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Exhibit 10.17
Annuity and Life Re (Holdings), Ltd.
Xxxxxxxx Xxxx, Xxxxxxxx Street
P.O. Box HM 1262
Xxxxxxxx, XX FX, Bermuda
FINANCIAL ADVISORY SERVICES
Dated as of December 23, 1997
Dear Sirs:
This will confirm the understanding and agreement (the
"Agreement") between Prudential Securities Incorporated ("Prudential
Securities") and Annuity and Life Re (Holdings), Ltd. (the "Company") as
follows:
1. The Company hereby engages Prudential Securities as
the Company's financial advisor in connection with
the proposed initial public offering by the Company.
2. Prudential Securities hereby accepts the engagement
described in paragraph 1 and, in that connection,
agrees to advise and assist the Company in developing
a general strategy for accomplishing an initial
public offering of the Company's Common Shares,
including the establishment of the Company and the
structure of the offering.
3. As compensation for the services rendered by
Prudential Securities hereunder, the Company shall
pay Prudential Securities a fee of U.S. $1,000,000
payable upon the closing of the Company's proposed
initial public offering. Either party may terminate
Prudential Securities' engagement hereunder at any
time by giving the other party at least 10 days'
prior written notice, subject to paragraphs 4 and 5,
8 through 12 and the second, third and fourth
sentences of paragraph 6, which shall survive any
termination of this Agreement.
4. The Company shall reimburse Prudential Securities for
its reasonable out-of-pocket and incidental expenses
incurred in connection with the engagement hereunder,
promptly as requested upon presentation of
appropriate documentation, including the reasonable
fees and expenses of its legal counsel (it being
understood that such reimbursed fees and expenses of
such counsel are not to include the fees and expenses
of such counsel in its role as counsel to the
underwriters of an initial public offering) and those
of any advisor retained by Prudential Securities with
the consent of the Company, not to be unreasonably
withheld.
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Annuity and Life Re (Holdings), Ltd., p.2
5. Since Prudential Securities will be acting on behalf
of the Company in connection with this engagement,
the Company agrees to indemnify Prudential Securities
and certain other persons as set forth in a separate
letter agreement dated the date hereof, between
Prudential Securities and the Company, except with
respect to any public offering for which
indemnification will be set forth in the related
underwriting agreement.
6. In connection with Prudential Securities' engagement,
the Company will furnish Prudential Securities with
all information concerning the Company which
Prudential Securities reasonably deems appropriate
and will provide Prudential Securities with access to
the Company's officers, directors, accountants,
counsel and other advisors. The Company represents
and warrants to Prudential Securities that all such
information concerning the Company is and will be
true and accurate in all material respects and does
not and will not contain any untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein not
misleading in light of the circumstances under which
such statements are made. The Company represents and
warrants to Prudential Securities that any financial
projections or forecasts provided to Prudential
Securities with respect to the Company represent the
best currently available estimates by the management
of the Company of the future financial performance of
the Company and are based upon reasonable
assumptions. The Company acknowledges and agrees that
Prudential Securities will be using and relying upon
such information supplied by the Company and its
officers, agents and others and any other publicly
available information concerning the Company without
any independent investigation or verification thereof
or independent appraisal by Prudential Securities of
the Company or its business or assets.
7. This Agreement does not constitute an obligation on
the part of Prudential Securities or the Company to
effect the proposed initial public offering or to
underwrite any securities pursuant to such proposed
offering. Such an obligation, if entered into, will
be made pursuant to an underwriting agreement and
will be subject to, among other conditions precedent,
the satisfactory conclusion of due diligence on the
part of Prudential Securities, an evaluation of the
Company's prospective business and financial
condition, the approval by counsel to the Company and
to Prudential Securities of all proceedings and
documentation in connection with the proposed initial
public offering, the condition of the securities
market, and the approval of the transaction by the
Company and the internal management committees of
Prudential Securities.
8. Any advice, either oral or written, provided to the
Company by Prudential Securities hereunder shall not
be publicly disclosed or made available to
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Annuity and Life Re (Holdings), Ltd., p.3
third parties (other than to the Company's counsel or
other advisors, provided the Company informs such
third parties of this provision) without the prior
written consent of Prudential Securities. In
addition, Prudential Securities may not be otherwise
publicly referred to without its prior consent.
9. The Company represents and warrants to Prudential
Securities that there are no brokers, representatives
or other persons which have an interest in
compensation due to Prudential Securities from any
transaction contemplated herein.
