or the
Prospectus, there has not been any change in the capital stock or
the capital or surplus or long-term debt of the Company (other than
upon sale of Mandatory Convertible Preferred Shares pursuant to the
Mandatory Convertible Preferred Shares Underwriting Agreement, or
pursuant to the tender offer by Platinum Finance for its 6.371%
Senior Guaranteed Notes due 2007 and Series B 6.371% Senior
Guaranteed Notes due 2007, or pursuant to the exchange offer for
the 6.371% Senior Guaranteed Notes due 2007, or pursuant to the
exchange offer for the Series A 7.50% Notes due 2017, or upon
the exercise
5
of the purchase contracts, which constituted a part of the
Company’s equity security units, or upon exercise of director
or employee options in the ordinary course of business pursuant to
an employee benefit plan of the Company currently in existence, or
upon the exercise, conversion or exchange of convertible or
exchangeable securities or options in the ordinary course of
business outstanding as of the date of this Agreement) 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, taken as a whole, otherwise than as set forth
or contemplated in the Pricing Disclosure Package and the
Prospectus;
(h) The Company and its
subsidiaries have good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Pricing Disclosure Package and the Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable (by and
against the Company) sub-leases and assignments of leases with such
exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such property and buildings
by the Company and its subsidiaries; the Company does not own any
real property;
(i) The Company has been duly
incorporated and is validly existing as a company in good standing
under the laws of Bermuda, with corporate power and authority to
own its properties and conduct its business as described in the
Pricing Disclosure Package and 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, or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction; each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation or a
company in good standing under the laws of its jurisdiction of
organization, with corporate power and authority to own its
properties and conduct its business as described in the Pricing
Disclosure Package and 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 jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction;
(j) The Company has an
authorized capitalization as set forth in the Pricing Disclosure
Package and the Prospectus, and all of the issued shares of capital
stock of the Company (including the Common Shares to be sold by the
Selling Shareholder hereunder) have been duly authorized and
validly issued, are fully paid and non-assessable and conform in
all material respects to the description of the capital stock
contained in the Pricing Disclosure Package and the Prospectus; all
of the issued shares of capital stock of each subsidiary of the
Company have been duly authorized and are validly issued, fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims; except as described in the Form 10-K under the captions
“Related Party Transactions — Transactions with St.
Paul and Its Subsidiaries,”
6
“Related Party Transactions — Transactions with
RenaissanceRe and Its Subsidiaries” and in the Pricing
Disclosure Package and the Prospectus under the caption
“Description of Our Share Capital,” the holders of
outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to acquire the Shares and no party
has the right to require the Company to register securities; there
are no outstanding securities convertible into or exchangeable for,
or warrants, rights or options to purchase from the Company, or
obligations of the Company to issue, Common Shares or any other
class of capital stock of the Company (except pursuant to the
Mandatory Convertible Preferred Shares Underwriting Agreement, and
as set forth in the Form 10-K under the captions “Related
Party Transactions — Transactions with St. Paul and Its
Subsidiaries,” “Related Party Transactions —
Transactions with RenaissanceRe and Its Subsidiaries,” and in
the Pricing Disclosure Package and the Prospectus under the caption
“Description of Our Share Capital”); there are no
restrictions on subsequent transfers of the Shares under the laws
of Bermuda or the United States (other than, pursuant to the
securities laws of the United States or any state securities or
Blue Sky laws, by affiliates of the Company and other than as
described in the Pricing Disclosure Package and the Prospectus
under the caption “Description of Our Share
Capital”);
(k) The Shares to be issued and
sold by the Company to the Underwriter hereunder have been duly and
validly authorized and, when issued and delivered against payment
therefore as provided herein, will be duly and validly issued and
fully-paid and non-assessable and will conform to the description
of the Common Shares in the Pricing Disclosure Package and the
Prospectus;
(l) The issue and sale of the
Shares by the Company and the sale and delivery of the Shares by
the Selling Shareholder pursuant to and in the manner contemplated
by this Agreement, and the compliance by the Company with all of
the provisions of this Agreement and the Jurisdiction Agreement,
dated as of the date hereof (the “Jurisdiction
Agreement”), by and among the Company, the Selling
Shareholder and the Underwriters, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a
right of termination under (i) the memorandum of association or
bye-laws or other organizational document of the Company or any of
its subsidiaries, (ii) 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
