EXECUTION COPY
Exhibit 1.1
7,819,362 Shares
AXIS CAPITAL HOLDINGS LIMITED
COMMON SHARES, PAR VALUE $0.0125 PER SHARE
UNDERWRITING AGREEMENT
August 8, 2005
August 8, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The shareholders (the "Selling Shareholders") of AXIS Capital Holdings
Limited, a Bermuda corporation (the "Company"), named in Schedule I hereto,
propose to sell to Xxxxxx Xxxxxxx & Co. Incorporated (the "Underwriter"), an
aggregate of 7,819,362 Common Shares, par value $0.0125 per share, of the
Company (the "Shares"), with each Selling Shareholder selling the amount set
forth opposite such Selling Shareholder's name under "Number of Shares to Be
Sold" in Schedule I hereto. The Common Shares, par value $0.0125 per share of
the Company, including the Shares, are hereinafter referred to as the "Common
Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-118023) on Form S-3, including
a prospectus, relating to the Shares. The registration statement as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"),
is hereinafter referred to as the "Registration Statement"; any preliminary
prospectus relating to the Shares included in the Registration Statement or
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act (the "Securities Act Regulations")
being hereinafter called a "Preliminary Prospectus"; the final prospectus
relating to the Shares in the form filed pursuant to Rule 424(b) under the
Securities Act Regulations being hereinafter referred to as the "Prospectus."
Any reference herein to the Registration Statement, a Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") on or before the effective date of the Registration Statement or the
issue date of such Preliminary Prospectus or the Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the effective date of the Registration Statement,
or the issue date of any Preliminary Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriter and each Selling
Shareholder that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and
(iii) the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein.
(c) Deloitte & Touche, whose report is included in the
Prospectus, is an independent certified public accountant with respect
to the Company and its consolidated subsidiaries within the meaning of
the Securities Act and the rules and regulations adopted by the
Commission thereunder. The financial statements of the Company and its
consolidated subsidiaries (including the related notes and supporting
schedules) included in the Registration Statement and the Prospectus
present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to be
shown thereby at the dates and for the periods indicated and have been
prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the
periods indicated and conform in all material respects with the rules
and regulations adopted by the Commission under the Securities Act;
and the supporting schedules included in the Registration Statement
present fairly in all materials respects the information required to
be stated therein.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing (including as an exempted
company) under the laws of the jurisdiction of its incorporation (good
standing meaning that it has not failed to make any required filing
with any Bermuda governmental authority or to pay any Bermuda
governmental fee or tax which would make it liable to be struck off
the registrar of companies and thereby cease to exist under the laws
of Bermuda), has the corporate power and authority to own, lease and
operate its property and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing or operating of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each of AXIS Specialty Limited, AXIS Specialty Europe
Limited, AXIS Re Limited, AXIS Specialty Insurance Company, AXIS
Reinsurance Company, AXIS Surplus Insurance Company, AXIS Specialty
U.S. Holdings, Inc. and AXIS Specialty Holdings Ireland Limited
(hereafter, the "Designated Subsidiaries") has been duly incorporated,
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation (good standing meaning, with
respect to each of AXIS Specialty Limited, AXIS Specialty Europe
Limited, AXIS Re Limited and AXIS Specialty Holdings Ireland Limited,
that each has not failed to make any required filing with any
government authority of the jurisdiction of its incorporation or to
pay any government fee or tax in its jurisdiction of incorporation
which would make it liable to be struck off the register of companies
and thereby cease to exist under the laws of its jurisdiction of
incorporation), has the corporate power and authority to own, lease
and operate its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in
good standing (good standing meaning, with respect to each of AXIS
Specialty Limited, AXIS Specialty Europe Limited, AXIS Re Limited and
AXIS Specialty Holdings Ireland Limited, that each has not failed to
make any required filing with any government authority of the
jurisdiction of its incorporation or to pay any government fee or tax
in its jurisdiction of incorporation which would make it liable to be
struck off the register of companies and thereby cease to exist under
the laws of its jurisdiction of incorporation) in each jurisdiction in
which the conduct of its business or its ownership or leasing or
operating of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Designated Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable
(non-assessable meaning, with respect to each of AXIS Specialty
Limited, AXIS Specialty Europe Limited, AXIS Re Limited and AXIS
Specialty Holdings Ireland Limited, that no further sums are payable
with respect to the holding of such shares and the member shall not be
bound by an alteration (unless it agrees in writing to such
alteration) in the memorandum of association or the bye-laws or
equivalent organizational documents of such Designated Subsidiary
after the date upon which it became a member if and so far as the
alteration requires such member to take or subscribe for additional
shares or in any way increases its liability to contribute to the
share capital of, or otherwise pay money to, such Designated
Subsidiary) and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities, claims, preemptive
rights or restrictions upon voting or transfer except, in the case of
restrictions on transfer, as described in the Prospectus. Except for
AXIS Specialty U.S. Services, Inc., AXIS Specialty UK Limited, AXIS
Specialty UK Holdings Limited, Combined Specialty Group, Inc. and
Fireman's Fund Insurance Company of Wisconsin each of which is
immaterial and not a "significant subsidiary" of the Company as that
term is defined in Rule 1-02(w) of Regulation S-X of the rules and
regulations of the Commission under the Securities Act, the Designated
Subsidiaries are the only subsidiaries of the Company.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus.