10. The benefits of this Agreement, together with the
separate indemnity letter, shall inure to the
respective successors and assigns of the parties
hereto and of the indemnified parties under such
indemnity letter and their successors, assigns and
representatives, and the obligations and liabilities
assumed in this Agreement by the parties hereto shall
be binding upon their respective successors and
assigns. This Agreement and the related indemnity
agreement may not be assigned without the prior
written consent of the nonassigning party.
11. This Agreement may not be amended or modified except
in a writing signed by the party against whom
enforcement is sought and shall be governed by and
construed in accordance with the laws of the State of
New York, without regard to principles of conflicts
of laws. The Company hereby consents to service of
process in the State of New York and to the
jurisdiction of and venue in the United States
District Court for the Southern District of New York
and of any of the courts in the State of New York in
any action, suit or proceeding arising under this
Agreement. The Company hereby designates and appoints
CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx as its agent to receive on its behalf service of
all process in any such action, suit or proceeding in
any such court, such service being hereby
acknowledged by the Company to be effective and
binding service in every respect. The Company will
provide Prudential Securities with written evidence
of such appointment promptly following execution of
this Agreement. The Company hereby irrevocably waives
and agrees not to assert, in any action or proceeding
with respect to this Agreement, any claim that (a) it
is not personally subject to the jurisdiction of the
aforesaid courts, (b) it or its property is exempt or
immune from jurisdiction of any such court or from
any legal process, (c) the action or proceeding is
brought in an inconvenient forum or (d) the venue of
the action or proceeding is improper.
12. EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS
OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ON BEHALF OF ITS SHAREHOLDERS)
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Annuity and Life Re (Holdings), Ltd., p.4
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING
OUT OF THE ENGAGEMENT OF PRUDENTIAL SECURITIES
PURSUANT TO, OR THE PERFORMANCE BY PRUDENTIAL
SECURITIES OF THE SERVICES CONTEMPLATED BY, THIS
AGREEMENT.
Prudential Securities is delighted to accept this engagement
and looks forward to working with you on this assignment. Please confirm that
the foregoing correctly sets forth our agreement by signing the enclosed
duplicate of this letter in the space provided and returning it, whereupon this
letter shall constitute a binding agreement as of the date first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Director
AGREED AND ACCEPTED:
ANNUITY AND LIFE RE (HOLDINGS), LTD.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
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As of December 23, 1997
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza
New York, N.Y. 10292
Dear Sirs:
In connection with the engagement, dated as of December 23,
1997, between Prudential Securities Incorporated ("Prudential Securities") and
Annuity and Life Re (Holdings), Ltd. (the "Company"), the Company hereby agrees
to indemnify and hold harmless Prudential Securities and its affiliates, their
respective directors, officers, controlling persons (within the meaning of
Section 15 of the Securities Act of 1933 or Section 20(a) of the Securities
Exchange Act of 1934), if any, agents and employees of Prudential Securities or
any of Prudential Securities' affiliates (collectively, "Indemnified Persons"
and individually, an "Indemnified Person") from and against any and all claims,
liabilities, losses, damages and expenses incurred by any Indemnified Person
(including reasonable fees and disbursements of Prudential Securities' and an
Indemnified Person's counsel) which (A) are related to or arise out of (i)
actions taken or omitted to be taken (including any untrue statements made or
any statements omitted to be made) by the Company or (ii) actions taken or
omitted to be taken by an Indemnified Person with the Company's consent in
conformity with the Company's instructions or the Company's actions or omissions
or (B) are otherwise related to or arise out of Prudential Securities'
engagement, and will reimburse Prudential Securities and any other Indemnified
Person for all reasonable costs and expenses, including reasonable fees of
Prudential Securities' or an Indemnified Person's counsel, as they are incurred,
in connection with investigating, preparing for, or defending any action, formal
or informal claim, investigation, inquiry or other proceeding, whether or not in
connection with pending or threatened litigation, caused by or arising out of or
in connection with Prudential Securities acting pursuant to the engagement,
whether or not Prudential Securities or any Indemnified Person is named as a
party thereto and whether or not any liability results therefrom. The Company
will not, however, be responsible for any claims, liabilities, losses, damages
or expenses pursuant to the preceding sentence which are finally judicially
determined to have resulted primarily from Prudential Securities' bad faith,
gross negligence or willful misconduct. The Company also agrees that neither
Prudential Securities nor any other Indemnified Person shall have any liability
to the Company for or in connection with such engagement except for any such
liability for claims, liabilities, losses, damages or expenses incurred by the
Company which are finally judicially determined to have resulted primarily from
Prudential Securities' bad faith, gross negligence or willful misconduct. The
Company further agrees that the Company will not, without the prior written
consent of Prudential Securities not to be unreasonably withheld, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not Prudential Securities or any Indemnified Person
is an actual or potential party to such claim, action, suit or proceeding)
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Prudential Securities Incorporated, p.2
unless such settlement, compromise or consent includes an unconditional release
of Prudential Securities and each other Indemnified Person hereunder from all
liability arising out of such claim, action, suit or proceeding.
