EXHIBIT 1
STIRLING XXXXX XXXXX HOLDINGS LIMITED
Ordinary Shares
(par value $0.25 per share)
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Underwriting Agreement
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, 1997
Xxxxxxx, Sachs & Co.
Xxxxxxxxxxx & Co., Inc.
SBC Warburg Dillon Read Inc.
As representatives (the "Representatives")
of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Stirling Xxxxx Xxxxx Holdings Limited, a Bermuda company (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of [
] shares of the Ordinary Shares, par value $0.25 per share ("Ordinary Shares"),
of the Company and the shareholders of the Company named in Schedule II hereto
(the "Selling Shareholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of _______ Ordinary Shares and,
at the election of the Underwriters, up to ______ additional Ordinary Shares.
The aggregate of ____ Ordinary Shares to be sold by the Company and the Selling
Shareholders is herein called the "Firm Shares" and the aggregate of ____
additional Ordinary Shares to be sold by certain of the Selling Shareholders is
herein called the "Optional Shares". The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are
collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters and the Selling Shareholders that:
(i) A registration statement on Form S-1 (File No. 333-32995), as
amended prior to the effectiveness thereof (the "Initial Registration
Statement"), in respect of the Shares, and as part thereof the respective
forms of prospectus relating to the initial distribution of the Shares by
the Underwriters in an underwritten public offering and to offers and sales
of Ordinary Shares by Xxxxxxx, Sachs & Co. in secondary transactions, 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"), which was filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), and 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
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 5(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 forms of final prospectus
relating to the initial distribution of the Shares by the Underwriters in
an underwritten public offering and to offers and sales of Ordinary Shares
by Xxxxxxx, Xxxxx & Co. in secondary transactions, each in the form first
filed pursuant to Rule 424(b) under the Act, are hereinafter called the
"Public Offering Prospectus" and the "Secondary Transactions Prospectus",
respectively, and collectively the "Prospectus"); and the Underwriters
acknowledge and agree that the Secondary Transactions Prospectus and any
amendment or supplement thereto is not to be used by any Underwriter except
Xxxxxxx, Sachs & Co. and Xxxxxxx, Xxxxx & Co. acknowledges and agrees that
it will use the Public Offering Prospectus and any amendment or supplement
thereto only in connection with offers and sales of the kind intended
herein to be made pursuant to such Prospectus and will use the Secondary
Transactions Prospectus and any amendment or supplement thereto only in
connection with offers and sales of the kind intended herein to be made
pursuant to such Prospectus;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, 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 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 or by a Selling Shareholder
expressly for use in the preparation of the answers therein to Items 7 and
11(l) of Form S-1;
(iii) 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
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Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling Shareholder
expressly for use in the preparation of the answers therein to Items 7 and
11(l) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, in
each case affecting its own properties, assets and operations, 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 in the long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, in each case otherwise than
as set forth or contemplated in the Prospectus;
(v) The Company and its subsidiaries do not own any real property. The
Company and its subsidiaries have good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries;
(vi) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Bermuda, with power and
authority (corporate and other) 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 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;
(vii) Each subsidiary of the Company identified on Schedule IV hereto
(each a "Material Subsidiary" and collectively, the "Material
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
organization, with power and authority (corporate and other) 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 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; and all the outstanding shares of capital stock of each
Material Subsidiary of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable, and, except as indicated on
Schedule V are owned by the Company, directly or indirectly, free and clear
of all liens, encumbrances, security interests and claims; and, the Company
has no "significant subsidiaries," as such term is defined in Regulation S-
X under the Act, which are not included in the list of Material
Subsidiaries on Schedule IV;
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(viii) The Company and each Material Subsidiary of the Company is duly
licensed or admitted as an insurer or an insurance holding company, as
applicable, in each jurisdiction where it is required to be so licensed or
admitted to conduct its business as described in the Prospectus, except for
where the failure to be so licensed or admitted would not have a material
adverse effect on the Company and its subsidiaries taken as a whole; the
Company and each Material Subsidiary of the Company has all other consents,
authorizations, approvals, orders, certificates and permits of and from,
and has made all declarations and filings with, all insurance authorities,
commissions or other insurance regulatory bodies and all other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, required to own, lease, license and use their respective
properties and assets and to conduct their respective businesses as
described in the Prospectus, except for where the failure to have such
consents, authorizations, approvals, orders, certificates and permits, or
to make such declarations or filings, would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; all of such
consents, authorizations, approvals, orders, licenses, certificates and
permits are in full force and effect, except for where the failure to be in
full force and effect would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; and neither the Company nor
any Material Subsidiary of the Company has received any notification from
any insurance authority, commission or other insurance regulatory body or
any other governmental authority in the United States, Bermuda, the United
Kingdom or elsewhere to the effect that any additional consent,
authorization, approval, order, license, certificate or permit from such
authority, commission or body is required to be obtained by the Company or
any of its Material Subsidiaries;
(ix) The Company is in compliance with the requirements of the Xxxxxxx
Xxxxxxxxx Xxx 0000 and any applicable rules and regulations thereunder
(collectively, the "Insurance Act") and has filed all reports, documents or
other information required to be filed thereunder, except where the failure
to comply or file would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; each of the Company and its Material
Subsidiaries is in compliance with the insurance laws and regulations of
each jurisdiction which is applicable to the Company or its Material
Subsidiaries, as the case may be, except where the failure to comply would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and neither the Company nor its Material Subsidiaries has
received any notification from any insurance authority, commission or other
insurance regulatory body in the United States, Bermuda, the United Kingdom
or elsewhere to the effect that the Company or any Material Subsidiary is
not in compliance with any insurance law or regulation;
(x) 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 and validly authorized and issued, are fully paid and non-
assessable and conform to the description of the Ordinary Shares contained
in the Prospectus; the unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Shares contained in the Prospectus.
