EXHIBIT 1
PLATINUM UNDERWRITERS HOLDINGS, LTD.
COMMON SHARES
(par value $.01 per share)
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UNDERWRITING AGREEMENT
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September __, 2002
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Platinum Underwriters Holdings, Ltd., a Bermuda company (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 34,000,000 Common Shares, par value $.01 per
share, of the Company (the "Firm Shares") and, at the election of the
Underwriters, up to 5,100,000 additional Common Shares (the "Optional Shares")
(the Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 3 hereof being collectively called the "Shares").
Concurrently with the initial public offering of Shares, the Company is
offering an aggregate of __% equity security units (the "Firm Units") and, at
the election of the underwriters of such offering (the "Units Underwriters"), up
to an additional ____ equity security units (the "Optional Units" and, together
with the Firm Units, the "Units"), by means of a separate prospectus (the "Units
Prospectus") and pursuant to a separate underwriting agreement (the "Units
Underwriting Agreement").
On or prior to the First Time of Delivery (as defined in Section 5
hereof) or immediately thereafter, (i) The St. Xxxx Companies, Inc., a Minnesota
corporation ("St. Xxxx"), and its subsidiaries that are engaged in the
reinsurance business will (A) contribute $ million in cash and (B) retrocede
certain reinsurance agreements, and contribute certain assets specified in
Section 2.01 of the Formation and Separation Agreement (as defined in Schedule
II hereof) (such reinsurance
agreements and such assets collectively, the "Business"), to the Company and its
subsidiaries and (ii) the Company will issue to St. Xxxx (A) __________ Common
Shares at the First Time of Delivery and (B) up to ________ additional Common
Shares in the event the Underwriters elect to purchase Optional Shares (the
actions described in the foregoing clauses (i) and (ii), the "Transaction"). The
Company will conduct the Business through its wholly owned operating
subsidiaries, Platinum Underwriters Reinsurance, Inc., a Maryland corporation
that, prior to the First Time of Delivery, is indirectly owned by St. Xxxx
("Platinum US"), Platinum Re (UK) Limited, a U.K. company ("Platinum UK"), and
Platinum Underwriters Bermuda, Ltd., a Bermuda company ("Platinum Bermuda"). The
Company will own Platinum US and Platinum UK through its wholly-owned
intermediate holding subsidiary, Platinum Regency Holdings, an Ireland company
("Platinum Ireland" and, together with Platinum UK and Platinum Bermuda, the
"Non-U.S. Subsidiaries"). Platinum US will be owned directly by Platinum
Underwriters Finance, Inc., a Delaware corporation ("Platinum Finance"), which
is a wholly owned subsidiary of Platinum Ireland. As used in this Agreement, the
"Filed Agreements" shall mean those agreements set forth on Schedule II hereto,
each of which has been or will be executed and delivered in connection with the
Transaction.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-....) (the
"Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the knowledge of
the Company, threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 6(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this
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representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(d) None of the Company, any of its subsidiaries or the Business has
sustained since December 31, 2001, any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or the
capital or surplus or long-term debt of the Company, any of its
subsidiaries or the Business or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, or of the Business, otherwise than as
set forth or contemplated in the Prospectus;
(e) At the First Time of Delivery, the Company and its subsidiaries
will have good title to all personal property described in the
Prospectus as being owned by them upon consummation of the Transaction,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and at the First Time of Delivery,
any real property and buildings held under lease by the Company and its
subsidiaries will be held by them under valid, subsisting and
enforceable sub-leases and assignments of leases with such exceptions
as are not material and do not materially interfere with the use made
and proposed to be made of such property and buildings by the Company
and its subsidiaries. The Company does not own any real property;
(f) The Company has been duly incorporated and is validly existing
as a company in good standing under the laws of Bermuda, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation or a company in good standing under the laws
of its jurisdiction of organization, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each jurisdiction in which it owns or leases properties or conducts any
business, or will own or lease property or conduct business at the
First
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Time of Delivery, so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be
so qualified in any such jurisdiction;
(g) Each of this Agreement, the Jurisdiction Agreement, dated as of
the date hereof (the "Common Shares Jurisdiction Agreement"), among the
Company, St. Xxxx and the Underwriters, the Units Underwriting
Agreement and the Jurisdiction Agreement, dated as of the date hereof
(the "Units Jurisdiction Agreement" and together with the Common Shares
Jurisdiction Agreement, the "Jurisdiction Agreements"), among the
Company, Platinum Finance, St. Xxxx and the Units Underwriters, has
been duly authorized, executed and delivered by the Company;
(h) Except as described in the Prospectus, each of the Company and
its subsidiaries (i) was formed solely for the purpose of engaging in
the Transaction and the transactions contemplated hereby and by the
Units Underwriting Agreement and the Filed Agreements and operating the
Business after the First Time of Delivery and (ii) has not engaged in
any business activities, conducted any operations, entered into any
agreements or contracts, incurred any liabilities, or owned any assets
or property, other than in connection with the Transaction and the
transactions contemplated hereby and by the Units Underwriting
Agreement and the Filed Agreements;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and conform in all material respects to the
description of the capital stock contained in the Prospectus; all of
the issued shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and will be owned directly or indirectly by the Company
at the First Time of Delivery, free and clear of all liens,
encumbrances, equities or claims; except as described in the Prospectus
under the captions "Certain Relationships and Related
Transactions--Formation and Separation Agreement--Pre-Emptive Rights"
and "Certain Relationships and Related Transactions--Option Agreement",
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to acquire the Shares; there
are no outstanding securities convertible into or exchangeable for, or
warrants, rights or options to purchase from the Company, or
obligations of the Company to issue, Common Shares or any other class
of capital stock of the Company (except as set forth in the Prospectus
under the captions "Management", "Certain Relationships and Related
Transactions--Option Agreement", "Description of the Equity Security
Units" and "Underwriting"); there are no restrictions on subsequent
transfers of the Shares under the laws of Bermuda or the United States
(other than, pursuant to the securities laws of the United States, by
affiliates of the Company and other than as described in the Prospectus
under the caption "Description of Our Common Shares"); and no party has
the right to require the Company to register securities except as
disclosed in the Prospectus;
(j) All of (i) the Shares to be issued and sold by the Company to
the Underwriters hereunder and (ii) the Common Shares to be issued by
the Company to St. Xxxx in the Transaction (the "St. Xxxx Investment
Shares"), have been duly authorized and, when issued and delivered
against payment therefor as provided herein and in the Formation and
Separation Agreement, respectively, will be validly issued and fully
paid and non-assessable and will conform in all material respects to
the description of the Common Shares contained in the Prospectus;
(k) The issue and sale of the Shares, the St. Xxxx Investment Shares
and the Units by the Company, the compliance by the Company with all of
the provisions of this Agreement, the Units Underwriting Agreement and
the Jurisdiction Agreements, the compliance by Platinum Finance with
all of the provisions of the Units Underwriting Agreement and the Units
Jurisdiction Agreement, and
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the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or give rise to
a right of termination under (i) the memorandum of association or
bye-laws or other organizational document of the Company or any of its
subsidiaries, (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, or (iii) any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, except, in the case of clause (ii) or (iii),
as would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries (taken as a
whole) following the First Time of Delivery, or affect the due
authorization and valid issuance of the Shares, the St. Xxxx Investment
Shares or the Units;
(l) Neither the Company nor any of its subsidiaries is in violation
of its memorandum of association or bye-laws or other organizational
documents or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(m) The statements set forth in the Prospectus under the captions
"Business--Regulation", "St. Xxxx Investment and Principal
Shareholders", "Certain Relationships and Related Transactions",
"Description of Our Common Shares", "Description of the Equity Security
Units", "Certain Tax Considerations" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are true and complete in all material respects;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, any of its
subsidiaries or the Business is a party or of which any property of the
Company, any of its subsidiaries or the Business is the subject which,
if determined adversely to the Company, any of its subsidiaries or the
Business, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, or of the Business following the First Time of
Delivery; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(o) Each of the Filed Agreements when executed and delivered prior
to the First Time of Delivery will have been duly authorized, executed
and delivered by the Company or a subsidiary of the Company, as the
case may be, and, assuming that parties to the Filed Agreements other
than the Company and its subsidiaries have the power and authority to
enter into and perform such agreements and that such agreements have
been duly authorized, executed and delivered by such parties and
constitute valid and binding agreements of such parties, will
constitute a valid and binding agreement of the Company and each of its
subsidiaries, as the case may be, enforceable against the Company and
each of its subsidiaries, in accordance with its terms, except that (i)
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other laws now or hereafter in effect
affecting creditors' rights generally, (ii) the enforceability thereof
is subject to the general principles of equity (whether such
enforceability is considered in a proceeding in equity or at law), and
(iii) no representation or warranty is made with respect to the
enforceability of indemnification and contribution provisions relating
to violations under the Act contained in the Formation and Separation
Agreement (as defined in Schedule II hereto) and the Registration
Rights Agreement (as defined in Schedule II hereto);
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(p) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any
governmental agency or body or any court is required to be obtained or
made by the Company or any of its subsidiaries for the issue and sale
of the Shares, the St. Xxxx Investment Shares and the Units or the
consummation of the Transaction and the transactions contemplated by
this Agreement, the Units Underwriting Agreement, the Jurisdiction
Agreements and the Filed Agreements, except (i) the registration under
the Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of the Shares and the Units, (ii) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities, Blue Sky or insurance securities laws
in connection with the purchase and distribution of the Shares by the
Underwriters and the Units by the Units Underwriters under the Units
Underwriting Agreement, (iii) the filing of the Prospectus under the
Bermuda Companies Act 1981 in connection with the issue and sale of the
Shares, (iv) such consents, approvals, authorizations, registrations or
qualifications as may be required and have been obtained from the
Bermuda Monetary Authority, (v) such consents, approvals,
authorizations, registrations or qualifications that have been obtained
or made under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") or the Insurance Laws (as defined below) of the State
of Maryland, Bermuda and Ireland and (vi) such consents, approvals,
authorizations, registrations or qualifications the failure of which to
obtain or make would not, individually or in the aggregate have a
material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery,
or affect the due authorization and valid issuance of the Shares, the
St. Xxxx Investment Shares or the Units;
(q) The execution, delivery and performance of each of the Filed
Agreements by each of the parties thereto and the consummation of the
Transaction and the transactions therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a right
of termination under (i) the memorandum of association or bye-laws or
other organizational document of the Company or any of its
subsidiaries, (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of
the Company or any of its subsidiaries is subject, or (iii) any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, except, in the case of clause (ii) or (iii),
as would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, following the First Time of Delivery, or affect the due
authorization and valid issuance of the Shares, the St. Xxxx Investment
Shares or the Units;
(r) The Company is not and, after giving effect to the offering and
sale of the Shares, the St. Xxxx Investment Shares and the Units, will
not be an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(s) Except as described in the Prospectus, each of the Company and
its subsidiaries is duly licensed as an insurance holding company or as
an insurer or reinsurer, as the case may be, under the insurance laws
(including laws that relate to companies that control insurance
companies) and the rules, regulations and interpretations of the
insurance regulatory authorities thereunder (collectively, "Insurance
Laws"), of each jurisdiction in which the conduct of its business as
described in the Prospectus requires such licensing, except for such
jurisdictions in which the failure of the Company and its subsidiaries
to be so licensed would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
shareholder's equity or results of operations of
6
the Company and its subsidiaries, taken as a whole, following the
First Time of Delivery. Each of the Company and its subsidiaries has
made all required filings under applicable holding company statutes or
other Insurance Laws in each jurisdiction where such filings are
required, except for such jurisdictions in which the failure to make
such filings would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
shareholder's equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery.
