EXHIBIT 1.1
2,700,000 SHARES
(PLUS 405,000 SHARES TO COVER OVER-ALLOTMENTS, IF ANY)
AMERICAN SAFETY INSURANCE GROUP, LTD.
COMMON SHARES, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
----------------------
February, 1998
ADVEST, INC.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇ & ▇▇▇▇▇▇ INCORPORATED
As Representatives (the "Representatives")
of the Several Underwriters
Named in Schedule I hereto
----------
c/o Advest, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
American Safety Insurance Group, Ltd., a Bermuda corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to the several Underwriters named in Schedule I hereto (the "Underwriters") an
----------
aggregate of 2,700,000 shares (the "Firm Shares") of the Company's common
shares, par value $0.01 per share (the "Common Shares"). In addition, in order
to cover over-allotments in the sale of the Firm Shares, the Underwriters may,
at the Underwriters' election and subject to the terms and conditions stated
herein, purchase ratably in proportion to the amounts set forth opposite their
respective names in Schedule I hereto, up to 405,000 additional Common Shares
----------
from the Company (such additional Common Shares, the "Optional Shares"). The
Firm Shares and the Optional Shares are referred to collectively as the
"Shares."
As part of the offering of the 2,700,000 Firm Shares contemplated by this
Agreement, Advest, Inc. ("Advest") has agreed to reserve, out of the Firm Shares
set forth opposite its name on Schedule I hereto, up to 135,000 Shares for sale
----------
to the Company's employees, officers and directors (collectively, the
"Participants"), as set forth in the Prospectus in the section entitled
"Underwriting" (the "Directed Share Program"). The Shares to be sold by Advest
pursuant to the Directed Share Program (the "Directed Shares") will be sold by
Advest pursuant to this Agreement at the public offering price. Any Directed
Shares not orally confirmed for purchase
by any Participants by the end of the first business day after the date on which
this Agreement is executed will be offered to the public by Advest as set forth
in the Prospectus.
The Company, intending to be legally bound, hereby confirms its agreement
with the Underwriters as follows:
1. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-42749) with respect
to the Shares, including a prospectus subject to completion, has been filed by
the Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), and one or more amendments
to such registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (i) if such
registration statement, as it may have been amended, has become effective under
the Act and information has been omitted therefrom in accordance with Rule 430A
under the Act, a prospectus in the form most recently included in an amendment
to such registration statement (or, if no such amendment shall have been filed,
in such registration statement) with such changes or insertions as are required
by Rule 430A or permitted by Rule 424(b) under the Act and as have been provided
to and approved by the Representatives, or (ii) if such registration statement,
as it may have been amended, has not become effective under the Act, an
amendment to such registration statement, including a form of prospectus, a copy
of which amendment has been provided to and approved by the Representatives
prior to the execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at the
time when it was or is declared effective, together with any registration
statement filed by the Company pursuant to Rule 462(b) under the Act, including
(A) all financial statements, schedules and exhibits thereto, (B) all documents
(or portions thereof) incorporated by reference therein and (C) any information
omitted therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined); the term "Preliminary Prospectus" means
each prospectus subject to completion included in such registration statement or
any amendment or post-effective amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement at the
time it was or is declared effective), including all documents (or portions
thereof) incorporated by reference therein; and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under the Act
or, if no prospectus is required to be so filed, such term means the prospectus
included in the Registration Statement, in either case, including all documents
(or portions thereof) incorporated by reference therein. As used herein, any
reference to any statement or information as being "made," "included,"
"contained," "disclosed" or "set forth" in any Preliminary Prospectus, a
Prospectus or any amendment or supplement thereto, or the Registration Statement
or any amendment thereto (or other similar references) shall refer both to
information and statements actually appearing in such document as well as
information and statements incorporated by reference therein.
(b) No order preventing or suspending the use of any Preliminary Prospectus
has been issued and no proceeding for that purpose has been instituted or
threatened
-2-
by the Commission or the securities authority of any state or other
jurisdiction. If the Registration Statement has become effective under the Act,
no stop order suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceeding for that purpose has been
instituted or threatened or, to the knowledge of the Company, contemplated by
the Commission or the securities authority of any state or other jurisdiction.
