Exhibit 1.1
EXECUTION COPY
9,400,000 Ordinary Shares
SCOTTISH RE GROUP LIMITED
UNDERWRITING AGREEMENT
December 15, 2005
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
as representatives of the
several Underwriters named in
Schedule I attached hereto (the "Representatives")
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York
10179
and
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Scottish Re Group Limited, an exempted company limited by shares
incorporated and existing under the laws of the Cayman Islands (the
"Company"),
Bear, Stearns International Limited (the "Bear Stearns Dealer") (at
the
Company's request in connection with the two confirmations to the
ISDA Master
Agreement dated the date hereof (the "Bear Forward Agreements")
between the
Company and Bear Stearns Dealer relating to the forward sale by the
Company of a
number of Ordinary Shares (as defined below) equal to the number of
Ordinary
Shares to be borrowed and sold by Bear Stearns Dealer pursuant to
this
Agreement), Lehman Brothers OTC Derivatives Inc. (the "Lehman
Dealer" and,
together with the Bear Stearns Dealer, the "Dealers") (at the
Company's request
in connection with the two confirmations to the ISDA Master
Agreement dated the
date hereof (the "Lehman Forward Agreements" and, together with the
Bear Forward
Agreements, the "Forward Agreements") between the Company and
Lehman Dealer
relating to the forward sale by the Company of a number of Ordinary
Shares equal
to the number of Ordinary Shares to be borrowed and sold by Lehman
Dealer
pursuant to this Agreement) and the underwriters named in Schedule
I hereto (the
"Underwriters") confirm their respective agreements with respect to
the sale by
the Company and the Dealers (with the Dealers acting at the
Company's request),
and the
purchase by the Underwriters, acting severally and not jointly, of
6,250,000 of
the Company's Ordinary Shares, par value $0.01 per share (the
"Ordinary
Shares"), from the Company (the "Company Shares"), 1,575,000
Ordinary Shares
from Bear Stearns Dealer (the "Bear Shares") and 1,575,000 Ordinary
Shares from
Lehman Dealer (the "Lehman Shares" and, together with the Bear
Shares, the
"Borrowed Shares"). The Borrowed Shares and the Company Shares are
hereinafter
referred to as the "Firm Shares." In addition, the Company proposes
to grant to
the Underwriters an option to purchase up to an additional
1,410,000 Ordinary
Shares, par value $0.01 per share, on the terms and for the
purposes set forth
in 2(b) (the "Option Shares"). The Firm Shares and the Option
Shares, if
purchased, are hereinafter collectively called the "Shares." Bear,
Stearns & Co.
Inc. ("Bear Stearns") and Lehman Brothers Inc. are acting as lead
managers (the
"Lead Managers" or "Representatives") in connection with the
offering and sale
of the Shares contemplated herein (the "Offering").
In addition, the Dealers may borrow from time to time up to an
additional
3,428,948 Ordinary Shares (the "Additional Shares"), which the
Dealers will
sell. The Additional Shares will not be included in the offering of
the Shares
to be underwritten by the Underwriters, and the Dealers will not
sell any
Additional Shares through the underwriting syndicate formed by the
Underwriters
to offer the Shares.
1. (I) Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement on Form S-3 (No.
333-113030), and
amendments thereto, and related preliminary prospectuses for the
registration
under the Securities Act of 1933, as amended (the "Securities
Act"), relating to
the registration of certain securities (the "Shelf Securities") of
the Company
to be sold from time to time by the Company. Such registration
statement, as so
amended (including post-effective amendments, if any), has been
declared
effective by the Commission and copies of which have heretofore
been delivered
to the Underwriters. The registration statement, as amended at the
time it
became effective, is hereinafter referred to as the "Registration
Statement." If
the Company has filed or is required pursuant to the terms hereof
to file a
registration statement pursuant to Rule 462(b) under the Securities
Act
registering additional Shares or Additional Shares (a "Rule 462(b)
Registration
Statement"), then, unless otherwise specified, any reference herein
to the term
"Registration Statement" shall be deemed to include such Rule
462(b)
Registration Statement. Other than a Rule 462(b) Registration
Statement, which
became effective upon filing, no other document with respect to the
Registration
Statement has heretofore been filed with the Commission. All of the
Shares and
Additional Shares have been registered under the Securities Act
pursuant to the
Registration Statement or, if any Rule 462(b) Registration
Statement is filed,
will be duly registered under the Securities Act with the filing of
such Rule
462(b) Registration Statement. The Company, if required by the
Securities Act
and rules and regulations of the Commission (together, the "Rules
and
Regulations"), proposes to file a
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prospectus supplement with the Commission pursuant to Rule 424(b)
of the Rules
and Regulations. The prospectus supplement specifically relating to
the Shares
and Additional Shares, in the form in which it is to be filed with
the
Commission pursuant to Rule 424(b) of the Rules and Regulations
(the "Prospectus
Supplement"), along with the basic prospectus included in the
Registration
Statement at the time it became effective (the "Basic Prospectus"),
is
hereinafter referred to as the "Prospectus," except that if any
revised
prospectus or prospectus supplement shall be provided to the
Underwriters by the
Company for use in connection with the Offering which differs from
the
Prospectus (whether or not such revised prospectus or prospectus
supplement is
required to be filed by the Company pursuant to Rule 424(b) of the
Rules and
Regulations), the term "Prospectus" shall refer to such revised
prospectus or
prospectus supplement, as the case may be, from and after the time
it is first
provided to the Underwriters for such use or the time it is first
provided to
the Dealers for use in connection with the sale of Additional
Shares. Any
preliminary prospectus supplement or prospectus supplement subject
to completion
included in the Registration Statement or filed with the Commission
pursuant to
Rule 424 under the Securities Act specifically relating to the
Shares and the
Additional Shares together with the Basic Prospectus is referred to
herein as a
"Preliminary Prospectus" and the latest Preliminary Prospectus
included in the
Registration Statement or filed pursuant to Rule 424 on or prior to
8:30 A.M.,
New York City time (the "Applicable Time") on December 16, 2005 is
referred to
herein as the "Pricing Prospectus." The Pricing Prospectus,
together with each
"issuer free writing prospectus" (as defined in Rule 433 under the
Securities
Act ("Rule 433")) relating to the Shares and the Additional Shares
(an "Issuer
Free Writing Prospectus"), if any, issued or filed by the Company
at or before
the Applicable Time is referred to herein as the "Pricing
Disclosure Package."