properties or assets of the Company or any of its subsidiaries is
subject, or (iii) any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties, other than, in the case of clause (ii) or (iii),
such conflicts, breaches, violations, defaults and termination
rights which (A) would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial
position, shareholders’ equity or results of operations of
the Company and its subsidiaries, taken as a whole, (B) would
not affect the due authorization and valid issuance of the Shares,
or (C) would not adversely affect the consummation of the
transactions contemplated hereunder;
(m) Neither the Company nor any
of its subsidiaries is in violation of its memorandum of
association or bye-laws or other organizational documents or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture,
7
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;
(n) The Company has all
requisite corporate power and authority to enter into this
Agreement and the Jurisdiction Agreement; and each of this
Agreement and the Jurisdiction Agreement has been duly authorized,
executed and delivered by the Company;
(o) The statements set forth in
the Form 10-K under the caption “Business — Our
Business — Regulation” and “Related Party
Transactions” and in the Pricing Disclosure Package and the
Prospectus under the captions “Related Party
Transactions,” “Description of Our Share
Capital,” “Certain Tax Considerations,” and
“Underwriting,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are true
and complete in all material respects;
(p) Other than as set forth in
the Pricing Disclosure Package and the Prospectus, 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 have a material adverse
effect on the consolidated financial position, shareholders’
equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(q) There is no contract,
document or other agreement required to be described in the
Registration Statements, the Pricing Disclosure Package and the
Prospectus or to be filed as an exhibit to any of the Registration
Statements which is not described or filed as required by the Act;
each description of a contract, document or other agreement in the
Registration Statements, the Pricing Disclosure Package and the
Prospectus accurately reflects in all material respects the terms
of the underlying contract, document or other agreement; each
contract, document or other agreement set forth on
Schedule II(c) hereto (such listed contracts, documents and
other agreements, collectively, the “Filed Agreements”)
to which the Company or a subsidiary of the Company is a party is
in full force and effect and is valid and enforceable by and
against the Company or such subsidiary, as the case may be, in
accordance with its terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other laws now or hereafter in effect affecting
creditors’ rights generally, (ii) the enforceability
thereof is subject to the general principles of equity (whether
such enforceability is considered in a proceeding in equity or at
law) and (iii) no representation or warranty is made with
respect to the enforceability of indemnification and contribution
provisions relating to violations under the Act contained in the
Formation and Separation Agreement (as defined in Schedule II
(c) hereto), the Registration Rights Agreement (as defined in
Schedule II (c) hereto), the Remarketing Registration
Rights Agreement (as defined in Schedule II (c) hereto),
the 2005 Registration Rights Agreement (as defined in
Schedule II (c) hereto) and the Transfer Restrictions and
Registration Rights Agreement (as defined in Schedule II
(c) hereto); neither the Company nor any of its subsidiaries,
if a subsidiary is a party, nor to the Company’s knowledge,
any other party is in default in the observance or performance of
any term or obligation to be performed by it under any Filed
Agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default;
8
(r) Except as described in the
Pricing Disclosure Package and the Prospectus, no consent,
approval, authorization, registration or qualification of or with
any governmental agency or body or any court is required to be
obtained or made by the Company or any of its subsidiaries for the
issue and sale of the Shares by the Company and the sale and
delivery of the Shares by the Selling Shareholder in the manner
contemplated by this Agreement and the consummation of the
transactions contemplated by this Agreement and the Jurisdiction
Agreement, except (i) the registration under the Act of the
Shares, (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities, Blue Sky or insurance securities laws in connection
with the purchase and distribution of the Shares by the
Underwriters, (iii) the filing of the Prospectus under the
Bermuda Companies Act 1981 in connection with the sale of the
Shares, (iv) such consents, approvals, authorizations,
registrations or qualifications as may be required and have been
obtained from the Bermuda Monetary Authority, and (v) such
consents, approvals, authorizations, registrations or
qualifications the failure of which to obtain or make would not,
individually or in the aggregate have a material adverse effect on
the consolidated financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole, or affect the due authorization and valid issuance of the
Shares by the Company, or affect the sale and delivery of the
Shares by the Selling Shareholder;
(s) The Company is not and,
after giving effect to the offering and sale of the Shares, will
not be an “investment company,” as such term is defined
in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(t) The Company is subject to