(h) The capitalization of the Company as of December 31, 2004
conforms in all material respects to the description thereof in the
Prospectus. All of the outstanding shares of Common Stock (including
the Shares to be sold by the Selling Shareholders) have been duly
authorized and are validly issued, fully paid and non-assessable and
were not issued in violation of any preemptive or similar rights.
(i) None of the execution and delivery by the Company of, or
the performance by the Company of its obligations under, this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) contravene or result in a breach or violation of, or
constitute a default under, (A) the charter, memorandum of
association, bye-laws or other governing documents of the Company or
any of its subsidiaries, (B) any provision of applicable law or any
regulation, rule, judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary
or any of their respective properties or (C) any agreement, indenture
or other instrument binding upon the Company or any of its
subsidiaries or to which the Company or any of its subsidiaries is a
party or to which any of their respective properties are subject, or
(ii) result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property of the Company or any of its
subsidiaries, except (other than with respect to clause (i)(A)) as
would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Except
for permits, consents, approvals and similar authorizations required
by the securities or "Blue Sky" or insurance laws of certain
jurisdictions in connection with the offer and sale of the Shares and
permits, consents, approvals and authorizations which have been
obtained, no permit, consent, approval, authorization or order of any
court, governmental agency or body or financial institution is
required in connection with the consummation of the transactions
contemplated by this Agreement.
(j) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in
the ordinary course of business; (ii) the Company has not purchased
any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock
other than ordinary and customary dividends; and (iii) there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, except in each
case as described in the Prospectus.
(k) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
would reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the Company and its
subsidiaries, taken as a whole, or that are required to be described
in the Registration Statement or the Prospectus and are not so
described, or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(m) The Company is not, and after giving effect to the
offering and sale of the Shares will not be, required to register as
an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(n) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(o) On the date hereof and upon issuance of the Shares, each
of the Company and its Designated Subsidiaries is and will be solvent
and able to pay its liabilities as they become due.
(p) Each of the Company and its Designated Subsidiaries has
(i) all licenses, certificates, permits, authorizations, approvals,
franchises and other rights from, and has filed all reports, documents
and other information required to be filed pursuant to the applicable
laws of Bermuda, Ireland, the United Kingdom, Switzerland and the
United States (and any State thereof) and all other relevant
jurisdictions as is necessary to engage in the business currently
conducted by it in the manner described in the Prospectus (each, an
"Authorization"), except where the failure, individually or in the
aggregate, to file such report, document or information would not have
a material adverse effect on the Company and its subsidiaries taken as
a whole, (ii) fulfilled and performed all obligations necessary to
maintain each Authorization, except where the failure to fulfill or
perform such obligation, individually or in the aggregate, would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole and (iii) no knowledge of any pending or threatened
action, suit, proceeding or investigation that would reasonably be
expected to result in the revocation, termination, material adverse
modification, material adverse impairment or suspension of any
Authorization. All such Authorizations are valid and in full force and
effect and the Company and the Designated Subsidiaries are in
compliance in all material respects with the terms and conditions of
all such Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect thereto,
except where the failure to comply, individually or in the aggregate,
would not have a material adverse effect on the Company and its
subsidiaries taken as whole. Except as otherwise described in or
contemplated by the Prospectus, the Company has not received any order
or decree from any insurance regulatory agency or body impairing,
restricting or prohibiting the payment of dividends by any Designated
Subsidiary to its parent and has not otherwise agreed to any such
impairment, restriction or prohibition.
(q) Each of the Company and its subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security
Act of 1974 ("ERISA") and the regulations and published
interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its
subsidiaries are eligible to participate and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred
any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to
any such plan under Title IV of ERISA.
(r) The Company has no knowledge of any threatened or pending
downgrading of any of its or its Designated Subsidiaries claims-paying
ability rating by A.M. Best Company, Inc. or Standard & Poor's Ratings
Service, a Division of The XxXxxx-Xxxx Companies, Inc., the only
"nationally recognized statistical rating organizations," as such term
is defined for purposes of Rule 463(g)(2) ability under the Securities
Act, which currently rate the claims-paying ability of the Company or
any of the Designated Subsidiaries.
