EXHIBIT 1.1
10,000,000 Shares
RenaissanceRe Holdings Ltd.
6.08% Series C Preference Shares
$25 Per Share
Underwriting Agreement
New York, New York
March 16, 2004
To the Representative
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
RenaissanceRe Holdings Ltd., a company organized under the
laws of Bermuda (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representative") are acting as representative, the number of shares of 6.08%
Series C Preference Shares set forth in Schedule I hereto (the "Securities").
To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representative as used herein shall mean
you, as Underwriters, and the terms Representative and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the effective date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the effective date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3 including a related basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. The Company will next file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rules 415 and 424(b). The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) The Registration Statement did, when it became
effective, and will, at the time of the effectiveness of any
post-effective amendment thereto or any Rule 462(b) Registration
Statement, and when the Final Prospectus is first filed (if required)
in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will comply
in all material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; the
Registration Statement did not, when it became effective, and will not,
on the Execution Time or at the time of the effectiveness of any
post-effective amendment thereto or any Rule 462(b) Registration
Statement, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representative specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) Each of the Company and Renaissance Reinsurance Ltd.
("Renaissance Reinsurance"), Glencoe Insurance Ltd. ("Glencoe") and
DaVinci Reinsurance Ltd. ("DaVinci") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification except to the extent in each case
that failure to be so qualified or be in good standing would not have a
material adverse effect on (i) the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, or (ii) the ability of
the Company to consummate the transactions contemplated by this
Agreement (a "Material Adverse Effect").
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(d) All the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable and, except as otherwise set forth in the
Final Prospectus, or the pledge of the redeemable preference shares of
Renaissance Investment Holdings Ltd. pursuant to the Reimbursement
Agreement among the Company, certain of its subsidiaries and the
lenders named therein, dated as of December 20, 2002, as amended, all
outstanding shares of capital stock of the subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Securities conform in all material respects to
the description thereof contained in the Final Prospectus.
(g) The Securities have been duly authorized and, when
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; and
the issuance of the Securities will not be subject to any preemptive or
similar rights.
(h) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the U.S. Investment Company Act of
1940, as amended.
(i) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except (i)
filings required under Rule 424(b) and under the Companies Act of 1981
of Bermuda and (ii) as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Final Prospectus.
(j) Neither the execution and delivery by the Company of
this Agreement, the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated, nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or of Renaissance
Reinsurance and Glencoe (the "Subsidiaries") or of DaVinci pursuant to,
(i) the charter, memorandum of association or bye-laws of the Company,
the Subsidiaries or DaVinci, (ii) the terms of any material indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other material agreement, obligation, condition, covenant
or instrument to which the Company, any of the Subsidiaries or DaVinci
is a party or bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or any of its subsidiaries or any
of its or their properties.
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(k) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(l) No legal or governmental action, suit or proceedings
by or before any court or governmental agency, authority or body
involving the Company or the Subsidiaries or its or their property is
pending or, to the best knowledge of the Company, threatened that would
reasonably be expected to have a Material Adverse Effect, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto). There are no legal or governmental proceedings
pending or threatened to which the Company, any of its Subsidiaries or
DaVinci is a party or to which any of the properties of the Company,
any of its Subsidiaries or DaVinci is subject that are required to be
described in the Registration Statement or the Final Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Final Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(m) Each of the Company, DaVinci and each of the
Subsidiaries owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted.
(n) Neither the Company nor any Subsidiary nor DaVinci is
in violation or default of (i) any provision of its charter, memorandum
of association or bye-laws, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is
a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or such Subsidiary or DaVinci or
any of its properties, as applicable, except for such conflicts,
breaches, violations or impositions which, singly or in the aggregate,
would not have a Material Adverse Effect.
(o) The Company, the Subsidiaries and DaVinci possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, except where the failure to so
possess such licenses, certificates, permits and authorizations would
not, singly or in the aggregate, have a Material Adverse Effect, and
neither the Company nor any such Subsidiary nor DaVinci has received
any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(p) The Company, the Subsidiaries and DaVinci (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the
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protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals, would not,
singly or in the aggregate, have a Material Adverse Effect.