Annex V shall be deemed an "Issuer Free Writing Prospectus" for
purposes of this
Agreement. Any reference herein to the Registration Statement, 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
which were filed under the Securities Exchange Act of 1934, as
amended (the
"Exchange Act") on or before the effective date of the Registration
Statement,
the date of such Preliminary Prospectus or the date of the
Prospectus, as the
case may be, and any reference herein to the terms "amend",
"amendment" or
"supplement" with respect to the Registration Statement, any
Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include (i) the
filing of any document under the Exchange Act after the effective
date of the
Registration Statement, the date of such Preliminary Prospectus or
the date of
the Prospectus, as the case may be, which is incorporated therein
by reference
and (ii) any such document so filed. All references in this
Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, the
Preliminary
Prospectus, the Prospectus or an Issuer Free Writing Prospectus, or
any
amendments or supplements to any of the foregoing, shall be deemed
to include
any copy thereof filed with the Commission pursuant to its
Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR").
(b) No stop order suspending the effectiveness of either the
Registration Statement or the Rule 462(b) Registration Statement,
if any, or the
use of the
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Prospectus, the Pricing Prospectus or any Issuer Free Writing
Prospectus has
been issued and no proceeding for that purpose has been initiated
or, threatened
by the Commission. At the time of the effectiveness of the
Registration
Statement, any 462(b) Registration Statement or the effectiveness
of any
post-effective amendment to the Registration Statement, the
Registration
Statement and any amendments thereof complied or will comply in all
material
respects with the applicable provisions of the Securities Act and
the Rules and
Regulations and did not and will not contain an untrue statement of
a material
fact and did not and will not omit to state any material fact
required to be
stated therein or necessary in order to make the statements therein
not
misleading. When the Prospectus is first filed with the Commission
pursuant to
Rule 424(b) of the Rules and Regulations, when any supplement to or
amendment of
the Prospectus is filed with the Commission, when any document
filed under the
Exchange Act was or is filed and at the Closing Date, the
Additional Closing
Date, if any (as hereinafter respectively defined), and on any date
on which a
Prospectus relating to the Additional Securities is required to be
delivered or
a sale of Additional Securities is settled (a "Hedge Prospectus
Date") the
Prospectus and any amendments thereof and supplements thereto
complied or will
comply in all material respects with the applicable provisions of
the Securities
Act, the Exchange Act and the Rules and Regulations and did not and
will not
contain an untrue statement of a material fact and did not or will
not omit to
state any material fact required to be stated therein or necessary
in order to
make the statements therein, in light of the circumstances under
which they were
made, not misleading. When any related Preliminary Prospectus was
first filed
with the Commission (whether filed as part of the registration
statement for the
registration of the Shares and the Additional Shares or any
amendment thereto or
pursuant to Rule 424(a) of the Rules and Regulations), when any
amendment or
supplement thereto was first filed with the Commission, such
Preliminary
Prospectus and any amendments thereof and supplements thereto
complied in all
material respects with the applicable provisions of the Securities
Act and the
Rules and Regulations and the Exchange Act and the respective rules
and
regulations thereunder and did not contain an untrue statement of a
material
fact and did not omit to state any material fact required to be
stated therein
or necessary in order to make the statements therein in light of
the
circumstances under which they were made not misleading. As of the
Applicable
Time, the Pricing Disclosure Package 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. Each Issuer Free
Writing Prospectus
(including, without limitation, any "road show" presentation by
representatives
of the Company that constitutes a "free writing prospectus" under
Rule 433 under
the Securities Act) conformed or will conform in all material
respects to the
requirements of the Securities Act and the Rules and Regulations on
the date of
first use, and when considered together with the Pricing Disclosure
Package as
of the Applicable Time, 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. No representation and warranty is made
in this
subsection (b), however, with respect to any information contained
in or omitted
from the
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Registration Statement or the Prospectus or Preliminary Prospectus
or any
amendment or supplement thereto in reliance upon and in conformity
with
information furnished in writing to the Company by or on behalf of
any
Underwriter through the Lead Managers or the Dealers specifically
for use
therein. The parties acknowledge and agree that, for all purposes
relating to
this Agreement, the information provided by or on behalf of any
Underwriter
consists of the third paragraph, the fourth paragraph, the last
sentence of the
fifth paragraph, the eighteenth paragraph and the nineteenth
paragraph under the
caption "Underwriting" in the Prospectus.
(c) Ernst & Young LLP, who have certified the financial
statements and
supporting schedules of the Company included or incorporated in the
Registration
Statement, are independent public accountants as required by the
Securities Act,
the Exchange Act and the Rules and Regulations.
(d) Subsequent to the respective dates as of which information is
given
in the Registration Statement and the Pricing Prospectus, except as
set forth in
the Registration Statement and the Pricing Prospectus, the Company
has not paid
any dividends on any class of its share capital and there has been
no material
adverse change or any development involving a prospective material
adverse
change on (i) the business, prospects, properties, operations,
condition
(financial or other), stockholders' equity or results of operations
of the
Company and each subsidiary of the Company (each, a "Subsidiary"
and together,
the "Subsidiaries"), taken as a whole; (ii) the share capital or
long-term debt
of the Company; (iii) the Offering; or (iv) the consummation of the
transactions
contemplated by this Agreement or the Forward Agreements or the
Company's
performance of its obligations hereunder (a "Material Adverse
Change" or
"Material Adverse Effect"), whether or not arising from
transactions in the
ordinary course of business, and since the date of the latest
balance sheet
presented in the Registration Statement and the Pricing Prospectus,
neither the
Company nor any of the Subsidiaries has incurred or undertaken any
liabilities
or obligations, direct or contingent, or entered into any
transactions which are
material to the Company and the Subsidiaries taken as a whole,
except for
liabilities or obligations which are reflected in the Registration
Statement and
the Pricing Prospectus.