Except as described in the Prospectus, each of the Company and its
subsidiaries has all other necessary authorizations, approvals, orders,
consents, certificates, permits, registrations and qualifications of
and from all insurance regulatory authorities necessary to conduct
their respective businesses as described in the Prospectus and all of
the foregoing are in full force and effect, except where the failure to
have such authorizations, approvals, orders, consents, certificates,
permits, registrations or qualifications or their failure to be in full
force and effect would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
shareholder's equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery.
None of the Company or any of its subsidiaries has received any
notification from any insurance regulatory authority or other
governmental authority in the United States, Bermuda, Ireland, the
United Kingdom or elsewhere to the effect that any additional
authorization, approval, order, consent, certificate, permit,
registration or qualification is needed to be obtained by either the
Company or any of its subsidiaries; and no insurance regulatory
authority has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by the Company or any of its
subsidiaries;
(t) On or prior to the First Time of Delivery or immediately
thereafter, the Company and its subsidiaries will own or possess or
will be licensed to use, or will be able to acquire on reasonable
terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, services marks and trade names that are
necessary for the Company and its subsidiaries to be able to conduct
the business of reinsurance in the manner and to the extent described
in the Prospectus, and none of the Company or any of its subsidiaries
has received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing, except for those
which, if determined adversely to the Company or any of its
subsidiaries, would not have a material adverse effect on the
consolidated financial position, shareholder's equity or results of
operations of the Company and its subsidiaries taken as a whole
following the First Time of Delivery;
(u) Each of the Company and its subsidiaries has filed all statutory
financial returns, reports, documents and other information required to
be filed pursuant to the applicable Insurance Laws of the United States
and the various states thereof, Bermuda, Ireland, the United Kingdom
and each other jurisdiction applicable thereto, and has duly paid all
taxes (including franchise taxes and similar fees) it is required to
have paid under the applicable Insurance Laws of the United States and
the various states thereof, Bermuda, Ireland, the United Kingdom and
each other jurisdiction applicable thereto, except where the failure,
individually or in the aggregate, to file such return, report, document
or information or to pay such taxes would not have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, following the First Time of Delivery; and each of the Company
and its subsidiaries maintains its books and records in accordance
with, and is otherwise in compliance with, the applicable Insurance
Laws of the United States and the various states thereof, Bermuda,
Ireland, the United Kingdom and each other jurisdiction applicable
thereto, except where the failure to so maintain its books and records
or be in compliance would not individually or in the aggregate have a
material
7
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, following the First Time of Delivery;
(v) Any tax returns required to be filed by the Company or any of
its subsidiaries in any jurisdiction have been filed and any material
taxes, including any withholding taxes, excise taxes, penalties and
interest, assessments and fees and other charges due or claimed to be
due from such entities have been paid, other than any of those being
contested in good faith and for which adequate reserves have been
provided or any of those currently payable without penalty or interest;
(w) The Company and Platinum Bermuda have received from the Bermuda
Minister of Finance an assurance under The Exempted Undertakings Tax
Protection Act, 1966 of Bermuda to the effect set forth in the
Prospectus under the caption "Certain Tax Considerations--Taxation of
the Company, Platinum US, Platinum UK, Platinum Bermuda and Platinum
Ireland--Bermuda," and the Company has not received any notification to
the effect (and is not otherwise aware) that such assurance may be
revoked or otherwise not honored by the Bermuda government;
(x) The Company and its subsidiaries have not taken, and have no
plan or intention to take, directly or indirectly, any action that
would or would be reasonably expected to cause or result in (i) the
Company and/or any Non-U.S. Subsidiary being treated as engaged in a
trade or business within the United States for purposes of the Internal
Revenue Code of 1986, as amended (the "Code"), (ii) the Company and/or
any Non-U.S. Subsidiary being treated as a passive foreign investment
company within the meaning of section 1297 of the Code, (iii) the
Company and/or any Non-U.S. Subsidiary being treated as a controlled
foreign corporation within the meaning of section 957 of the Code or
(iv) any shareholder of the Company having "related party insurance
income" inclusions for U.S. federal income tax purposes as a result of
being a shareholder of the Company;
(y) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to Bermuda or any political subdivision or
taxing authority thereof or therein in connection with the sale and
delivery by the Company of the Shares to or for the respective accounts
of the Underwriters or the sale and delivery outside Bermuda by the
Underwriters of the Shares to the initial purchasers thereof; and no
registration, documentary, recording, transfer or other similar tax,
fee or charge by any Bermuda government authority is payable in
connection with the execution, delivery, filing, registration or
performance of this Agreement;
(z) It is not necessary to register under the Act the St. Xxxx
Investment Shares to be sold to St. Xxxx, because the issuance of such
shares will be exempt from registration under the Act;
(aa) There are no currency exchange control laws or withholding
taxes, in each case of Bermuda, the United Kingdom or Ireland (or any
political subdivision or taxing authority thereof), that would be
applicable to the payment of dividends (i) on the Shares by the Company
(other than as may apply to residents of Bermuda for Bermuda exchange
control purposes) or (ii) by any of the Company's subsidiaries to the
Company. The Bermuda Monetary Authority has designated the Company and
Platinum Bermuda as nonresident for exchange control purposes and has
granted permission for the issue and transfer of the Shares (including
permission for the issue or transfer of up to 20% of the Company's
shares in issue from time to time to persons resident in Bermuda for
exchange control purposes), subject to the condition that the Common
Shares of the Company shall be listed on the New York Stock Exchange
(the "Exchange") or any other appointed stock exchange. Such permission
has not been revoked and is in full force and effect, and the Company
has no knowledge of any proceedings planned or threatened for the
revocation of such permission. The Company and Platinum Bermuda are
"exempted companies" under Bermuda law and have not (i)
8
acquired and do not hold any land in Bermuda, other than that held
by way of lease or tenancy for terms of not more than 21 years, without
the express authorization of the Bermuda legislature, (ii) taken
mortgages on land in Bermuda to secure an amount in excess of $50,000,
without the consent of the Bermuda Minister of Finance, (iii) acquired
any bonds or debentures secured by any land in Bermuda (other than
certain types of Bermuda government securities), or (iv) conducted
their business in a manner that is prohibited for "exempted companies"
under Bermuda law. Neither the Company nor Platinum Bermuda has
received notification from the Bermuda Monetary Authority or any other
Bermuda governmental authority of proceedings relating to the
modification or revocation of its designation as nonresident for
exchange control purposes, its permission to issue and transfer the
Shares, or its status as an "exempted company";
(bb) Under the Common Shares Jurisdiction Agreement, the Company has
validly and irrevocably submitted to the non-exclusive jurisdiction of
any United States Federal or State court in the Borough of Manhattan,
the City of New York, State of New York (a "New York Court") with
respect to suits, actions or proceedings arising out of or in
connection with violations of United States federal securities laws
relating to offers and sales of the Shares, and has validly and
irrevocably waived, to the fullest extent permitted by law, any
objections that it may now or hereafter have to the laying of venue of
any such suit, action or proceeding brought in any New York Court based
on or arising under this Agreement or any claims that any such suit,
action or proceeding brought in any New York Court has been brought in
an inconvenient forum; and, under the Common Shares Jurisdiction
Agreement, the Company has duly and irrevocably appointed CT
Corporation System as its agent to receive service of process with
respect to actions arising out of or in connection with any such suit,
action or proceeding, and service of process on CT Corporation System
effected in the manner set forth in the Common Shares Jurisdiction
Agreement will be effective under the laws of Bermuda to confer
personal jurisdiction over the Company;
(cc) Immediately following the First Time of Delivery, St. Xxxx will
have transferred to the Company and its subsidiaries those assets,
liabilities and businesses that, together with the Filed Agreements,
are necessary for the Company and its subsidiaries to be able to
conduct the Business in the manner and to the extent described in the
Prospectus;
(dd) The Company has not taken, directly or indirectly, any action
that has constituted or that was designed to or which has constituted
or which might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of St. Xxxx or the Company to facilitate the sale
or resale of the Shares;
(ee) The historical financial statements and schedules of
Predecessor (as defined in the Prospectus) included in the Prospectus
and the Registration Statement (i) present fairly in all material
respects the identifiable underwriting assets and liabilities of The
St. Xxxx Companies, Inc. Reinsurance Underwriting Segment as of
December 31, 2001, 2000 and 1999, and its underwriting results and its
identifiable underwriting cash flows for each of the years in the
three-year period ended December 31, 2001 in conformity with accounting
principles generally accepted in the United States of America, and (ii)
comply as to form in all material respects with the applicable
accounting requirements of the Act;
(ff) Immediately following the First Time of Delivery, the Company
will repurchase and cancel the Common Shares held by Codan Trust
Company Limited, and immediately following such repurchase and
cancellation, St. Xxxx and the holders of the Shares will be the only
holders of issued and outstanding Common Shares; and
9
(gg) KPMG, LLP, who have certified certain financial statements of the
Company, its subsidiaries and the Business, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
2. St. Xxxx represents and warrants to, and agrees with, each of the
Underwriters that:
(a) St. Xxxx has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota;
and each subsidiary of St. Xxxx that is a party to a Filed Agreement
has been duly incorporated and is validly existing as a corporation or
a company in good standing under the laws of its jurisdiction of
organization, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(b) Each of this Agreement, the Units Underwriting Agreement and the
Jurisdiction Agreements has been duly authorized, executed and
delivered by St. Xxxx;
(c) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental
agency or body having jurisdiction over St. Xxxx or any of its
subsidiaries or any of their properties required for the execution and
delivery by St. Xxxx of this Agreement, the Units Underwriting
Agreement and the Jurisdiction Agreements to be duly and validly
authorized have been obtained or made and are in full force and effect;
(d) The compliance by St. Xxxx with all applicable provisions of
each of this Agreement, the Units Underwriting Agreement and the
Jurisdiction Agreements and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or give rise to a right of termination under (i) the
certificate of incorporation or bylaws of St. Xxxx, (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which St. Xxxx is a party or by which St. Xxxx is bound
or to which any of the properties or assets of St. Xxxx is subject, or
(iii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over St. Xxxx or any of
its properties, except, in the case of clause (ii) or (iii), as would
not, individually or in the aggregate, have a material adverse effect
on the consolidated financial position, shareholders' equity or results
of operations of St. Xxxx and its subsidiaries, taken as a whole, or of
the Business;
(e) Each of the Filed Agreements when executed and delivered prior
to the First Time of Delivery will have been duly authorized, executed
and delivered by St. Xxxx or a subsidiary of St. Xxxx, as the case may
be, and, assuming that parties to the Filed Agreements other than St.
Xxxx have the power and authority to enter into and perform such
agreements and that such agreements have been duly authorized, executed
and delivered by such parties and constitute valid and binding
agreements of such parties, will constitute a valid and binding
agreement of St. Xxxx and its subsidiaries, enforceable against St.