(s) The Shares have been approved for listing on the New York
Stock Exchange.
(t) The Company and each of the Designated Subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(u) Neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any material patents, patent rights,
licenses, inventions, copyrights, technology, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names currently employed by them in connection with
the business now operated by them, which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a material adverse affect on the Company and its subsidiaries,
taken as a whole.
(v) None of the Company or any of its Designated Subsidiaries
(i) is in violation of its charter, memorandum of association or
bye-laws or articles of association or other governing documents, (ii)
is in default and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any
agreement (including any retrocessional or reinsurance treaty,
contract or arrangement), indenture or other instrument to which it is
a party or by which it is bound or to which any of its properties is
subject, except for any such defaults that would not, individually or
in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or (iii) is in violation of any
insurance law, rule or regulation to which it or its property is
subject, except for any such violations that would not, individually
or in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole. Except as disclosed in the
Prospectus, all retrocessional and reinsurance treaties, contracts and
arrangements to which any of the Company or its subsidiaries are a
party as the reinsured or insured are in full force and effect except
where the failure to be in full force and effect would not,
individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole. None of the
Company or any of its Designated Subsidiaries has received any notice
or otherwise has knowledge that any of the other parties to such
retrocessional and reinsurance treaties, contracts, agreements or
arrangements intends not to perform, or will be unable to perform, in
any material respect such retrocessional or reinsurance treaty,
contract, agreement or arrangement, except where such non-performance
would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(w) None of the Company's subsidiaries is currently
prohibited, directly or indirectly, from paying any dividends to the
Company or from making any other distribution on such subsidiary's
capital stock, except as described in or contemplated by the
Prospectus.
(x) Neither the Underwriter nor any subsequent purchaser of
the Shares (other than any purchaser resident in Bermuda for Bermuda
exchange control purposes) is subject to any stamp duty, excise or
similar tax imposed in Bermuda in connection with the offering, sale
or purchase of the Shares.
(y) There are no currency exchange control laws or
withholding taxes of Bermuda that would be applicable to the payment
of dividends on the Shares by the Company (other than to residents of
Bermuda for Bermuda exchange control purposes).
(z) Any tax returns required to be filed in any jurisdiction
by the Company or any of its subsidiaries other than AXIS Reinsurance
Company, AXIS Surplus Insurance Company, AXIS Specialty Insurance
Company and Fireman's Fund Insurance Company of Wisconsin
(collectively, the "U.S. Insurance Companies") have been accurately
prepared and timely filed and any taxes, including any withholding
taxes, excise taxes, sales taxes, use taxes, penalties and interest,
assessments and fees and other charges due or claimed to be due from
such entities, have been paid, other than any of those being contested
in good faith and for which adequate reserves have been provided or
any of those currently payable without penalty or interest and (ii) to
the Company's knowledge, any tax return required to be filed in any
jurisdiction by any of the U.S. Insurance Companies has been
accurately prepared and timely filed and any taxes, including any
withholding taxes, excise taxes, sales taxes, use taxes, penalties and
interest, assessments and fees and other charges due or claimed to be
due from such entities have been paid, other than any of those being
contested in good faith and for which adequate reserves have been
provided or any of those currently payable without penalty or
interest, in either case except to the extent that the failure to so
file or pay would not result in a material adverse effect on the
Company and its subsidiaries, taken as a whole, and in either case
other than those tax returns that would be required to be filed or
taxes that would be payable by the Company or any of its subsidiaries
if (A) any of them was characterized as a "personal holding company"
as defined in Section 542 of the Code (as defined below), (B) any of
them other than the U.S. Insurance Companies, AXIS Specialty U.S.
Holdings, Inc. or AXIS Specialty U.S. Services, Inc. (collectively the
"U.S. Subsidiaries") was characterized as engaged in a U.S. trade or
business, (C) any of them other than AXIS Specialty UK Limited, AXIS
Specialty UK Holdings Limited, AXIS Specialty Europe Limited or AXIS
Specialty Holdings Ireland Limited (the "U.K./Irish Subsidiaries") was
characterized as resident, managed and controlled or carrying on a
trade through a branch or agency in the United Kingdom or (D) any of
them other than AXIS Specialty Europe Limited, AXIS Re Limited or AXIS
Specialty Holdings Ireland Limited (the "Irish Subsidiaries") was
characterized as resident, managed and controlled or carrying on a
trade through a branch or agency in Ireland. No deficiency assessment
with respect to a proposed adjustment of the Company's or any of its
subsidiaries' taxes is pending or, to the Company's knowledge,
threatened. There is no material tax lien, whether imposed by any
federal, state, or other taxing authority, outstanding against the
assets, properties or business of the Company or any of its
subsidiaries.