(q) There are currently no costs or liabilities
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(r) Each of the Company, its Subsidiaries and DaVinci has
filed all reports, information statements and other documents with the
insurance regulatory authorities of its jurisdiction of incorporation
and domicile as are required to be filed pursuant to the insurance
statutes of such jurisdictions, including the statutes relating to
companies which control insurance companies, and the rules, regulations
and interpretations of the insurance regulatory authorities thereunder
(the "Insurance Laws"), and has duly paid all taxes (including
franchise taxes and similar fees) it is required to have paid under the
Insurance Laws, except where the failure to file such statements or
reports or pay such taxes would not, singly or in the aggregate, have a
Material Adverse Effect, and each of the Company, its Subsidiaries and
DaVinci maintains its books and records in accordance with the
Insurance Laws, except where the failure to so maintain its books and
records would not, singly or in the aggregate, have a Material Adverse
Effect. The financial statements of the Subsidiaries and DaVinci, from
which certain ratios and other statistical data filed as a part of the
Registration Statement or included or incorporated in the Final
Prospectus have been derived, have for each relevant period been
prepared in conformity with accounting practices required or permitted
by applicable Insurance Laws of Bermuda, to the extent applicable to
such company, and such accounting practices have been applied on a
consistent basis throughout the periods involved, except as may
otherwise be indicated therein or in the notes thereto.
(s) The statutory financial statements of the
subsidiaries of the Company that are United States insurance companies,
from which certain ratios and other statistical data filed as a part of
the Registration Statement or included or incorporated in the Final
Prospectus have been derived: (A) have for each relevant period been
prepared in conformity with statutory accounting practices required or
permitted by the National Association of Insurance Commissioners to the
extent applicable to such company, and by the applicable Insurance
Laws, and such statutory accounting practices have been applied on a
consistent basis throughout the periods involved, except as may
otherwise be indicated therein or in the notes thereto; and (B) present
fairly the statutory financial position of the subsidiaries as at the
dates thereof, and the statutory basis results of operations of the
subsidiaries for the periods covered thereby.
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(t) Except as disclosed in the Registration Statement,
all retrocessional and reinsurance treaties, contracts and arrangements
to which any of the subsidiaries is a party are in full force and
effect and none of the Company or any of its subsidiaries is in
violation of, or in default in the performance, observance or
fulfillment of, any obligation, agreement, covenant or condition
contained therein, except where the failure to be in full force and
effect and except where any such violation or default would not, singly
or in the aggregate, have a Material Adverse Effect; none of the
Company or any of its subsidiaries has received any written notice from
any of the other parties to such treaties, contracts or agreements
which are material to its business that such other party intends not to
perform in any material respect such treaty, contract or agreement, and
neither the Company nor any of its subsidiaries has been notified in
writing that any of the parties to such treaties, contracts or
agreements will be unable to perform such treaty, contract, agreement
or arrangement, except where such non-performance would not, singly or
in the aggregate, have a Material Adverse Effect.
(u) Except as disclosed in the Final Prospectus, none of
the Company or any of the Subsidiaries or DaVinci has made any material
changes in its insurance reserving practices during the last two years.
(v) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Securities
registered pursuant to the Registration Statement.
Any certificate signed by any officer of the Company and
delivered to the Representative or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the number of Securities set forth
opposite such Underwriter's name in Schedule II hereto.
The Company hereby agrees that, without the prior written
consent of the Representative, it will not, during the period ending 90 days
after the date of the Final Prospectus, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any preference shares of the
Company or any securities convertible into or exercisable or exchangeable for
preference shares of the Company or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the preference shares of the Company, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of preference shares or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) transactions by any person other than the
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Company relating to preference shares or other securities acquired in open
market transactions after the completion of the offering of the preference
shares, or (C) in the cases of natural persons, any disposition made among such
persons' family members or affiliates.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representative shall designate, which date and
time may be postponed by agreement between the Representative and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representative
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representative of the purchase price thereof to
or upon the order of the Company by wire transfer payable in same-day funds to
an account specified by the Company. Certificates for the Securities shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus. The Company is further advised by you that
the Securities are to be offered to the public initially at $25.00 per share
(the "Public Offering Price") plus accrued dividends, if any, to the Closing
Date and to certain dealers selected by you at a price that represents a
concession not in excess of the amount set forth in Schedule I hereto under the
Public Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of the amount set forth in Schedule I
hereto, to any Underwriter or to certain other dealers.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the
Execution Time, and any amendment thereof, to become effective. Prior
to the termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to
the Basic Prospectus or any Rule 462(b) Registration Statement unless
the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed, and with
the Registrar of Companies in Bermuda, and will provide evidence
satisfactory to the Representative of such timely filing. The Company
will promptly advise the Representative: (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective; (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission; (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective; (4)
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of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information; (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose; and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its reasonable efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company will promptly: (1) notify the
Representative of such event; (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission
or effect such compliance; and (3) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representative
an earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representative and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representative may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will use its best efforts, if necessary,
to qualify the Securities for sale under the laws of such jurisdictions
as the Representative may designate and to maintain such qualifications
in effect so long as required for the distribution of the Securities
(not to exceed one year from the date hereof), and the Company will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to file a consent
to service of process or to file annual reports or to comply with any
other requirements in connection with such qualification deemed by the
Company to be unduly burdensome.