Xxxx and its subsidiaries, as the case may be, in accordance with its
terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other laws now or hereafter
in effect affecting creditors' rights generally, (ii) the
enforceability thereof is subject to the general principles of equity
(whether such enforceability is considered in a proceeding in equity or
at law), and (iii) no representation or warranty is made with respect
to the enforceability of the indemnification and contribution
provisions relating to violations under the Act contained in the
Formation and Separation Agreement and the Registration Rights
Agreement;
(f) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any
governmental agency or body or any court is required to be obtained or
made by St. Xxxx or any of its subsidiaries for the consummation of the
Transaction and the
10
transactions contemplated by this Agreement, the Units Underwriting
Agreement, the Jurisdiction Agreements and the Filed Agreements, except
(i) such as have been obtained or made under the Insurance Laws of the
State of Maryland, Bermuda and Ireland and (ii) such consents,
approvals, authorizations, registrations or qualifications the failure
of which to obtain or make would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of St. Xxxx and its
subsidiaries, taken as a whole, or of the Business;
(g) The execution, delivery and performance of each of the Filed
Agreements by St. Xxxx or any of its subsidiaries party thereto and the
consummation of the Transaction and the transactions therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
give rise to a right of termination under (i) the certificate of
incorporation or bylaws or other organizational documents of St. Xxxx
or any of its subsidiaries, (ii) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which St.
Xxxx or any of its subsidiaries is a party or by which St. Xxxx or any
of its subsidiaries is bound or to which any of the properties or
assets of St. Xxxx or its subsidiaries is subject, or (iii) any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over St. Xxxx, any of its subsidiaries, or any
of their properties, except, in the case of clause (ii) or (iii), as
would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of St. Xxxx and its subsidiaries, taken as a
whole, or of the Business;
(h) The historical financial statements and schedules of Predecessor
included in the Prospectus and the Registration Statement present
fairly in all material respects the underwriting results of Predecessor
as of the dates and for the periods indicated, comply as to form with
the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except
as otherwise noted therein);
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which St. Xxxx or any of its
subsidiaries in respect of the Business is a party or of which any
property of St. Xxxx or any of its subsidiaries in respect of the
Business is the subject which, if determined adversely to St. Xxxx or
any of its subsidiaries in respect of the Business, would individually
or in the aggregate have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
St. Xxxx and its subsidiaries, taken as a whole, or of the Business;
and to St. Paul's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(j) St. Xxxx and its subsidiaries in respect of the Business has not
sustained since December 31, 2001, any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since December 31, 2001, there has
not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management or results of operations of St. Xxxx or any of its
subsidiaries in respect of the Business, otherwise than as set forth or
contemplated in the Prospectus;
(k) Under the Common Shares Jurisdiction Agreement, St. Xxxx has
validly and irrevocably submitted to the non-exclusive jurisdiction of
any New York Court with respect to suits, actions or proceedings
arising out of or in connection with violations of United States
federal securities laws
11
relating to offers and sales of the Shares and has validly and
irrevocably waived, to the fullest extent permitted by law, any
objections that it may now or hereafter have to the laying of venue of
any such suit, action or proceeding brought in any New York Court based
on or arising under this Agreement or any claims that any such suit,
action or proceeding brought in any New York Court has been brought in
an inconvenient forum; and
(l) KPMG, LLP, who have certified certain financial statements of
St. Xxxx, its subsidiaries and the Business, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $................, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 3, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 5,100,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 5
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
4. (a) Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
(b) Each Underwriter agrees that it will not offer, sell or deliver
any of the Shares in any jurisdiction outside the United States except
under circumstances that will result in compliance by the Company and
the several Underwriters with the applicable laws thereof, and that it
will take at its own expense whatever action is required to permit its
purchase and resale of the Shares in such jurisdictions. Each
Underwriter understands that no action has been taken to permit a
public offering in any jurisdiction outside the United States where
action would be required for such purpose. Each Underwriter agrees not
to cause any advertisement of the Shares to be published in any
newspaper or periodical or posted in any public place and not to issue
any circular relating to the Shares, except in any case with Xxxxxxx,
Sachs & Co.'s express written consent and then only at its own expense.
12
(c) Each Underwriter represents, warrants and agrees that: (i) it
has not offered or sold and, prior to the expiry of a period of six
months from the closing of the offering of the Common Shares, will not
offer or sell any Common Shares to persons in the United Kingdom except
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has only communicated or caused to
be communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within
the meaning of section 21 of the Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale
of any Common Shares in circumstances in which section 21(1) of the
FSMA does not apply to the Company; and (iii) it has complied and will
comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the Common Shares in, from or
otherwise involving the United Kingdom.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Company shall be delivered by or
on behalf of the Company to Xxxxxxx, Sachs & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated
Office"). The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 9:30 a.m., New York City time, on
............., 2002 or such other time and date as Xxxxxxx, Sachs & Co.
and the Company may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York time, on the date specified by
Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Sachs &
Co. of the Underwriters' election to purchase such Optional Shares, or
such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may
agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 9 hereof, including
the cross receipt for the Shares and any additional documents requested
by the Underwriters pursuant to Section 9(o) hereof, will be delivered
at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Closing Location"), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting will
be held at the Closing Location at 2:00 p.m., New York City time, on
the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 5, "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
13
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to
make no further amendment or any supplement to the Registration
Statement or Prospectus which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its reasonable best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply in all material respects with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or become subject to taxation in
any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus in
order to comply with the Act, to notify you and upon your request to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many written and
electronic copies as you may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
14
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder, any Shares or Units or any securities of the
Company that are substantially similar to the Shares or Units,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, Common
Shares or any such substantially similar securities (other than (i) the
St. Xxxx Investment Shares, (ii) the Units issued pursuant to the Units
Underwriting Agreement, and (iii) securities issued pursuant to any
director or employee stock option or benefit plans existing on, or upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior
written consent of Xxxxxxx, Sachs & Co.;
(f) To make available to its shareholders all information as
required by the Exchange Act;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
non-confidential information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally or to
the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on the Exchange;
(j) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act; and
(l) Immediately upon receipt of payment for the Firm Shares, the
Company shall cause all of the Common Shares held by Codan Trust
Company Limited to be repurchased and cancelled.
15
7. St. Xxxx agrees with each of the Underwriters that, during the
period beginning from the date hereof and continuing to and including the date
180 days after the date of the Prospectus, it will not offer, sell, contract to
sell or otherwise dispose of any Common Shares or any securities of the Company
that are substantially similar to the Common Shares, including but not limited
to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Common Shares or any such substantially similar
securities, without the prior written consent of Xxxxxxx, Sachs & Co.
8. The Company and St. Xxxx covenant and agree with the several
Underwriters that the Company and St. Xxxx will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 6(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to, and the reasonable fees
and disbursements of counsel for the Underwriters in connection with, securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Shares; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 10 and 13 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and St. Xxxx herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company and St. Xxxx shall have performed
all of their respective obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such written opinion or
opinions (a draft of each such opinion is attached as
16
Annex II(a) hereto), dated such Time of Delivery in a form or forms
acceptable to you, and such counsel shall have received such papers and
information as they may reasonably request to enable them to render
such opinion or opinions;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion or opinions (a draft of such
opinion or opinions are attached as Annex II(b) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Assuming each of this Agreement, the Units Underwriting
Agreement and the Jurisdiction Agreements has been duly authorized,
executed and delivered by the Company under Bermuda law, each of
this Agreement, the Units Underwriting Agreement and the
Jurisdiction Agreements has been duly executed and delivered by the
Company.
(ii) Each of this Agreement, the Units Underwriting Agreement
and the Jurisdiction Agreements (has been duly authorized, executed
and delivered by St. Xxxx.
(iii) Platinum US has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to conduct its business
as described in the Prospectus.
(iv) All of the outstanding shares of Platinum US's common stock
have been duly authorized and validly issued and are fully paid and
non-assessable. Platinum Finance is the registered owner of 50,000
shares of Platinum US's common stock, and such shares constitute all
of the outstanding shares of Platinum US's capital stock.
(v) To such counsel's knowledge, the only agreement in which the
Company has agreed to register any securities is the Registration
Rights Agreement.
(vi) Assuming that each of the Formation and Separation
Agreement and the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company under Bermuda law,
the Formation and Separation Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by the
Company, and constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, except that such
counsel expresses no opinion as to the enforceability of any
indemnification or contribution provisions relating to violations
under any federal or state securities laws contained in the
Formation and Separation Agreement and the Registration Rights
Agreement.
(vii) The Formation and Separation Agreement and the
Registration Rights Agreement have been duly authorized, executed
and delivered by St. Xxxx and constitute valid and legally binding
obligations of St. Xxxx enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles,
except that such counsel expresses no opinion as to the
enforceability of any indemnification or contribution provisions
relating to violations under any federal or state securities laws
contained in the Formation and Separation Agreement and the
Registration Rights Agreement.
17
(viii) Assuming that each of the Filed Agreements, (other than
the Formation and Separation Agreement and the Registration Rights
Agreement) that is governed by New York law and to which the Company
is a party has been duly authorized, executed and delivered by the
Company under Bermuda law, each of such agreements has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(ix) Each of the Filed Agreements (other than the Formation and
Separation Agreement and the Registration Rights Agreement) that is
governed by New York law and to which St. Xxxx is a party, has been
duly authorized, executed and delivered by St. Xxxx and constitutes
a valid and legally binding obligation of St. Xxxx enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(x) Platinum Finance has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to conduct its business
as described in the Prospectus.
(xi) All of the outstanding shares of Platinum Finance's common
stock have been duly authorized and validly issued and are fully
paid and non-assessable. Platinum Ireland is the registered owner of
100 shares of Platinum Finance's common stock, and such shares
constitute all of the outstanding shares of Platinum Finance's
capital stock.
(xii) Each of the Filed Agreements that is governed by New York
law and to which Platinum Finance is a party has been duly
authorized, executed and delivered by Platinum Finance and
constitutes a valid and legally binding obligation of Platinum
Finance enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(xiii) The Units Underwriting Agreement has been duly
authorized, executed and delivered by Platinum Finance.
(xiv) Each of the Filed Agreements that is governed by New York
law and to which Platinum US is a party has been duly authorized,
executed and delivered by Platinum US and constitutes a valid and
legally binding obligation of Platinum US enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, except that such counsel expresses no opinion as to the
enforceability of any leases, sub-leases or assignments of leases or
other agreements relating to real property constituting a Filed
Agreement.
(xv) Each of the Filed Agreements that is governed by New York
law and to which St. Xxxx Fire and Marine Insurance Company, a
Minnesota corporation and a wholly owned subsidiary of St. Xxxx
("Fire and Marine"), is a party, has been duly authorized, executed
and delivered by Fire and Marine and constitutes a valid and legally
binding obligation of Fire and Marine enforceable in accordance with
its terms, subject to
18
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(xvi) No consent, approval, authorization or order of, or
qualification with, any United States federal or New York State
governmental body or agency is required for the issue and sale of
the Shares, the St. Xxxx Investment Shares or the Units, except such
as may be required by the Act, the Exchange Act, the Trust Indenture
Act and the securities or Blue Sky laws of the State of New York.