(e) The Company has the corporate power and authority to execute
and
deliver this Agreement and the Forward Agreements, to perform its
obligations
hereunder and thereunder and to consummate the transactions
contemplated by this
Agreement, the Forward Agreements, the Registration Statement and
the Pricing
Prospectus. This Agreement and the Forward Agreements and the
transactions
contemplated by this Agreement, the Forward Agreements, the
Registration
Statement and the Pricing Prospectus have been duly and validly
authorized by
the Company. This Agreement and the Forward Agreements have been
duly and
validly executed and delivered by the Company.
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(f) The Forward Agreements (assuming due execution by the
respective
Dealer) constitute valid and binding obligations of the Company
enforceable
against the Company in accordance with their terms, except as the
enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or other
similar laws affecting the enforcement of creditors' rights
generally or by
general equitable principles (regardless of whether enforcement is
considered in
a proceeding in equity or at law) (the "Bankruptcy Exceptions") and
an implied
covenant of good faith and fair dealing; and each Forward Agreement
conforms to
the description thereof in the Prospectus.
(g) The execution, delivery and performance of this Agreement and
the
Forward Agreements and the consummation of the transactions
contemplated by this
Agreement, the Forward Agreements, the Registration Statement and
the Pricing
Prospectus do not and will not (i) conflict with or result in a
breach of any of
the terms and provisions of, or constitute a default (or an event
which with
notice or lapse of time, or both, would constitute a default)
under, or result
in the creation or imposition of any lien, charge or encumbrance
upon any
property or assets of the Company or any of the Subsidiaries
pursuant to any
indenture, mortgage, deed of trust, loan agreement or other
agreement,
instrument, franchise, license or permit to which the Company or
any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries or
their respective properties or assets may be bound or (ii) violate
or conflict
with any provision of the memorandum of association, articles of
association,
certificate or articles of incorporation, charter, by-laws or other
organizational documents of the Company or any of the Subsidiaries
or any
judgment, decree, order, statute, rule or regulation of any court
or any public,
governmental or regulatory agency or body having jurisdiction over
the Company
or any of the Subsidiaries or any of their respective properties,
operations or
assets. No consent, approval, authorization, order, registration,
filing,
qualification, license or permit of or with any court or any
public,
governmental or regulatory agency or body having jurisdiction over
the Company
or any of the Subsidiaries or any of their respective properties or
assets is
required to be made or obtained by the Company for its execution,
delivery and
performance of this Agreement and the Forward Agreements or the
consummation by
the Company of the transactions contemplated hereby or thereby, by
the
Registration Statement and by the Pricing Prospectus, including the
issuance,
sale and delivery of the Shares to be issued, sold and delivered by
the Company
hereunder, except (A) the registration under the Securities Act of
the Shares,
which has become effective, and (B) such consents, approvals,
authorizations,
orders, registrations, filings, qualifications, licenses and
permits as may be
required under state securities, Blue Sky or insurance securities
laws or the
rules of the National Association of Securities Dealers, Inc. (the
"NASD") in
connection with the purchase and distribution of the Shares by the
Underwriters.
(h) The Company has the authorized capital set forth in the Pricing
Prospectus and all of the issued share capital of the Company has
been duly and
validly authorized and issued in compliance with all applicable
state, federal
and foreign
6
securities laws, is fully paid and non-assessable and has not been
issued in
violation of or subject to any preemptive or similar rights that
entitle or will
entitle any person to acquire any such share capital or any
security
convertible, exchangeable or exercisable into such share capital
from the
Company upon issuance or sale by the Company or sale by the Dealers
of Shares in
the Offering, except for such rights as may have been fully
satisfied or waived
prior to the effectiveness of the Registration Statement; the
Shares to be
delivered on the Closing Date and the Additional Closing Date, if
any (as
hereinafter respectively defined), have been duly and validly
authorized and,
(in the case of the Company Shares and the Option Shares) when
issued and
delivered by the Company in accordance with this Agreement will be
duly and
validly issued, fully paid and non-assessable and will have been
issued in
compliance with all applicable state, federal and foreign
securities laws and
will not have been issued in violation of or subject to any
preemptive or
similar rights that entitle or will entitle any person to acquire
any Ordinary
Shares to be issued in connection therewith from the Company upon
issuance
thereof by the Company; the Ordinary Shares to be purchased by the
Dealers from
the Company, whether pursuant to physical settlement or net stock
settlement, as
a result of early termination of the Forward Agreements or
otherwise, have been
duly authorized and reserved for issuance and, when issued and
delivered by the
Company to the Dealers pursuant to the Forward Agreements against
payment of the
consideration set forth therein, will be validly issued and fully
paid and
non-assessable. All of the issued share capital of each of the
Subsidiaries has
been duly and validly authorized and issued and is fully paid and
non-assessable
and is owned directly or indirectly by the Company, free and clear
of all liens,
encumbrances, equities or claims; the Shares conform to the
descriptions thereof
contained or incorporated by reference in the Registration
Statement and the
Pricing Prospectus.
(i) The only subsidiaries (as defined in Rule 405 of the Securities
Act) of the Company are those listed on Schedule III attached
hereto. Each of
the Company and the Subsidiaries has been duly organized and is
validly existing
as a corporation or a company limited by shares in good standing
under the laws
of its jurisdiction of incorporation. Each of the Company and the
Subsidiaries
is duly qualified to do business and is in good standing as a
foreign
corporation in each jurisdiction in which the character or location
of its
properties (owned, leased or licensed) or the nature or conduct of
its business
makes such qualification necessary, except for those failures to be
so qualified
or in good standing which will not in the aggregate have a Material
Adverse
Effect on the condition (financial or otherwise), results of
operations,
business, properties or prospects of the Company and the
Subsidiaries taken as a
whole. Each of the Company and the Subsidiaries has all requisite
power and
authority, and all necessary consents, approvals, authorizations,
orders,
registrations, qualifications, licenses and permits (collectively,
the
"Consents") of and from all public, regulatory or governmental
agencies and
bodies, to own, lease and operate its properties and conduct its
business as now
being conducted and as described in the Registration Statement and
the Pricing
Prospectus, with such exceptions as would not have, individually or
in the
aggregate a
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Material Adverse Effect. No Consent contains a materially
burdensome restriction
not adequately disclosed in the Registration Statement and the
Pricing
Prospectus.