(aa) Based upon and subject to the assumptions and
qualifications set forth in the Prospectus under the heading "Material
Tax Considerations," the Company does not believe: (i) that either the
Company or any of its subsidiaries currently should be, or upon the
sale of the Shares herein contemplated should be (A) treated as a
"passive foreign investment company" as defined in Section 1297(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), (B)
characterized as a "personal holding company" as defined in Section
542 of the Code, (C) except for the U.S. Subsidiaries, considered to
be engaged in a trade or business within the United States for
purposes of section 864(b) of the Code, (D) except for the U.K./Irish
Subsidiaries, characterized as resident, managed or controlled or
carrying on a trade through a branch or agency in the United Kingdom
or (E) except for the Irish Subsidiaries, characterized as resident,
managed or controlled or carrying on a trade through a branch or
agency in Ireland; or (ii) that any person who owns shares of the
Company directly or indirectly through foreign entities should be
treated as owning (directly, indirectly through foreign entities or by
attribution pursuant to Section 958(b) of the Code) 10 percent or more
of the total voting power of the Company or any of its foreign
subsidiaries.
(bb) AXIS Specialty Limited, AXIS Re Limited and AXIS
Specialty Europe Limited intend to operate in a manner that is
intended to ensure that the related person insurance income of each of
AXIS Specialty Limited, AXIS Re Limited or AXIS Specialty Europe
Limited does not equal or exceed 20% of each such company's gross
insurance income for any taxable year in the foreseeable future.
2. Representations and Warranties of the Selling Shareholders. The
Selling Shareholders, jointly and severally, represent and warrant to and agree
with the Underwriter and the Company that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(b) Neither the execution and delivery by such Selling
Shareholder of, or the performance by such Selling Shareholder of its
obligations under, this Agreement nor the consummation of the
transactions contemplated hereby or thereby, will (i) contravene or
result in a breach or violation of, or constitute a default under, (A)
the memorandum of association, by-laws or other governing documents of
such Selling Shareholder (if such Selling Shareholder is not a natural
person), (B) any provision of applicable law or any regulation, rule,
judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Shareholder or any of its
properties or (C) any agreement, indenture or other instrument binding
upon such Selling Shareholder or to which such Selling Shareholder is
a party or to which any of its properties are subject, or (ii) result
in the creation or imposition of any lien, charge, claim or
encumbrance upon any property of such Selling Shareholder, except
(other than with respect to clause (i)(A)) as would not, individually
or in the aggregate, have a material adverse effect on the ability of
such Selling Shareholder to consummate the transactions contemplated
hereby and thereby. Except for permits, consents, approvals and
similar authorizations required by the securities or "Blue Sky" or
insurance securities laws of certain jurisdictions in connection with
the offer and sale of the Shares and permits, consents, approvals and
authorizations which have been obtained, no permit, consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation
by such Selling Shareholder of the transactions contemplated by this
Agreement.
(c) Such Selling Shareholder is, and on the Closing Date will
be, the registered holder of a certificated security representing,
and/or has and will have a "security entitlement" within the meaning
of Section 8-102(a)(7) of the New York Uniform Commercial Code (the
"NYUCC") in respect of, the Shares to be sold by such Selling
Shareholder, free and clear of all security interests, claims, liens,
equities or other encumbrances, and such Selling Shareholder's entry
into this Agreement and such Selling Shareholder's sale, transfer and
delivery of the Shares to be sold by such Selling Shareholder have
been duly authorized by all necessary organizational action, if any,
and such Selling Shareholder has the legal right and power to enter
into this Agreement and to sell, transfer and deliver the Shares to be
sold by such Selling Shareholder or a security entitlement in respect
of such Shares. The Shares to be sold by such Selling Shareholder are
not subject to any preemptive or similar rights, and such Selling
Shareholder has all rights in and full power and authority to transfer
such Shares.