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(f) The Company will endeavor, by the Closing Date, to
obtain authorization for listing of the Securities on the New York
Stock Exchange, subject only to official notice of issuance, if and as
specified in this Agreement.
(g) The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representative agrees
in writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxx,
Xxxx & Xxxxxxx, counsel for the Company, to have furnished to the
Representative their opinion on matters of Bermuda law, dated the
Closing Date, and addressed to the Representative, to the effect that:
(i) Each of the Company, Renaissance
Reinsurance, Glencoe and DaVinci (together, the "Bermuda
Companies") is duly incorporated and existing as an exempted
company under the laws of Bermuda in good standing (meaning
solely that the relevant company 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).
(ii) Each of the Bermuda Companies has the
necessary corporate power and authority to conduct its
business as described in the Final Prospectus being conducted
by that particular entity (without reference to or including
any particular subsidiary or other company) and to own, lease
and operate its properties as described in the Final
Prospectus (without regard in either case to
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documents incorporated by reference in the Final Prospectus)
and in "Item 1 - Business" and "Item 2 - Properties" of the
Company's Annual Report on Form 10-K for the year ended
December 31, 2003.
(iii) The Company has the necessary corporate
power and authority to enter into and perform its obligations
under this Agreement. The execution and delivery of this
Agreement by the Company and the performance by the Company of
its obligations hereunder will not violate the memorandum of
association or bye-laws of the Company, the Bermuda Companies
nor any applicable law, regulation, order or decree in
Bermuda.
(iv) The Securities have been duly authorized
and, when issued and paid for in accordance with the terms of
this Agreement, the Securities, with the rights and
restrictions set forth in the Certificate of Designation for
such Securities, will be validly issued, fully paid and
non-assessable (meaning that no further sums are required to
be paid by the holders thereof in connection with the issue
thereof) and the issuance of the Securities will not be
subject to any preemptive or similar rights.
(v) The Company has taken all corporate action
required to authorize its execution, delivery and performance
of this Agreement. This Agreement has been duly executed and
delivered by or on behalf of the Company, and constitutes a
valid and binding obligation of the Company in accordance with
its terms.
(vi) No order, consent, approval, license,
authorization or validation of or exemption by any government
or public body or authority of Bermuda or any subdivision
thereof is required to authorize or is required in connection
with the execution, delivery, performance and enforcement of
this Agreement, except such as have been duly obtained in
accordance with Bermuda law.
(vii) It is not necessary or desirable to ensure
the enforceability in Bermuda of this Agreement that it be
registered in any register kept by, or filed with, any
governmental authority or regulatory body in Bermuda.
(viii) This Agreement and the issue of the
Securities will not be subject to ad valorem stamp duty in
Bermuda.
(ix) Based solely upon a search of the Cause Book
of the Supreme Court of Bermuda conducted on the Closing Date
(which would not reveal details of proceedings which have been
filed but not actually entered in the Cause Book at the time
of the search conducted by such counsel), there are no
judgments against any of the Bermuda Companies, nor any legal
or governmental proceedings pending in Bermuda to which any of
the Bermuda Companies is subject.
(x) Based solely upon a review of a copy of its
certificate of registration issued pursuant to the Insurance
Xxx 0000 of Bermuda, as amended (the "Insurance Act"),
Renaissance Reinsurance is duly registered in Bermuda to
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write general insurance as a class 4 insurer in accordance
with the provisions of the Insurance Act, as amended.
