HCC Insurance Holdings, Inc. Underwriting Agreement
Exhibit 1.1
HCC Insurance Holdings, Inc.
$300,000,000
6.300% Senior Notes due 2019
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
HCC Insurance Holdings, Inc., a corporation organized under the laws of Delaware (the
“Company”), proposes to sell to the several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the “Representatives”) are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the “Securities”), to be issued under an
Indenture, dated as of August 23, 2001, as amended (the “Indenture”), between the Company and U.S.
Bank National Association (as successor to Wachovia Bank, National Association and First Union
National Bank), as trustee (the “Trustee”). Certain terms used herein are defined in Section 17
hereof.
The Company has filed with the Commission a registration statement on Form S-3ASR (No.
333-158164) for the registration of the Securities under the 1933 Act, and the offering thereof
from time to time in accordance with Rule 415, and the Company has filed such post-effective
amendments thereto as may be required prior to the execution of this Agreement. Such registration
statement (as so amended, if applicable) is currently effective and the Indenture has been duly
qualified under the 1939 Act. Such registration statement (as so amended, if applicable),
including the Rule 430 Information, if any, is referred to herein as the “Registration Statement”;
and the final prospectus and the prospectus supplement relating to the offering of the Securities,
in the form first furnished to the Underwriters by the Company for use in connection with the
offering of the Securities (or in the form made available upon request of purchasers pursuant to
Rule 173), are collectively referred to herein as the “Prospectus”; provided,
further, that if the Company files a Rule 462(b) Registration Statement, then, after such
filing, all references to “Registration Statement” shall be deemed to include the Rule 462(b)
Registration Statement. A “preliminary prospectus” shall be deemed to refer to any prospectus used
before the registration statement became effective and any prospectus that omitted, as applicable,
the Rule 430 Information or other information to be included upon pricing in a form of prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used after
such effectiveness and prior to the execution and delivery of this Agreement. Any reference in
this Agreement to the Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents
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incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, as of the effective date of the Registration Statement or the date
of such Preliminary Prospectus or the Prospectus, as the case may be. For purposes of this
Agreement, all references to the Registration Statement, Prospectus or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to XXXXX or any successor thereof.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively, the “Time of Sale Information”): a
Preliminary Prospectus dated November 9, 2009, and each “free-writing prospectus” (as defined
pursuant to Rule 405) listed on Annex C hereto as constituting part of the Time of Sale
Information.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be deemed to mean and include
all such financial statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include the filing of any document
under the 1934 Act which is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter, as of the date hereof and as of the Closing Date (as defined below) (in
each case, a “Representation Date”) as set forth below in this Section 1.
(a) Compliance with Registration Requirements. The Company meets the requirements for use of
Form S-3 under the 1933 Act. The Registration Statement is an “automatic shelf registration
statement” as defined under Rule 405 that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) has been
received by the Company. No order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose or pursuant to Section 8A of the 1933 Act have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. In addition, the Indenture has
been duly qualified under the 1939 Act. At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any amendment thereto became effective and at each
Representation Date, the Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto
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complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act
Regulations and did not and will not contain any 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. At the date of the Prospectus and any amendment or supplement thereto and at the
Closing Date, the Prospectus and any amendments and supplements thereto did not and will not
include any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the Registration Statement or the
Prospectus. Each preliminary prospectus and prospectus filed as part of the Registration Statement
as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424, complied
when so filed in all material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with
the offering of Securities will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T. No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus, at the time of
filing thereof, did not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in any
preliminary prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use,
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authorize, approve or refer to any “written communication” (as defined in Rule 405) that constitutes an offer to sell or solicitation
of an offer to buy the Securities (each such communication by the Company or its agents and
representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an
“Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134, (ii) any preliminary prospectus, (iii)
the Prospectus, (iv) the documents listed on Annex C hereto as constituting the Time of Sale
Information and (v) any electronic road show or other written communications, in each case approved
in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in
all material respects with the 1933 Act, has been or will be (within the time period specified in
Rule 433) filed in accordance with the 1933 Act (to the extent required thereby) and, when taken
together with the preliminary prospectus filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Prospectus and the Time of Sale Information, at the
time they became effective or were filed with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act and the 1934 Act Regulations and none of
such documents contained any 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, in the light of the
circumstances under which they were made, not misleading. Any further documents so filed and
incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale
Information, 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 1933 Act and the 1933 Act
Regulations or the 1934 Act and the 1934 Act Regulations, as applicable, and will not contain any
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.