(xvii) The execution, delivery and performance by Platinum US of
its obligations under each of the Filed Agreements to which it is a
party will not (a) violate Platinum US's certificate of
incorporation or by-laws, (b) result in a default under or breach of
any of the Filed Agreements to which it is a party, or (c) violate
any Federal law of the United States or law of the State of New York
applicable to Platinum US; provided, however, that, for the purposes
of this paragraph (xvii), such counsel expresses no opinion with
respect to Federal or state securities laws, other antifraud laws or
fraudulent transfer laws; provided, further, that insofar as
performance by Platinum US of its obligations under such agreements
is concerned, such counsel expresses no opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(xviii) The execution, delivery and performance by Platinum
Finance of its obligations under each of the Filed Agreements to
which it is a party will not (a) violate Platinum Finance's
certificate of incorporation or by-laws, (b) result in a default
under or breach of any of the Filed Agreements to which it is a
party, or (c) violate any Federal law of the United States or law of
the State of New York applicable to Platinum Finance; provided,
however, that, for the purposes of this paragraph (xviii), such
counsel expresses no opinion with respect to Federal or state
securities laws, other antifraud laws or fraudulent transfer laws;
provided, further, that insofar as performance by Platinum Finance
of its obligations under such agreements is concerned, such counsel
expresses no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
(xix) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated June 21, 2002, approving or
acknowledging that no regulatory approval is required for, inter
alia, the transactions contemplated by the Filed Agreements to which
the Company or Platinum US is a party, and the issuance to Platinum
US by the New York State Insurance Department of a license to engage
in the reinsurance business, all statutory and regulatory consents,
authorizations, approvals and filings required to be obtained or
made by or on behalf of the Company and Platinum US under the
insurance laws of the State of Maryland and the insurance laws of
the State of New York to consummate the transactions contemplated by
the Filed Agreements to which the Company or Platinum US is a party,
and in the case of Platinum US, to conduct its business as described
in the Prospectus, have been obtained or made.
(xx) Under the laws of the State of New York relating to
submission to jurisdiction, pursuant to the Common Shares
Jurisdiction Agreement, (i) each of the Company and St. Xxxx has
validly and irrevocably submitted to the non-exclusive jurisdiction
of any New York Court, and has validly and irrevocably waived any
objection to the venue of a proceeding in any such court, and (ii)
the Company has validly appointed CT Corporation
19
System as its authorized agent for the purpose and to the extent
described in the Common Shares Jurisdiction Agreement, and service
of process effected on such agent in the manner set forth therein
will be effective to confer valid personal jurisdiction over the
Company, assuming, in each of clauses (i) and (ii), (a) with respect
to the Company only, the validity of such actions under Bermuda law
and (b) the due authorization, execution and delivery of this
Agreement by or on behalf of the Underwriters.
(xxi) Registration of the Company under the Investment Company
Act, is not required.
(xxii) The issuance of the St. Xxxx Investment Shares pursuant
to the Formation and Separation Agreement does not require
registration under the Act.
(xxiii) The statements made under the captions "Business--Our
Business--U.S. Regulation--U.S. Insurance Holding Company Regulation
of Platinum Holdings" and "-- -- --State Insurance Regulation of
Platinum US" in the Prospectus insofar as they relate to summaries
of the provisions of the insurance laws of the State of Maryland
therein described are accurate, fair and complete.
Such counsel shall also furnish to you its written opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of the
date of the Prospectus, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act and the applicable rules
and regulations of the Commission thereunder. Further, nothing that came to such
counsel's attention in the course of its review has caused such counsel to
believe that the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of the Prospectus, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Also, nothing that has
come to such counsel's attention has caused such counsel to believe that the
Prospectus, as of the date and time of delivery of this letter, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such counsel may state that its opinions are solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(d) Xxxxxxx, Xxxx & Xxxxxxx, outside Bermuda counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(c) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Each of the Company and Platinum Bermuda is a limited
liability company duly incorporated and existing under the laws of
Bermuda in good standing ("good standing" meaning solely that it has
not failed to make any filing with any Bermuda governmental
authority or to pay any Bermuda government fee or tax which would
make it liable to be struck off the Register of Companies and
thereby cease to exist under the laws of Bermuda).
20
(ii) Each of the Company and Platinum Bermuda has the power and
capacity to acquire by purchase or otherwise and hold, sell, dispose
of and deal in real property situated outside Bermuda and in
personal property of all kinds wheresoever situated.
(iii) The Company has the necessary corporate power and
authority, pursuant to its Memorandum of Association, to carry on
its business as described in the Registration Statement. Platinum
Bermuda has the necessary corporate power and authority, pursuant to
its Memorandum of Association, to carry on its business as described
in the Registration Statement, including its insurance and
reinsurance business as described in the Registration Statement, and
was registered as a Class 4 insurer in terms of the Insurance Xxx
0000 effective [ ] 2002 and subject to Platinum Bermuda being
capitalized with US $[ ] is authorized to carry on business in that
capacity as described in the Registration Statement subject to the
provisions of the Insurance Act, 1978 and the regulations
promulgated thereunder, and the conditions set out in Schedule I to
the Certificate of Registration, issued by the Registrar of
Companies to Platinum Bermuda, dated [ ] 2002. No further approvals
of the insurance regulatory, governmental or administrative body or
authority of Bermuda are required for the conduct of such business
by each of the Company and Platinum Bermuda respectively.
(iv) Each of the Company and Platinum Bermuda has the necessary
corporate power and authority to enter into and perform its
obligations under the Documents (as defined in Annex II(c) hereto).
The execution and delivery of the Documents by the Company and
Platinum Bermuda and the performance by the Company and Platinum
Bermuda of their respective obligations thereunder including, but
not limited to, in the case of the Company, the issue and sale of
the Shares, the St. Xxxx Investment Shares and the Units, and the
performance of the transactions contemplated by the Documents and
the Registration Statement, will not violate the memorandum of
association or bye-laws of the Company or of Platinum Bermuda nor
any applicable law, regulation, order or decree in Bermuda.
(v) Each of the Company and Platinum Bermuda has taken all
corporate action required to authorize its execution, delivery and
performance of the Documents. The Documents have been duly executed
and delivered by or on behalf of the Company or Platinum Bermuda, as
applicable, and constitute the valid, binding and enforceable
obligations of the Company or Platinum Bermuda, as applicable, in
accordance with the terms thereof.
(vi) The Company has taken all corporate action required to duly
authorise its execution and delivery to the SEC of the Registration
Statement.
(vii) No order, consent, approval, licence, authorisation or
validation of, registration with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof is
required to authorise or is required in connection with the
execution, delivery, performance and enforcement of the Documents,
except such as have been duly obtained in accordance with Bermuda
law.
(viii) No order, consent, approval, license, authorization or
validation of, registration with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof is
required to authorize or is required in connection with the valid
issue and sale of the Shares, the St. Xxxx Investment Shares and the
Units, except such as have been duly obtained in accordance with
Bermuda law.
21
(ix) It is not necessary or desirable to ensure the
enforceability in Bermuda of the Documents that they be registered
in any register kept by, or filed with, any governmental authority
or regulatory body in Bermuda.
(x) The Company has an authorized share capitalization as
described in the Registration Statement. Upon payment in cash or in
kind by the Underwriters, the St. Xxxx Purchasers (as defined in
Annex II(c) hereto) for the Shares and the St. Xxxx Investment
Shares and the Units, respectively, in accordance with this
Agreement, the Formation and Separation Agreement and the Units
Underwriting Agreement, respectively, the Shares, the St. Xxxx
Investment Shares and the Units will be duly authorized and validly
issued, fully paid and nonassessable ("nonassessable" meaning that
no further sums are required to be paid by the holders thereof in
connection with the issue thereof).
(xi) Based solely on such counsel's review of the bye-laws of
the Company and the Register of Members of the Company, and except
as disclosed in the Prospectus under the captions "Certain
Relationships and Related Transactions - Formation and Separation
Agreement - Pre-Emptive Rights", "Certain Relationships and Related
Transactions - Option Agreement", "Description of the Equity
Security Units", "Management" and "Underwriting", the Company has no
(i) outstanding securities or other obligations convertible into or
exchangeable or exercisable for shares in the authorized share
capital of the Company, or (ii) outstanding rights to subscribe for
or purchase, or options for the purchase of, or agreement providing
for the issuance (contingent or otherwise) of, or calls, commitments
or claims of any character relating to, any shares in the authorized
share capital of the Company, or (iii) securities convertible into
or exchangeable or exercisable for any shares in the authorized
share capital of the Company, or (iv) obligation (in the nature of
the existence of a pre-emptive or similar right) to offer the shares
in the authorized share capital of the Company to any shareholder of
the Company prior to the sale of the Shares, the St. Xxxx Investment
Shares or the Units.
(xii) Subject to the requirement that shares of the Company are
listed on the New York Stock Exchange or on another appointed stock
exchange (as defined in section 2(1) of the Companies Xxx 0000, the
Company has received permission under the Exchange Control Xxx 0000
(and Regulations made thereunder) from the Bermuda Monetary
Authority for: (i) the issue and subsequent free transferability of
the Company's shares, up to the amount of its authorised capital
from time to time, to and among persons non-resident of Bermuda for
exchange control purposes; (ii) the issue and subsequent free
transferability of up to 20% of the Company's shares in issue from
time to time to persons resident in Bermuda for exchange control
purposes; and (iii) the issue of options, warrants, depository
receipts, rights, loan notes and other securities of the Company and
the subsequent free transferability thereof.
(xiii) The Shares and the St. Xxxx Investment Shares conform to
the description of the Company's Common Shares found in the
Prospectus under the caption "Description of Common Shares".
(xiv) The issue and sale of the Shares, the St. Xxxx Investment
Shares and the Units by the Company pursuant to the Documents will
not constitute unlawful financial assistance by the Company under
Bermuda law.
22
(xv) The form of certificates for the Shares and the St. Xxxx
Investment Shares conforms to the requirements of Bermuda law.
(xvi) Based solely on such counsel's review of a certified copy
of the Register of Members of Platinum Bermuda dated [ ] 2002, all
of the issued common shares of Platinum Bermuda have been duly
authorised and validly issued, fully paid and non-assessable (as
such term is defined above) and are registered in the name of the
Company.
(xvii) Based solely on such counsel's review of a certified copy
of the Register of Members of the Company dated [ ] 2002, all of the
issued Common Shares of the Company have been duly authorised and
validly issued, fully paid and non-assessable (as such term is
defined above) and are registered in the name of Codan Trust Company
Limited (the "Purpose Trust").
(xviii) The Company has a contractual right to and has taken all
necessary corporate action other than the payment of the repurchase
price of US$120,000 to effect the repurchase of the Common Shares
held by the Purpose Trust and upon the receipt of the payment of the
repurchase price of US$120,000 by the Purpose Trust, the Company
shall be entitled, without any further action by the Company or the
Purpose Trust, to cancel the Common Shares held by the Purpose Trust
by making the appropriate entry in the Register of Members of the
Company, and thereafter the Purpose Trust will not have any rights
as a member of the Company.
(xix) The Documents will not be subject to ad valorem stamp duty
in Bermuda and no registration, documentary, recording, transfer or
other similar tax, fee or charge is payable in Bermuda in connection
with the execution, delivery, filing, registration or performance of
the Documents or the issue and delivery of the St. Xxxx Investment
Shares, the Shares and the Units to the St. Xxxx Purchasers, the
Underwriters and the Units Underwriters, respectively, pursuant to
the Formation and Separation Agreement, this Agreement and the Units
Underwriting Agreement, respectively.
(xx) Under current Bermuda law there is no Bermuda income tax,
withholding tax, capital gains tax, capital transfer tax, estate or
inheritance tax, payable by investors who are not resident in
Bermuda (or are deemed not to be resident in Bermuda for Bermuda
exchange purposes).