(xi) The issue and sale of the Shares to be sold by the Company
hereunder and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein 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, any
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indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Material Subsidiaries is a
party or by which the Company or any of its Material Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Material Subsidiaries is subject, except where such conflict, breach,
violation or default would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, nor will such action result
in any violation of the provisions of the Memorandum of Association and
Bye-Laws of the Company in effect as of the time immediately preceding the
First Time of Delivery (as defined in Section 4 hereof), or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or the Subsidiary or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act and the Securities Exchange Act of 1934, as
amended (the "1934 Act"), of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state insurance, securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(xii) The Company is not in violation of its Memorandum of Association
or Bye-Laws as in effect on the date hereof and each Material Subsidiary of
the Company is not in violation of its 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;
(xiii) The statements set forth in the Prospectus under the caption
"Business--Regulation", under the caption "Description of Capital Shares",
under the caption "Certain Tax Considerations", and under the caption
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are fair and accurate summaries
thereof;
(xiv) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Material Subsidiaries is a party or of which any property of the Company or
any of its Material Subsidiaries is the subject which, if determined
adversely to the Company or any of its Material Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xv) Each of the Company and its subsidiaries is not and, after giving
effect to the offering and sale of the Shares, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"); each of the Company and its
subsidiaries is not an "investment adviser" within the meaning of the
Investment Advisers Act of 1940, as amended;
(xvi) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
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(xvii) KPMG Peat Marwick, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xviii) The only rights to require the Company to register securities
are set forth in the Shareholders' Agreement, dated January 4, 1996, among
the Company and its shareholders, and the Registration Rights Agreement,
dated January 4, 1996, among the Company and its shareholders;
(xix) There are no currency exchange control laws or taxes, levies,
imposts or charges, in each case of Bermuda or the United Kingdom (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 in respect of residents of Bermuda for Bermuda exchange control
purposes) or (ii) by any subsidiary to the Company;
(xx) Neither the Underwriters nor any subsequent purchasers of the
Shares will be subject to any stamp duty, excise or similar tax imposed in
Bermuda in connection with the offering, sale or purchase of the Shares;
(xxi) It was not necessary to register under the Act any sales of
securities of the Company made by the Company since December 12, 1995,
because all such sales were either not subject to the Act or exempt from
registration under the Act; and
(xxii) The Company is not aware of any threatened or pending
downgrading in the ratings by A.M. Best Company, Inc. of any of the
Company's insurance subsidiaries.
(b) Each of the Selling Shareholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Shareholder of this Agreement and in
the case of each of the Selling Shareholders other than the GS Selling
Shareholders (as defined below), the Power of Attorney and the Custody
Agreement hereinafter referred to and, in the case of GS Capital Xxxxxxxx
XX, X.X., Xxxxxx Xxxxxx Xxxx 0000, L.P., Stone Street Fund 1995, L.P., GS
Capital Partners II Offshore, L.P. and GS Capital Partners II Germany Civil
Law Partnership (collectively, the "GS Selling Shareholders") the Put
Agreement to be entered into among each of the GS Selling Shareholders and
the Representatives (the "Put Agreement"), and for the sale and delivery of
the Shares to be sold by such Selling Shareholder hereunder, have been
obtained; and such Selling Shareholder has full right, power and authority
to enter into this Agreement, in the case of each Selling Shareholder other
than the GS Selling Shareholders, the Power of Attorney and the Custody
Agreement and, in the case of the GS Selling Shareholders, the Put
Agreement, and to sell, assign, transfer and deliver the Shares to be sold
by such Selling Shareholder hereunder (subject, in the case of each Selling
Shareholder other than the GS Selling Shareholders, to the Custody
Agreement and the Power of Attorney);
(ii) The sale of the Shares to be sold by such Selling Shareholder
hereunder and the compliance by such Selling Shareholder with all of the
provisions of this Agreement, in the case of each Selling Shareholder other
than the GS Selling Shareholders, the Power of Attorney and the Custody
Agreement and, in the case of the GS Selling Shareholders, the Put
Agreement 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, any
statute, indenture, mortgage, deed of trust, loan agreement or other
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agreement or instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder is bound or to which any of the property or
assets of such Selling Shareholder is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Shareholder if such Selling Shareholder is a
corporation, the partnership agreement of such Selling Shareholder if such
Selling Shareholder is a partnership or any comparable organizational
documents if the Selling Shareholder is another form of organization, or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(iii) Such Selling Shareholder has, and immediately prior to each Time
of Delivery (as defined in Section 4 hereof) that such Selling Shareholder
is required to sell Shares pursuant to this Agreement such Selling
Shareholder will have, good and valid title to the Shares to be sold by
such Selling Shareholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares, free
and clear of all liens, encumbrances, equities or claims will pass to the
several Underwriters;