(j) Each of the Company and the Subsidiaries which is engaged in
the
business of insurance or reinsurance (each, an "Insurance
Subsidiary" and
together, the "Insurance Subsidiaries") holds such insurance
license,
certificates and permits from governmental authorities (including,
without
limitation, from the insurance regulatory agencies of the various
jurisdictions
where it conducts business) (the "Insurance Licenses") as are
necessary to the
conduct of its business as described in the Pricing Prospectus; the
Company and
each Insurance Subsidiary have fulfilled and performed all
obligations necessary
to maintain the Insurance Licenses; there is no pending or, to the
knowledge of
the Company after due inquiry, threatened action, suit, proceeding
or
investigation that could reasonably be expected to result in the
revocation,
termination or suspension of any Insurance License; and no
insurance regulatory
agency or body has issued, or to our knowledge, commenced any
proceeding for the
issuance of, any order or decree impairing, restricting or
prohibiting the
payment of dividends or the making of any loan by any Subsidiary to
its parent,
which would have, individually or in the aggregate, a Material
Adverse Effect.
(k) All reinsurance treaties and arrangements to which the Company
or
any Subsidiary is a party as a cedant are in full force and effect;
neither the
Company nor any Subsidiary is in material violation of or in
material default in
the performance, observance or fulfillment of any obligation,
agreement,
covenant or condition contained therein; neither the Company nor
any Subsidiary
has received any notice from any of the other parties to such
treaties or
arrangements that such other party intends not to perform such
treaty; and, to
the best knowledge of the Company and the Subsidiaries, the Company
and the
Subsidiaries have no reason to believe that any of the other
parties to such
treaties or arrangements will be unable to perform such treaty or
arrangement
except to the extent adequately and properly reserved for in the
consolidated
financial statements of the Company included in the Pricing
Prospectus.
(l) The 2004 statutory annual statements of each of the Insurance
Subsidiaries required to prepare such statements and the statutory
balance
sheets and income statements included in such statutory annual
statements
together with related schedules and notes, have been prepared, in
all material
respects, in conformity with statutory accounting principles or
practices
required or permitted by the appropriate insurance department of
the
jurisdiction of domicile of each such Insurance Subsidiary, and
such statutory
accounting practices have been applied on a consistent basis
throughout the
periods involved, except as may otherwise be indicated therein or
in the notes
thereto, and present fairly, in all material respects, the
statutory financial
position of the Insurance Subsidiaries as of the dates thereof, and
the
statutory basis results of operations of the Insurance Subsidiaries
for the
periods covered thereby.
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(m) The Company and the Insurance Subsidiaries have made no
material
changes in their insurance reserving practices since December 31,
2004, except
where such change in such insurance reserving practices would not
reasonably be
expected to have a Material Adverse Effect.
(n) Except as described in the Registration Statement and the
Pricing
Prospectus, the Company is not aware of any threatened or pending
downgrading of
any Insurance Subsidiary's financial strength rating from A.M. Best
Company,
Inc., Standard & Poor's Rating Services, Inc., Moody's Investor
Services or
Fitch Ratings (collectively, the "Rating Agencies").
(o) Except as described in the Registration Statement and the
Pricing
Prospectus, there is no judicial, regulatory, arbitral or other
legal or
governmental proceeding or other litigation, or arbitration,
including routine
litigation, to which the Company or any of the Subsidiaries is a
party or of
which any property of the Company or any of the Subsidiaries is the
subject
which, individually or in the aggregate, if determined adversely to
the Company
or any of the Subsidiaries, is reasonably likely to have a Material
Adverse
Effect, and to the best of the Company's knowledge, no such
proceeding is
threatened or contemplated by governmental authorities or
threatened or
contemplated by others.
(p) Neither the Company nor its Subsidiaries nor to the Company's
knowledge, any of its affiliates has taken, nor will any of them
take, directly
or indirectly, any action designed to cause or result in, or which
constitutes
or which might reasonably be expected to constitute, the
stabilization or
manipulation of the price of the Shares to facilitate the sale or
resale of the
Shares.
(q) The financial statements of the Company, including the notes
thereto, and supporting schedules included or incorporated by
reference in the
Registration Statement and the Pricing Prospectus present fairly in
all material
respects the financial position of the Company and its consolidated
subsidiaries
and the other entities for which financial statements are included
in the
Registration Statement and the Pricing Prospectus as of the dates
indicated and
condition and results of operations for the periods specified;
except as
otherwise stated in the Registration Statement, said financial
statements have
been prepared in conformity with U.S. generally accepted accounting
principles
("GAAP") in all material respects applied on a consistent basis
throughout the
periods involved; and the supporting schedules included in the
Registration
Statement present fairly in all material respects the information
required to be
stated therein. No other financial statements or supporting
schedules are
required to be included in the Registration Statement or Pricing
Prospectus. The
other financial and statistical information and data relating to
the Company and
its consolidated subsidiaries included in the Registration
Statement and the
Pricing Prospectus present fairly in all material respects the
information
included therein and have been prepared on a basis consistent with
that of the
financial statements included or incorporated by reference in the
9
Registration Statement and the Pricing Prospectus and the books and
records of
the respective entities presented therein.
(r) Except as disclosed in the Registration Statement and Pricing
Prospectus, no holder of securities of the Company has any rights
to the
registration of securities of the Company because of the filing of
the
Registration Statement or otherwise in connection with the sale of
the Shares
contemplated hereby, and any such rights so disclosed have been
effectively
waived by the holders thereof.