(e) Financial Statements. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus (the “Included Financials”), except the financial statements and the related notes in
the Company’s Annual Report on Form 10-K for 2008 which have been superseded by the financial
statements and the related notes therein included in the Company’s Current Report on Form 8-K filed
on November 9, 2009, comply in all material respects with the applicable requirements of the 1933
Act
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and the 1933 Act Regulations or the 1934 Act and the 1934 Act Regulations, as applicable, and
present fairly the financial position of the Company and its subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the
periods specified; the Included Financials have been prepared in conformity with accounting
principles generally accepted in the United States (“generally accepted accounting principles”)
applied on a consistent basis throughout the periods covered thereby except as noted therein, and
the supporting schedules included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and the other financial information
included or incorporated by reference in the Registration Statement, the Time of Sale Information
and the Prospectus has been derived from the accounting records of the Company and its subsidiaries
and presents fairly the information shown thereby; and the pro forma financial
information and the related notes thereto included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus have been prepared in accordance with
the applicable requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, as applicable, and the assumptions underlying such pro forma
financial information are reasonable and are set forth in the Registration Statement, the Time of
Sale Information and the Prospectus.
(f) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any change in the capital stock (other than
any exercise of options previously granted to directors or employees of the Company or conversion
of the Company’s 1.30% Convertible Notes due 2023 in accordance with their terms) or long-term debt
of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of capital stock (other than the
declaration by the company of a regular quarterly cash dividend of $0.135 per share), or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the business, properties, management, financial position, results of operations or
prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of
its subsidiaries has entered into any transaction or agreement that is material to the Company and
its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the
Company nor any of its subsidiaries has sustained 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 disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority, provided that such material loss or interference shall not
include losses or interference suffered by third parties insured, and not directly suffered, by the
Insurance Subsidiaries (as defined below) that would not, individually or in the aggregate, have a
Material Adverse Effect (as defined below); except in each case as otherwise disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus.
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(g) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do
business and are in good standing in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified, in good standing
or have such power or authority would not, individually or in the aggregate, have a material
adverse effect on the business, properties, management, financial position, results of operations
or prospects of the Company and its subsidiaries taken as a whole or on the performance by the
Company of its obligations under the Securities (a “Material Adverse Effect”). The subsidiaries
listed in Schedule III to this Agreement are the only Significant Subsidiaries of the Company.
(h) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the heading
“Capitalization” and all the outstanding shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and issued, are fully paid and
non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares,
and except as and to the extent described in the Registration Statement, the Time of Sale
Information and the Prospectus) and are owned directly or indirectly by the Company, free and clear
of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party.
(i) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
(j) Authorization of this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(k) Authorization of Securities. The Securities have been duly authorized by the Company for
issuance and sale pursuant to this Agreement. Such Securities, when issued and authenticated in
the manner provided for in the Indenture and delivered against payment of the consideration
therefor specified in this Agreement, will constitute valid and legally 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, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by general equitable principles. Such
Securities will be in the form contemplated by, and each registered holder thereof is entitled to
the benefits of, the Indenture.
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(l) Authorization of the Indenture. The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to
or affecting creditors’ rights generally or by general equitable principles.
(m) Descriptions of the Transaction Documents. Each Transaction Document conforms or will
conform in all material respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the Prospectus, and is or will be in substantially the
form filed or incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
(n) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in 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 property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and compliance by the Company with
the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or 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 its subsidiaries
pursuant to, 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 property or assets of the Company or any of
its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any
such conflict, breach, violation or default that would not, individually or in the aggregate, have
a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by
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the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except
for the registration of the Securities under the 1933 Act, the qualification of the Indenture under
the 1939 Act and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required under applicable state securities laws in connection with the
purchase and distribution of the Securities by the Underwriters.