(iv) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, such
Selling Shareholder shall not exercise any registration rights relating to
the Ordinary Shares and shall not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any Ordinary Shares or
any securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Ordinary Shares
or any such substantially similar securities (other than pursuant to
employee stock options outstanding on the date of this Agreement or, in
respect of Xxxxxxx, Xxxxx & Co. and its affiliates, pursuant to
stabilization, brokerage, market-making and ordinary course of business
transactions in the Ordinary Shares and related securities), without your
prior written consent;
(v) Such Selling Shareholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares, provided that the foregoing shall not apply
to any action by Xxxxxxx, Sachs & Co. and its affiliates (other than the GS
Selling Shareholders);
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Shareholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading (it being hereby expressly acknowledged that delivery of the
Power of Attorney and the statements contained therein (together with the
information set forth in the Selling Shareholder's Questionnaire signed and
delivered to the Custodian (as defined below) by such Selling Shareholder)
constitute (and in the absence of any such notice as is referred to in
[subclause (iii) of Section 2(f)] of such Power of Attorney constitute on a
continuing basis)
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written information furnished to the Company expressly for use in the
Registration Statement and any such Preliminary Prospectus, Prospectus,
amendment or supplement thereto);
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(viii) In the case of each Selling Shareholder other than the GS
Selling Shareholders, certificates in negotiable form representing all of
the Shares to be sold by such Selling Shareholder hereunder have been or
will be at or prior to the Note Time of Delivery (as defined in Section 4
hereof) placed in custody under a Custody Agreement, in the form heretofore
furnished to you (the "Custody Agreement"), duly executed and delivered by
such Selling Shareholder to Firstar Trust Company, as custodian (the
"Custodian"), and such Selling Shareholder has duly executed and delivered
a Power of Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such Selling Shareholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this Agreement
on behalf of such Selling Shareholder, to determine the purchase price to
be paid by the Underwriters to the Selling Shareholders as provided in
Section 2 hereof, to authorize the delivery of the Shares to be sold by
such Selling Shareholder hereunder and otherwise to act on behalf of such
Selling Shareholder in connection with the transactions contemplated by
this Agreement and the Custody Agreement; and
(ix) In the case of each Selling Shareholder other than the GS Selling
Shareholders, the Shares represented by the certificates held in custody
for such Selling Shareholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder; the arrangements made by such
Selling Shareholder for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Shareholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any individual Selling Shareholder or
any such executor or trustee should die or become incapacitated, or if any
such estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement and, in the case
of each Selling Shareholder other than the GS Selling Shareholders, the
Custody Agreement; and actions taken by the Attorneys-in-Fact pursuant to
the Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Shareholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the
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Selling Shareholders, at a purchase price per share of $[ ], the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Firm Shares to be sold by the Company and
each of the Selling Shareholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from the Company and all of the Selling Shareholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, certain of the Selling Shareholders
agree, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
such Selling Shareholders, at the purchase price per share set forth in clause
(a) of this Section 2, 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. For purposes of facilitating the sale of Shares by the GS
Selling Shareholders pursuant to clause (a) of this Section 2 and subject to the
terms and conditions herein set forth, each of you agrees, severally and not
jointly, to purchase from each of the GS Selling Shareholders, at the purchase
price per share set forth in clause (a) of this Section 2, the number of Firm
Shares of each of the GS Selling Shareholders as set forth opposite your
respective names in Schedule III hereto (the "Note Shares") at the Note Time of
Delivery (as defined in Section 5 hereof) against payment by each of you of the
purchase price therefor by delivery of a promissory note (each, a "Note" and
collectively, the "Notes") in the form previously agreed by the GS Selling
Shareholders and each of you. The number of shares each respective Underwriter
is severally obligated to purchase, as set forth in Schedule I hereto, shall not
be affected by the foregoing arrangements.
Certain of the Selling Shareholders, as and to the extent indicated in
Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters
the right to purchase at their election up to _________ Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Shares. Any such election
to purchase Optional Shares shall be made in proportion to the number of
Optional Shares to be sold by each such Selling Shareholder. Any such election
to purchase Optional Shares may be exercised only by written notice from you to
the Attorneys-in-Fact, given within a period of 30 calendar days after the date
of this Agreement and 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 4 hereof) or, unless you, the Company and the Attorneys-in-
Fact otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice.
The initial per share public offering price of the Shares, as set forth in
the Public Offering Prospectus, will not be higher than the price recommended to
the Company in writing by SBC Warburg Dillon Read Inc. ("Xxxxxx Read"), acting
as "qualified independent underwriter" within the meaning of Rule 2720 of the
Conduct Rules of the National Association of Securities Dealers, Inc. (the
"NASD").
3. 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.