(d) Upon delivery in New York of any certificate or
certificates representing the Shares to be sold by such Selling
Shareholder, properly indorsed in blank by an effective indorsement,
to either (i) Cede & Co. ("Cede") or such other nominee as may be
designated by The Depository Trust Company ("DTC") or (ii) the
Underwriter purchasing such Shares, and upon payment for such Shares
as contemplated by this Agreement, Cede (or such other nominee) or the
Underwriter, as the case may be, will acquire all of such Selling
Shareholder's rights in such Shares that such Selling Shareholder has
or has the power to transfer, free of any adverse claim within the
meaning of Section 8-102(a)(1) of the NYUCC, provided that Cede (or
such other nominee) or the Underwriter, as the case may be, has no
notice of any adverse claim (within the meaning of Section 8-105 of
the NYUCC) to such Shares. Assuming the proper execution of an
entitlement order (within the meaning of Section 8-102(a)(8) of the
NYUCC) given by such Selling Shareholder to the securities
intermediary (within the meaning of Section 8-102(a)(14) of the NYUCC)
maintaining the security entitlement for such Selling Shareholder with
respect to the Shares to be sold by such Selling Shareholder, and
assuming that as a result of the execution of such order a security
entitlement with respect to such Shares is properly credited at a
securities intermediary (within the meaning of Section 8-102(a)(14) of
the NYUCC) to the account of the Underwriter purchasing such Shares,
upon payment for such Shares as contemplated by this Agreement, then
no action based on an adverse claim within the meaning of Section
8-102 of the NYUCC may be asserted against the Underwriter with
respect to such security entitlement to the extent that (i) the
Underwriter had no notice of such adverse claim within the meaning of
Section 8-105 of the NYUCC and (ii) the Underwriter is the entitlement
holder (within the meaning of Section 8-102(a)(8) of the NYUCC) with
respect to the securities account to which such security entitlement
is credited.
(e) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the representations and
warranties set forth in this paragraph 2(e) are limited to statements
or omissions made in reliance upon information relating to such
Selling Shareholder furnished to the Company in writing by such
Selling Shareholder expressly for use in the Registration Statement,
the Prospectus or any amendments or supplements thereto.
3. Agreements to Sell and Purchase. (a) Each Selling Shareholder
hereby agrees to sell to the Underwriter, and the Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from such Selling Shareholder
at $29.36 a share (the "Purchase Price") the Shares.
Each Selling Shareholder hereby agrees that, without the prior written
consent of the Underwriter, it will not, during the period ending 45 days after
the date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The restrictions contained in the preceding paragraph shall not apply
to the Shares to be sold hereunder.
(b) The Underwriter represents, warrants and undertakes,
that: (i) it has not offered or sold and, prior to the expiry of a
period of six months from the Closing Date, will not offer or sell any
Shares to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995, as amended; (ii) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000
(the "FSMA")) received by it in connection with the issue or sale of
any Shares in circumstances in which section 21(1) of the FSMA does
not apply; and (iii) it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it
in relation to the Shares in, from or otherwise involving the United
Kingdom.
(c) Each of the Company and the Selling Shareholders
acknowledges and agrees that the Underwriter is acting solely in the
capacity of an arm's length contractual counterparty to the Selling
Shareholders with respect to the offering of Shares contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, the Selling Shareholders or any other person.
Additionally, the Underwriter is not advising the Company, the Selling
Shareholders or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company and
the Selling Shareholders shall consult with their own advisors
concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriter shall have no responsibility
or liability to the Company or the Selling Shareholders with respect
thereto. Any review by the Underwriter of the Company, the
transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the
Underwriter and shall not be on behalf of the Company or the Selling
Shareholders.
4. Offering by the Underwriter. The Underwriter shall offer the Shares
for resale as set forth in the Prospectus.
5. Payment and Delivery. Payment for the Shares to be sold by the
Selling Shareholders shall be made to the Selling Shareholders in Federal or
other funds immediately available in New York City against delivery of the
Shares for the account of the Underwriter at 10:00 a.m., New York City time, on
August 12, 2005, or at such other time on the same or such other date, not
later than August 12, 2005, as shall be designated in writing by you. The time
and date of such payment are hereinafter referred to as the "Closing Date."
The Shares shall be registered in such names and in such denominations
as you shall request in writing not later than one full business day prior to
the Closing Date. The Shares shall be delivered to you on the Closing Date for
your account, with any transfer taxes payable in connection with the transfer
of the Shares to you duly paid by the Selling Shareholders, against payment of
the Purchase Price therefor.
6. Conditions to the Underwriter's Obligations. The obligations of the
Selling Shareholders to sell the Shares to the Underwriter and the obligation
of the Underwriter to purchase and pay for the Shares on the Closing Date are
subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Closing Date, to the accuracy of the
representations and warranties on the part of the Selling Shareholders
contained herein as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
accuracy of the statements of the Selling Shareholders made in any certificates
pursuant to the provisions hereof, to the performance by each of the Company
and the Selling Shareholders of their respective obligations hereunder and to
the following additional conditions.
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's or any Designated
Subsidiary's securities or in the Company's or any Designated
Subsidiary's financial strength or claims paying ability
rating by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
(b) The Underwriter shall have received on the Closing Date
(i) a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date and
(ii) a certificate, dated the Closing Date and signed by or on behalf
of the Selling Shareholders, to the effect that the representations
and warranties of the Selling Shareholders contained in this Agreement
are true and correct as of the Closing Date and that the Selling
Shareholders have complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date. The officer signing and
delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date
an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, outside
counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibit A hereto.