(q) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries is or may be the subject
that, individually or in the aggregate, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse Effect; to the knowledge of
the Company, no such investigations, actions, suits or proceedings are threatened or contemplated
by any governmental or regulatory authority or threatened by others; and (i) there are no current
or pending legal, governmental or regulatory actions, suits or proceedings that are required under
the 1933 Act to be described in the Registration Statement or the Prospectus that are not so
described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii)
there are no statutes, regulations or contracts or other documents that are required under the 1933
Act or the 1933 Act Regulations to be filed as exhibits to the Registration Statement or described
in the Registration Statement and the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the Time of Sale Information and
the Prospectus.
(r) Independent Accountants. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, is an independent registered public accounting firm
with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as
required by the 1933 Act and the 1933 Act Regulations.
(s) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of
real and personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those
that (i) do not materially interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(t) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or
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unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses; and the conduct of
their respective businesses will not conflict in any material respect with any such rights of
others, and the Company and its subsidiaries have not received any notice of any claim of
infringement or conflict with any such rights of others.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the 1933 Act or the 1933 Act Regulations to be described in the Registration
Statement and the Prospectus and that is not so described in such documents and in the Time of Sale
Information.
(v) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be an “investment company” or
an entity “controlled” by an “investment company” within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
“Investment Company Act”).
(w) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof except in any
case in which the failure so to file would not have a Material Adverse Effect; and except as
otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus,
there is no tax deficiency that has been, or could reasonably be expected to be, asserted against
the Company or any of its subsidiaries or any of their respective properties or assets, except for
any such deficiency that would not have a Material Adverse Effect.
(x) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect; and except as described in the
Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor
any of its subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course.
(y) Compliance With Environmental Laws. (i) The Company and its subsidiaries (A) are, and at
all prior times were, in compliance with any and all applicable federal, state, local and foreign
laws, rules, regulations, requirements,
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decisions and orders relating to the protection of human
health or safety, the environment, natural resources, hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (B) have received and are in
compliance with all permits, licenses, certificates or other authorizations or approvals required
of them under applicable Environmental Laws to conduct their respective businesses; and (C) have
not received notice of any actual or potential liability under or relating to any Environmental
Laws, including for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or
condition that would reasonably be expected to result in any such notice, and (ii) there are no
costs or liabilities associated with Environmental Laws of or relating to the Company or its
subsidiaries, except in the case of each of (i) and (ii) above, for any such failure to comply, or
failure to receive required permits, licenses or approvals, or cost or liability, as would not,
individually or in the aggregate, have a Material Adverse Effect; and (iii) except as described in
each of the Time of Sale Information and the Prospectus, (A) there are no proceedings that are
pending, or that are known to be contemplated, against the Company or any of its subsidiaries under
any Environmental Laws in which a governmental entity is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be
imposed, (B) the Company and its subsidiaries are not aware of any issues regarding compliance with
Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be
expected to have a material effect on the capital expenditures, earnings or competitive position of
the Company and its subsidiaries, and (C) none of the Company and its subsidiaries anticipates
material capital expenditures relating to any Environmental Laws.
(z) Compliance With ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company
or any member of its “Controlled Group” (defined as any organization which is a member of a
controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of
1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in
compliance with its terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect
to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii)
for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code, whether or not
waived, has occurred or is reasonably expected to occur; (iv) the fair market value of the assets
of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section
4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi) neither the Company nor
any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability
under Title IV of ERISA (other than
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contributions to the Plan or premiums to the PBGC, in the
ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within
the meaning of Section 4001(a)(3) of ERISA).
(aa) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) under the 0000 Xxx) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the 1934 Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and procedures designed
to ensure that such information is accumulated and communicated to the Company’s management as
appropriate to allow timely decisions regarding required disclosure. The Company and its
subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 under the 1934 Act.