9
4. (a) The Shares to be purchased by each of you hereunder in exchange for
the Notes, in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx, Sachs & Co. has requested by notice to the
Company and the GS Selling Shareholders, shall be delivered by or on behalf of
the GS Selling Shareholders to Xxxxxxx, Xxxxx & Co. for your accounts against
delivery by you or on your behalf of the Notes. The Shares to be purchased by
each Underwriter hereunder (other than Shares purchased in exchange for Notes),
in definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Shareholders, shall be delivered by or on
behalf of the Company and the Selling Shareholders to Xxxxxxx, Xxxxx & 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 or certified or official bank check or
checks, payable to the order of the Company and the Custodian in immediately
available (same day) funds. The Company will cause the certificates evidencing
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 Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be (i) with respect to the Firm Shares to be
purchased in exchange for Notes, immediately following the execution of this
Agreement and the satisfaction of the conditions set forth in Section 8 hereof,
(ii) with respect to the Firm Shares, 9:30 a.m., New York time, on
_______________, 1997 or such other time and date as Xxxxxxx, Xxxxx & Co., the
Company and the Selling Shareholders may agree upon in writing, and (iii) with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of
the Underwriters' election to purchase such Optional Shares, or such other time
and date as Xxxxxxx, Sachs & Co. and the Selling Shareholders may agree upon in
writing. Such time and date for delivery of the Firm Shares to be purchased in
exchange for the Notes is herein called the "Note Time of Delivery," such time
and date for delivery of all other 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 8 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 8(n) hereof, will be delivered at the offices of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, 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 1:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday or Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Public Offering Prospectus in a form approved by you
and to file the Public Offering 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 the Public Offering Prospectus during the Public Offering
Period (as
10
defined below) 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 during such period or any supplement to the Public
Offering Prospectus or any amended Public Offering Prospectus has been
filed during such period and to furnish you with copies thereof; to advise
you, promptly after it receives notice thereof during the Public Offering
Period, 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 the
Public Offering 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 during the Public Offering Period, promptly to use its best
efforts to obtain the withdrawal of such order (the period beginning on the
date hereof and continuing for as long as the delivery of a prospectus is
required in connection with the initial offering and sale of the Shares by
the Underwriters as contemplated by the Public Offering Prospectus, or in
connection with any subsequent offer or sale of Ordinary Shares by a dealer
other than Xxxxxxx, Sachs & Co. during the period specified in Rule 174(d)
or (e) under the Act, is herein called the "Public Offering Period");
(b) Promptly during the Public Offering Period from time to time to take
such action as you may reasonably request to qualify the Shares for
offering and sale under the securities and insurance laws of such
jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
during such period, 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;
(c) Prior to 12:00 p.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 copies of the Public Offering Prospectus in
New York City in such quantities as you may reasonably request during the
Public Offering Period 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 Public Offering Prospectus in connection with any offering or sale of
the Shares by the Underwriters, and if at such time any events shall have
occurred as a result of which the Public Offering 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 light of the circumstances under which they were
made when such Public Offering Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such period to amend
or supplement the Public Offering 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 copies
as you may reasonably request of an amended Public Offering Prospectus or a
supplement to the Public Offering 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 any offering or sale
of any of the Shares by the Underwriters at any time nine months or more
after the time of issue of the Public Offering Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or
supplemented Public Offering Prospectus complying with Section 10(a)(3) of
the Act;
11
(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 of the Commission 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 Ordinary Shares or any securities of the Company that are
substantially similar to the Shares, including, but not limited to, any
securities that are convertible into or exchangeable for, or that represent
the right to receive, Ordinary Shares or any such substantially similar
securities other than the issuance of options pursuant to employee benefit
plans existing on the date of this Agreement, and the issuance of Ordinary
Shares upon the exercise of employee options outstanding on the date of
this Agreement), without your prior written consent;
(f) To make available to its shareholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(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 generally,
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 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 its best efforts to have the Shares approved for quotation on
the Nasdaq Stock Market Inc.'s National Market ("Nasdaq");
(i) To use the net proceeds received by it from the sale of Shares by it
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(j) 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 the 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
(k) The Company will prepare and release quarterly financial results, in
the form of a press release, and file annual reports with the Commission,
on or prior to the times required for filings of Forms 10-Q. and 10-K,
respectively, by domestic United States securities issuers
12
which have securities registered under Section 12(b) or 12(g) of the
Exchange Act (a "U.S. Public Company").