Section 13 of the Exchange Act;
(u) Except as described in the
Pricing Disclosure Package and the Prospectus, each of the Company
and its subsidiaries is duly licensed as an insurance holding
company or as an insurer or reinsurer, as the case may be, under
the insurance laws (including laws that relate to companies that
control insurance companies) and the rules, regulations and
interpretations of the insurance regulatory authorities thereunder
(collectively, “Insurance Laws”), of each jurisdiction
in which the conduct of its business as described in the Pricing
Disclosure Package and the Prospectus requires such licensing,
except for such jurisdictions in which the failure of the Company
and its subsidiaries to be so licensed would not, individually or
in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder’s equity or
results of operations of the Company and its subsidiaries, taken as
a whole; each of the Company and its subsidiaries 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, have
a material adverse effect on the consolidated financial position,
shareholder’s equity or results of operations of the Company
and its subsidiaries, taken as a whole; except as described in the
Pricing Disclosure Package and the Prospectus, each of the Company
and its subsidiaries has all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations
and qualifications of and from all insurance regulatory authorities
necessary to conduct their respective businesses as described in
the Pricing Disclosure Package and 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, have a material adverse
9
effect on the consolidated financial position, shareholder’s
equity or results of operations of the Company and its
subsidiaries, taken as a whole; none of the Company or any of its
subsidiaries has received any notification from any insurance
regulatory authority or other governmental authority in the United
States, Bermuda, Ireland, 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 or any of its subsidiaries; and no
insurance regulatory authority has issued any order or decree
impairing, restricting or prohibiting the payment of dividends by
the Company or any of its subsidiaries;
(v) The Company and its
subsidiaries own or possess or are licensed to use, or will be able
to acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
services marks and trade names that are necessary for the Company
and its subsidiaries to conduct the business of reinsurance in the
manner and to the extent described in the Pricing Disclosure
Package and the Prospectus, and none of the Company or any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the
foregoing, except for those which, if determined adversely to the
Company or any of its subsidiaries, would not have a material
adverse effect on the consolidated financial position,
shareholder’s equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(w) Each of the Company and its
subsidiaries has filed all statutory financial returns, reports,
documents and other information required to be filed pursuant to
the applicable Insurance Laws of the United States and the various
states thereof, Bermuda, Ireland, the United Kingdom and each other
jurisdiction applicable thereto, and has duly paid all taxes
(including franchise taxes and similar fees) it is required to have
paid under the applicable Insurance Laws of the United States and
the various states thereof, Bermuda, Ireland, 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 or to pay such taxes would not have
a material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and each of the Company and
its 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,
Ireland, 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 have a material adverse effect on the consolidated
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a
whole;
(x) Any tax returns required to
be filed by the Company or any of its subsidiaries in any
jurisdiction have been filed, except where the failure to file such
returns would not individually or in the aggregate have a material
adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole, and any material taxes,
including any withholding taxes, excise 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
10
those being contested in good faith and for which adequate reserves
have been provided or any of those currently payable without
penalty or interest;
(y) The Company and its
subsidiaries have not taken, and have no plan or intention to take,
directly or indirectly, any action that would or would be
reasonably expected to cause or result in (i) the Company
and/or any Non-U.S. Subsidiary being treated as engaged in a trade
or business within the United States for purposes of the Internal
Revenue Code of 1986, as amended (the “Code”),
(ii) the Company and/or any Non-U.S. Subsidiary being treated
as a passive foreign investment company within the meaning of
section 1297 of the Code, (iii) the Company and/or any
Non-U.S. Subsidiary being treated as a controlled foreign
corporation within the meaning of section 957 of the Code or
(iv) any shareholder of the Company having “related
party insurance income” inclusions for U.S. federal income
tax purposes as a result of being a shareholder of the
Company;
(z) 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 Bermuda or any political subdivision or taxing
authority thereof or therein in connection with the sale and
delivery by the Company of the Shares in the manner contemplated by
this Agreement to the Underwriters or the sale and delivery outside
Bermuda by the Underwriters of the Shares to the initial purchasers