(xxi) The Company and Platinum Bermuda have received from the
Bermuda Minister of Finance an assurance under The Exempted
Undertakings Tax Protection Act 1966 of Bermuda to the effect that
in the event Bermuda enacts any legislation imposing tax computed on
profits or income, or computed on any capital asset, gain or
appreciation, or any tax in the nature of estate duty or inheritance
tax, then such tax will not apply to the Company and Platinum
Bermuda or to any of their operations or their shares, debentures or
other obligations, until March 28, 2016. This assurance will not
prevent the application of any tax or duty on persons ordinarily
resident in Bermuda or the application of any tax payable in
accordance with the provisions of The Land Tax Act 1967 of Bermuda
or otherwise payable in relation to any property leased to the
Company or Platinum Bermuda.
(xxii) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Pro Forma Financial
Condition and Underwriting Results -
23
Liquidity and Capital Resources - Restrictions on Dividend
Payments from our Operating Subsidiaries - Bermuda", "Business -
Regulation - Bermuda", "Description of Our Common Shares", "Certain
Tax Considerations - Taxation of the Company, Platinum US, Platinum
UK, Platinum Bermuda and Platinum Ireland - Bermuda", "Certain Tax
Considerations -Taxation of Shareholders - Bermuda Taxation", the
fourth paragraph set forth under the caption "Risk Factors - Risks
Related to Our Common Shares - There are limitations on the
ownership, transfers and voting rights of our Common Shares", and,
the first and second paragraphs under "Item 14. Indemnification of
Directors and Officers" in Part II of the Registration Statement
insofar as such statements constitute summaries of the legal matters
referred to therein, fairly present the information called for with
respect to such legal matters and documents and fairly summarize the
matters referred to therein.
(xxiii) The Company can xxx and be sued in its own name under
the laws of Bermuda.
(xxiv) The choice of the Foreign Laws (as defined in Annex II(c)
hereto) as the governing law of the Documents is a valid choice of
law and would be recognized and given effect to in any action
brought before a court of competent jurisdiction in Bermuda, except
for those laws (i) which such court considers to be procedural in
nature, (ii) which are revenue or penal laws or (iii) the
application of which would be inconsistent with public policy, as
such term is interpreted under the laws of Bermuda. The submission
in the Documents to the non-exclusive jurisdiction of the Foreign
Courts (as defined in Annex II(c) hereto) is valid and binding upon
the Company.
(xxv) The courts of Bermuda would recognise as a valid judgment,
a final and conclusive judgment in personam obtained in the Foreign
Courts against the Company based upon the Documents under which a
sum of money is payable (other than a sum of money payable in
respect of multiple damages, taxes or other charges of a like nature
or in respect of a fine or other penalty) and would give a judgment
based thereon provided that (a) such courts had proper jurisdiction
over the parties subject to such judgment, (b) such courts did not
contravene the rules of natural justice of Bermuda, (c) such
judgment was not obtained by fraud, (d) the enforcement of the
judgment would not be contrary to the public policy of Bermuda, (e)
no new admissible evidence relevant to the action is submitted prior
to the rendering of the judgment by the courts of Bermuda and (f)
there is due compliance in seeking validation of such judgment with
the correct procedures under the laws of Bermuda.
(xxvi) Under Section 16 of the Companies Xxx 0000, the bye-laws
of the Company shall bind the Company and the members of the Company
to the same extent as if such bye-laws had been signed and sealed by
each such member, and contain covenants on the part of each such
member to observe all the provisions of the bye-laws of the Company,
except, as provided in Section 17 of the Companies Xxx 0000, no
member of the Company shall be bound by an alteration made in the
bye-laws after the date on which he became a member, if and so far
as the alteration requires him to take or subscribe for more shares
than the number held by him at the date on which the alteration is
made, or in any way increases his liability as at that date to
contribute to the share capital of, or otherwise to pay money to,
the Company (unless the member agrees in writing, either before or
after the alteration is made, to be bound thereby).
24
(xxvii) Based solely on a search of the Register of Charges,
maintained by the Registrar of Companies pursuant to Section 55 of
the Companies Xxx 0000, conducted at [ ] on [ ], there are no
registered charges registered against the Company or Platinum
Bermuda.
(xxviii) Based solely upon a search of the Cause Book of the
Supreme Court of Bermuda conducted at [ ] on [ ], there are no
judgments, nor legal or governmental proceedings pending in Bermuda
to which either of the Company or Platinum Bermuda is a party.
(xxix) Neither the Underwriters, the Units Underwriters nor the
St. Xxxx Purchasers will be deemed to be resident, domiciled or
carrying on business in Bermuda by reason only of the execution,
performance and enforcement of the Documents.
(xxx) Each of the Underwriters, the Units Underwriters and the
St. Xxxx Purchasers has standing to bring an action or proceedings
before the appropriate courts in Bermuda for the enforcement of the
Documents. It is not necessary or advisable in order for any
Underwriter, Units Underwriter or St. Xxxx Purchaser to enforce its
rights under the Documents, including the exercise of remedies
thereunder, that it be licensed, qualified or otherwise entitled to
carry on business in Bermuda.
(xxxi) The Company and Platinum Bermuda have been designated as
non-resident for the purposes of the Exchange Control Act, 1972 and
as such are free to acquire, hold and sell foreign currency and
securities. No currency exchange control laws or withholding taxes
of Bermuda apply to the payment of dividends (a) on the Common
Shares by the Company or (b) by Platinum Bermuda to the Company,
except in each case as described in or contemplated by the
Registration Statement; and Platinum Bermuda is not currently
prohibited by any Bermuda law or governmental authority, directly or
indirectly, from paying any dividends to the Company, from making
any other distributions on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from
transferring any of its property or assets to the Company, except as
summarized in the Registration Statement.
(xxxii) Neither the Company nor Platinum Bermuda is entitled to
any immunity under the laws of Bermuda, whether characterized as
sovereign immunity or otherwise, from any legal proceedings to
enforce the Documents in respect of itself or its property.
(xxxiii) The procedure for the service of process on the Company
through C.T. Corporation System in New York, New York, United States
of America, acting as agent for the Company, as set out in sections
[1(bb) and 14] of this Agreement, would be effective, in so far as
Bermuda law is concerned, to constitute valid service of the
proceedings on the Company.
(e) Xxxxxxxxx & May, outside U.K. counsel for the Company, shall
have furnished to you their written opinion or opinions (a draft of
such opinion or opinions attached as Annex II(d) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Each of Platinum UK and St. Xxxx Reinsurance Company
Limited, a wholly-owned subsidiary of St. Xxxx ("St. Xxxx Re UK"),
is a validly existing limited liability company duly incorporated
under the laws of England and registered in England and has power
and authority under its Memorandum of Association to own leasehold
property and
25
conduct its business as described in the Prospectus. St. Xxxx
Management Limited, a wholly-owned subsidiary of St. Xxxx ("SPML")
is a validly existing limited liability company duly incorporated
under the laws of England and registered in England.
(ii) Platinum Ireland is the duly registered holder of [two]
ordinary shares of [one pound] each in Platinum UK and such shares
are all of the issued shares of Platinum UK and all such shares have
been duly and validly authorized and issued.
(iii) Provided that each of the Underwriters complies with its
obligations under Sections 4(b) and 4(c) of this Agreement
(notwithstanding Section 9 of this Agreement), the issue and sale of
the Shares and the St. Xxxx Investment Shares being delivered at
each Time of Delivery in the manner described in the Prospectus, the
issue and sale of the Units pursuant to the Units Underwriting
Agreement and the compliance by the Company, Platinum Finance and
St. Xxxx with all of the provisions of this Agreement and the Units
Underwriting Agreement, as applicable and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in any violation of the provisions of (i) the Memorandum
or Articles of Association of Platinum UK, St. Xxxx Re UK or SPML,
or (ii) any statute or statutory instrument of the United Kingdom,
or (iii) any rule or regulation of the Financial Services Authority
set out in the Financial Services Authority Handbook.
(iv) Each of the UK Agreements (as defined in Annex II(d)
hereto) to which Platinum UK is a party has been duly authorized and
executed by Platinum UK, and constitutes a valid and binding
agreement of Platinum UK enforceable against Platinum UK.
(v) Each of the UK Agreements to which St. Xxxx Re UK is a party
has been duly authorized and executed by St. Xxxx Re UK, and
constitutes a valid and binding agreement of St. Xxxx Re UK
enforceable against St. Xxxx Re UK.
(vi) Each of the UK Agreements to which SPML is a party has been
duly authorized and executed by SPML, and constitutes a valid and
binding agreements of SPML enforceable against SPML.
(vii) Assuming that each of the UK Agreements to which a person
other than Platinum UK, St. Xxxx Re UK or SPML is a party has been
duly authorized and executed by such person, each such UK Agreement
constitutes a valid and binding agreement of such person enforceable
against such person.
(viii) Except as provided in the Prospectus, neither Platinum
UK, St. Xxxx Re UK nor SPML is required to obtain any consent,
approval, authorization or order of, or make any filing with, the
Financial Services Authority or any other regulatory body in the
United Kingdom in order to perform their respective obligations
under the UK Agreements and, in the case of Platinum UK and except
as provided in the Prospectus, to conduct its business as described
in the Prospectus.
(ix) The execution, delivery and performance by Platinum UK of
each of the UK Agreements to which Platinum UK is a party and the
consummation of the transactions therein contemplated will not
conflict with or result in any violation of (i) the Memorandum or
Articles of Association of Platinum UK, or (ii) any statute or
statutory instrument of the United Kingdom, or (iii) any rule or
regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
26
(x) The execution, delivery and performance by St. Xxxx Re UK of
each of the UK Agreements to which St. Xxxx Re UK is a party and the
consummation of the transactions therein contemplated will not
conflict with or result in any violation of (i) the Memorandum or
Articles of Association of St. Xxxx Re UK, or (ii) any statute or
statutory instrument of the United Kingdom, or (iii) any rule or
regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
(xi) The execution, delivery and performance by SPML of each of
the UK Agreements to which SPML is a party and the consummation of
the transactions therein contemplated will not conflict with or
result in any violation of (i) the Memorandum or Articles of
Association of SPML, or (ii) any statute or statutory instrument of
the United Kingdom, or (iii) any rule or regulation of the Financial
Services Authority set out in the Financial Services Authority
Handbook.
(xii) The statements set forth in the Prospectus and listed in
Schedule 2 to Annex II(d) hereof, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and fair.
Such counsel shall also furnish to you its written opinion that the
discussions set forth under each of the headings "The United Kingdom" and
"United Kingdom Taxation" in the section entitled "Certain Tax Consequences" in
the Prospectus, insofar as they relate to United Kingdom tax law and Inland
Revenue practice, are a fair summary of the material United Kingdom tax laws and
Inland Revenue practices referred to therein.
(f) A&L Goodbody, outside Irish counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(e) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Platinum Ireland has been duly incorporated under the laws
of Ireland. Based only on searches carried out in the Irish
Companies Office and the Central Office of the High Court on [ ],
2002 Platinum Ireland is validly existing under the laws of Ireland
and no steps have been taken or are being taken to appoint a
receiver, examiner or liquidator over it or to wind it up and
Platinum Ireland has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact its business in Ireland.
(ii) All of the issued shares of Platinum Ireland have been duly
and validly authorized and issued, are fully paid and are not
subject to calls for any additional payments. Ten thousand (10,000)
shares have been issued, nine thousand, nine hundred and ninety nine
(9,999) registered in the name of the Company and one registered in
the name of Platinum Bermuda. To the best of such counsel's
knowledge, based on a Certificate of Xxxxxx X. Xxxxxx, all the
issued shares are free and clear of all liens, encumbrances,
equities or claims.