(xi) Based solely upon a review of a copy of its
certificate of registration issued pursuant to the Insurance
Act, Glencoe is duly registered in Bermuda to write general
insurance in Bermuda as a class 3 insurer in accordance with
the provisions of the Insurance Act, as amended.
(xii) Based solely upon a review of a copy of its
certificate of registration issued pursuant to the Insurance
Act, DaVinci is duly registered in Bermuda to write general
insurance in Bermuda as a class 4 insurer in accordance with
the provisions of the Insurance Act, as amended.
(xiii) The statements (A) in the Final Prospectus
under the caption "Description of Series C Preference Shares,"
in the Basic Prospectus under the captions "Description of Our
Capital Shares" (excluding the statements under the sub
captions: "Common Shares," "Conversion Rights," and
"Supermajority Requirements for Certain Amendments") and
"Enforcement of Civil Liabilities under United States Federal
Securities Laws," (B) in the Company's Annual Report on Form
10-K for the year ended December 31, 2003, under the caption
"Business - Regulation - Bermuda Regulation" and (C) in "Item
15 - Indemnification of Officers and Directors" of the
Registration Statement, in each case insofar as such
statements constitute summaries of the Bermuda legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein.
(xiv) The choice of the laws of the State of New
York as the governing law of this Agreement 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 this Agreement to the
non-exclusive jurisdiction of the Foreign Courts is valid and
binding upon the Company.
(xv) The courts of Bermuda would recognize as a
valid judgment, a final and conclusive judgment in personam
obtained in the United States Federal or New York State Courts
sitting in the Borough of Manhattan, State of New York against
the Company based upon this Agreement 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
11
action is submitted prior to the rendering of the judgment by
the courts of Bermuda and (f) there is due compliance with the
correct procedures under the laws of Bermuda.
(xvi) Based solely on a review of a copy of the
Register of Members of the Company, all of the issued and
outstanding shares of the Company have been duly authorized,
validly issued, fully paid and are non-assessable (meaning
that no further sums are required to be paid by the holders
thereof in connection with the issue thereof).
(xvii) Based solely on a review of a copy of the
Register of Members of Renaissance Reinsurance certified by
its secretary, of a copy of the Register of Members of Glencoe
certified by its secretary, of a copy of the Register of
Members of DaVinciRe Holdings Ltd. ("DaVinci Holdings")
certified by its secretary and of a copy of the Register of
Members of DaVinci certified by its secretary, all of the
issued and outstanding shares of Renaissance Reinsurance, of
Glencoe, of DaVinci Holdings and of DaVinci have been duly
authorized, validly issued, fully paid and non-assessable
(meaning that no further sums are required to be paid by the
holders thereof in connection with the issue thereof). Based
solely on a review of a copy of the Register of Members of
Renaissance Reinsurance and a copy of the Register of Members
of Glencoe, all of the shares of Renaissance Reinsurance and a
majority of the shares of Glencoe are registered in the name
of the Company. Based solely on a review of a copy of the
Register of Members of DaVinci Holdings and of a copy of the
Register of Members of DaVinci, all of the Class A shares of
DaVinci Holdings and all of the Class A shares of DaVinci are
registered in the name of the Company.
As to matters of fact, such counsel may rely, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused Xxxxxxx
Xxxx & Xxxxxxxxx LLP, U.S. counsel for the Company, to have furnished
to the Representative their opinion, dated the Closing Date and
addressed to the Representative, to the effect that:
(i) The Registration Statement has become
effective under the Act; no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceedings for such
purpose have been instituted or threatened; any required
filing, pursuant to Rule 424(b) of the Act, of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, has been made in the
manner and within the time period required by Rule 424(b); the
Company's registration statement on Form 8-A under the
Exchange Act relating to the Securities was filed with the
Commission; and the Registration Statement and the Final
Prospectus (except for financial statements, notes thereto and
schedules and other financial and statistical data as to which
in each case such counsel need not express any opinion or
belief)
12
comply as to form in all material respects with the Act and
the Exchange Act and the respective rules thereunder.