(c) When any Preliminary Prospectus was filed with the Commission it
contained all statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder. When the Registration
Statement or any amendment thereto was or is declared effective, and at each
Time of Delivery (as hereinafter defined), it (i) contained and will contain all
statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (ii) did not and will not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading. When the
Prospectus or any amendment or supplement thereto is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus or such amendment or supplement
is not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective) and at each Time of Delivery, the Prospectus, as amended or
supplemented at any such time, (i) contained and will contain all statements
required to be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not and will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (c) do not apply to statements or omissions made in
the Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you specifically
for use therein. It is understood that the statements set forth in the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto (X) in the last paragraph of the cover page of
the Prospectus, (Y) on the inside cover page with respect to stabilization
transactions, and (Z) in the third, fourth, eighth and ninth paragraphs and the
list of Underwriters under the section entitled "Underwriting," constitute the
only written information furnished to the Company by or on behalf of any
Underwriter through you specifically for use in the Registration Statement or
any amendment thereto or the Prospectus and any amendment or supplement thereto,
as the case may be.
(d) There are no legal or governmental proceedings pending or to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
listed on Exhibit A hereto is a party or to which any of the properties of the
Company or any subsidiary is subject 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.
-3-
(e) Each of the Company and its subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and corporate
authority to own or lease its properties and conduct its business as described
in the Prospectus. The Company has full power and authority (corporate and
other) to enter into this Agreement and to perform its obligations hereunder.
Each of the Company and its Bermuda subsidiaries owns or leases no properties
outside of Bermuda and conducts no business outside of Bermuda. Each of the
Company's United States subsidiaries is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of each jurisdiction,
other than its jurisdiction of incorporation, in which it owns or leases
properties, or conducts any business, so as to require such qualification,
except where the failure to so qualify would not have a material adverse effect
on the financial position, results of operations or business of the Company and
its subsidiaries taken as a whole.
(f) The Company's authorized, issued and outstanding capital stock is as
disclosed in the Prospectus. All of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the descriptions of the Common Shares contained in
the Prospectus. None of the issued shares of capital stock of the Company or
any of its subsidiaries has been issued or is owned or held in violation of any
statutory (or to the knowledge of the Company, any other) preemptive rights of
shareholders, and no person or entity (including any holder of outstanding
shares of capital stock of the Company or its subsidiaries) has any statutory
(or to the knowledge of the Company, any other) preemptive or other rights to
subscribe for any of the Shares. None of the capital stock of the Company has
been issued in violation of applicable federal or state securities laws.
(g) All of the issued shares of capital stock of each subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned beneficially by the Company or one of its subsidiaries, free and clear of
all liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting agreements, proxies, voting trusts, equities or
claims of any nature whatsoever. Other than the subsidiaries listed on Exhibit
21 to the Registration Statement and on Exhibit A hereto and the equity
securities held in the investment portfolios of the Company and such
subsidiaries (the composition of which is not materially different than the
disclosures in the Prospectus as of specific dates), the Company does not own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association.
(h) Except as disclosed in the Prospectus, there are no outstanding (i)
securities or obligations of the Company or any of its subsidiaries convertible
into or exchangeable for any capital stock of the Company or any of its
subsidiaries, (ii) warrants, rights or options to subscribe for or purchase from
the Company or any of its subsidiaries any such capital stock or any such
convertible or exchangeable securities or obligations or (iii) obligations of
the Company or any of its subsidiaries to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(i) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) neither the Company nor any of
its subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course of
-4-
business, that are material to the Company and its subsidiaries, (ii) the
Company has not purchased any of its outstanding capital stock or declared, paid
or otherwise made any dividend or distribution of any kind on its capital stock,
(iii) there has not been any change in the capital stock, long-term debt or
short-term debt of the Company or any of its subsidiaries and (iv) there has not
been any material adverse change, or any development involving a prospective
material adverse change, in or affecting the financial position, results of
operations or business of the Company and its subsidiaries, in each case other
than as disclosed in or contemplated by the Prospectus.
(j) 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 Act with respect to any securities of
the Company owned or to be owned by such person, requiring the Company to
include such securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
requiring the registration of any securities pursuant to any other registration
statement filed by the Company under the Act. Neither the filing of the
Registration Statement nor the offering or sale of Shares as contemplated by
this Agreement gives any security holder of the Company any rights for or
relating to the registration of any Common Shares or any other capital stock of
the Company, except such as have been satisfied or waived.