6. The Company agrees with Xxxxxxx, Xxxxx & Co.:
(a) To prepare the Secondary Transactions Prospectus in a form approved
by Xxxxxxx, Sachs & Co. 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 the Secondary Transactions Prospectus during the
Secondary Transactions Period (as defined below) which shall be disapproved
by Xxxxxxx, Xxxxx & Co. promptly after reasonable notice thereof (it being
understood that, when Form S-2 or S-3 under the Act is available to the
Company, the Company may amend the Registration Statement so as to be on
such form, or may file a new registration statement on such form (in which
case any reference herein to the Registration Statement or the Prospectus
shall include such new registration and the prospectus contained therein in
the form first filed pursuant to Rule 424(b) under the Act, respectively),
and thereafter any information required to be included in the Registration
Statement or the Secondary Transactions Prospectus may be incorporated
therein by reference as permitted by such form); to advise Xxxxxxx, Sachs &
Co., promptly after the Company receives notice thereof, of the time when
the Registration Statement, or any amendment thereto, has been filed or
becomes effective during the Secondary Transactions Period, or any
supplement to the Secondary Transactions Prospectus or any amended
Secondary Transactions Prospectus has been filed during such period, and to
furnish Xxxxxxx, Xxxxx & Co. with copies thereof; to advise Xxxxxxx, Sachs
& Co., promptly after the Company receives notice thereof during the
Secondary Transactions Period, 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 during the Secondary Transactions Period,
to use promptly its reasonable efforts to obtain the withdrawal of such
order (the period beginning on the date hereof and continuing for as long
as may be required under applicable law, in the reasonable judgment of
Xxxxxxx, Xxxxx & Co. after consultation with the Company, in order to offer
and sell Ordinary Shares as contemplated by the Secondary Transactions
Prospectus, is herein called the "Secondary Transactions Period");
(b) Promptly from time to time to take such action as Xxxxxxx, Sachs &
Co. may reasonably request to qualify the Shares for offering and sale
during the Secondary Transactions Period under the securities and insurance
laws of such jurisdictions as Xxxxxxx, Xxxxx & Co. may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions during such period, 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;
(c) To furnish Xxxxxxx, Sachs & Co. with copies of the Secondary
Transactions Prospectus in such quantities as Xxxxxxx, Xxxxx & Co. may from
time to time reasonably request during the Secondary Transactions Period,
and, if at any time during such period any
13
event shall have occurred as a result of which the Secondary Transactions
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 to be delivered during
such period, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Secondary
Transactions Prospectus or to amend the Registration Statement in order to
comply with the Act or to file under the 1934 Act any document incorporated
by reference in such Prospectus in order to comply with the Act or the 1934
Act, to notify Xxxxxxx, Sachs & Co. immediately and upon its request to
file such document and to prepare and furnish without charge to Xxxxxxx,
Xxxxx & Co. as many copies as it may from time to time during such period
reasonably request of an amended Secondary Transactions Prospectus or a
supplement to the Secondary Transactions Prospectus which will correct such
statement or omission or effect such compliance;
(d) During the Secondary Transactions Period, to furnish to Xxxxxxx,
Sachs & Co. copies of all reports or other communications (financial or
other) furnished to shareholders generally, and to deliver to Xxxxxxx,
Xxxxx & Co. (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 information concerning the
business and financial condition of the Company as Xxxxxxx, Sachs & Co. 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); and
(e) To use its reasonable efforts to furnish or cause to be furnished to
Xxxxxxx, Xxxxx & Co. upon its request at reasonable intervals, when the
Registration Statement or the Secondary Transactions Prospectus shall be
amended or supplemented during the Secondary Transactions Period, written
opinions of counsel for the Company, a letter from the independent
accountants who have certified the financial statements included in the
Registration Statement as then amended and certificates of officers of the
Company, in each case in form and substance reasonably satisfactory to
Xxxxxxx, Sachs & Co., all to the effect specified in subsections (c), (d),
(e), (g) and (m), respectively, of Section 8 hereof (as modified to relate
to the Registration Statement and the Secondary Transactions Prospectus as
then amended or supplemented).
Notwithstanding the foregoing provisions, if at any time the Company
determines in the exercise of its reasonable judgment that it is in possession
of material, non-public information that it would not be required to disclose
publicly in the absence of a registration of Ordinary Shares under the Act, the
Company may, upon notice to Xxxxxxx, Xxxxx & Co., cease to comply with any of
its obligations under this Section 6, but only for a period or periods that the
Company reasonably determines are necessary in order to avoid such premature
disclosure and in any event not to exceed 90 days in the aggregate during any
period of 12 consecutive calendar months. Upon receipt of any such notice,
Xxxxxxx, Sachs & Co. shall cease using the Secondary Transactions Prospectus or
any amendment or supplement thereto until it receives notice from the Company
that it may resume using such document.
7. The Company and each of the Selling Shareholders covenant and agree
with one another and with the several Underwriters that (a) the Company 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
14
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 and closing documents (including any compilations thereof) for the
sale of the Shares by the Underwriters pursuant to the Public Offering
Prospectus 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 5(b) hereof, including the 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 the
registration of the Shares under the 1934 Act and the listing of the Shares on
Nasdaq; (v) the filing fees incident to, and the 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 by the Underwriters pursuant to the Public Offering Prospectus; (vi)
the cost of preparing certificates for the Shares; (vii) the cost and charges of
any transfer agent or registrar; (viii) the fees and expenses of the Attorneys-
in-Fact and the Custodian; (ix) all fees, disbursements and expenses of one
counsel for the Selling Shareholders selected by the Company (which may be
counsel for the Company); (x) all reasonable fees, disbursements and expenses
incurred pursuant to Sections 6(b) and (e) hereof; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 7; and (b) each Selling
Shareholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Shareholder's obligations hereunder which are not
otherwise specifically provided for in this Section, including (i) any fees and
expenses of counsel for such Selling Shareholder (other than those specified in
clause (ix) above), and (ii) all expenses (other than the costs of preparing and
delivering stock certificates) and taxes incident to the sale and delivery of
the Shares to be sold by such Selling Shareholder to the Underwriters hereunder.