In order to provide for just and equitable contribution, if a
claim for indemnification is made pursuant to these provisions but is found in a
final judgment by a court of competent jurisdiction (not subject to further
appeal) that such indemnification is not available for any reason (except for
the reasons specified in the second sentence of the first paragraph hereof),
even though the express provisions hereof provide for indemnification in such
case, then the Company, on the one hand, and Prudential Securities, on the other
hand, shall contribute to such claim, liability, loss, damage or expense for
which such indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to the Company, on
the one hand, and Prudential Securities, on the other hand, in connection with
the transactions contemplated by the engagement, subject to the limitation that
in any event Prudential Securities' aggregate contribution to all losses,
claims, damages, liabilities and expenses to which contribution is available
hereunder shall not exceed the amount of fees actually received by Prudential
Securities pursuant to the engagement.
The foregoing right to indemnity and contribution shall be in
addition to any rights that Prudential Securities and/or any other Indemnified
Person may have at common law or otherwise and shall remain in full force and
effect following the completion or any termination of the engagement of
Prudential Securities. The Company hereby consents to personal jurisdiction and
to service and venue in any court in which any claim which is subject to this
agreement (the "Indemnification Agreement") is brought against Prudential
Securities or any other Indemnified Person. The Company hereby designates and
appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx as its agent
to receive on its behalf service of all process in any action, suit or
proceeding on such claim in any such court, such service being hereby
acknowledged by the Company to be effective and binding service in every
respect. The Company will provide Prudential Securities with written evidence of
such appointment promptly following the execution of this Indemnification
Agreement. The Company hereby irrevocably waives and agrees not to assert, in
any action or proceeding with respect to this Indemnification Agreement, any
claim that (a) it is not personally subject to the jurisdiction of the aforesaid
courts, (b) it or its property is exempt or immune from jurisdiction of any such
court or from any legal process, (c) the action or proceeding is brought in an
inconvenient forum or (d) the venue of the action or proceeding is improper.
EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN
BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
SHAREHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR
ARISING OUT OF THIS INDEMNIFICATION AGREEMENT.
It is understood that, in connection with Prudential
Securities' engagement, Prudential Securities may also be engaged to act for the
Company in one or more additional
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Prudential Securities Incorporated, p.3
capacities, and that the terms of this engagement or any such additional
engagement may be embodied in one or more separate written agreements. This
Indemnification Agreement shall apply only to the engagement set forth in the
letter dated as of December 23, 1997 between the Company and Prudential
Securities and any modification thereto and shall remain in full force and
effect following the completion or termination of said engagement.
The benefits of this Indemnification Agreement shall inure to
the respective successors and permitted assigns of the parties hereto and of the
Indemnified Persons hereunder and their respective successors, assigns and
representatives, and the obligations and liabilities assumed in this
Indemnification Agreement by the parties hereto shall be binding upon their
respective successors and assigns. This Indemnification Agreement may not be
assigned without the prior written consent of the nonassigning party.
This Indemnification Agreement may not be amended or modified
except in a writing signed by the party against whom enforcement is sought and
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to principles of conflicts of laws.
The Company further understands that if a public offering of
the Company's Common Shares occurs and Prudential Securities participates
therein, the underwriting agreement relating thereto will provide for
indemnification and contribution as described in that agreement and this
Indemnification Agreement (a) insofar as it relates to Prudential Securities'
engagement set forth in the letter dated as of December 23, 1997 between the
Company and Prudential Securities and any modification thereto, shall survive
and (b) insofar as it relates to such public offering, shall be superseded by
the provisions of such underwriting agreement.
Very truly yours,
ANNUITY AND LIFE RE (HOLDINGS), LTD.
By: /s/ Xxxxxxxx X. Xxxxx
Name Xxxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
AGREED AND ACCEPTED:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxx Xxxxxxxx
Name Xxxxx Xxxxxxxx
Title: Director