(d) The Underwriter shall have received on the Closing Date
an opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the
Company, dated the Closing Date, substantially to the effect set forth
in Exhibit B hereto.
(e) The Underwriter shall have received on the Closing Date
(i) an opinion of O'Melveny & Xxxxx LLP, special counsel for the
Selling Shareholders, substantially to the effect set forth in Exhibit
C hereto.
(f) The Underwriter shall have received on the Closing Date
opinions of each of Xxxxxxx Xxx and Xxxxxxx Xxx Tax Advisers Limited,
special Irish counsel for the Company, dated the Closing Date,
substantially to the effect set forth in Exhibits D-1 and D-2 hereto.
(g) The Underwriter shall have received on the Closing Date
two opinions of LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., special United
States counsel for the Company, dated the Closing Date, substantially
to the effect set forth in Exhibits E-1 and E-2 hereto.
(h) The Underwriter shall have received on the Closing Date
an opinion of Bar & Xxxxxx, special Swiss counsel for the Company,
dated the Closing Date, substantially to the effect set forth in
Exhibit F hereto.
(i) The Underwriter shall have received on the Closing Date
an opinion of Xxxxx X. Xxxxxx, Esq., General Counsel for the Company,
dated the Closing Date, substantially to the effect set forth in
Exhibit G hereto.
(j) The Underwriter shall have received on the Closing Date
(i) an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriter, and (ii) a letter from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
counsel for the Underwriter, dated the Closing Date, covering the
matters referred to in paragraph 2 and the last paragraph of Exhibit
A.
(k) The Underwriter shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriter, from Deloitte & Touche, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
With respect to Section 6(e) above, counsel to the Selling
Shareholders may rely upon with respect to factual matters and to the extent
such counsel deems appropriate, upon the representations of the Selling
Shareholders contained herein and in other documents and instruments; provided
that copies of any such other documents and instruments shall be delivered to
you and shall be in form and substance satisfactory to your counsel.
The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxxxxx Xxxx
& Xxxxxxx, O'Melveny & Xxxxx LLP, Xxxxxxx Xxx, Xxxxxxx Xxx Tax Advisers
Limited, LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., Bar & Xxxxxx and Xxxxx X.
Xxxxxx, Esq. described in Sections 6(c), 6(d) 6(e), 6(f), 6(g), 6(h) and 6(i)
above shall be rendered to the Underwriter at the request of the Company or the
Selling Shareholders, as the case may be, and shall so state therein.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriter herein contained, the Company covenants with the
Underwriter as follows:
(a) To furnish to you, without charge, one signed copy of the
Registration Statement and all amendments thereto (including exhibits
thereto) and to furnish to you in New York City, without charge, prior
to 10:00 a.m. New York City time on the second business day next
succeeding the date of this Agreement and during the period mentioned
in Section 7(c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriter the Prospectus is required by law to be delivered in
connection with sales by the Underwriter or a dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriter, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriter and to
the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you and to any other
dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request; provided, that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
material taxation or service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending December 31, 2005 that
satisfies the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees
to pay or cause to be paid: (i) the fees, disbursements and expenses of the
counsel for the Company in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and amendments and supplements to any of the
foregoing, excluding all printing costs associated therewith and the mailing
and delivering of copies thereof to the Underwriter and dealers, in the
quantities hereinabove specified, (ii) one half of the fees, disbursements and
expenses of the Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act, (iii) the costs and charges of
any transfer agent, registrar or depository and (iv) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. Whether or
not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Selling Shareholders, jointly and severally, agree
to pay or cause to be paid: (i) the fees, disbursements and expenses of the
counsel for the Selling Shareholders in connection with the registration and
delivery of the Shares under the Securities Act and all printing costs
associated with the Prospectus and amendments and supplements to any of the
foregoing and the mailing and delivering of copies thereof to the Underwriter
and dealers, in the quantities hereinabove specified, (ii) one half of the
fees, disbursements and expenses of the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act,
(iii) all costs and expenses related to the transfer and delivery of the Shares
to the Underwriter, including any transfer or other taxes payable thereon, (iv)
the cost of printing or producing any Blue Sky or Legal Investment memorandum
in connection with the offer and sale of the Shares under state securities laws
and all expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 7(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriter in connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (v) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriter incurred in
connection with the review and qualification of the offering of the Shares by
the National Association of Securities Dealers, Inc. (such fees and
disbursements of counsel, together with fees and disbursements of counsel
pursuant to clause (iii) above, not to exceed $30,000), (vi) the document
production charges and expenses associated with printing this Agreement and
(vii) all other costs and expenses incident to the performance of the
obligations of the Selling Shareholders hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution", the
last paragraph of Section 11 below and Section 14(d), the Underwriter will pay
all of its costs and expenses, including fees and disbursements of its counsel,
stock transfer taxes payable on resale of any of the Shares by it and any
advertising expenses connected with any offers it may make.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless the Underwriter, each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of the Underwriter within
the meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Preliminary Prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless the failure to send
or give such Prospectus is the result of noncompliance by the Company with
Section 7(a) hereof.