(iii) Based only on the Certificate of Xxxxxx X. Xxxxxx and
searches carried out in the Central Office of the High Court, such
counsel does not know of any legal or governmental proceedings
pending or threatened in Ireland to which Platinum Ireland is a
party or to which any of the properties of Platinum Ireland is
subject.
(iv) Based on the Certificate of Xxxxxx X. Xxxxxx, there is no
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Platinum Ireland is a party or by
which Platinum Ireland is bound or to which any of the
27
property or assets of Platinum Ireland is subject, nor is such
counsel actually aware of any such agreement referred to in this
paragraph.
(v) Based only on the Certificate of Xxxxxx X. Xxxxxx, Platinum
Ireland is not in violation of its Certificate of Incorporation or
its Memorandum or Articles of Association.
(vi) Based only on the description of the Transaction in the
Prospectus, Platinum Ireland is not required under Irish law to
obtain any consent, approval, authorization or order of, or make any
filling with, any governmental agency or body or any court in
Ireland to conduct its business, pay any dividends or consummate the
Transaction and based only on the description thereof in the
Prospectus, the transactions contemplated by the Filed Agreements.
(vii) Based only on the description of the Transaction in the
Prospectus, the consummation of the Transaction and based only on
the description thereof in the Prospectus, the transactions
contemplated in the Filed Agreements will not result in any
violation of the Certificate of Incorporation or the Memorandum and
Articles of Association of Platinum Ireland, any Irish statute, any
rule or regulation of any governmental agency or body of Ireland
having general application, or based only on the Certificate of
Xxxxxx X. Xxxxxx and on searches in the Central Office of the High
Court on [], any order of any court of Ireland.
(viii) Based only on the descriptions in the Prospectus and the
Units Prospectus, the issue and sale of the Shares and the St. Xxxx
Investment Shares being delivered at such Time of Delivery by the
Company, the issue and sale of the Units pursuant to the Units
Underwriting Agreement and the compliance by the Company, Platinum
Finance and St. Xxxx with all of the provisions of this Agreement
and the Units Underwriting Agreement, as applicable, and the
consummation of the transactions herein and therein contemplated
will not result in any violation of the Certificate of Incorporation
or the Memorandum and Articles of Association of Platinum Ireland,
any Irish statute, any rule or regulation of any governmental agency
or body of Ireland having general application or based only on the
Certificate of Xxxxxx X. Xxxxxx and on searches in the Central
Office of the High Court on [], 2002, any order of any court of
Ireland.
(ix) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Pro Forma Financial
Condition and Underwriting Results--Liquidity and Capital
Resources--Restrictions on Dividend Payments from our Operating
Subsidiaries--Ireland", "Business--Regulation--Ireland Regulation"
and "Certain Tax Considerations--Taxation of the Company, Platinum
US, Platinum UK, Platinum Bermuda and Platinum Ireland--Ireland"
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the requirements of Irish law with respect to such legal
matters, documents and proceedings and fairly summaries the matters
referred to therein.
(x) Based only on the Certificate of Xxxxxx X. Xxxxxx, Platinum
Ireland has not received any notification from any insurance
regulatory authority or other governmental authority to the effect
that any authorization not already held by Platinum Ireland,
approval, order, consent, certificate, permit, registration or
qualification is needed to be obtained, to conduct its business as
described in the Prospectus or to pay any dividends.
28
(xi) Based only on the Certificate of Xxxxxx X. Xxxxxx and
searches carried out in the Irish Companies Office, Platinum Ireland
has filed all statutory financial returns, reports, documents and
other information required to be filed under Irish law and Platinum
Ireland maintains its books and registers required by the Companies
Acts 1963 to 2001 of Ireland in accordance with those Acts.
(g) Xxxxx X. Xxxxxxxx, Senior Vice President and Corporate Secretary
of St. Xxxx, shall have furnished to you his written opinion (a draft
of such opinion is attached as Annex II(f) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Each of St. Xxxx and Fire and Marine has been duly
incorporated and is an existing corporation in good standing under
the laws of the State of Minnesota.
(ii) Fire and Marine has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification or is subject to no material liability or disability
by reason of failure to be so qualified in any such jurisdiction.
(iii) Each of this Agreement, the Units Underwriting Agreement
and the Jurisdiction agreements has been duly authorized, executed
and delivered by St. Xxxx.
(iv) Assuming that each of the Filed Agreements that is governed
by a law other than Minnesota law or New York law and to which St.
Xxxx or Fire and Marine is a party has been duly executed and
delivered under the applicable law, each such Filed Agreement has
been duly authorized, executed and delivered by St. Xxxx or Fire and
Marine, as the case may be.
(v) Each of the Filed Agreements that is governed by New York
law and to which St. Xxxx is a party has been duly authorized,
executed and delivered by St. Xxxx.
(vi) Each of the Filed Agreements that is governed by Minnesota
law and to which Fire and Marine is a party has been duly
authorized, executed and delivered by Fire and Marine and
constitutes a valid and legally binding obligation of Fire and
Marine enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(vii) Assuming that each of the Filed Agreements that is
governed by Minnesota law and to which Platinum US is a party has
been duly authorized, executed and delivered by Platinum US under
the laws of the State of Maryland, each such Filed Agreement has
been duly authorized, executed and delivered by Platinum US and
constitutes a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which St. Xxxx or Fire and
Marine, in each case in respect of the Business, is a party or of
which the Business is the subject, which, if determined adversely to
St. Xxxx and Fire and Marine, as the case may be, would individually
or in
29
the aggregate (after giving effect to any applicable insurance,
reinsurance or reserves therefor) have a material adverse effect on
the consolidated financial position, shareholders' equity or results
of operations of Platinum and its subsidiaries taken as a whole at
the First Time of Delivery; and, to such counsel's knowledge, no
such proceedings are threatened by governmental authorities or by
others.
(ix) The compliance by St. Xxxx with the provisions of the Filed
Agreements to which St. Xxxx is a party and the consummation of the
transactions contemplated in such agreements will not (i) result in
a default under or breach of any agreement or instrument known to me
to which St. Xxxx is a party or by which St. Xxxx is bound or to
which any of the property or assets of St. Xxxx is subject, (ii)
violate the provisions of St. Paul's Restated Articles of
Incorporation, as amended, or By-laws, as amended, or (iii) violate
any statute or any order, rule or regulation known to me of any
court or governmental agency or body having jurisdiction over St.
Xxxx or any of its properties, provided that such counsel is
expressing no opinion under this clause (iii) with respect to the
indemnification and contribution provisions relating to federal and
state securities laws contained in the Formation and Separation
Agreement and the Registration Rights Agreement.
(x) The compliance by St. Xxxx with the provisions of each of
this Agreement, the Units Underwriting Agreement and the
Jurisdiction Agreements and the consummation of the transactions
therein contemplated will not (i) result in a default under or
breach of any agreement or instrument known to such counsel to which
St. Xxxx is a party or by which St. Xxxx is bound or to which any of
the property or assets of St. Xxxx is subject, or (ii) violate the
provisions of St. Paul's Restated Articles of Incorporation, as
amended, or By-laws, as amended.
(xi) The compliance by Fire and Marine with the provisions of
the Filed Agreements to which Fire and Marine is a party and the
consummation of the transactions therein contemplated will not (i)
result in a default under or breach of any agreement or instrument
known to such counsel to which Fire and Marine is a party or by
which Fire and Marine is bound or to which any of the property or
assets of Fire and Marine is subject, (ii) violate the provisions of
the Articles of Incorporation, as amended, or By-laws, as amended,
of Fire and Marine, or (iii) violate any statute or any order, rule
or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over Fire and Marine or any of
its properties.
(xii) Neither St. Xxxx nor Fire and Marine is in violation of
its Restated Articles of Incorporation, as amended, or its Articles
of Incorporation, as amended, respectively, or its By-laws, as
amended, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
agreement or instrument known to me to which it is a party or by
which it or any of its properties is or may be bound, except where
any such default does not have or would not reasonably be expected
to have a material adverse effect on Platinum and its subsidiaries
taken as a whole.
(xii) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated June 21, 2002, approving or
acknowledging that no regulatory approval is required for, inter
alia, the transactions contemplated by the Filed Agreements to which
St. Xxxx or Fire and Marine is a party, and the issuance to Platinum
US by the
30
New York State Insurance Department of a license to engage in
the reinsurance business, no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required for the consummation by St.
Xxxx or Fire and Marine of the transactions contemplated by the
Underwriting Agreement or the Filed Agreements to which either is a
party, except the registration under the Act and the Exchange Act of
the Common Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under Maryland
insurance laws and New York insurance laws, which have been
obtained, or such as may be required under other state insurance
laws or foreign laws or as may be required by state securities or
Blue Sky laws in connection with the purchase and distribution of
the Common Shares by the Underwriters.
(xiii) All statutory and regulatory consents, authorizations,
approvals and filings required to be obtained or made by or on
behalf of St. Xxxx and Fire and Marine under the insurance laws of
the State of Minnesota to consummate the transactions contemplated
by the Filed Agreements to which St. Xxxx or Fire and Marine are a
party have been obtained or made.
(xiv) To such counsel's knowledge, neither St. Xxxx nor Fire and
Marine has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any
license from such authority, commission or body is needed to be
obtained by St. Xxxx or Fire and Marine, in each case in respect of
the Business, or that St. Xxxx or Fire and Marine is not in
compliance with any applicable insurance laws, in each case in
respect of the Business, except where such failure to obtain such
license or to be in such compliance would not, individually or in
the aggregate (after giving effect to any applicable insurance,
reinsurance or reserves therefor), have a material adverse effect on
the consolidated financial position or shareholders' equity of
Platinum and its subsidiaries taken as a whole at the First Time of
Delivery.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(h) Xxxxx Xxxx, Vice President-Corporate, Legal Services of St.
Xxxx, shall have furnished to you his written opinion (a draft of such
opinion is attached as Annex II (g) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that
(all capitalized terms used but not defined in the subparagraphs of
this Section 9(h) have the meanings specified in such opinion):
(i) Each of USF&G and Platinum US has been duly incorporated and
is an existing corporation in good standing under the laws of the
State of Maryland and, in the case of Platinum US, has corporate
power and authority to conduct its business as described in the
Prospectus.
(ii) All of the issued shares of capital stock of Platinum US
have been duly authorized and validly issued, are fully paid and
non-assessable, and , immediately prior to the First Time of
Delivery, were owned by USF&G, free and clear of all liens,
encumbrances, equities or claims.
(iii) Each of the Filed Agreements to which USF&G or Platinum US
is a party has been duly authorized, executed and delivered by USF&G
and Platinum US, as the case may be.
31
(iv) Each of the Filed Agreements that is governed by Maryland
law and to which Platinum US is a party constitutes a valid and
legally binding obligation of Platinum US enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(v) Assuming that each of the Filed Agreements that is governed
by Maryland law has been duly authorized, executed and delivered by
each party thereto (other than Platinum US) under the laws of
jurisdiction where such party is domiciled, each such Filed
Agreement has been duly authorized, executed and delivered by each
party thereto and constitutes a valid and legally binding obligation
of such party enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which USF&G or Platinum US is a
party, which, if determined adversely to USF&G or Platinum US, as
the case may be, would individually or in the aggregate (after
giving effect to any applicable insurance, reinsurance or reserves
therefor) have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
Platinum and its subsidiaries, taken as a whole, following the First
Time of Delivery (as such term is defined in the Underwriting
Agreement); and, to such counsel's knowledge, no such proceedings
are threatened by governmental authorities or by others.