(bb) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) under the 0000 Xxx) that comply
with the requirements of the 1934 Act and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles, including, but not limited to those policies and procedures that: (i)
pertain to the maintenance of the Company’s records that, in reasonable detail, accurately and
fairly reflect its transactions and dispositions of its assets, (ii) provide reasonable assurance
that the Company has recorded transactions as necessary to permit it to prepare consolidated
financial statements in accordance with generally accepted accounting principles, and that receipts
and expenditures are being made only in accordance with authorizations of its management and Board
of Directors and (iii) provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of its assets that could have a material effect on its
consolidated financial statements. There are no material weaknesses in the Company’s internal
controls.
(cc) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such
losses and risks as, in the Company’s reasonable judgment, are adequate to protect the Company and
its subsidiaries and their respective businesses; and neither the Company nor any of its
subsidiaries has (i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order to continue such
insurance or (ii) any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
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(dd) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ee) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company, threatened.
(ff) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(gg) No Restrictions on Subsidiaries. Except as otherwise described in the Prospectus,
Registration Statement or Time of Sale Materials or, with respect to the Company’s Insurance
Subsidiaries (as defined below), for insurance regulatory laws and regulations of general
application in their respective states of domicile, no subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s properties or assets to the Company or any
other subsidiary of the Company.
(hh) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Securities.
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(ii) No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the 1933 Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of the Securities.
(jj) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(kk) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the
application of the proceeds thereof by the Company as described in the Registration Statement, the
Time of Sale Information and the Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(ll) Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the 1933 Act and Section 21E of the 0000 Xxx) contained in the Registration Statement, the
Time of Sale Information and the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(mm) Xxxxxxxx-Xxxxx Act. There is and, since December 31, 2007, there has been no failure on
the part of the Company or any of the Company’s directors or officers, in their capacities as such,
to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to
loans and Sections 302 and 906 related to certifications.
(nn) Status Under the 0000 Xxx. The Company is not an “ineligible issuer” and is a
“well-known seasoned issuer”, in each case as defined under the 1933 Act, in each case at the times
specified in the 1933 Act in connection with the offering of the Securities. The Company has paid
the registration fee for this offering pursuant to Rule 457.
(oo) Insurance Subsidiaries. Each of the Company and its subsidiaries that is required to be
organized or licensed as an insurance company, Llyod’s corporate member or Lloyd’s managing agent in its jurisdiction of incorporation (including
jurisdictions outside of the United States) (each an “Insurance Subsidiary”) has all necessary
consents, licenses, authorizations, approvals, exemptions, orders, certificates and permits
(collectively, the “Consents”) of and from, and has made all filings, reports, registrations,
statements and declarations, together with any amendment thereto (collectively, the “Filings”),
with, all insurance regulatory authorities (including, without limitation, the Bermuda Monetary
Authority, the California Department of Insurance, the Colorado Division of Insurance, the Delaware
Department of Insurance, the Indiana Department of Insurance, the Maryland Insurance
Administration, the Oklahoma Insurance Department, the Spanish General Directorate of Insurance and
Pension Funds of the Ministry of the
13
Economy and Treasury, the Texas Department of Insurance and
the U.K. Financial Services Authority), all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other tribunals, necessary to
own, lease, license and use its properties and assets and to conduct its business, except where the
failure to have such Consents or to make such Filings would not, individually or in the aggregate,
have a Material Adverse Effect; all such Consents and Filings are in full force and effect, the
Filings complied in all material respects as of their respective dates with the applicable
insurance laws and regulations, the Company and its Insurance Subsidiaries are in compliance with
such Consents, no event or events have occurred and neither the Company nor any of its Insurance
Subsidiaries has received any notice of any inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation or limitation of any such Consent or
otherwise impose any limitation on the conduct of the business of the Company or any of its
respective Insurance Subsidiaries, except as set forth in the Prospectus or except as any such
failure to be in full force and effect, failure to be in compliance with, suspension, revocation or
limitation would not, individually or in the aggregate, have a Material Adverse Effect; each of the
Company and its Insurance Subsidiaries is in compliance with, and conducts its businesses in
conformity with, all applicable insurance laws and regulations, except where the failure to do so
comply or conform would not, individually or in the aggregate, have a Material Adverse Effect.