In connection with clause (b) of the preceding sentence, Xxxxxxx, Xxxxx & Co.
agrees to pay New York State stock transfer tax, and each Selling Shareholder
agrees to reimburse Xxxxxxx, Sachs & Co. for associated carrying costs if such
tax payment is not rebated on the day of payment and for any portion of such tax
payment not rebated. It is understood, however, that the Company shall bear, and
the Selling Shareholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided
in this Section, and Sections 9 and 12 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.
8. 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 of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of its and their 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, except in the case of the Note Time of Delivery; and 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
15
information on the part of the Commission shall have been complied with to
your reasonable satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, United States counsel for
the Underwriters, shall have furnished to you such opinion or opinions,
dated such Time of Delivery, with respect to certain of the matters covered
in paragraphs [ ] of Annex I hereto as well as such other related
matters as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) Xxxxx & Lardner, United States counsel for the Company, shall have
furnished to you their written opinion and letter, dated such Time of
Delivery, substantially in the form of Annex I attached hereto;
(d) Xxxxxxx, Xxxxxxxx & Xxxxx, Bermuda counsel for the Company, shall
have furnished to you their written opinion, dated such Time of Delivery,
substantially in the form of Annex II attached hereto;
(e) Xxxxxxxx Xxxxxx, United Kingdom counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery,
substantially in the form of Annex III attached hereto;
(f) Counsel for each Selling Shareholder shall have furnished to you
their written opinion with respect to each of such Selling Shareholders,
dated the Note Time of Delivery with respect to the GS Selling Shareholders
and dated such Time of Delivery with respect to each other Selling
Shareholder, substantially in the form of Annex IV attached hereto;
(g) On the date of the Public Offering 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 during the
Public Offering Period and also at each Time of Delivery, KPMG Peat Marwick
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 V hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached hereto as
Annex V(a) 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 V(b)
hereto);
(h)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus 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, in each case affecting its own properties, assets or operations,
otherwise than as set forth or contemplated in the Prospectus, and (ii)
since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or in
the 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 (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to
16
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 Public Offering Prospectus;
(i) On or after the date hereof, (i) no downgrading shall have occurred
in the rating accorded the Company's (or the Company's insurance
subsidiaries) 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
the Company's (or the Company's insurance subsidiaries) financial strength
or claims paying ability;
(j) 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 New York Stock Exchange or Nasdaq; (ii) a suspension or
material limitation in trading in the Company's securities on Nasdaq; (iii)
a general moratorium on commercial banking activities in New York declared
by Federal or New York State authorities or in Bermuda declared by Bermuda
authorities; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iv) 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 Public Offering Prospectus;
(k) The Shares to be sold by the Selling Shareholders at such Time of
Delivery shall have been duly approved for quotation on Nasdaq;
(l) The Company shall have used its best efforts to comply with the
provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(m) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Shareholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Shareholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Shareholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (h) of this Section;
(n) The Put Agreement shall have been validly executed and delivered by
the GS Selling Shareholders at or prior to the Note Time of Delivery;
(o) Each of the Selling Shareholders shall have delivered to the
Underwriters certificates required by Treasury Regulation section 1.1445-
2(b)(2) in order to avoid withholding of tax under Section 1445 of the
Internal Revenue Code of 1986, as amended; and
(p) The Shares shall have been registered pursuant to the Exchange Act
and the rules and regulations thereof, except in the case of the Note Time
of Delivery.
For purposes of this Section 8 references to the Prospectus shall mean
the most current Preliminary Prospectus if the Prospectus has not been
filed pursuant to Rule 424(b) under the Act at the Note Time of Delivery.
17
9. (a) The Company, GS Capital Partners II, L.P. and the Selling
Shareholders listed on Schedule V hereto (collectively, the "Designated
Shareholders"), jointly and severally, 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 and the Designated
Shareholders 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; provided, further, that the liability of each
Designated Shareholder pursuant to this subsection (a) shall not exceed the
product of the number of Shares sold by such Designated Shareholder (including
any Optional Shares) and the initial public offering price as set forth in the
Public Offering Prospectus; and provided, further, that the Designated
Shareholders shall not be liable to any Underwriter (including Xxxxxxx, Xxxxx &
Co.) under the indemnity agreement in this subsection (a) with respect to any
Secondary Transactions Prospectus (or the Registration Statement insofar as it
relates to the Secondary Transactions Prospectus).
The Company will also indemnify and hold harmless Xxxxxx Read and each
person, if any, who controls Xxxxxx Read within the meaning of either Section 15
of the Act, or Section 20 of the 1934 Act, from and against any and all losses,
claims, damages, liabilities and judgments incurred as a result of Xxxxxx Read's
participation as a "qualified independent underwriter" within the meaning of
Rule 2720 of the Rules of Conduct of the NASD in connection with the offering of
the Shares, except for any losses, claims, damages, liabilities and judgments
resulting from Xxxxxx Read's or such controlling person's willful misconduct or
gross negligence.