(ii) The Company is not and, after giving effect
to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Final Prospectus,
will not be, required to register as an "investment company"
as defined in the Investment Company Act of 1940, as amended;
(iii) To the best of such counsel's knowledge, the
execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will
not at the time of execution of this Agreement and on the date
of such opinion, contravene any agreement or other instrument
binding upon the Company or either of the Subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, any statute, judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over
the Company or either Subsidiary, and no consent, approval,
authorization, or order of, or qualification with, any U.S.
governmental body, agency or court is required for the
performance by the Company of its obligations under this
Agreement, except such as may be required under the securities
or blue sky laws of the various states in connection with the
sale of the Securities (as to which such counsel need not
express any opinion) or as may already have been obtained;
(iv) The statements in (A) the Final Prospectus
under the captions "Description of Our Capital Shares -
Preference Shares," "Certain Tax Considerations" and
"Underwriting" (with respect solely to the description of this
Agreement contained therein), (B) the Company's Annual Report
on Form 10-K for the year ended December 31, 2003, under the
caption "Business - Regulation - U.S. Regulation," and (C)
Item 15 of the Registration Statement, in each case insofar as
such statements constitute summaries of U.S. legal matters,
documents or proceedings referred to therein, fairly present
the information required to be shown with respect to such
legal matters, documents and proceedings and fairly summarize
the matters referred to therein, in each case, in all material
respects (provided, however, that the statements under the
caption "Certain Tax Considerations" do not address
considerations that depend on circumstances specific to the
holders of the Company's common shares);
(v) Such counsel does not know of any U.S. legal
or governmental proceedings pending or threatened to which the
Company or either Subsidiary is a party or to which any of the
properties of the Company or either Subsidiary is subject that
are required to be described in the Registration Statement or
the Final Prospectus and are not so described or of any U.S.
statutes or regulations, or any contracts or other documents
that are required to be described in the Registration
Statement or the Final Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed
as required; and
13
(vi) Each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Registration
Statement and the Final Prospectus (except for financial
statements, notes thereto and schedules and other financial
and statistical data as to which in each case such counsel
need not express any opinion or belief) complied when so filed
as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission
thereunder.
Such counsel shall also state that no facts have come to its attention
to cause it to believe that either (A) the Registration Statement and
the prospectus included therein (except for financial statements, notes
thereto and schedules and other financial and statistical data as to
which such counsel need not express any belief), at the time the
Registration Statement became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (B) the Final Prospectus (except for financial
statements, notes thereto and schedules and other financial and
statistical data as to which such counsel need not express any belief)
as of the date such opinion is delivered contains an untrue statement
of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
Bermuda law, to the extent they deem proper and specified in such
opinion, upon the opinion of Xxxxxxx, Xxxx & Xxxxxxx, dated as of the
Closing Date; provided that (1) you are notified in advance of Xxxxxxx
Xxxx & Xxxxxxxxx LLP's intention to rely on the opinion of Xxxxxxx,
Xxxx & Xxxxxxx, (2) such reliance is expressly authorized by such
opinion as delivered to the Underwriters and (3) Xxxxxxx Xxxx &
Xxxxxxxxx LLP shall state in their opinion that they believe that they
and the Underwriters are justified in relying on such opinion of
Xxxxxxx, Xxxx & Xxxxxxx. As to matters of fact, such counsel may rely,
to the extent they deem proper, on certificates of the officers of the
Company and public officials. References to the Final Prospectus in
this paragraph (c) include any supplements thereto at the Closing Date.
(d) The Representative shall have received from LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representative, with respect to the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representative may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. In rendering
such opinion or opinions, LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. may
rely, as to factual matters, on written certificates of officers of the
Company and, as to matters governed by the Laws of Bermuda, on the
opinions of Xxxxxxx, Xxxx & Xxxxxxx.
With respect to the statement described in the paragraph
immediately following Section 6(c)(vi), Xxxxxxx Xxxx & Xxxxxxxxx LLP
may state that its opinion and belief are based upon its participation
in telephone conferences with representatives of the
14
Company and other participants, at which conferences the contents of
the Registration Statement, the Final Prospectus and related matters
were discussed, but are without independent determination, check or
verification except as specified. With respect to any opinion
equivalent to that set forth in the paragraph immediately following
6(c)(vi) above, LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., may state that
their opinion and belief are based upon their participation in
telephone conferences with representatives of the Company and other
participants, at which conferences the contents of the Registration
Statement, the Final Prospectus and related matters were discussed, but
are without independent determination, check or verification except as
specified.