(k) Neither the Company nor any of its subsidiaries is, or with the giving
of notice or passage of time or both would be, in violation of its charter or
bylaws or in default under any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or to which any of their respective properties or
assets are subject, except for such violations or defaults which, individually
or in the aggregate, would not have a material adverse effect on the financial
position, results of operations or business of the Company or its subsidiaries
taken as a whole.
(l) The Company and its subsidiaries have good and marketable title in fee
simple to all real property, if any, and good title to all personal property
owned by them, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except such as are
disclosed in the Prospectus or such as would not have a material adverse effect
on the financial position, results of operations or business of the Company and
its subsidiaries taken as a whole and do not interfere with the use made or
proposed to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company or any of its
subsidiaries are held under valid, subsisting and enforceable leases, with such
exceptions as are disclosed in the Prospectus or are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or any subsidiary.
(m) The Company does not require any consent, approval, authorization,
order or declaration of or from, or registration, qualification or filing with,
any court or governmental or regulatory agency or body in connection with the
sale of the Shares or the consummation of the transactions contemplated by this
Agreement, except the registration of
-5-
the Shares under the Act (which, if the Registration Statement is not effective
as of the time of execution hereof, shall be obtained as provided in this
Agreement) and of the Common Shares under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or under state securities
or blue sky laws in connection with the offer, sale and distribution of the
Shares by the Underwriters.
(n) Other than as disclosed in the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation (including
without limitation, any insurance regulatory proceeding) pending or, to the
Company's knowledge, threatened in which the Company or any of its subsidiaries
is a party or of which any of their respective properties or assets are the
subject which, if determined adversely to the Company or any subsidiary, would
individually or in the aggregate have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole. Neither the Company nor any subsidiary is in violation of, or
in default with respect to, any law, statute, rule, regulation, order, judgment
or decree, except as described in the Prospectus or such as do not and will not
individually or in the aggregate have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole, and neither the Company nor any subsidiary is required to take
any action in order to avoid any such violation or default.
(o) KPMG Peat Marwick LLP, which has certified certain financial statements
of the Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus, are independent certified public accountants as
required by the Act, the Exchange Act and the respective rules and regulations
of the Commission thereunder.
(p) The consolidated financial statements and schedules (including the
related notes) of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, the Prospectus and/or
any Preliminary Prospectus were prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved and
fairly present the financial position and results of operations of the Company
and its subsidiaries, on a consolidated basis, at the dates and for the periods
presented. The selected financial data set forth under the captions "Prospectus
Summary - Summary Consolidated Financial Data," "Selected Consolidated Financial
Data" and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in the Prospectus fairly present, on the basis stated in
the Prospectus, the information included therein and have been compiled on a
basis consistent with that of the audited financial statements included in the
Registration Statement. The supporting notes and schedules included in the
Registration Statement, the Prospectus and any Preliminary Prospectus fairly
state in all material respects the information required to be stated therein in
relation to the financial statements taken as a whole. Any unaudited interim
consolidated financial statements included or incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Rule 10-01 of Regulation S-X under the
Act.
-6-
(q) This Agreement has been duly authorized, executed and delivered by the
Company.
(r) The sale of the Shares and the performance of this Agreement and the
consummation of the transactions herein contemplated will not (with or without
the giving of notice or the passage of time or both) (i) conflict with or
violate any term or provision of the charter or bylaws or other organizational
documents of the Company or any subsidiary, (ii) result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any subsidiary is a party or to which any of
their respective properties or assets is subject, (iii) conflict with or violate
any law, statute, rule or regulation or any order, judgment or decree of any
court or governmental agency or body having jurisdiction over the Company or any
subsidiary or any of their respective properties or assets, or (iv) result in a
breach, termination or lapse of the corporate power and authority of the Company
or any subsidiary to own or lease and operate their respective assets and
properties and conduct their respective business as described in the Prospectus.