(b) Each of the Selling Shareholders other than the Designated Shareholders
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, 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 delivered in connection with an offer or sale during the Public
Offering Period in reliance upon and in conformity with written information
furnished to the Company by such Selling Shareholder expressly for use therein;
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
liability of each of the Selling Shareholders pursuant to this subsection (b)
shall not
18
exceed the product of the number of Shares sold by such Selling Shareholder
(including any Optional Shares) and the initial public offering price as set
forth in the Public Offering Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and each
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or such Selling Shareholder 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 each Selling Shareholder for any legal or other
expenses reasonably incurred by the Company or such Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such subsection, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party 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 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 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, and the indemnifying parties shall not be responsible
for the cost of more than one counsel for all indemnified parties (excluding any
necessary local counsel) in connection with any actions or claims arising from
the same facts; provided, that, if indemnity is sought pursuant to the second
paragraph of Section 9(a), then, in addition to such separate counsel for the
indemnified parties, the indemnifying party shall be liable for the reasonable
fees and expenses of not more than one separate counsel (in addition to any
necessary local counsel) for Xxxxxx Read in its capacity as a "qualified
independent underwriter" and all persons, if any, who control Xxxxxx Read within
the meaning of either Section 15 of the Act or Section 20 of the 1934 Act if, in
the reasonable judgment of Xxxxxx Read, there may exist a conflict of interest
between Xxxxxx Read in its capacity as a "qualified independent underwriter" and
the other indemnified parties. In the case of any such separate counsel for
Xxxxxx Read in its capacity as "qualified independent underwriter" and such
control persons of Xxxxxx Read, such counsel shall be designated in writing by
Xxxxxx Read. 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
19
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.
(e) If the indemnification provided for in this Section 9 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) 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 and the Selling Shareholders 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 (d) above, then in any such case 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 and the Selling Shareholders 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 and the Selling Shareholders 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 and the Selling Shareholders 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 Public Offering
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 indemnifying party on the one hand or the indemnified party on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Shareholders and the Underwriters agree that Xxxxxx Read will not
receive any additional benefits hereunder for serving as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Rules of Conduct
of the NASD in connection with the offering of the Shares. The Company, each of
the Selling Shareholders and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (e) 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 does not take account
of the equitable considerations referred to above in this subsection (e). 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 (e) 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 (e), 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 (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under this
Section 9 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who
20
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 9 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 to
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of the Act.
10. (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 thirty-six hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company and the Selling Shareholders shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Shareholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Shareholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Shareholders shall have the right to postpone a 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 and
the Selling Shareholders 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 and the Selling Shareholders 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 and
the Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Shareholders 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 and the Selling Shareholders to sell
the Optional Shares) shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company or the Selling Shareholders,
except for the expenses to be borne by the Company and the Selling Shareholders
and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
21
11. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholders 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 controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the
Shares.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company in subsection (a) of Section 9 hereof, the agreement in subsection
(c) of Section 5 hereof, the representations and warranties in subsections
(a)(ii) and (a)(iii) of Section 1 hereof and any representation or warranty as
to the accuracy of the Registration Statement or the Prospectus contained in any
certificate furnished by the Company pursuant to Section 8 hereof, insofar as
they may constitute a basis for indemnification for liabilities (other than
payment by the Company of expenses incurred or paid in the successful defense of
any action, suit or proceeding) arising under the Act, shall not extend to the
extent of any interest therein of a controlling person or partner of an
Underwriter who is a director, officer or controlling person of the Company when
the Registration Statement has become effective, except in each case to the
extent that an interest of such character shall have been determined by a court
of appropriate jurisdiction as not against public policy as expressed in the
Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
12. If this Agreement shall be terminated pursuant to Section 10 hereof,
neither the Company nor the Selling Shareholders shall then be under any
liability to any Underwriter except as provided in Sections 7, 9, 18 and 19
hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Company and the Selling Shareholders 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 Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company and
the Selling Shareholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 7 and 9 hereof.
13. 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; and in all dealings with any Selling Shareholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Shareholder made or given by any
or all of the Attorneys-in-Fact for such Selling Shareholder.
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; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Shareholder at its address set
forth in Schedule II hereto; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 9(d) hereof shall be delivered or
sent
22
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 or the Selling
Shareholders by you on request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder 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.
15. 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.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
17. 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.
18. The Company irrevocably submits to the non-exclusive jurisdiction of
any New York State or Federal court sitting in the Borough of Manhattan, in The
City of New York over any suit, action or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby. To the fullest
extent it may effectively do so under applicable law, the Company irrevocably
waives and agrees not to assert, by way of motion, as a defense or otherwise,
any claim that it is not subject to the jurisdiction of any such court, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. The Company agrees, to the fullest extent it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to in this Section 18 brought in any such
court shall be conclusive and binding upon the Company subject to rights of
appeal, as the case may be, and may be enforced in the courts of the United
States of America or the State of New York (or any other court the jurisdiction
of which the Company is or may be subject) by a suit upon such judgment. The
Company irrevocably designates and appoints CT Corporation System, New York, New
York as its authorized agent upon whom process may be served in any suit, action
or proceeding of the nature referred to in this Section 18 by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to the agent at its address set forth in the Registration Statement.