(b) The Selling Shareholders agree to indemnify and hold
harmless the Underwriter, each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and each affiliate of the
Underwriter within the meaning of Rule 405 under the Securities Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any
amendment thereof, any Preliminary Prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to any
Selling Shareholder furnished in writing by or on behalf of the
Selling Shareholder, respectively, expressly for use in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendments or supplements thereto; provided, however, that the
foregoing indemnity agreement with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter from whom
the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling the Underwriter, if a copy
of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of the Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless the
failure to send or give such Prospectus is the result of noncompliance
by the Company with Section 7(a) hereof. The liability of any Selling
Shareholder under the indemnity agreement contained in this paragraph
shall be limited to an amount equal to the aggregate Purchase Price of
the Shares sold by such Selling Shareholder under this Agreement. The
indemnification provided in this Section 9(b) as among the Selling
Shareholders shall be joint and several
(c) The Underwriter agrees to indemnify and hold harmless the
Company, the Selling Shareholders, their partners, managing directors,
officers and affiliates, the directors of the Company, the officers of
the Company who sign the Registration Statement and each person, if
any, who controls the Company or the Selling Shareholders within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any Preliminary
Prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto),
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to
information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c),
such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for the Underwriter and all persons, if any, who control the
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act or who are affiliates of the
Underwriter within the meaning of Rule 405 under the Securities Act,
(ii) the fees and expenses of more than one separate firm (in addition
to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either such Section and (iii) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Shareholders and all persons, if any,
who control the Selling Shareholders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the
Underwriter and its control persons and affiliates, such firm shall be
designated in writing by the Underwriter. In the case of any such
separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the
Selling Shareholders and such control persons of the Selling
Shareholders, such firm shall be designated in writing by the Selling
Shareholders. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section
9(a), 9(b) or 9(c) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the sale of the
Shares or (ii) if the allocation provided by clause 9(e)(i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
9(e)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholders on the one hand
and the Underwriter on the other hand in connection with the sale of
the Shares shall be deemed to be in the same respective proportions as
the net proceeds from the sale of the Shares (before deducting
expenses) received by the Company and the Selling Shareholders and the
total discounts and commissions received by the Underwriter in any
resale of the Shares bear to the aggregate offering price of the
Shares in such resale. The relative fault of the Company, the Selling
Shareholders and the Underwriter shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the
Selling Shareholders or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The liability of the Selling
Shareholders under the contribution agreement contained in this
paragraph shall be limited to an amount equal to the aggregate
Purchase Price of the Shares sold by the Selling Shareholders,
respectively, under this Agreement.
(f) The Company, the Selling Shareholders and the Underwriter
agree that it would not be just or equitable if contribution pursuant
to this Section 9 were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 9(e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, 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 Section 9, the
Underwriter shall not be required to contribute any amount in excess
of the amount by which the total price at which the Shares resold by
it exceeds the amount of any damages that the 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other
statements of the Company and the Selling Shareholders contained in
this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Underwriter, any person
controlling the Underwriter or any affiliate of the Underwriter, the
Selling Shareholders or any person controlling the Selling
Shareholders, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Shares.
10. Termination. The Underwriter may terminate this Agreement by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State or Bermuda authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in
financial markets, or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the
terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Default. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
(a) If this Agreement shall be terminated by the Underwriter
because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the
Underwriter for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by the Underwriter
in connection with this Agreement or the offering contemplated
hereunder.
(b) If this Agreement shall be terminated by the Underwriter
because of any failure or refusal on the part of the Selling
Shareholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Selling
Shareholders shall be unable to perform their obligations under the
Agreement, the Selling Shareholders, jointly and severally, will
reimburse the Underwriter for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by
the Underwriter in connection with this Agreement or the offering
contemplated thereby.
12. Successors and Assigns. This Agreement shall be binding upon and
inure solely to the benefit of, the Underwriter, the Company and the Selling
Shareholders, and their respective 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 the Underwriter shall be deemed a successor
or assign solely by reason of such purchase.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
14. Applicable Law; Submission to Jurisdiction; Appointment of Agent
for Service; Judgment Currency.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
(b) The Company and the Selling Shareholders irrevocably
submit to the non-exclusive jurisdiction of any New York State or
United States Federal court sitting in The City of New York over any
suit, action or proceeding arising out of or relating to this
Agreement, the Prospectus, the Registration Statement or the offering
of the Shares. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. To
the extent the Company has or hereafter may acquire any immunity from
the jurisdiction of any court or from any legal process with respect
to itself or its property, it irrevocably waives, to the fullest
extent permitted by law, such immunity in respect of any such suit,
action or proceeding.