thereof; and no registration, documentary, recording, transfer or
other similar tax, fee or charge by any Bermuda government
authority is payable in connection with the execution, delivery,
filing, registration or performance of this Agreement;
(aa) There are no currency
exchange control laws, in each case of Bermuda, the United Kingdom
or Ireland (or any political subdivision or taxing authority
thereof), that would be applicable to the payment of dividends
(i) on the Shares by the Company (other than as may apply to
residents of Bermuda for Bermuda exchange control purposes) or
(ii) by any of the Company’s subsidiaries to the
Company. The Bermuda Monetary Authority has designated the Company
and Platinum Bermuda as nonresident for exchange control purposes
and has granted permission for transfer of the Shares (including
permission for the issue or transfer of up to 20% of the
Company’s shares in issue from time to time to persons
resident in 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 Platinum
Bermuda are “exempted companies” under Bermuda law and
have not (i) acquired and do not hold any land in Bermuda,
other than that held by way of lease or tenancy for terms of not
more than 21 years, without the express authorization of the
Bermuda legislature, (ii) taken mortgages on land in Bermuda
to secure an amount in excess of $50,000, without the consent of
the Bermuda Minister of Finance, (iii) acquired any bonds or
debentures secured by any land in Bermuda (other than certain types
of Bermuda government securities), or (iv) conducted their
business in a manner that is prohibited for “exempted
companies” under Bermuda law. Neither the Company nor
Platinum Bermuda has received notification from the Bermuda
Monetary Authority or any other Bermuda governmental authority of
proceedings relating to the modification or revocation of its
designation as nonresident for exchange control purposes, its
permission to issue and transfer the Shares, or its status as an
“exempted company”;
11
(bb) Assuming that the
Jurisdiction Agreement is binding on the other party or parties
thereto and assuming that the Jurisdiction Agreement is not
terminated, amended or modified in any way, under the laws of the
State of New York relating to submission to jurisdiction pursuant
to the Jurisdiction Agreement, the Company has validly and
irrevocably submitted to the non-exclusive jurisdiction of any
United States Federal or State court in the Borough of Manhattan,
the City of New York, or the State of New York (a “New York
Court”) with respect to suits, actions or proceedings brought
by any Underwriter or by any person who controls any Underwriter
within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act against the Company arising out
of or in connection with violations of United States federal
securities laws relating to offers and sales of the Shares, and has
validly and irrevocably waived, to the fullest extent permitted by
law, any objections that it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in any New
York Court based on or arising under this Agreement or any claims
that any such suit, action or proceeding brought in any New York
Court has been brought in an inconvenient forum; and, under the
Jurisdiction Agreement, the Company has duly and irrevocably
appointed CT Corporation System as its agent to receive service of
process with respect to actions arising out of or in connection
with any such suit, action or proceeding, and service of process on
CT Corporation System effected in the manner set forth in the
Jurisdiction Agreement will be effective under the laws of Bermuda
to confer personal jurisdiction over the Company;
(cc) The Company has not taken,
directly or indirectly, any action that has constituted or that was
designed to or which has constituted or which might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(dd) The financial statements
included or incorporated by reference in the Registration
Statements, the Pricing Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly in
all material respects the financial position of the Company and its
subsidiaries on a consolidated basis as of the dates indicated and
the results of operations, stockholders’ equity and cash
flows of the Company and its subsidiaries on a combined basis for
the periods indicated; such financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States (“GAAP”) applied on a consistent basis
throughout the periods involved; the financial statement schedules,
if any, included or incorporated by reference in the Registration
Statements, the Pricing Disclosure Package and the Prospectus
present fairly in all material respects the information required to
be stated therein; the selected financial data included or
incorporated by reference in the Pricing Disclosure Package and the
Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent in all
material respects with that of the audited financial statements
included or incorporated by reference in the Registration
Statements, the Pricing Disclosure Package and the Prospectus, as
the case may be;
(ee) The combined statements of
underwriting results and identifiable underwriting cash flows of
the Reinsurance Underwriting Segment of the St. Paul Travelers
Companies, Inc. (“Predecessor”) incorporated by
reference in the Registration Statements, the Pricing Disclosure
Package and the Prospectus (i) present fairly in all material
respects the underwriting results and identifiable underwriting
cash flows of Predecessor for the period from January 1, 2002
through
12
November 1, 2002; (ii) comply as to form in all material