The Company agrees that such service (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding and
(ii) shall, to the fullest extent permitted by law, be taken and held to be
valid personal service upon and personal delivery to the Company. Notices
hereunder shall be conclusively presumed received if evidenced by a delivery
receipt furnished by the United States Postal Service or any commercial delivery
service. Nothing in this Section 18 shall affect the right of any Underwriter
to serve process in any manner permitted by law, or limit any right to bring
proceedings against the Company or any Selling Shareholder in the courts of any
jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
19. In respect of any judgment or order given or made for any amount due
hereunder by the Company or the Selling Shareholders that is expressed and paid
in currency (the "judgment
23
currency") other than United States dollars, the Company or the Selling
Shareholders, as the case may be, will indemnify each Underwriter against any
loss incurred by such Underwriter 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 an Underwriter is able to purchase United States
dollars with the amount of the judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and the Selling Shareholders and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "rate of exchange" shall include any reasonable premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
* * * *
If the foregoing is in accordance with your understanding, please sign and
return to us 8 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
each of the Selling Shareholders. 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 and the Selling Shareholders for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
24
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
STIRLING XXXXX XXXXX HOLDINGS LIMITED
BY: _____________________________
NAME:
TITLE:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE II TO THIS AGREEMENT OTHER THAN THE
GS SELLING SHAREHOLDERS
BY: _____________________________
NAME:
TITLE: ATTORNEY-IN-FACT
AS ATTORNEY-IN-FACT ACTING ON BEHALF OF
EACH OF THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE II TO THIS AGREEMENT OTHER THAN
THE GS SELLING SHAREHOLDERS.
GS CAPITAL PARTNERS II, L.P.
BY: _____________________________
NAME:
TITLE:
XXXXXX XXXXXX XXXX 0000, X.X.
BY: _____________________________
NAME:
TITLE:
XXXXX XXXXXX XXXX 0000, X.X.
BY: _____________________________
NAME:
TITLE:
25
GS CAPITAL PARTNERS II OFFSHORE, L.P.
BY: _____________________________
NAME:
TITLE:
GS CAPITAL PARTNERS II GERMANY CIVIL
LAW PARTNERSHIP
BY: _____________________________
NAME:
TITLE:
ACCEPTED AS OF THE DATE HEREOF:
XXXXXXX, XXXXX & CO.
XXXXXXXXXXX & CO., INC.
SBC WARBURG DILLON READ INC.
BY:
---------------------------------------
(XXXXXXX, XXXXX & CO.)
On behalf of each of the Underwriters
26
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
---------------------------------------------------------- ------------------ ------------------
Xxxxxxx, Sachs & Co.......................................
Xxxxxxxxxxx & Co., Inc....................................
SBC Warburg Dillon Read Inc...............................
________ ________
Total ________ ________
27
SCHEDULE II
NAME No. of Shares to Be Sold
---------------------------------------- ------------------------
GS Capital Xxxxxxxx XX, X.X.
Xxxxxx Xxxxxx Xxxx 0000, X.X.
Xxxxx Street Fund 1995, L.P.
GS Capital Partners II Offshore, L.P.
GS Capital Partners II Germany Civil
Law Partnership
Xxxxxxxx Xxxxx
Penelope Atteline Xxxxx
Xxxxxxxx Xxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx Sacy
Xxxx Xxxx-Xxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxx Xxxxx
Xxxxxxx Xxxxxx Xxxxxx
Xxxx Xxx Xxxxxxx
Orion Nominees Limited a/c 703
Xxxxxxxxxxx Xxxxx Xxxxx Xxxxxxx
Xxxxx Xxxxxxx Tarsh
Xxxxxxx Xxxxxx
Xxxxxx Xxxx Hopegood
Xxxxx Xxxxxx
Xxxx Xxxxxxx
____________________
(1) Address:
(2) Counsel:
SCHEDULE III
FIRM SHARES
-----------------------
Xxxxxxx, Sachs & Co............
GS Capital Partners II, L.P.
Bridge Street Fund 1995, X.X.
Xxxxx Street Fund 1995, L.P.
GS Capital Partners II Offshore, L.P.
GS Capital Partners II Germany Civil
Law Partnership
Xxxxxxxxxxx & Co., Inc.
GS Capital Partners, L.P.
Bridge Street Fund 1995, X.X.
Xxxxx Street Fund 1995, L.P.
GS Capital Partners II Offshore, L.P.
GS Capital Partners II Germany Civil
Law Partnership
SBC Warburg Dillon Read Inc.
GS Capital Partners, L.P.
Bridge Street Fund 1995, X.X.
Xxxxx Street Fund 1995, L.P.
GS Capital Partners II Offshore, L.P.
GS Capital Partners II Germany Civil
Law Partnership
Total.......................
=========================
2
SCHEDULE IV
MATERIAL SUBSIDIARIES
3
SCHEDULE V
DESIGNATED SHAREHOLDERS
4