(s) When the Shares to be sold by the Company hereunder have been duly
delivered against payment therefor as contemplated by this Agreement, the Shares
will be validly issued, fully paid and nonassessable, and the holders thereof
will not be subject to personal liability solely by reason of being such
holders. The certificates representing the Shares are in proper legal form
under, and conform in all respects to the requirements of, the laws of Bermuda
and the requirements of the Nasdaq National Market.
(t) The Company has not distributed and will not distribute any offering
material in connection with the offering and sale of the Shares other than the
Registration Statement, a Preliminary Prospectus, the Prospectus and other
material, if any, permitted by the Act.
(u) Neither the Company nor any of its officers, directors or affiliates
has (i) taken, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (B) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company.
(v) The operations of the Company and its subsidiaries with respect to any
real property currently leased or owned or by any means controlled by the
Company or any
-7-
subsidiary (the "Real Property") are in compliance in all material respects with
all federal, state, and local laws, ordinances, rules, and regulations relating
to occupational health and safety and the environment (collectively, "Laws"),
and the Company and its subsidiaries have not violated any Laws in a way which
would have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole.
Except as disclosed in the Prospectus, there is no pending or, to the Company's
knowledge, threatened claim, litigation or any administrative agency proceeding,
nor has the Company or any subsidiary received any written or oral notice from
any governmental entity or third party, that: (i) alleges a violation of any
Laws by the Company or any subsidiary or (ii) alleges the Company or any
subsidiary is a liable party under the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. (S) 9601 et seq. or any state
------
superfund law.
(w) Neither the Company nor any subsidiary owns or has the right to use
patents, patent applications, trademarks, trademark applications, trade names,
service marks, copyrights, franchises, trade secrets, proprietary or other
confidential information and intangible properties and assets (collectively,
"Intangibles"), the loss of any of which would have a material adverse effect on
the financial position, results of operations or business of the Company and its
subsidiaries taken as a whole; and, to the best knowledge of the Company,
neither the Company nor any subsidiary has infringed or is infringing, and
neither the Company nor any subsidiary has received notice of infringement with
respect to, asserted Intangibles of others.
(x) Each of the Company and its subsidiaries makes and keeps accurate books
and records reflecting its assets and maintains internal accounting controls
which provide reasonable assurance that (i) transactions are executed in
accordance with management's authorization, (ii) transactions are recorded as
necessary to permit preparation of the Company's consolidated financial
statements in accordance with generally accepted accounting principles and to
maintain accountability for the assets of the Company, (iii) access to the
assets of the Company and each of its subsidiaries is permitted only in
accordance with management's authorization, and (iv) the recorded accountability
for assets of the Company and each of its subsidiaries is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
(y) The Company and its subsidiaries have filed all foreign, federal, state
and local tax returns that are required to be filed by them and have paid all
taxes shown as due on such returns as well as all other taxes, assessments and
governmental charges that are due and payable; and no material deficiency with
respect to any such return has been assessed or proposed.
(z) Except for such plans that are expressly disclosed in the Prospectus,
the Company and its subsidiaries do not maintain, contribute to or have any
material liability with respect to any employee benefit plan, profit sharing
plan, employee pension benefit plan, employee welfare benefit plan, equity-based
plan or deferred compensation plan or arrangement ("Plans") that are subject to
the provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations thereunder ("ERISA"). All Plans are in
compliance in all material respects with all applicable laws, including but not
limited to
-8-
ERISA and the Internal Revenue Code of 1986, as amended (the "Code"), and have
been operated and administered in all material respects in accordance with their
terms. No Plan is a defined benefit plan or multi-employer plan. The Company
does not provide retiree life and/or retiree health benefits or coverage for any
employee or any beneficiary of any employee after such employee's termination of
employment, except as required by Section 4980B of the Code or under a Plan
which is intended to be "qualified" under Section 401(a) of the Code. No
material liability has been, or could reasonably be expected to be, incurred
under Title IV of ERISA or Section 412 of the Code by any entity required to be
aggregated with the Company or any of the subsidiaries pursuant to Section
4001(b) of ERISA and/or Section 414(b) or (c) of the Code (and the regulations
promulgated thereunder) with respect to any "employee pension benefit plan"
which is not a Plan. As used in this subsection, the terms "defined benefit
plan," "employee benefit plan," "employee pension benefit plan," "employee
welfare benefit plan" and "multiemployer plan" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
(aa) No labor dispute exists with the Company's or any subsidiary's
employees, and no such labor dispute is threatened. The Company has no
knowledge of any existing or threatened labor disturbance by the employees of
any of its principal agents, suppliers, contractors or customers that would have
a material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole.