(s) The Company is not, and upon consummation of the transactions
contemplated hereby, and at all times up to and including the
application of net
proceeds as described in the Pricing Prospectus, will not be,
subject to
registration as an "investment company" under the Investment
Company Act of
1940.
(t) Any real property and buildings held under lease or sublease by
the
Company and the Subsidiaries are held by them under valid,
subsisting and
enforceable leases with such exceptions as are not material and do
not interfere
with the use made and proposed to be made of such property and
buildings by the
Company and the Subsidiaries. Neither the Company nor any of the
Subsidiaries
has received any notice of any claim adverse to their ownership of
any real or
personal property or of any claim against the continued possession
of any real
property, whether owned or held under lease or sublease by the
Company or any of
the Subsidiaries.
(u) The Company and each of the Subsidiaries have accurately
prepared
and timely filed all federal, state and other tax returns that are
required to
be filed by each of them and have paid or made provision for the
payment of all
taxes, assessments, governmental or other similar charges,
including without
limitation, all sales and use taxes and all taxes which the Company
and each of
the Subsidiaries are obligated to withhold from amounts owing to
employees,
creditors and third parties, with respect to the periods covered by
such tax
returns (whether or not such amounts are shown as due on any tax
return), except
in any case where the failure to file any such return or to make
any such
provision, individually or in the aggregate, would not have a
Material Adverse
Effect. No deficiency assessment with respect to a proposed
adjustment of the
Company's or any of the Subsidiaries' federal, state, or other
taxes is pending
or, to the best of the Company's knowledge, threatened, except in
the case of a
deficiency assessment the payment of which would not have a
Material Adverse
Effect. There is no tax lien, whether imposed by any federal,
state, or other
taxing authority, outstanding against the assets, properties or
business of the
Company or any of the Subsidiaries.
(v) As of the date hereof and on the Closing Date, the Company and
its
Subsidiaries expect to engage predominantly in traditional
insurance and
reinsurance activities that involve substantial transfer of
insurance or annuity
risks, and intend to operate in a manner that they will not (1)
engage in
certain nontraditional insurance or reinsurance activities that do
not involve a
sufficient amount of risk transfer or (2) maintain financial
reserves in excess
of the reasonable needs of the insurance
10
business of the Company and its Subsidiaries, either of which would
cause the
insurance company exception to the passive foreign investment
company rules
described in Section 1297 of the Internal Revenue Code of 1986, as
amended from
time to time (the "Code") not to apply to the Company or its
Subsidiaries.
(w) The Ordinary Shares are registered pursuant to Section 12(b) of
the
Exchange Act and the outstanding Ordinary Shares are listed on the
New York
Stock Exchange, Inc. (the "NYSE"), and the Company has taken no
action designed
to, or likely to have the effect of, terminating the registration
of the
Ordinary Shares under the Exchange Act or de-listing the Ordinary
Shares from
the NYSE, nor has the Company received any notification that the
Commission or
the NYSE is contemplating terminating such registration or listing.
(x) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(y) The documents incorporated or deemed to be incorporated by
reference in the Pricing Prospectus and the Prospectus, at the time
they were or
hereafter are filed with the Commission, complied and will comply
in all
respects with the requirements of the Securities Act, the Exchange
Act, the
Rules and Regulations and the rules and regulations of the
Commission under the
Exchange Act, and, when read together with the other information in
the Pricing
Prospectus and the Prospectus, at the time the Registration
Statement became
effective, did not and, at the Closing Date and the Additional
Closing Date and
on any Hedge Prospectus Date, 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, in the light of the circumstances
under which
they were made, not misleading.
(z) The Company has established and maintains disclosure controls
and
procedures (as such term is defined in Rule 13a-15 and 15d-15 under
the Exchange
Act) that (i) are designed to ensure that material information
relating to the
Company, including its consolidated subsidiaries, is made known to
the Company's
Chief Executive Officer and its Chief Financial Officer by others
within those
entities, particularly during the periods in which the filings made
by the
Company with the Commission which it may make under Section 13(a),
13(c), 14 or
15(d) of the Exchange Act are being prepared, (ii) have been
evaluated for
effectiveness as of the end of the Company's most recent fiscal
quarter and
(iii) are effective to perform the functions for which they were
established.
(aa) The Company (x) maintains systems of internal controls and
processes sufficient to provide reasonable assurance that (i)
transactions are
executed in accordance with management's general and specific
authorizations;
(ii) transactions are recorded as necessary to permit preparation
of financial
statements in conformity with generally accepted accounting
principles and to
maintain asset accountability; (iii) access to assets is permitted
only in
accordance with management's general or specific
11
authorization; and (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; and (y) except as disclosed in the
Registration
Statement and Pricing Prospectus, there has been no material
weakness in
internal controls since December 31, 2004, and there have been no
significant
changes in internal controls or other factors that could materially
affect
internal controls subsequent to December 31, 2004, except for
corrective actions
with respect to (i) any such material weakness so disclosed, or
(ii) any
significant deficiencies identified by the Company prior to the
date of this
Agreement that would not have a Material Adverse Effect.
(bb) No relationship, direct or indirect, exists between or among
any
of the Company or any affiliate of the Company, on the one hand,
and any
director, officer, stockholder, customer or supplier of the Company
or any
affiliate of the Company, on the other hand, which is required by
the Securities
Act, the Exchange Act or the Rules and Regulations to be described
in the
Registration Statement or the Pricing Prospectus which is not so
described and
described as required. There are no outstanding loans, advances
(except normal
advances for business expenses in the ordinary course of business)
or guarantees
of indebtedness by the Company to or for the benefit of any of the
officers or
directors of the Company or any of their respective family members,
except as
disclosed in the Registration Statement and the Pricing Prospectus.
The Company
has not, in violation of Section 13(k) of the Exchange Act,
directly or
indirectly, including through a Subsidiary (other than as permitted
under such
section for depositary institutions), extended or maintained
credit, arranged
for the extension of credit, or renewed an extension of credit, in
the form of a
personal loan to or for any director or executive officer of the
Company.