Without limiting the foregoing, each of the Insurance Subsidiaries has made all Filings pursuant
to, and has obtained all Consents required of all applicable insurance laws and regulations in
connection with the issuance and sale of the Securities.
(pp) Statutory Annual Statements. The 2008 statutory annual and, for periods ending prior to
the date hereof, quarterly statements of each Insurance Subsidiary (collectively, the “Statutory
Statements”) and the statutory balance sheets and income statements included in such Statutory
Statements together with related schedules and notes have been prepared, in all material respects,
in conformity with statutory accounting principles and practices required or permitted by the
appropriate insurance regulatory authority of the jurisdiction of domicile of each such Insurance
Subsidiary, and such statutory accounting principles and 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 such Insurance Subsidiaries as of the dates thereof, and the statutory basis results of
operations of such Insurance Subsidiaries for the periods covered thereby. The exhibits and
schedules included in each Statutory Statement fairly present the data purported to be shown
thereby.
(qq) Reinsurance. Except as would not, individually or in the aggregate, have a Material
Adverse Effect, all reinsurance treaties, contracts, agreements and arrangements to which the
Company or any of its subsidiaries is a party and as to which any of them reported recoverables,
premiums due or other amounts in its most recent Statutory Statement are valid and binding
obligations of the Company or such subsidiary and, to the knowledge of the Company, any other party
thereto and are in full force and effect and none of the Company or any of its subsidiaries is in
default, and no event that, with notice
14
or lapse of time or both, would constitute such a default
in the due performance or observance of any term, obligation, covenant or condition contained
therein has occurred.
(rr) Loss Experience. To the Company’s knowledge, no event giving rise to a loss has occurred
since September 30, 2008 which would require or make it necessary or appropriate for the Company to
change, modify or amend its standard methodology or assumptions relating to assessing and providing
for such losses.
(ss) Financial Strength Ratings. Neither A.M. Best Company, Standard & Poor’s Corporation nor
Fitch Ratings Ltd. has (i) taken any action to, or to the Company’s knowledge, threatened to
downgrade any financial strength or claims paying ability ratings of the Company or its
subsidiaries or (ii) publicly announced or otherwise indicated to the Company or any of its
subsidiaries that such ratings are under review.
Any certificate signed by any officer of the Company or any subsidiary and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company, as to matters covered thereby, to
each Underwriter on the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations, warranties and agreements 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 98.838% of the principal amount of the Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
3. Delivery and Payment.
(a) Delivery of and payment for the Securities shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of one or more global notes representing the Securities
(collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of
the Securities duly paid by the Company, shall be made to the nominee of The Depository Trust
Company for the respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by the Company. The
Global Note will be made available for inspection by the Representatives not later than 1:00 P.M.,
New York City time, on the business day prior to the Closing Date.
(b) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s-length contractual counterparty to the Company with
15
respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, none of the Representatives or any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriters may offer and sell Securities to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by
it to or through any Underwriter.
5. Agreements. The Company agrees with each of the several Underwriters that:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 5(b), will comply with the requirements of Rule 430A, Rule 430B and/or Rule 430C, if and as
applicable, and will notify the Representatives immediately, and confirm such advice in writing, of
(i) the filing or effectiveness of any amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus or any Issuer Free Writing Prospectus, (ii) the receipt
of any comments from the Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for additional
information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or pursuant to Xxxxxxx 0X xx xxx 0000 Xxx,
(x) of the occurrence of any event within the Prospectus Delivery Period as a result of which the
Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer
Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the
Company of any notice of objection of the Commission to the use of the Registration Statement or
any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act; and (vii) of
the receipt by the Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
16
threatening of any
proceeding for such purpose. The Company will promptly effect the filings necessary pursuant to
Rule 424 and will take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in
the event that it was not, it will promptly file the Prospectus. The Company will use its
commercially reasonable efforts to prevent the issuance of any order referenced in clause (iv) or
(vii) above and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give the Representatives notice of its intention
(i) to file or prepare any amendment to the Registration Statement (including any filing under Rule
462(b)) or any amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, or (ii) to make, prepare, use, authorize, approve, refer
to or file any Issuer Free Writing Prospectus, and will furnish the Representatives with copies of
any such documents a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not make, prepare, use, authorize, approve, refer to or file any such document to
which the Representatives or counsel for the Underwriters shall object.