(vii) The compliance by USF&G and Platinum US with the
provisions of the Filed Agreements to which USF&G or Platinum US is
a party and the consummation of the transactions therein
contemplated will not (i) result in a default under or breach of any
agreement or instrument known to me to which USF&G or Platinum US is
a party or by which USF&G or Platinum US is bound or to which any of
the property or assets of USF&G or Platinum US is subject, (ii)
violate the provisions of USF&G's or Platinum US's Articles of
Incorporation, as amended, or By-laws, as amended, or (iii) violate
any statute or any order, rule or regulation known to me of any
court or governmental agency or body having jurisdiction over USF&G
or Platinum US or any of their properties.
(viii) Neither USF&G nor Platinum US is in violation of its
articles of incorporation or by laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument known to me to
which it is a party or by which it or any of its properties is or
may be bound, except where any such default does not have or would
not reasonably be expected to have a material adverse effect on
Platinum and its subsidiaries taken as a whole.
(ix) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated June 21, 2002, approving or
acknowledging that no regulatory approval is required for, INTER
ALIA, the transactions contemplated by the Filed Agreements to which
USF&G or Platinum US is a party, no statutory or regulatory consent,
authorization, approval or filing is required to be obtained or made
under the laws of Maryland in connection with such transactions or
the transactions contemplated by the Underwriting Agreement or the
Formation and Separation Agreement other than such as
32
have been obtained or made, and other than such as may be
required under Maryland securities or Blue Sky laws.
(x) Each of USF&G and Platinum US is, and, in the case of
Platinum US, will continue to be immediately following the First
Time of Delivery, a duly licensed insurance company under the
insurance laws of the State of Maryland.
(xi) To such counsel's knowledge, Platinum US has not received
any notification from any insurance authority, commission or other
insurance regulatory body to the effect that Platinum US is not in
compliance with any applicable insurance laws.
(xii) The statements made under the captions "Business-Our
Business-Regulation-U.S. Regulation-U.S. Insurance Holding Company
Regulation of Platinum Holdings" and "-- -- --State Insurance
Regulation of Platinum US" in the Prospectus insofar as they relate
to summaries of provisions of the insurance laws of the State of
Maryland therein described are accurate, fair and complete.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(i) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at each Time of
Delivery, KPMG, LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex I(b) hereto);
(j) (i)(A) Neither the Company nor any of its subsidiaries shall
have sustained since April 24, 2002, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (B) since April 24, 2002, there
shall not have been any change in the capital stock, capital or surplus
or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (A) or (B), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(ii)(A) Neither St. Xxxx nor any of its subsidiaries in respect
of the Business shall have sustained since December 31, 2001, any
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, and
(B) since December 31, 2001, there shall not have been any change,
or any development involving a prospective change, in or affecting
the
33
general affairs, management or results of operations of St. Xxxx
and its subsidiaries in respect of the Business, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in clause (A) or (B), is in the judgment of
the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(k) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or the
Company's financial strength or claims paying ability by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or the
Company's financial strength or claims paying ability;
(l) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities in New York
or London declared by the relevant authorities or a material disruption
in commercial banking or securities settlement or clearance services in
the United States or the United Kingdom; (iv) a change or development
involving a prospective change in Bermuda taxation affecting the
Company or the Shares or the transfer thereof; (v) the outbreak or
escalation of hostilities involving the United States, the United
Kingdom or Bermuda or the declaration by the United States, the United
Kingdom or Bermuda of a national emergency or war or (vi) the
occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States, the United
Kingdom, Bermuda or elsewhere, if the effect of any such event
specified in clause (v) or (vi) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(m) The Shares to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the Exchange;
(n) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from (i) each of the parties to whom
any St. Xxxx Investment Shares will be delivered at such Time of
Delivery and (ii) each of the Company's officers and directors, in each
case, substantially to the effect set forth in Section 6(e) hereof in
form and substance satisfactory to you;
(o) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(p) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company
reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (j)(i) of
this Section 9 and as to such other matters as you may reasonably
request;
34
(q) St. Xxxx shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of St. Xxxx
reasonably satisfactory to you as to the accuracy of the
representations and warranties of St. Xxxx herein at and as of such
Time of Delivery, as to the performance by St. Xxxx of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsection (j)(ii) of this
Section 9 and as to such other matters as you may reasonably request;
(r) All conditions to the consummation of the Transaction, as set
forth in the Filed Agreements, shall have been satisfied or waived
prior to the First Time of Delivery; and
(s) The closing of the offering of the Units under the Units
Underwriting Agreement shall have occurred simultaneously with the
closing of the offering of Shares hereunder.
10. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim
as such expenses are incurred; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
and St. Xxxx against any losses, claims, damages or liabilities to
which the Company or St. Xxxx, as the case may be, may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein; and will reimburse the Company and St.
Xxxx for any legal or other expenses reasonably incurred by the Company
or St. Xxxx, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party and St. Xxxx in writing of the commencement thereof;
but the omission so to notify the indemnifying party and St. Xxxx shall
not relieve the indemnifying party from any liability which it may have
to any
35
indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party and St. Xxxx of the commencement thereof,
the indemnifying party (and, if it is reasonably likely that St. Xxxx
will be liable to make any payment pursuant to Section 10(e) hereof,
St. Xxxx at its own expense) shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party (and, if the indemnifying party
is the Company, St. Xxxx) shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) 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 Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company (which for purposes of this
subsection (d) shall include the fault of St. Xxxx) on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), 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 proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault 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 (which for purposes
of this subsection (d) shall be deemed to include, without limitation,
the information described in Schedule III hereto) on the one hand or
the Underwriters on the other and the Company's (which for purposes of
this subsection (d) shall include St. Paul's), on the one hand, and the
Underwriter's, on the other, relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d)
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 which
36
does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In the event that the Company fails to fulfill when due any of
its payment obligations under subsections (a) or (d) of this Section 10
because it has not obtained the necessary funds from internal sources
(due to insurance regulatory or other legal restrictions) or external
sources, St. Xxxx agrees to make all such payments to the same extent
as the Company is obligated to do so; provided, however, that
notwithstanding anything to the contrary in this Section 10, (i) St.
Paul's aggregate liability to the Underwriters under this subsection
(e) and to the Units Underwriters under Section 10(e) of the Units
Underwriting Agreement, taken together, shall not exceed the excess of
(I) $400 million over (II) the sum of (x) any indemnification,
contribution or reimbursement of expense payments paid or payable by
St. Xxxx to the Company pursuant to Section 10.02 of the Formation and
Separation Agreement and (y) any damages or other amounts paid or
payable by St. Xxxx to investors purchasing Common Shares pursuant to
the Prospectus, and any amendment or supplement thereto, or Units
pursuant to the Units Prospectus, and any amendment or supplement
thereto, and (ii) St. Paul's obligation to make a payment under this
subsection (e) shall arise only in the event, and to the extent, that
the related obligation of the Company to make a payment to the
Underwriters under subsections (a) and (d) of this Section 10 relates
to the information described in Schedule III hereto and Schedule III to
the Units Underwriting Agreement. The Company, St. Xxxx and the
Underwriters understand that the identification of items in Schedule
III hereto is made solely for the purposes of defining St. Paul's
obligations to the Underwriters pursuant to this subsection (e) and for
no other purpose. St. Xxxx must advise Xxxxxxx, Xxxxx & Co. in writing
60 days prior to paying or agreeing to pay an amount pursuant to
clauses (i)(II)(x) or (y) of the second preceding sentence that would
reduce St. Paul's remaining aggregate potential liability to the
Underwriters pursuant to clause (ii) to below $100 million.
(f) The obligations of the Company and St. Xxxx under this Section
10 shall be in addition to any liability which the Company and St. Xxxx
xxx otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under
this Section 10 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
and St. Xxxx (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein. If within
37
thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to you
to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Shares, or the Company notifies you
that it has so arranged for the purchase of such Shares, you or the
Company shall have the right to postpone such Time of Delivery for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of
such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of
Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and,
in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Shares which such Underwriter
agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of
such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 8
hereof and the indemnity and contribution agreements in Section 10
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, St. Xxxx and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter, or any officer or director or controlling person of
any Underwriter, the Company or St. Xxxx, or any officer or director or
controlling person of the Company or St. Xxxx, and shall survive delivery of and
payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 8 and 10 hereof; but, if for any other reason,
any Shares are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the
38
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 8 and 10 hereof.
14. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in currency (the "judgment currency")
other than United States dollars, the party against whom such judgment or order
has been given or made will indemnify each party in whose favor such judgment or
order has been given or made (the "Indemnitee") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount of the
judgment currency actually received by such Indemnitee. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and the
Underwriters and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
15. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Sachs & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; and if to St. Xxxx shall be delivered to The St. Xxxx Companies,
Inc., 000 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 10(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
16. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and St. Xxxx and, to the extent
provided in Sections 10 and 12 hereof, the officers and directors of the Company
and St. Xxxx and each person who controls the Company, St. Xxxx or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
RULES OF SUCH STATE.
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
39
20. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
[SIGNATURE PAGE FOLLOWS]
40
EXHIBIT 1
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and St. Xxxx. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By: ..................................
Name:
Title:
THE ST. XXXX COMPANIES, INC.
By: ..................................
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
BY:...............................................
(Xxxxxxx Sachs & Co.)
On behalf of each of the Underwriters
EXHIBIT 1
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx, Xxxxx & Co...............................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................
Xxxxxxx Xxxxx Barney Inc..........................................
Banc of America Securities LLC....................................
Credit Suisse First Boston Corporation............................
X.X. Xxxxxx Securities Inc........................................
[NAMES OF OTHER UNDERWRITERS].....................................
1
EXHIBIT 1
SCHEDULE II
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS HOLDINGS, LTD., A BERMUDA COMPANY (THE "COMPANY"), IS A GOVERNING LAW
PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o Formation and Separation Agreement, dated as of the date hereof (the New York
"FORMATION AND SEPARATION New York AGREEMENT"), between the Company and
St. Xxxx (as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o Master Services Agreement, dated as of the First Time of Delivery (the "MASTER SERVICES New York
AGREEMENT"), between the Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o Transitional Trademark License Agreement, dated as of the First Time of Delivery (the New York
"TRADEMARK LICENSE AGREEMENT"), between the Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o Registration Rights Agreement, dated as of the First Time of Delivery (the "REGISTRATION RIGHTS New York
AGREEMENT"), between the Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o Option Agreement, dated as of the First Time of Delivery (the "OPTION AGREEMENT"), between the New York
Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o 364-Day Credit Agreement, dated as of June 21, 2002, among the Company, the banks, financial New York
institutions and other institutional lenders listed on the signature pages thereof, JPMorgan
Chase Bank and Bank Of America, N.A., as syndication agents, Xxxxxxx Xxxxx Xxxxxx Inc., as lead
arranger, and Citibank, N.A., as agent for the lenders.
---------------------------------------------------------------------------------------------------------- ------------------
o Purchase Contract Agreement, dated as of ____________ (the "PURCHASE CONTRACT AGREEMENT"), New York
New York between the Company and _____________, as Purchase Contract Agent.
---------------------------------------------------------------------------------------------------------- ------------------
o Indenture, dated as of ____________, among the Company (the "BASE INDENTURE"), Platinum New York
Finance New York (as defined herein) and JPMorgan
Chase Bank, as Trustee.