(cc) The audit committee of the Company's Board of Directors
complies
with the current independence requirements of the NYSE, applicable
to the
Company.
(dd) Except as disclosed in the Registration Statement and the
Pricing
Prospectus, there are no contracts, agreements or understandings
between the
Company and any person that would give rise to a valid claim
against the Company
or any Underwriter for a brokerage commission, finder's fee or
other like
payment in connection with the transactions contemplated by this
Agreement, the
Forward Agreements, the Registration Statement, the Prospectus and
the Pricing
Prospectus or, to the Company's knowledge, any arrangements,
agreements,
understandings, payments or issuance with respect to the Company or
any of its
officers, directors, employees or Subsidiaries that may affect the
Underwriters'
compensation as determined by the NASD.
(ee) Neither the Company, any Subsidiary nor, to the Company's
knowledge, any of its employees or agents has at any time during
the last five
years (i) made any unlawful contribution to any candidate for
foreign office, or
failed to
12
disclose fully any contribution in violation of law, or (ii) made
any payment to
any federal or state governmental officer or official, or other
person charged
with similar public or quasi-public duties, other than payments
required or
permitted by the laws of the United States of any jurisdiction
thereof.
(ff) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be
described in the
Prospectus or Pricing Prospectus or filed as exhibits to the
Registration
Statement or the Prospectus or Pricing Prospectus by the Securities
Act or by
the Rules and Regulations and which have not been so described or
filed.
(gg) Neither the Company nor any of the Subsidiaries (i) is in
violation of its memorandum of association, articles of
association, certificate
or articles of incorporation, charter or by-laws, (ii) is in
default (and no
event has occurred which, with notice or lapse of time or both,
would constitute
such a default) under, or result in the creation or imposition of
any lien,
charge or encumbrance upon any property or assets of the Company or
any of the
Subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement
or other agreement or instrument to which it is a party or by which
it is bound
or to which any of its property or assets is subject or (iii) is in
violation in
any respect of any statute or any judgment, decree, order, rule or
regulation of
any court or governmental or regulatory agency or body having
jurisdiction over
the Company or any of the Subsidiaries or any of their properties
or assets,
except in the case of (iii), any violation or default that would
not have a
Material Adverse Effect on the condition (financial or otherwise),
results of
operations, business, properties or prospects of the Company and
the
Subsidiaries taken as a whole.
(hh) Each of the Company and the Subsidiaries owns or possesses
adequate right to use all patents, patent applications, trademarks,
service
marks, trade names, trademark registrations, service mark
registrations,
copyrights, licenses, formulae, customer lists, and know-how and
other
intellectual property (including trade secrets and other unpatented
and/or
unpatentable proprietary or confidential information, systems or
procedures)
necessary for the conduct of their respective businesses as being
conducted and
as described in the Registration Statement and Pricing Prospectus
and have no
reason to believe that the conduct of their respective businesses
will conflict
with, and have not received any notice of any claim of conflict
with, any such
right of others, which claim, if the subject of an unfavorable
decision, ruling
or judgment, could reasonably be expected to result in a Material
Adverse
Effect. To the best of the Company's knowledge, all material
technical
information developed by and belonging to the Company which has not
been
patented has been kept confidential. Neither the Company nor any of
its
Subsidiaries has granted or assigned to any other person or entity
any right to
manufacture, have manufactured, assemble or sell the current
products and
services of the Company or those products and services described in
the
Registration Statement and Pricing Prospectus.
13
(ii) No labor disturbance by the employees of the Company or any of
the
Subsidiaries exists or, to the best of the Company's knowledge, is
imminent
which might be expected to have a Material Adverse Effect.
(jj) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended,
including the
regulations and published interpretations thereunder ("ERISA"), or
Section 4975
of the Code, or "accumulated funding deficiency" (as defined in
Section 302 of
ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than
events with respect to which the 30-day notice requirement under
Section 4043 of
ERISA has been waived) has occurred with respect to any employee
benefit plan of
the Company or any of its Subsidiaries which could have a Material
Adverse
Effect; each employee benefit plan of the Company or any of its
Subsidiaries is
in compliance in all material respects with applicable law;
including ERISA and
the Code; the Company has not incurred and does not expect to incur
liability
under Title IV of ERISA with respect to the termination of, or
withdrawal from
any "pension plan" (as defined in ERISA); and each "pension plan"
for which the
Company would have any liability that is intended to be qualified
under Section
401(a) of the Code is so qualified in all material respects and
nothing has
occurred, whether by action or by failure to act, which could cause
the loss of
such qualification.
(kk) The statistical and market-related data included in the
Prospectus
are based on or derived from sources which are reliable and
accurate.
(ll) The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the
Company or
any person acting on the Company's behalf (within the meaning of
Rule 163(c)
under the Securities Act) made a bona fide offer (within the
meaning of Rule
164(h)(2) under the Securities Act) of the Shares, is not on the
date hereof and
will not be on the Closing Date and each Additional Closing Date,
if any, an
"ineligible issuer" (as defined in Rule 405). With respect to each
Free Writing
Prospectus, the Company has complied with the prospectus delivery,
filing and
record retention requirements and requirements to include legends
applicable
under Rule 164(h)(2) of the Securities Act. The Company has not
made any offer
relating to the Shares or distributed any offering material in
connection with
the Offering other than any Preliminary Prospectus, the Pricing
Prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the Lead
Managers have
consented in writing and the Issuer Free Writing Prospectus
included as Annex V
hereto, without the prior written consent of the Lead Managers.
(II) Representations and Warranties by Bear Stearns Dealer. Bear
Stearns Dealer
represents, warrants and agrees that:
(a) This Agreement has been duly authorized, executed and delivered
by
Bear Stearns Dealer.