(c) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the 1933 Act, will file
any Issuer Free Writing Prospectus (including the Term Sheet in the form of Annex D hereto) to the
extent required by Rule 433 under the 1933 Act; and will 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 1934 Act subsequent to the date of the
Prospectus and during the Prospectus Delivery Period.
(d) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also deliver to
the Representatives, without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the Underwriters. If
applicable, the copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Delivery of Prospectuses and Issuer Free Writing Prospectuses. The Company will deliver
to each Underwriter, without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge,
during the Prospectus Delivery Period, such number of copies of the Prospectus and each Issuer Free
Writing
17
Prospectus as such Underwriter may reasonably request. As used herein, the term “Prospectus
Delivery Period” means such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered (or required to be delivered but for Rule 172) in
connection with sales of the Securities by any Underwriter or dealer. If applicable, the
Prospectus, each Issuer Free Writing Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the Registration
Statement and the Prospectus. If at any time during the Prospectus Delivery Period, any event
shall occur or condition shall exist as a result of which it is necessary, in the opinion of
external counsel for the Underwriters, upon concurrence by the Company and its external counsel,
such concurrence not to be unreasonably withheld or delayed, or for the Company, to amend the
Registration Statement in order that the Registration Statement 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 or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary,
in the opinion of such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission, subject to Section
5(b), such amendment or supplement as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with such requirements, and the Company
will furnish to the Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(g) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would 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, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to Section 5(b), file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
18
(h) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the applicable securities laws
of such states and the jurisdictions (domestic or foreign) as the Representatives may reasonably
designate and to maintain such qualifications in effect for a period of not less than one year from
the date of this Agreement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from the date of this
Agreement.
(i) Earnings Statement. The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its security holders and the Representatives
as soon as practicable an earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act and Rule 158, covering a
period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(j) Use of Proceeds. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Registration Statement, the Time of Sale Information
and the Prospectus under the heading “Use of Proceeds.”
(k) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(l) Business With Cuba. The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.
(m) Restriction on Sale of Securities. Between the date of this Agreement and the date that
is one (1) day after the Closing Date, the Company will not, without the prior written consent of
the Representatives, directly or indirectly, issue, sell, offer to sell, grant any option for the
sale of or otherwise dispose of, the securities as specified in Schedule I hereto.
(n) Reporting Requirements. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
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(o) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the 1933 Act.
5A. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the 1933 Act (which term
includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex C or
prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or
(iii) any free writing prospectus prepared by such underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use a
term sheet substantially in the form of Annex D hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the 1933 Act with respect
to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions to the Obligations of the Underwriters. The obligations of each
Underwriter to purchase the Securities as provided herein shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of the Execution Time
and the Closing Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor pursuant to Rule 401(g)(2) or Section 8A under the 1933 Act initiated or
threatened by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing information relating to the description of the Securities,
the specific method of distribution and similar matters shall have been filed with the Commission
in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A, Rule 430B or Rule 430C). Each Issuer Free Writing
20
Prospectus shall have been timely filed with the Commission under the 1933 Act to the
extent required by Rule 433 and in accordance herewith.
