Platinum Underwriters Holdings, Ltd.
6.00% Series A Mandatory Convertible Preferred Shares
(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”) 5,000,000 6.00% Series A Mandatory
Convertible Preferred Shares, par value $.01 per share (the
“Mandatory Convertible Preferred Shares”) convertible
into Common Shares, par value $.01 per share (the “Common
Shares”) of the Company (the “Underwritten
Shares”). The Company also proposes to grant to the
Underwriters an option to purchase up to 750,000 additional
Mandatory Convertible Preferred Shares to cover over-allotments
(the “Option Shares”, and together with the
Underwritten Shares, the “Shares”). The Shares will be
established by the Certificate of Designation of the Mandatory
Convertible Preferred Shares, identified in Annex II hereto (the
“Certificate of Designation”).
Each of the Company and RenaissanceRe
Holdings, Ltd., a Bermuda company (“RenRe”), also
propose to offer concurrently with the offering of the Shares,
pursuant to a separate underwriting agreement (the “Common
Shares Underwriting Agreement”) to be entered into by and
among the Company, RenRe and the underwriters named therein (the
“Common Shares Underwriters”), 7,276,750 Common Shares
and the Company also proposes to grant to the Common Shares
Underwriters an option to purchase up to 1,091,513 additional
Common 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 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 (5)(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) A registration statement on Form
S-3 as amended by any pre-effective amendments thereto on or before
the date hereof (File No. 333-129182) (the “Original
Registration Statement”) in respect of the Shares has been
filed with the Commission; the Original Registration Statement 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 Statement 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 the Original Registration
Statement, 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 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”; the preliminary prospectus supplement, if any,
heretofore filed with the Commission, together with any preliminary
prospectus included in the Original Registration Statement or filed
with the Commission pursuant to Rule 424(a) under the Act is
hereinafter called a “Preliminary Prospectus”; the
various parts of the Original Registration Statement, 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
prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430B under the Act to be part of the Original
Registration Statement at the time it was declared effective and
(ii) the documents incorporated by reference in the prospectus
contained in the Original Registration Statement at the time such
part of the Original Registration Statement became effective, each
as amended at the time such part of the Original Registration
Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes
effective, are hereinafter
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collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(c) herein), 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
prospectus included in the Registration Statement, in the form
first filed pursuant to Rule 424(b) under the Act, is 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 Statement, 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 Statement 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 effective date of the Original 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 Shares is
hereinafter called an “Issuer Represented Free Writing
Prospectus”); for purposes of this Agreement, all references
to the Registration Statement, any Basic Prospectus, any Statutory
Prospectus, any Preliminary Prospectus, the Prospectus or any
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
3
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;
(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, do not and will
not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, 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 5(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 Statement, 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;
(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
4
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 Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement 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 date as to the
Registration Statement 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;
(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 Statement, 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 the sale of Common Shares pursuant to
the Common 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 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;
5
(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 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,” “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 Common 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
6
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 Underwriters hereunder have been duly and
validly authorized and, when issued in accordance with the
Certificate of Designation 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
Mandatory Convertible Preferred Shares in the Pricing Disclosure
Package and the Prospectus; the Common Shares issuable upon
conversion of the Shares have been duly and validly authorized and
reserved for issuance by the Company and, when issued and delivered
upon conversion and in accordance with the Certificate of
Designation, 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) [Intentionally
omitted.]