(bb) The Company and its subsidiaries have received all permits, licenses,
franchises, authorizations, registrations, qualifications and approvals
(collectively, "Permits") of governmental or regulatory authorities (including,
without limitation, state and other insurance regulatory authorities) as may be
required of them to own their properties and conduct their businesses in the
manner described in the Prospectus, subject to such qualifications as may be set
forth in the Prospectus; and the Company and its subsidiaries have fulfilled and
performed all of their material obligations with respect to such Permits, and no
event has occurred which allows or, after notice or lapse of time or both, would
allow revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permit, subject in each case
to such qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, such Permits contain no restrictions that
materially affect the ability of the Company and its subsidiaries to conduct
their businesses. No insurance regulatory agency or body has issued to the
Company or any of its subsidiaries any order or decree impairing, restricting or
prohibiting the payment of dividends by any of the Company's subsidiaries to the
Company.
(cc) The Company and each of its subsidiaries has filed, or has had filed
on its behalf, on a timely basis, all materials, reports, documents and
information, including but not limited to annual reports and reports of
examination with each applicable insurance regulatory authority, board or
agency, which are required to be filed by it, except where the failure to have
timely filed such materials, reports, documents and information would not have a
material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole.
-9-
(dd) Neither the Company, nor any subsidiary is an "investment company" or
a company "controlled" by an investment company as such terms are defined in
Sections 3(a) and 2(a)(9), respectively, of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), and, if the Company or any subsidiary
conducts its business as set forth in the Registration Statement and the
Prospectus (including the application of the net proceeds of the public offering
as described under the section entitled "Underwriting" in the Registration
Statement and the Prospectus), will not become an "investment company" and will
not be required to register under the Investment Company Act.
(ee) All persons who are eligible to participate in the Directed Share
Program are United States residents.
(ff) The Company has not offered, or caused the Underwriters to offer,
Shares to any person pursuant to the Directed Share Program with the specific
intent to unlawfully influence (i) a customer or supplier of the Company to
alter the customer's or supplier's level or type of business with the Company,
or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
(gg) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
of the Company deems prudent and in the best interests of the Company and its
shareholders; and the Company has no reason to believe that it will not be able
to renew its existing coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a comparable cost.
(hh) Each of the Company and its subsidiaries hold all licenses,
certificates and permits from insurance departments and all other governmental
authorities (collectively, the "Insurance Licenses") necessary or desirable to
conduct its business as presently conducted or as the Company presently
contemplates it will conduct its business in the future. Each of the Company
and its subsidiaries has fulfilled and performed all material obligations
necessary to maintain its Insurance Licenses, and no event or events have
occurred which would result in the impairment, modification, termination or
revocation of such Insurance Licenses. Each of the Company and its subsidiaries
has filed all material reports, registrations and statements, together with any
amendments required to be made with respect thereto, that they were required to
file with any insurance commission, agency or authority. As of their respective
dates, such reports, registration and statements complied in all material
respects with all the laws, statutes, rules and regulations of each such
jurisdiction, including, without limitation, those rules and regulations
promulgated by the applicable insurance commission, agency or authority in any
such state.
(ii) Except as set forth in the Prospectus, no loss experience has occurred
that would require or make it necessary or appropriate for the Company or its
subsidiaries to change, alter, modify or amend the Company's or its
subsidiaries' methodology or assumptions relating to losses. Each reserve
established or reflected in the most recent consolidated balance sheet included
in the Registration Statement and the Prospectus was determined in accordance
with generally accepted actuarial standards, was based on actuarial assumptions
that were in accordance with those called for in relevant policy and contract
provisions, is fairly stated in accordance with sound actuarial principles and
is in compliance with all applicable insurance regulatory requirements.
-10-
(jj) All reinsurance treaties, contracts, agreements, and arrangements to
which the Company or any of its subsidiaries is a party and as to which any of
them reported recoverables, premiums due or other amounts in its financial
statements are in full force and effect, and neither the Company nor any of its
subsidiaries is in violation of, or in default in the performance, observance or
fulfillment of, any material obligation, agreement, covenant or condition
contained therein, which violation or default would, singularly or in the
aggregate, have a material adverse effect on the financial condition, results of
operations or business of the Company and its subsidiaries taken as a whole.