(e) The Company shall have furnished to the
Representative a certificate of the Company, signed by the Chairman of
the Board or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened;
(iii) the Securities are rated, as of the date
thereof, at least Baa2 by Xxxxx'x Investors Service, Inc.
("Moody's") and BBB+ by Standard & Poor's Rating Services; and
(iv) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no Material Adverse Effect or change or development
reasonably likely to result in a Material Adverse Effect,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst &
Young LLP to have furnished to the Representative, at the Execution
Time and at the Closing Date, letters (which may refer to letters
previously delivered to the Representative), dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
reasonably satisfactory to the Representative, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and the Final Prospectus; provided that the
letter delivered on the Closing Date shall use a
15
"cut-off date" not earlier than the date hereof. References to the
Final Prospectus in this paragraph (f) include any supplement thereto
at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(h) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities below "A3" by Moody's or any notice given by Moody's or any
other "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) of any intended or
potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible
change.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representative a certificate of the Company, signed by
the Chairman of the Board or the President or the principal financial
or accounting officer of the Company, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative, regarding
the percentage of the Company's gross and net written premiums written
by certain subsidiaries of the Company.
(j) Prior to the Closing Date, the Company shall have
furnished to the Representative confirmation that the Securities have
been authorized for listing on the New York Stock Exchange, subject
only to official notice of issuance, if and as specified in this
Agreement.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
16
The documents required to be delivered by this Section 6 shall
be delivered at the offices of Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representative on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities.
(a) Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will 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 any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representative specifically for
inclusion therein; provided, further, that with respect to any untrue
statement or omission of material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the
securities concerned, to the extent that any such loss, claim, damage
or liability of such Underwriter occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously
furnished copies of the Final Prospectus to the Representative, (x)
delivery of the Final Prospectus was required by the Act to be made to
such person, (y) the untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus was corrected in the
Final Prospectus and (z) there was not sent or given to such person, at
or prior to the written confirmation of the sale of such securities to
such person, a copy of the Final Prospectus. This
17
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(a) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representative
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have.
(b) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above to the extent it did
not otherwise learn of such action and is not materially prejudiced as
a result thereof and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel
if (i) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them or (ii) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the
indemnifying party; provided, however, that it is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of the Act or the Exchange Act and (ii)
the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company and all persons, if any, who control
the Company within the meaning of the Act or the Exchange Act. An
indemnifying party will not, without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which
18
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(c) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that notwithstanding the provisions of
this Section 8, no Underwriter shall be required (except as may be
provided in any agreement among underwriters relating to the offering
of the Securities) to contribute any amount in excess of the amount by
which the total price at which the Securities 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. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the
same rights to contribution as
19
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that if the aggregate number of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
number of Securities set forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representative shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Company prior to delivery of and payment for the Securities, if at any time
prior to such time there shall have been (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange, (ii) a
suspension or material limitation in trading in any of the Company's securities
on the New York Stock Exchange, (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities, (iv) an
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, or (v) the
occurrence of any other calamity or crisis, if the effect of such event
specified in clause (iv) or (v), in the sole judgment of the Representative,
makes it impracticable or inadvisable to proceed with the public offering or
delivery of the Securities on the terms and in the manner contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representative, will
be mailed, delivered or telefaxed to
20
Citigroup Global Markets Inc., General Counsel (fax no.: (000) 000-0000) and
confirmed to Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel, and with a copy to LeBoeuf, Lamb,
Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx, Esq.; or, if sent to the Company, will be mailed,
delivered or telefaxed to the Company's Chief Financial Officer (fax no: (441)
000-0000) and confirmed to it at Xxxxxxxxxxx Xxxxx, 0-00 Xxxx Xxxxxxxx, Xxxxxxxx
XX 00, Xxxxxxx, Xxxxxxxxx: Chief Financial Officer, with a copy to Xxxxxxx Xxxx
& Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
X. X'Xxxxxxxx, Esq.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder. No
purchaser of Securities from the Underwriters shall be deemed to be a successor
by reason merely of such purchase.
13. Applicable Law; Consent to Jurisdiction. (a) This
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed within the
State of New York.