respects with the applicable accounting requirements of the Act;
and (iii) have been prepared in conformity with GAAP applied
on a consistent basis throughout the periods involved (except as
otherwise noted therein);
(ff) The selected financial
information with respect to the results of operations of
Predecessor for the period ended November 1, 2002 and for each
of the years ended December 31, 2001 and 2000 included in the
Registration Statements, the Pricing Disclosure Package and the
Prospectus (i) present fairly in all material respects the
financial position and results of operations of Predecessor for the
period ended November 1, 2002 and for each of the years ended
December 31, 2001 and 2000; and (ii) have been prepared
in conformity with GAAP applied on a consistent basis throughout
the periods involved (except as otherwise noted
therein);
(gg) KPMG, LLP, who have
certified certain financial statements of Predecessor and the
Company and its subsidiaries, and have audited the Company’s
internal control over financial reporting and management’s
assessment thereof, are independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder;
(hh) No relationship, direct or
indirect, exists between or among any of the Company or, to the
knowledge of the Company, any of its affiliates (as such term is
defined in Rule 405 under the Act) of the Company on the one
hand, and any former or current director, officer, stockholder,
broker, customer or supplier of any of them, on the other hand,
which is required by the Act or the Exchange Act or the rules and
regulations thereunder to be described in the Registration
Statements, Pricing Disclosure Package or the Prospectus which is
not so described or is not described as required;
(ii) The Company and its
consolidated subsidiaries maintain a system of internal control
over financial reporting (as such term is defined in
Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and that is sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management’s authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management’s authorization; (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences; (v) material information relating to the
Company and its consolidated subsidiaries is promptly made known to
the officers responsible for establishing and maintaining the
system of internal accounting controls; and (vi) any
significant deficiencies or weaknesses in the design or operation
of internal accounting controls which could adversely affect the
Company’s ability to record, process, summarize and report
financial data, and any fraud whether or not material that involves
management or other employees who have a significant role in
internal controls, are adequately and promptly disclosed to the
Company’s independent auditors and the audit committee of the
Company’s board of directors; the Company’s internal
control over financial reporting is effective in all material
respects and the Company is not aware of any material weaknesses in
its internal control over financial reporting;
(jj) The Company and its
consolidated subsidiaries employ disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) of the Exchange
Act) that comply in all material respects with the requirements of
the Exchange Act; such disclosure controls and
13
procedures are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and
communicated to the Company’s management, including its
principal executive officer or officers and principal financial
officer or officers, as appropriate to allow timely decisions
regarding disclosure; such disclosure controls and procedures are
effective to provide reasonable assurance that information required
to be disclosed by the Company in reports filed or submitted by the
Company under the Exchange Act is recorded, processed, summarized
and timely reported as specified in the Commission’s rules
and forms;
(kk) There are no transactions,
arrangements and other relationships between and/or among the
Company, and/or, to the knowledge of the Company, any of its
affiliates and any unconsolidated entity, including, but not
limited to, any structural finance, special purpose or limited
purpose entity (each, an “Off Balance Sheet
Transaction”) that could reasonably be expected to affect
materially the Company’s liquidity or the availability of or
requirements for its capital resources, including those Off Balance
Sheet Transactions described in the Commission’s Statement
about Management’s Discussion and Analysis of Financial
Conditions and Results of Operations (Release Nos. 33-8056;
34-45321; FR-61), required to be described in the Pricing
Disclosure Package or the Prospectus which have not been described
as required;
(ll) Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Disclosure Package or the Prospectus,
there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting;
(mm) Except as described in the
Pricing Disclosure Package and the Prospectus, the Company has no
knowledge of any threatened or pending downgrading of the rating
accorded the Company or any of its subsidiaries’ financial
strength or claims-paying ability by A.M. Best Company, Inc.,
Standard & Poor’s Ratings Service, a Division of The
McGraw-Hill Companies, Inc., and Moody’s Investors Services,
Inc., 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 claims-paying ability or one or more of the Company or its
subsidiaries; and
(nn) The Registration Statements
are not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the Act, and the Company is not the subject
of a pending proceeding under Section 8A of the Act in
connection with the offering of the Shares.