---------------------------------------------------------------------------------------------------------- ------------------
o First Supplemental Indenture, dated as of ____________ (the "SUPPLEMENTAL INDENTURE"), among New York
New York the Company, Platinum Finance and JPMorgan Chase Bank, as Trustee.
---------------------------------------------------------------------------------------------------------- ------------------
o Pledge Agreement, dated as of _______________ (the "PLEDGE AGREEMENT"), among the Company, New York
New York _________________, as Collateral Agent, Custodial Agent and Securities Intermediary,
and _________________, as Purchase Contract Agent.
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS FINANCE, INC., A DELAWARE CORPORATION ("PLATINUM GOVERNING LAW
FINANCE"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o Base Indenture New York
---------------------------------------------------------------------------------------------------------- ------------------
o Supplemental Indenture New York
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS REINSURANCE INC., A MARYLAND DOMICILED INSURANCE COMPANY GOVERNING LAW
("PLATINUM US"), TO BE RENAMED PLATINUM UNDERWRITERS REINSURANCE INC. ON OR PRIOR TO THE FIRST TIME OF
DELIVERY), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o Employee Benefits and Compensation Matters Agreement, dated as of the First Time of Delivery New York
New York (the "Employee Matters Agreement"), between St. Xxxx and Platinum US.
---------------------------------------------------------------------------------------------------------- ------------------
II-1
---------------------------------------------------------------------------------------------------------- ------------------
o Run-Off Services Agreement, dated as of the First Time of Delivery (the "US RUN-OFF SERVICES New York
New York AGREEMENT"), between Platinum US and Fire & Marine (as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o Underwriting Management Agreement, dated as of the First Time of Delivery (the "US New York
UNDERWRITING New York AGREEMENT"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "FLORIDA LEASE [not specified]
ASSIGNMENT AGREEMENT"), between Metropolitan Life Insurance Company, Platinum US and St. Xxxx
Re, Inc. (as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "ILLINOIS [not specified]
LEASE ASSIGNMENT AGREEMENT"), between WHCHC Real Estate Limited Partnership, St. Xxxx Re, Inc.
and Platinum US.
---------------------------------------------------------------------------------------------------------- ------------------
o Sub Lease Agreement, dated as of the First Time of Delivery (the "SUB LEASE AGREEMENT"), New York
between Platinum US and St. Xxxx Re, Inc.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Traditional), dated as of the First Time of Delivery Minnesota
(the "US QUOTA SHARE TRADITIONAL"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-1), dated as of the First Time Vermont
of Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-1"), between Platinum US and Mountain Ridge
(as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated as of the First Time Minnesota
of Delivery (the "US QUOTA SHARE NON-TRADITIONAL A"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL B-1"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-2), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL B-2"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - C), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL C"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-2), dated as of the First Time of Vermont
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-2"), between Platinum US and Mountain Ridge.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D Stop Loss), dated as of the Vermont
First Time of Delivery (the "US QUOTA SHARE NON-TRADITIONAL D STOP LOSS"), between Platinum
US and Mountain Ridge.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D Spread Loss), dated as of the Minnesota
First Time of Delivery (the "US QUOTA SHARE NON-TRADITIONAL D SPREAD LOSS"), between Platinum
US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-3), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-3"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-4), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-4"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
II-2
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - E), dated as of the First Time Minnesota
of Delivery (the "US QUOTA SHARE NON-TRADITIONAL E"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Traditional), dated as of the First Time of Delivery England
(the "UK QUOTA SHARE TRADITIONAL"), between Platinum US and St. Xxxx Re UK (as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated as of the First Time of England
Delivery (the "UK QUOTA SHARE NON-TRADITIONAL A"), between Platinum US and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated as of the First Time of England
Delivery (the "UK QUOTA SHARE NON-TRADITIONAL B-1"), between Platinum US and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
o Trust Agreement, dated as of the First Time of Delivery (the "FIRE AND MARINE TRUST Maryland
AGREEMENT"), among Platinum US, Fire and Marine and [Name of Trustee Bank].
---------------------------------------------------------------------------------------------------------- ------------------
o Trust Agreement, dated as of the First Time of Delivery (the "MOUNTAIN RIDGE TRUST AGREEMENT"), Maryland
among Platinum US, Mountain Ridge and [Name of Trustee Bank].
---------------------------------------------------------------------------------------------------------- ------------------
o Trust Agreement, dated as of the First Time of Delivery (the "ST. XXXX RE UK TRUST AGREEMENT"), Maryland
among Platinum US, St. Xxxx Re UK and [Name of Trustee Bank].
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM RE (UK) LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER THE GOVERNING LAW
LAWS OF ENGLAND ("PLATINUM UK"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Master Services Agreement, dated as of the First Time of Delivery (the "UK MASTER England
SERVICES AGREEMENT"), between St. Xxxx Re UK and Platinum UK.
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Run-off Services Agreement, dated as of the First Time of Delivery (the "UK RUN-OFF England
SERVICES AGREEMENT"), between St. Xxxx Re UK and Platinum UK.
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Underwriting Agency and Underwriting Management Agreement, dated as of the First Time of England
Delivery (the "UK UNDERWRITING AGREEMENT"), between Platinum UK and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Business Transfer Agreement, dated as of the First Time of Delivery (the "UK BUSINESS England
TRANSFER AGREEMENT"), between Platinum UK and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH THE ST. XXXX COMPANIES INC., A MINNESOTA CORPORATION ("ST. XXXX"), IS A PARTY GOVERNING LAW
---------------------------------------------------------------------------------------------------------- ------------------
o Formation and Separation Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o Employee Matters Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o Master Services Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o Trademark License Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o Registration Rights Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o Option Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
II-3
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX FIRE AND MARINE INSURANCE COMPANY, A MINNESOTA DOMICILED INSURANCE GOVERNING LAW
COMPANY ("FIRE & MARINE"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o US Run-Off Services Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o US Underwriting Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Traditional Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional A Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional B-1 Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional B-2 Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional C Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional D Spread Loss Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional D-3 Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional D-4 Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional E Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
o Fire and Marine Trust Agreement Maryland
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH MOUNTAIN RIDGE INSURANCE COMPANY, A VERMONT DOMICILED INSURANCE COMPANY GOVERNING LAW
("MOUNTAIN RIDGE"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional D-1 Vermont
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional D-2 Vermont
---------------------------------------------------------------------------------------------------------- ------------------
o US Quota Share Non-Traditional D Stop Loss Vermont
---------------------------------------------------------------------------------------------------------- ------------------
o Mountain Ridge Trust Agreement Maryland
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX REINSURANCE COMPANY LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED GOVERNING LAW
UNDER THE LAWS OF ENGLAND ("ST. XXXX RE UK"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o UK Quota Share Traditional England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Quota Share Non-Traditional A England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Quota Share Non-Traditional B-1 England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Master Services Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Run-Off Services Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Underwriting Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Business Transfer Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o St. Paul Re UK Trust Agreement Maryland
---------------------------------------------------------------------------------------------------------- ------------------
o Inter-company Asset Transfer Agreement, dated as of the First Time of Delivery, between St. Xxxx Xxxxxxx
Re UK and SPML (as defined herein) (the "UK Inter-Company Asset Transfer Agreement").
---------------------------------------------------------------------------------------------------------- ------------------
o Letter agreement, dated as of the First Time of Delivery, between St. Xxxx Re UK and SPML England
regarding services to be provided under the UK Master Services Agreement ("UK Letter Agreement").
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX RE, INC., A NEW YORK CORPORATION, IS A PARTY GOVERNING LAW
---------------------------------------------------------------------------------------------------------- ------------------
o Florida Lease Assignment Agreement [not specified]
---------------------------------------------------------------------------------------------------------- ------------------
II-4
---------------------------------------------------------------------------------------------------------- ------------------
o Illinois Lease Assignment Agreement [not specified]
---------------------------------------------------------------------------------------------------------- ------------------
o Sub Lease Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX MANAGEMENT LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER GOVERNING LAW
THE LAWS OF ENGLAND ("SPML"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o UK Inter-company Asset Transfer Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Letter Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
III-5
EXHIBIT 1
SCHEDULE III
1. In any Preliminary Prospectus or the Prospectus, or any amendment or
supplement thereto, the following information:
o All information (including both text and tables) in the following
sections: "Pro Forma Financial Information", "Management's Discussion
and Analysis of Pro Forma Financial Condition and Underwriting
Results", "St. Xxxx Investment and Principal Shareholders" and "The
Predecessor Business";
o All information (including both text and tables) in the "Prospectus
Summary" section under the captions "--Background and the Transferred
Business", "--St. Paul's Share Ownership", "--Selected Pro Forma
Consolidated Financial Information and Operating Data";
o The information set forth in each table in the "Business" section under
the captions "Our Business--Our Lines of Business" and "Our
Business--Marketing";
o All text of the second paragraph in the "Business" section under the
caption "Our Business--Marketing";
o All information (including both text and tables) on pages ;
o The following phrases and sentences:
o "At January 1, 2001, St. Xxxx Re had approximately 398 employees"
and "from a total of 398 employees who were employed by St. Xxxx Re
as of January 1, 2001";
o "The number of underwriting offices was reduced by St. Xxxx Re from
ten at January 1, 2001 to five as of March 31, 2002";
o "With respect to January 2002 renewals, St. Xxxx Re experienced
substantial rate increases, generally ranging from 20% to 50%
depending on the line of business";
o "Commencing January 2002, St. Xxxx Re has maintained normal maximum
program limits of $5 million on risk programs, $6 million on
casualty clash programs and $20 million on property catastrophe
programs"; and
o "St. Xxxx Re has conducted authorized reinsurance activities in the
U.S. and London for many years, and has been well established as a
lead underwriter in excess casualty, property catastrophe and
certain other classes of reinsurance".
2. In the Registration Statement, or any amendment or supplement thereto,
the following information:
III-1
o In Part II, all information (including both text and tables) set forth
under the captions "Financial Statement Schedules of
Predecessor--Schedule III--Supplementary Insurance Information",
"Financial Statement Schedules of Predecessor--Schedule
IV--Reinsurance", and "Financial Statement Schedules of
Predecessor--Schedule V--Valuation and Qualifying Accounts".
III-2
ANNEX I
Pursuant to Section 9(i) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included in the Prospectus or the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company
and Predecessor (as such term is defined in the Prospectus) for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the [unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows] included in the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives and on the basis of specified procedures including
inquiries of officials of the Company and St. Xxxx who have
responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations, nothing came to
their attention that cause them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect
to [the consolidated results of operations and financial position]
of Predecessor for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements
for such five fiscal years which were included or incorporated by
reference in the St. Paul's Annual Reports on Form 10-K for such
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does
not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
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statements and other information referred to below, a reading of the
latest available interim financial statements of St. Xxxx, the
Company and their respective subsidiaries, inspection of the minute
books of St. Xxxx, the Company and their respective subsidiaries
since the date of the latest audited financial statements included
in the Prospectus, inquiries of officials of St. Xxxx, the Company
and their respective subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the [unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows] included in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
related published rules and regulations, or (ii) any
material modifications should be made to the [unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows]
included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included in the
Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in
clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited
consolidated financial statements included in the
Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
financial statements included in the Prospectus) or the
capital or surplus, or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
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(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit
or the total or per share amounts of consolidated net income
or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representatives, except in each case
for decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(vii)In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting
records of St. Xxxx, the Company and their respective subsidiaries,
which appear in the Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
St. Xxxx, the Company and their respective subsidiaries and have
found them to be in agreement.
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