(m) The issue and sale of the Shares
to be sold by the Company 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”), between the Company and the Underwriters, the
compliance by the Company with the provisions of the Certificate of
Designation; 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 the
Common Shares issuable upon conversion of the Shares, or
(C) would not adversely affect the consummation of the
transactions contemplated hereunder;
(n) 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, 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;
7
(o) 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;
(p) 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;
(q) 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;
(r) There is no contract, document or
other agreement required to be described in the Registration
Statement, Pricing Disclosure Package and the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required by the Act; each description of a
contract, document or other agreement in the Registration
Statement, 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 Remarketing
Registration Rights Agreement (as defined in Schedule II(c)
hereto), the 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;
(s) 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
8
subsidiaries for the issue and sale of the Shares in the manner
contemplated by this Agreement and the consummation of the
transactions contemplated by this Agreement and the Jurisdiction
Agreement, and the issuance of Common Shares upon conversion of the
Shares 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 or the Common Shares issuable upon conversion of the
Shares;
(t) 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”);
(u) The Company is subject to
Section 13 of the Exchange Act;
(v) 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 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
9
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;
(w) 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;
(x) 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;
(y) 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 those being
contested in good faith and for which adequate reserves have been
provided or any of those currently payable without penalty or
interest;
(z) 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
10
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;
(aa) 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;
(bb) 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”;
(cc) 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
11
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;
(dd) 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;
(ee) The financial statements
included or incorporated by reference in the Registration
Statement, 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
Statement, 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
Statement, Pricing Disclosure Package and the Prospectus, as the
case may be;
(ff) 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 Statement, 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 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);
(gg) 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
12
December 31, 2001 and 2000 included in the Registration Statement,
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);
(hh) 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;
(ii) 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
Statement, the Pricing Disclosure Package or the Prospectus which
is not so described or is not described as required;
(jj) 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;
(kk) 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 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
13
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;
(ll) 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;
(mm) 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;
(nn) 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;
(oo) The Shares are duly listed, and
admitted and authorized for trading, subject to official notice of
issuance on the New York Stock Exchange (the
“Exchange”); and
(pp) 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. (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 $29.25 per share, the amount of the Underwritten Shares set
forth opposite such Underwriter’s name in Schedule I
hereto; and
(b) 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 750,000 Option Shares at the purchase price
per share set forth in the paragraph above. Said option may be
exercised only to
14
cover over-allotments in the sale of the Underwritten Shares by the
Underwriter. Said option may be 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.
3. Upon the authorization by you
of the release of the Shares, the Underwriters propose to offer the
Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (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, shall be delivered by or on behalf of
the Company 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 account specified by the Company 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 2
(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 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 2 (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 7 hereof, including the cross
receipt for the Shares and any additional documents requested by
the Representatives pursuant to Section 7(n) 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 8 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 4, “New York Business Day” shall 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.
5. The Company agrees with each
of the several Underwriters:
15
(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 the Registration Statement,
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 the
Registration Statement 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 (or the Common Shares issuable upon
conversion 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 the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
preliminary prospectus or other prospectus or suspending any such
qualification, 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 (and the Common Shares issuable upon conversion of 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 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)
16
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 the Common Shares
issuable upon conversion 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 (and the shares
of Common Shares issuable upon conversion 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 effective date of the
Registration Statement (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 of the Shares or Common Shares or any securities of
the Company that are substantially similar to the Shares or Common
Shares, any securities that are convertible into or exchangeable
for, or that represent the right to receive, Shares or Common
Shares or any such substantially similar securities (other than the
Common Shares sold pursuant to the Common Shares Underwriting
Agreement, any securities issuable upon the conversion of the
Shares offered hereby 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 effective date of the Registration Statement, to furnish
to its shareholders as soon as practicable after the end of
each
17
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 effective date
of the Registration Statement), 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 effective date of the Registration Statement, 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, the Common Shares
or any other 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 the Registration Statement 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
obtain listing of the Shares on the Exchange, and to maintain the
listing of the Common Shares on the Exchange;
(k) To reserve and keep
available at all times, free of preemptive rights, a sufficient
number of its Common Shares for the purpose of enabling the Company
to satisfy any obligation to issue its Common Shares upon
conversion of the Shares;
(l) 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;
(m) No later than
December 31, 2006, the Company will present to its
shareholders for approval a resolution proposing that
Article 51(4) of the Company’s Bye-laws (which may be
interpreted to limit the voting rights of the Shares) be deleted in
its entirety and recommend to the shareholders that such resolution
be approved and adopted; and, promptly following such approval and
adoption, the Company will amend its Bye-laws to delete
Article 51(4) in its entirety; provided that if the Bye-laws
have not been so amended prior to December 31, 2006 (a
“Voting Default”) then, as
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liquidated damages for such Voting Default, for the period from
January 1, 2007 until the date that the Bye-laws have been so
amended, additional amounts (“Liquidated Damages”), in
addition to regular dividends, shall accrue on the outstanding
Shares at a per annum rate of 0.25% of the aggregate liquidation
preference of the outstanding Shares during the first 90-day period
following the occurrence of such Voting Default, and at a per annum
rate of 0.50% thereafter for any remaining period during which a
Voting Default continues; provided further that Liquidated Damages
shall be paid on dividend payment dates to the holders of record
for the payment of dividends on the Shares; and
(n) Prior to and until the date
the Company’s Bye-laws are amended to delete
Article 51(4) of the Company’s Bye-laws, the Company
will not take any action which would vary the rights attached to
the Shares, by amalgamation or otherwise.
6. (a) The Company
represents and agrees that, without the prior consent of the
Representatives, it has not made and will not m
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