2. The Selling Shareholder
represents and warrants to, and agrees with, each of each of the
Underwriters and the Company that:
(a) The Selling Shareholder has
been duly incorporated and is validly existing as a company in good
standing under the laws of Bermuda, with all requisite corporate
power and authority to enter into this Agreement and the
Jurisdiction Agreement and to consummate the transactions
contemplated herein and therein;
(b) Each of this Agreement and
the Jurisdiction Agreement has been duly authorized, executed and
delivered by the Selling Shareholder;
14
(c) No consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the execution and delivery by the
Selling Shareholder of this Agreement and the Jurisdiction
Agreement, or for the sale and delivery of the Shares; and the
Selling Shareholder has full right, power and authority to enter
into this Agreement and the Jurisdiction Agreement and has full
right, power and authority to sell, transfer and deliver the Shares
to be sold hereunder;
(d) The sale of the Shares to be
sold by the Selling Shareholder hereunder and the compliance by the
Selling Shareholder with all of the provisions of each of this
Agreement and the Jurisdiction Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a
right of termination under (i) the Memorandum of Association
or the Amended and Restated Bye-laws of the Selling Shareholder,
(ii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Shareholder is a
party or by which the Selling Shareholder is bound or to which any
of the properties or assets of the Selling Shareholder is subject,
or (iii) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Selling Shareholder or any of their respective properties, other
than, in the case of clause (ii) or (iii), such conflicts,
breaches, violations, defaults and termination rights which
(A) would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Selling
Shareholder and its subsidiaries, taken as a whole, or
(B) would not adversely affect the consummation of the
transactions contemplated hereunder;
(e) Under the Jurisdiction
Agreement, the Selling Shareholder has validly and irrevocably
submitted to the non-exclusive jurisdiction of any New York Court
with respect to suits, actions or proceedings brought by each
Underwriter or by any person who controls each of the Underwriters
within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act against the Selling Shareholder
arising out of or in connection with violations of United States
federal securities laws relating to offers and sales of the Shares,
and has validly and irrevocably waived, to the fullest extent
permitted by law, any objections that it may now or hereafter have
to the laying of venue of any such suit, action or proceeding
brought in any New York Court based on or arising under this
Agreement or any claims that any such suit, action or proceeding
brought in any New York Court has been brought in an inconvenient
forum;
(f) The Selling Shareholder has
valid title to the Shares to be sold hereunder, free and clear of
all liens, encumbrances, equities or claims; upon delivery of such
Shares and payment therefore pursuant hereto, and assuming each of
the Underwriters purchases such Shares in accordance with the terms
and conditions of this Agreement, valid title to such Shares, free
and clear of all liens, encumbrances, equities or claims, will pass
to the Underwriter; and the Selling
15
Shareholder will take all action necessary to transfer and deliver
the Shares to the Underwriter pursuant to the terms and conditions
hereof;
(g) The Selling Shareholder has
not taken and will not take, directly or indirectly, any action
which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(h) All information about the
Selling Shareholder furnished to the Company by the Selling
Shareholder expressly for use in the Registration Statement, the
Prospectus, the Pricing Disclosure Package, or any Issuer
Represented Free Writing Prospectus listed on Schedule II(a)
or Schedule II(b) hereto is, and as of the Applicable Time and as
of each Time of Delivery will be, true, correct and complete in all
material respects, and does not, and on each Time of Delivery, will
not, contain any untrue statement of a material fact or omit to
state any material fact necessary to make such information not
misleading. The Selling Shareholder confirms as accurate the number
of shares of Common Shares set forth opposite the Selling
Shareholder’s name in the Prospectus under the caption
“Selling Shareholder”;
(i) The Selling Shareholder will
deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof);
(j) There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or to the knowledge of the
Selling Shareholder, threatened against the Selling Shareholder, or
any injunction, restraining order or order of any nature by a court
of competent jurisdiction, arising out of or in connection with the
consummation of the transactions contemplated by this Agreement;
and
(k) The Selling Shareholder is
not and, after giving effect to the offering and sale of the
Shares, will not be an “investment company”, as such
term is defined in the Investment Company Act.