(b) Opinion of Counsel for Company. At the Closing Date, the Representatives shall have
received (i) the favorable opinion, dated as of the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel
for the Company, in form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters, to the effect set
forth in Annex A hereto and to such further effect as counsel to the Underwriters may reasonably
request, and (ii) the favorable opinion, dated as of the Closing Date, of the General Counsel of
the Company, in form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters, to the effect set
forth in Annex B hereto and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for Underwriters. At the Closing Date, the Representatives shall have
received the favorable opinion, dated as of the Closing Date, of Xxxxxxxx & Xxxxxxxx LLP, counsel
for the Underwriters, together with signed or reproduced copies of such letter for each of the
other Underwriters, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require. In giving such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may state
that, insofar as such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers’ Certificate. At the Closing Date, there shall not have been, since the
Execution Time or since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and of the chief
financial officer or chief accounting officer of the Company, dated as of the Closing Date, to the
effect (i) that such officer has carefully reviewed the Registration Statement, the Time of Sale
Information and the Prospectus, (ii) there has been no such material adverse change, (iii) that the
representations and warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iv) that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the
Closing Date, (v) that no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or to the Company’s knowledge
threatened by the Commission and (vi) as set forth in Sections 6(a), (g) and (k).
21
(e) Accountant’s Comfort Letter. At the Execution Time, the Representatives shall have
received from PricewaterhouseCoopers LLP a letter dated such date, in form and substance
satisfactory to the Representatives to the effect set forth in Annex E, together with signed or
reproduced copies of such letter for each of the other Underwriters.
(f) Bring-down Comfort Letter. At the Closing Date, the Representatives shall have received
from PricewaterhouseCoopers LLP a letter, dated as of the Closing Date, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section 6,
except that the specified date referred to shall be a date not more than three business days prior
to the Closing Date.
(g) Ratings. At the Closing Date, the Securities shall have the ratings accorded by any
“nationally recognized statistical rating organization,” as defined by the Commission for purposes
of Rule 436(g)(2), as specified in Schedule I hereto, and the Company shall have delivered to the
Representatives a letter, dated as of such date, from each such rating organization, or other
evidence satisfactory to the Representatives, confirming that the Securities have such ratings.
Since the Execution Time, there shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company’s other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Securities or any of the Company’s other
securities.
(h) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(i) Good Standing. The Representatives shall have received on and as of the Closing Date
satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their
respective jurisdictions of organization and their good standing in such other jurisdictions as the
Representatives may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions.
(j) Additional Documents. At the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
22
(k) No Material Adverse Change. No event or condition of a type described in Section 1(f)
shall have occurred or shall exist, which event or condition is not described in the Time of Sale
Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
If any condition specified in this Section 6 shall not have been fulfilled when and as
required to be fulfilled, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be terminated by the Representatives by notice to the
Company at any time at or prior to the Closing Date and such termination shall be without liability
of any party to any other party except as provided in Section 7 and except that Sections 1 and 8
shall survive any such termination and remain in full force and effect. Notice of such termination
shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on the Closing Date.
7. Payment of Expenses.
(a) The Company will pay all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each amendment thereto,
(ii) the preparation, printing (if applicable) and delivery to the Underwriters of the Transaction
Documents, any Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Securities, (iii) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Securities and any
taxes payable in that connection, (iv) the fees and disbursements of the Company’s counsel,
accountants and other advisors or agents, as well as the fees and disbursements of the Trustee and
any paying agent and their respective counsel, (v) the qualification of the Securities under state
securities laws in accordance with the provisions of Section 5(h), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey and any Legal
Investment Survey, and any amendment thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Issuer Free Writing Prospectus, any Time of Sale
Information and the Prospectus and any amendments or supplements thereto, (vii) the fees charged by
nationally recognized statistical rating organizations for the rating of the Securities if
applicable, (viii) the fees
and expenses incurred with respect to the listing of the Securities if applicable, (ix) the filing
fees incident to, and the reasonable
23
fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the FINRA of the terms of the sale of the Securities, and
(x) all expenses incurred by the Company in connection with any “road show” presentation to
potential investors.