14
(b) Bear Stearns Dealer will at the Closing Date have the free and
unqualified right to transfer the Borrowed Shares to be sold by it
hereunder,
free and clear of any security interest, mortgage, pledge, lien,
charge, claim,
equity or encumbrance of any kind; and upon delivery of such
Borrowed Shares and
payment of the purchase price therefor as herein contemplated,
assuming each of
the Underwriters has no notice of any adverse claim, each of the
Underwriters
will have the free and unqualified right to transfer the Borrowed
Shares
purchased by it from the Lehman Dealer, free and clear of any
security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
(III) Representations and Warranties by Lehman Dealer. Lehman
Dealer represents,
warrants and agrees that:
(a) This Agreement has been duly authorized, executed and delivered
by
Lehman Dealer.
(b) Lehman Dealer will at the Closing Date have the free and
unqualified right to transfer the Borrowed Shares to be sold by it
hereunder,
free and clear of any security interest, mortgage, pledge, lien,
charge, claim,
equity or encumbrance of any kind; and upon delivery of such
Borrowed Shares and
payment of the purchase price therefor as herein contemplated,
assuming each of
the Underwriters has no notice of any adverse claim, each of the
Underwriters
will have the free and unqualified right to transfer the Borrowed
Shares
purchased by it from the Lehman Dealer, free and clear of any
security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and
conditions herein set
forth, the Company agrees to issue and sell, and each Dealer,
severally and not
jointly, agrees to sell, the Shares to the several Underwriters as
provided in
this Agreement, and each Underwriter agrees, severally and not
jointly, to
purchase from the Company and each Dealer, at a purchase price per
Share of
$22.86, the number of Firm Shares set forth opposite the respective
names of the
Underwriters in Schedule I hereto plus any additional number of
Shares which
such Underwriter may become obligated to purchase pursuant to the
provisions of
Section 9 hereof.
(b) Payment of the purchase price for, and delivery of, the Firm
Shares
shall be made at the office of Simpson Thacher & Bartlett LLP,
425 Lexington
Avenue, New York, New York 10017 ("Underwriters' Counsel") or at
such other
place as shall be agreed upon by the Lead Managers and the Company,
at 10:00
a.m., New York City time on December 21, 2005 (unless postponed in
accordance
with the provisions of Section 9 hereof) following the date of this
Agreement,
or such other time
15
not later than ten business days after such date as shall be agreed
upon by the
Lead Managers, the Dealers and the Company (such time and date of
payment and
delivery being herein called the "Closing Date").
(c) Payment for the Firm Shares shall be made to or upon the order
of
the Company and the Dealers, as applicable, of the purchase price
by wire
transfer in federal (same day) funds to the Company and the
Dealers, as
applicable, upon delivery of the Firm Shares to the Lead Managers
through the
facilities of The Depository Trust Company for the respective
accounts of the
several Underwriters against receipt therefor signed by the Lead
Managers.
Certificates for the Shares to be delivered to the Lead Managers
shall be
registered in such name or names and shall be in such denominations
as the Lead
Managers may request at least two business days before the Closing
Date. The
Company will permit the Lead Managers to examine and package
certificates
representing the Company Shares for delivery at least one full
business day
prior to the Closing Date.
(d) In addition, on the basis of the representations, warranties,
covenants and agreements contained herein, but subject to the terms
and
conditions set forth herein, the Company hereby grants to the
Underwriters the
option to purchase up to 1,410,000 Optional Shares at the same
purchase price
per share to be paid by the Underwriters to the Company for the
Firm Shares as
set forth in this Section 2, for the sole purpose of covering
over-allotments in
the sale of Firm Shares by the Underwriters. This option may be
exercised at any
time and from time to time, in whole or in part on one or more
occasions, on or
before the 30th day following the date of the Prospectus, by
written notice by
the Lead Managers to the Company. Such notice shall set forth the
aggregate
number of Optional Shares as to which the option is being exercised
and the date
and time, as reasonably determined by the Lead Managers, when the
Optional
Shares are to be delivered (such date and time being herein
sometimes referred
to as the "Additional Closing Date"); provided, however, that the
Additional
Closing Date shall not be earlier than the Closing Date or earlier
than the
second full business day after the date on which the option shall
have been
exercised nor later than the eighth full business day after the
date on which
the option shall have been exercised (unless such time and date are
postponed in
accordance with the provisions of Section 9 hereof). Certificates
for the
Optional Shares shall be registered in such name or names and in
such authorized
denominations as the Lead Managers may request in writing at least
two full
business days prior to the Additional Closing Date. The Company
will permit the
Lead Managers to examine and package such certificates for delivery
at least one
full business day prior to the Additional Closing Date.
The number of Optional Shares to be sold to each Underwriter shall
be the
number which bears the same ratio to the aggregate number of
Optional Shares
being purchased as the number of Firm Shares set forth opposite the
name of such
Underwriter in Schedule I hereto (or such number increased as set
forth in
Section 9 hereof) bears to
16
the total number of Firm Shares, subject, however, to such
adjustments to
eliminate any fractional units as the Lead Managers in their sole
discretion
shall make.
Payment for the Optional Shares shall be made to or upon the order
of the
Company of the purchase price by wire transfer in federal (same
day) funds to
the Company at the offices of Underwriters' Counsel, or such other
location as
may be mutually acceptable upon delivery of the certificates for
the Optional
Shares to you for the respective accounts of the Underwriters.
3. Offering. Upon authorization of the release of the Firm Shares
by the
Lead Managers, the Underwriters propose to offer the Shares for
sale to the
public upon the terms and conditions set forth in the Prospectus.
4. Covenants of the Company, the Dealers and the Underwriters. (I)
The
Company covenants and agrees with each of the Underwriters that:
(a) The Registration Statement and any amendments thereto have
become
effective, and the Company will file the Prospectus pursuant to
Rule 424(b)
within the prescribed time period and will provide evidence
satisfactory to you
of such timely filing.