3. (a) Subject to the terms
and conditions herein set forth and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, at a purchase price
of $28.79 per share, the amount of the Underwritten Shares set
forth opposite such Underwriter’s name in Schedule I(a)
hereto;
(b) Subject to the terms and
conditions herein set forth and in reliance upon the
representations and warranties herein set forth, the Selling
Shareholder agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Selling Shareholder, at a purchase price of $28.79 per share, the
amount of the Underwritten Shares set forth opposite such
Underwriter’s name in Schedule I(b) hereto;
and
(c) Subject to the terms and
conditions herein set forth and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants to the several Underwriters the right to purchase, severally
and not jointly, up to 1,091,513 Option Shares at the purchase
price per share set forth in the paragraph above. Said option may
be exercised only to cover over-allotments in the sale of the
Underwritten Shares by the Underwriter. Said option may
be
16
exercised in whole or in part at any time on or before the
30
th
day after the date of the Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the
number of Option Shares as to which the Underwriter is exercising
the option and the settlement date. The number of Option Shares to
be purchased by each Underwriter shall be the same percentage of
the total number of Option Shares to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Shares, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional
shares.
4. Upon the authorization by you
of the release of the Shares, the several Underwriters propose to
offer the Shares for sale upon the terms and conditions set forth
in the Prospectus.
5. (a) The Shares to be
purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours’
prior notice to the Company and the Selling Shareholder, shall be
delivered by or on behalf of the Company and the Selling
Shareholder to the Representatives, through the facilities of The
Depository Trust Company (“DTC”), for the account of
such 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 accounts specified by the Company
and the Selling Shareholder, respectively, to the Representatives
at least forty-eight hours in advance. The time and date of such
delivery and payment of the Underwritten Shares and the Option
Shares (if the option provided for in Section 3
(b) hereof shall have been exercised on or before the third
New York Business Day prior to the First Time of Delivery) shall be
9:30 a.m., New York City time, on December 6, 2005 or such
other time and date as the Representatives, the Selling Shareholder
and the Company may agree upon in writing. Such time and date for
delivery of the Shares is herein called the “First Time of
Delivery.” The time and date of delivery and payment of the
Option Shares (if the option provided for in Section 3
(b) hereof is exercised after the third New York Business Day
prior to the First Time of Delivery) shall be 9:30 AM, New York
City time, on the date specified by the Representatives (which
shall be within three New York Business Days after exercise of said
option). Such time and date for delivery of the Option Shares,
which is subsequent to the First Time of Delivery, is herein called
the “Subsequent 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 10 hereof, including the cross
receipt for the Shares and any additional documents requested by
the Representatives pursuant to Section 10(o) hereof, will be
delivered at the offices of Fried, Frank, Harris, Shriver &
Jacobson LLP One New York Plaza, New York, New York 10004 (the
“Closing Location”), at such Time of Delivery. If
settlement for the Option Shares occurs after the First Time of
Delivery, the Company shall deliver to the Representatives on the
Subsequent Time of Delivery, and the obligation of the Underwriters
to purchase the Option Shares shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the
First Time of Delivery pursuant to Section 10 hereof. A
meeting will be held at the Closing Location at 2:00 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. For the purposes of this
Section 5, “New York Business Day”
shall
17
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to
close.