(b) With respect to any suit, action or proceeding
against it arising out of or relating to this Agreement, the Company
irrevocably submits to the non-exclusive jurisdiction of the courts of
the State of New York and the United States District Courts in each
case located in the Borough of Manhattan, City and State of New York.
In addition, the Company irrevocably waives any objection which it may
now or hereafter have to the laying of venue of such suit, action or
proceeding brought in any such court and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) For purposes of any such suit, action or proceeding
brought in any of the foregoing courts, the Company agrees to maintain
an agent for service of process in the Borough of Manhattan, City and
State of New York, at all times while any Securities shall be
outstanding, and for that purpose the Company hereby irrevocably
designates Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, c/o Xx. Xxxx X. X'Xxxxxxxx, as its agent to
receive on its behalf service of process (with a copy of all such
service of process to be delivered to RenaissanceRe Holdings Ltd.,
Renaissance House, 0-00 Xxxx Xxxxxxxx, Xxxxxxxx XX 00, Xxxxxxx,
Xxxxxxxxx: Chief Financial Officer) brought against it with respect to
any such proceeding in any such court in the Borough of Manhattan, City
and State of New York, such service being hereby acknowledged by the
Company to be effective and binding service on it in every respect
whether or not the Company shall then be doing or shall have at any
time done business in New York. In the event that such agent for
service of process resigns or ceases to serve as the agent of the
Company, the Company agrees to give notice as provided in Section 12
herein of the name and address of any new agent for service of process
with respect to it appointed hereunder.
(d) If, despite the foregoing, in any such suit, action
or proceeding brought in any of the aforesaid courts, there is for any
reason no such agent for service of process of
21
the Company available to be served, then to the extent that service of
process by mail shall then be permitted by applicable law, the Company
further irrevocably consents to the service of process on it in any
such suit, action or proceeding in any such court by the mailing
thereof by registered or certified mail, postage prepaid, to it at its
address given in or pursuant to Section 12 hereof.
(e) Nothing herein contained shall preclude any party
from effecting service of process in any lawful manner or from bringing
any suit, action or proceeding in respect of this Agreement in any
other state, country or place.
14. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the U.S. Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
effective date of such Registration Statement, including any
Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Bermuda.
"Commission" shall mean the U.S. Securities and Exchange
Commission.
"Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
22
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be.
"Rule 415", "Rule 424", and "Rule 462" refer to such rules
under the Act.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
23
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
RENAISSANCERE HOLDINGS LTD.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Citigroup Global Markets Inc.
By: Citigroup Global Markets Inc.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Managing Director
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated March 16, 2004
Registration Statement No. 333-103424
Representative(s): Citigroup Global Markets Inc.
Title, Purchase Price and Description of Securities:
Title: 6.08% Series C Preference Shares
Amount: 10,000,000 shares
Purchase price: $24.2125 per share
Liquidation preference: $25.00 per share, plus accrued and unpaid
dividends to the date fixed for distribution
Dealer concession: $0.50 per share
Reallowance concession: $0.30 per share
Sinking fund provisions: None
Redemption provisions: Callable beginning in five years
Other provisions: As described in the Final Prospectus
Closing Date, Time and Location: March 23, 2004 at 10:00 a.m. at the offices of
Xxxxxxx Xxxx & Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SCHEDULE II
NUMBER OF SECURITIES TO
UNDERWRITERS BE PURCHASED
Citigroup Global Markets Inc. 1,634,000
Wachovia Capital Markets, LLC 1,634,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 1,634,000
Xxxxxx Xxxxxxx & Co. Incorporated 1,634,000
UBS Securities LLC 1,634,000
Banc of America Securities LLC 500,000
Deutsche Bank Securities Inc. 500,000
Quick & Xxxxxx, Inc. 500,000
X.X. Xxxxxxx & Sons, Inc. 30,000
Xxx-Xxxx, Xxxxxx Inc. 30,000
H&R Block Financial Advisors, Inc. 30,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC 30,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc. 30,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 30,000
Xxxxxxxxxxx & Co. Inc. 30,000
Xxxxx Xxxxxxx & Co. 30,000
Xxxxxxx Xxxxx & Associates, Inc. 30,000
RBC Xxxx Xxxxxxxx Inc. 30,000
Xxxx Xxxx & Co., Inc. 30,000
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TOTAL SHARES 10,000,000
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