The Company will notify you immediately (and, if requested by the
Lead
Managers, will confirm such notice in writing) (i) when any
post-effective
Amendment to the Registration Statement becomes effective, (ii) of
any request
by the Commission for any amendment of or supplement to the
Registration
Statement or the Prospectus or for any additional information,
(iii) of the
Company's intention to file or prepare any amendments to the
Registration
Statement (including pursuant to rule 462(b)), the term sheet or
any supplement,
revision or amendment to the Registration Statement or the
Prospectus or any
Issuer Free Writing Prospectus, (iv) of the mailing or the delivery
to the
Commission for filing of any amendment of or supplement to the
Registration
Statement or the Prospectus, (v) of the issuance by the Commission
of any stop
order suspending the effectiveness of the Registration Statement or
any
post-effective amendment thereto or the use of the Prospectus, the
Pricing
Prospectus or any Issuer Free Writing Prospectus or of the
initiation, or the
threatening, of any proceedings therefor, it being understood that
the Company
shall make every effort to avoid the issuance of any such stop
order, (vi) of
the receipt of any comments from the Commission, and (vii) of the
receipt by the
Company of any notification with respect to the suspension of the
qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of
any proceeding for that purpose. If the Commission shall propose or
enter a stop
order at any time, the Company will make every reasonable effort to
prevent the
issuance of any such stop order and, if issued, to obtain the
lifting of such
order as soon as possible. The Company will not file any amendment
to the
Registration Statement or any amendment of or supplement to the
Prospectus
(including the prospectus required to be filed pursuant to Rule
424(b)) or file
or use any Issuer Free Writing Prospectus that differs from the
Prospectus on
file at the time of the effectiveness of the Registration Statement
before or
17
after the effective date of the Registration Statement, or file any
document
under the Exchange Act if such document would be deemed to be
incorporated by
reference into the Prospectus to which you shall object in writing
after being
timely furnished in advance a copy thereof. The Company will
provide the Lead
Managers with copies of all such amendments, filings and other
documents a
sufficient time prior to any filing or other publication thereof to
permit the
Lead Managers a reasonable opportunity to review and comment
thereon.
(b) The Company shall comply with the Securities Act and the
Exchange
Act to permit completion of the distribution as contemplated in
this Agreement,
Registration Statement, the Pricing Prospectus and the Prospectus.
If at any
time when a prospectus relating to the Shares is required to be
delivered under
the Securities Act or the Exchange Act in connection with the sales
of Shares or
the Additional Shares, the representations and warranties of the
Company
contained in Sections 1(b), 1(q) or 1(y) of this Agreement shall
cease to be
true and correct or any event shall have occurred as a result of
which the
Prospectus as then amended or supplemented would, in the judgment
of the
Underwriters, the Dealers or the Company, include an untrue
statement of a
material fact or omit to state any material fact required to be
stated therein
or necessary to make the statements therein, in the light of the
circumstances
existing at the time of delivery to the purchaser, not misleading,
or if it
shall be necessary at any time to amend or supplement the
Prospectus or
Registration Statement to comply with the Securities Act, the
Exchange Act or
the Rules and Regulations, or to file under the Exchange Act so as
to comply
therewith any document incorporated by reference in the
Registration Statement
or the Prospectus or in any amendment thereof or supplement
thereto, the Company
will notify you and the Dealers promptly and prepare and file with
the
Commission, subject to the second paragraph of Section 4(a) hereof,
an
appropriate amendment or supplement (in form and substance
satisfactory to you)
which will correct such statement or omission or effect such
compliance and will
use its best efforts to have any amendment to the Registration
Statement
declared effective as soon as possible. Each Dealer shall advise
the Company at
such time as such Dealer has completed the public sale of ordinary
shares of the
Company in compliance with the registration requirements under the
Securities
Act in an aggregate amount of ordinary shares equal to the maximum
number of
Additional Shares relating to such Dealer's Forward Agreements.
(c) The Company shall retain, in accordance with the Rules and
Regulations, all Issuer Free Writing Prospectuses not required to
be filed
pursuant to the Rules and Regulations. If at any time when a
prospectus relating
to the Shares or the Additional Shares is required to be delivered
under the
Securities Act or the Exchange Act in connection with the sales of
Shares any
event shall have occurred as a result of which any Issuer Free
Writing
Prospectus as then amended or supplemented would, in the judgment
of the
Underwriters or the Company, conflict with the information in the
Registration
Statement, the Pricing Prospectus or the Prospectus as then amended
or
supplemented or would, in the judgment of the Underwriters or the
Company,
include an
18
untrue statement of a material fact or omit to state any material
fact required
to be stated therein or necessary to make the statements therein,
in the light
of the circumstances existing at the time of delivery to the
purchaser, not
misleading, or if to comply with the Securities Act, the Exchange
Act or the
Rules and Regulations it shall be necessary at any time to amend or
supplement
any Issuer Free Writing Prospectus, the Company will so notify the
Lead Managers
promptly and, upon request of the Lead Managers, prepare, subject
to Section
4(a) hereof, an appropriate amendment or supplement (in form and
substance
satisfactory to the Lead Managers) which will correct such
statement, omission
or conflict or to effect such compliance.
(d) The Company will promptly deliver to each of the Underwriters
such
number of copies of any Preliminary Prospectus, the Prospectus, the
Registration
Statement (which, if requested, will include one signed copy), all
Issuer Free
Writing Prospectuses and all amendments of and supplements to such
documents, if
any, and all documents incorporated by reference in the
Registration Statement
and Prospectus or any amendment thereof or supplement thereto, as
you may
reasonably request. Prior to 10:00 a.m., New York City time, on the
business day
next succeeding the date of this Agreement and from time to time
thereafter the
Company will furnish the Underwriters with copies of the Prospectus
in New York
City in such quantities as you may reasonably request.
(e) The Company will use its best efforts, in cooperation with you
to
qualify the Shares and the Additional Shares for offering and sale
under the
securities laws relating to the offering or sale of the Shares and
the
Additional Shares of such jurisdictions as you may designate and to
maintain
such qualification in effect for so long as required for the
distribution
thereof; except that in no event shall the Company be obligated in
connection
therewith to qualify as a foreign corporation or to execute a
general consent to
service of process.
(f) The Company will make generally available to its security
holders
and to the Underwriters as soon as practicable, but in any event
not