6. The Company agrees with each
of the several 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, or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to any of the Registration
Statements, the Basic Prospectus or the Prospectus prior to such
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 any of
the Registration Statements has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly all
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
Section 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 Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
preliminary prospectus or other prospectus, of the suspension of
the qualification of the Shares 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 for the
amending or supplementing of any of the Registration Statements 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, promptly to use its reasonable
best efforts to obtain the withdrawal of such order; the Company
will prepare a final term sheet (the “Final Term
Sheet”) reflecting the final terms of the Shares, in form and
substance satisfactory to the Representatives, and shall file such
Final Term Sheet as an Issuer Represented Free Writing Prospectus
prior to the close of business two business days after the date
hereof; provided that the Company shall furnish the Representatives
with copies of any such Final Term Sheet a reasonable amount of
time prior to such proposed filing and will not use or file any
such document to which the Representatives or counsel to the
Underwriters shall reasonably object;
(b) Promptly from time to time
to take such action as you may reasonably request to qualify the
Shares for offering and sale under the securities laws of such
jurisdictions as you may request and to comply in all material
respects 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 Shares, 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 or become subject to
taxation in any jurisdiction;
(c) Prior to 10:00 A.M.,
New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the
Underwriters with written
18
and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an 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 when such Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify you and upon your request to
file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written
and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may reasonably request of an
amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available
to its securityholders as soon as practicable, but in any event not
later than eighteen months after the earlier of the applicable
effective dates of the Registration Statements (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Company,
Rule 158);
(e) During the period beginning
from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, not to offer, sell,
contract to sell or otherwise dispose of, except as provided
hereunder, any Shares or any securities of the Company that are
substantially similar to the Shares, any securities that are
convertible into or exchangeable for, or that represent the right
to receive, Common Shares or any such substantially similar
securities (other than the Mandatory Convertible Preferred Shares
issued and sold by the Company pursuant to the Mandatory
Convertible Preferred Shares Underwriting Agreement, any securities
issuable upon the conversion of the Mandatory Convertible Preferred
Shares issued and sold pursuant to the Mandatory Convertible
Preferred Shares Underwriting Agreement and securities issued
pursuant to any director or employee stock option or benefit plans
existing on or upon the exercise, conversion or exchange of
convertible or exchangeable securities or options outstanding as of
the date of this Agreement), or to file any registration statement
with the Commission under the Act relating to any such securities,
without the prior written consent of the
Representatives;
(f) To make available to its
shareholders all information as required by the Exchange
Act;
(g) If not otherwise available
on the Commission’s Electronic Data Gathering, Analysis and
Retrieval System or similar system, during a period of five years
from the later of the applicable
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effective dates of the Registration Statements, to furnish to its
shareholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of
income, shareholders’ equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the later of the applicable effective
dates of the Registration Statements), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail, provided, however, that if the
Company is subject to the reporting requirements of the Exchange
Act, the Company shall not be required to provide such information
prior to the time such information is filed with the
Commission;
(h) If not otherwise available
on the Commission’s Electronic Data Gathering, Analysis and
Retrieval System or similar system, during a period of five years
from the later of the applicable effective dates of the
Registration Statements, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders
of the Company, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished
to or filed with the Commission or any securities exchange on which
the Shares or any class of securities of the Company is listed; and
(ii) such additional non-confidential information that is
available without undue expense concerning the business and
financial condition of the Company as you may from time to time
reasonably request in writing (such financial statements to be
prepared on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished
to its shareholders generally or to the Commission); provided,
however, that if the Company is subject to the reporting
requirements of the Exchange Act, the Company shall not be required
to provide such information prior to the time such information is
provided to the Commission;
(i) To notify the
Representatives immediately, and promptly confirm the notice in
writing, of any examination of any of the Registration Statements
pursuant to Section 8(e) of the Act or if the Company becomes the
subject of a proceeding under Section 8A of the Act in
connection with the offering of the Shares;
(j) To use its best efforts to
maintain the listing of the Shares on the New York Stock Exchange
(the “Exchange”); and
(k) If the Company elects to
rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the
Act.
7. (a) Each of the Company
and the Selling Shareholder represents and agrees, severally and
not jointly, that, without the prior consent of the
Representatives, it has not made and will not make any offer
relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act; any
such free writing prospectus the use of which has been consented to
by the Representatives is listed on Schedule II(a) or
Schedule II(b) hereto;
20
(b) The Company represents that
it has complied and will comply with the requirements of Rule 433
under the Act applicable to any Issuer Represented Free Writing
Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if
at any time following issuance of an Issuer Represented Free
Writing Prospectus any event occurred or occurs as a result of
which such Issuer Represented Free Writing Prospectus would
conflict with the information in any of the Registration
Statements, the Pricing Disclosure Package or the Prospectus or
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will
prepare and furnish without charge to each Underwriter an Issuer
Represented Free Writing Prospectus or other document which will
correct such conflict, statement or omission.
8. The Selling Shareholder
covenants and agrees with each of the Underwriters that, during the
period beginning from the date hereof and continuing to and
including the date 90 days after the date of the Prospectus,
it will not, and it will cause its direct and indirect subsidiaries
not to, offer, sell, contract to sell or otherwise dispose of (any
of such actions, a “Transfer”) any Common Shares or any
securities of the Company that are substantially similar to the
Common Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right
to receive, Common Shares or any such substantially similar
sec
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