(c) The Company and the Selling Shareholders hereby
irrevocably appoint CT Corporation System, with offices at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, as its agent for service of process in any
suit, action or proceeding described in the preceding paragraph. The
Company and the Selling Shareholders agree that service of process in
any such suit, action or proceeding may be made upon it at the office
of their agent. The Company and the Selling Shareholders waive, to the
fullest extent permitted by law, any other requirements of or
objections to personal jurisdiction with respect thereto. The Company
and each Selling Shareholder represent and warrant that its agent has
agreed to act as agent for service of process, and each agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in
full force and effect.
(d) In respect of any judgment or order given or made for any
amount due hereunder that is expressed and paid in currency (the
"judgment currency") other than United States dollars, the party
against whom such judgment or order has been given or made will
indemnify each party in whose favor such judgment or order has been
given or made (the "Indemnitee") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into
the judgment currency for the purpose of such judgment or order and
(ii) the rate of exchange at which the Indemnitee is able to purchase
United States dollars with the amount of the judgment currency
actually received by such Indemnitee. The foregoing indemnity shall
constitute a separate and independent obligation of the Company, the
Selling Shareholders and the Underwriter 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.
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AXIS CAPITAL HOLDINGS LIMITED
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
X.X. XXXXXX PARTNERS (BHCA) L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS (CAYMAN) II, L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS (CAYMAN) III, L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS (CAYMAN) IV, L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS (CAYMAN), L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS GLOBAL
INVESTORS (CAYMAN/SELLDOWN) III,
L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS
(CAYMAN/SELLDOWN) IV, L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS, L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX PARTNERS
GLOBAL INVESTORS A, L.P.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
SCHEDULE I
Number of Shares
Selling Shareholder To Be Sold
------------------- ----------------
X.X. Xxxxxx Partners (BHCA) L.P. 5,792,820
X.X. Xxxxxx Partners Global Investors (Cayman) II, L.P. 55,211
X.X. Xxxxxx Partners Global Investors (Cayman) III, L.P. 563,192
X.X. Xxxxxx Partners Global Investors (Cayman) IV, L.P. 417,789
X.X. Xxxxxx Partners Global Investors (Cayman), L.P. 495,407
X.X. Xxxxxx Partners Global Investors (Cayman/Selldown) III, L.P. 213,967
X.X. Xxxxxx Partners Global Investors (Cayman/Selldown) IV, L.P. 152,834
X.X. Xxxxxx Partners Global Investors, L.P. 29,580
X.X. Xxxxxx Partners Global Investors A, L.P. 98,562
Total 7,819,362
=========
EXHIBIT A
[FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP]
EXHIBIT B
[FORM OF OPINION OF XXXXXXX XXXX & XXXXXXX]
EXHIBIT C
[FORM OF OPINION OF O'MELVENY & XXXXX LLP]
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Selling Shareholders.
2. Assuming that the Underwriter acquires the Shares being sold to it
by the Selling Shareholders pursuant to the Agreement without notice of an
adverse claim thereto, upon (a) the delivery to the Underwriter of such Shares
and (b) the payment therefor in accordance with the terms of the Agreement, the
Underwriter will acquire such Shares free of any adverse claim. For purposes of
this paragraph, the terms "delivery," "control," "adverse claim" and "notice of
an adverse claim" have the respective meanings ascribed thereto in Sections
8-301, 8-106, 8-102(a)(i) and 8-105 of the Uniform Commercial Code in effect in
the State of New York (the "UCC").
3. Each Selling Shareholder has the legal right and power, and all
authorization and approval required by law, to enter into the Underwriting
Agreement and to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder or a security entitlement in respect of such Shares.
4. The sale of the Shares by each Selling Shareholder and the
compliance by each Selling Shareholder with all of the provisions of the
Underwriting Agreement will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument by which the 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 violate the Certificate of
Incorporation or By-laws (or comparable organizational documents) of any
Selling Shareholder.
For matters of Cayman law, an opinion of counsel to the Selling
Shareholders will be obtained in form and substance satisfactory to the
Underwriter.
EXHIBIT D
[FORMS OF OPINIONS OF XXXXXXX XXX AND
XXXXXXX XXX TAX ADVISERS LIMITED]
EXHIBIT E
[FORMS OF OPINIONS OF LEBOEUF, LAMB, XXXXXX & XXXXXX L.L.P.]
EXHIBIT F
[FORM OF OPINION OF BAR & XXXXXX]
EXHIBIT G
[FORM OF OPINION OF XXXXX X. XXXXXX, ESQ.]