(b) If the sale of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any provision hereof other
than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses (including the fees
and expenses of their counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or proceeding or any
claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or
are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements therein,
not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon
and in conformity with any information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in the Registration
24
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section. If any such
proceeding shall be brought or asserted against an Indemnified Person and it shall have notified
the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to Section 7 that the Indemnifying Party may designate in such
proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and
expenses of counsel related to such proceeding as incurred within 30 days following the receipt of
an invoice for such expenses. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed, as they are incurred within 30 days following the receipt of an invoice for such
expenses. Any such separate firm for any Underwriter, its affiliates, directors and officers and
any control persons of such Underwriter shall be designated in writing by X.X. Xxxxxx Securities
Inc. and any such separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have
requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person
25
shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by the Indemnifying Person of such request, and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement for all such fees and expenses as are not subject to
dispute in good faith by the Indemnifying Party, and in case of such dispute both parties shall
negotiate in good faith to resolve the dispute. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
26
paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section are several in proportion to their
respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
9. Default by an Underwriter. (a) If, on the Closing Date, any Underwriter defaults
on its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule II hereto that, pursuant to this Section 10, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Securities that such
Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share
(based on the principal amount of Securities that such Underwriter agreed to purchase hereunder)
27
of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not
been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in the Company’s Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) trading of any securities issued or guaranteed
by the Company shall have been suspended on any exchange or in any over-the-counter market; (ii) a
banking moratorium shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by
this Agreement, the Time of Sale Information and the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities, rights of contribution and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Banc of
America Securities LLC, 0 Xxxxxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax:
28
(000) 000-0000); Attention: High Grade DCM Transaction Management/Legal; X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention: Investment Grade Syndicate Desk —
0xx Xxxxx; or Xxxxx Fargo Securities, LLC, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
Attention: Transaction Management Department (fax: 000-000-0000), as applicable; or, if sent to the
Company, will be mailed, delivered or telefaxed to HCC Insurance Holdings, Inc., 00000 Xxxxxxxxx
Xxxxxxx, Xxxxxxx XX 00000-0000, (fax: (000) 000-0000); Attention: Xxxxx X. Xxxxxxxxx.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
16. Headings. The section and subsection headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“1933 Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder.
“1933 Act Regulations” shall mean the rules and regulations of the Commission under the 1933
Act.
“1934 Act” shall mean the Securities 1934 Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“1934 Act Regulations” shall mean the rules and regulations of the Commission under the 1934
Act.
“1939 Act” shall mean the Trust Indenture Act of 1939, as amended.
“1939 Act Regulations” shall mean the rules and regulations of the Commission under the 1939
Act.
“affiliate” has the meaning set forth in Rule 405.
29
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Commission” shall mean the Securities and Exchange Commission.
“XXXXX” shall mean the Electronic Data Gathering, Analysis and Retrieval system of the
Commission.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement became or
become effective.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.
“Regulation S-T” and “Regulation S-K” refer to such regulation under the 1933 Act Regulations.
“Rule 134”, “Rule 158”, “Rule 172”, “Rule 173”, “Rule 401”, “Rule 405”, “Rule 415”, “Rule
424”, “Rule 430A”, “Rule 430B”, “Rule 430C”, “Rule 433”, “Rule 436”, “Rule 457” and “Rule 462”
refer to such rules under the 1933 Act.
“Rule 430 Information” shall mean information with respect to the Securities and the offering
thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant
to Rule 430A, Rule 430B or Rule 430C.
“Rule 462(b) Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered by the registration
statement referred to in the second paragraph of this Agreement.
“subsidiary” has the meaning set forth in Rule 405.
“Significant Subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the
1934 Act.
18. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
19. Authority of the Representatives. Any action by the Underwriters hereunder may be
taken by the Representatives on behalf of the Underwriters, and any such action taken by the
Representatives shall be binding upon the Underwriters.
30
20. Amendments or Waivers. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by the parties hereto.
31
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, HCC INSURANCE HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Accepted: November 10, 2009
For themselves and on behalf of the
several Underwriters listed
in Schedule II hereto.
several Underwriters listed
in Schedule II hereto.
BANC OF AMERICA SECURITIES LLC
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
X.X. XXXXXX SECURITIES INC.
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
XXXXX FARGO SECURITIES, LLC
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