Neither the Company nor any of its subsidiaries has any reason to believe that
any other party to such treaties, contracts, agreements or arrangements will not
or cannot perform in any material respect its duties or obligations under such
treaty, contract, agreement, or arrangement, except where the failure to perform
would not have a material adverse effect on the financial condition, results of
operations or business of the Company and its subsidiaries taken as a whole.
2. Purchase and Sale of Shares.
---------------------------
(a) Subject to the terms and conditions herein set forth, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
________ Dollars and ________ Cents ($_____) per share (the "Per Share Price"),
the number of Firm Shares (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Firm Shares to be sold
by the Company as set forth in the first paragraph of this Agreement by a
fraction, the numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto, and the denominator of which is the aggregate number of
----------
Firm Shares to be purchased by the several Underwriters hereunder.
(b) The Company hereby grants to the Underwriters the right to purchase at
their election in whole or in part from time to time up to 405,000 Optional
Shares, at the Per Share Price, for the sole purpose of covering over-allotments
in the sale of the Firm Shares. Any such election to purchase Optional Shares
may be exercised by written notice from the Representatives to the Company,
given from time to time within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
hereinafter defined) or, unless the Representatives otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
In the event the Underwriters elect to purchase all or a portion of the Optional
Shares, the Company agrees to furnish or cause to be furnished to the
Representatives the certificates, letters and opinions, and to satisfy all
conditions, set forth in Section 7 hereof at each Subsequent Time of Delivery
(as hereinafter defined).
-11-
(c) In making this Agreement, each Underwriter is contracting severally and
not jointly, and except as provided in Sections 2(b) and 9 hereof, the agreement
of each Underwriter is to purchase only that number of shares specified with
respect to that Underwriter in Schedule I hereto. No Underwriter shall be under
----------
any obligation to purchase any Optional Shares prior to an exercise of the
option with respect to such Shares granted pursuant to Section 2(b) hereof.
3. Offering by the Underwriters. Upon the authorization by the
----------------------------
Representatives of the release of the Shares, the several Underwriters propose
to offer the Shares for sale upon the terms and conditions disclosed in the
Prospectus.
4. Delivery of Shares; Closing. Certificates in definitive form for the
---------------------------
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as the Representatives may request upon at least 48
hours' prior notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter on its behalf of the purchase price therefor by wire
transfer of immediately available funds to such accounts as the Company shall
designate in writing. The closing of the sale and purchase of the Shares shall
be held at the offices of ▇▇▇▇▇▇ & Bird LLP, One Atlantic Center, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, except that physical delivery of such
certificates shall be made at the office of The Depository Trust Company, ▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The time and date of such
delivery and payment shall be, with respect to the Firm Shares, at 10:00 a.m.,
New York, New York time, on the third (or if the Firm Shares are priced, as
contemplated by Rule 15c6-1(c) of the Commission, after 4:30 p.m., Washington,
D.C. time, the fourth) full business day after this Agreement is executed or at
such other time and date as the Representatives and the Company may agree upon
in writing, and, with respect to the Optional Shares, at 10:00 a.m., New York,
New York time, on the date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
all or part of such Optional Shares, or at such other time and date as the
Representatives and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "First Time of Delivery,"
such time and date for delivery of any Optional Shares, if not the First Time of
Delivery, is herein called a "Subsequent Time of Delivery," and each such time
and date for delivery is herein called a "Time of Delivery." The Company will
make such certificates available for checking and packaging at least 24 hours
prior to each Time of Delivery at the office of The Depository Trust Company, ▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other location specified
by you in writing at least 48 hours prior to such Time of Delivery.
5. Covenants of the Company. The Company covenants and agrees with each
------------------------
of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective prior to the execution and delivery of this
Agreement, to become
-12-
effective. The Company will comply with the provisions of and make all
requisite filings with the Commission pursuant to Rules 424, 430A, 434 and
462(b), if relied upon by the Company, and will notify you promptly in writing
of all such filings. The Company will file timely all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act.
(b) The Company will not file with the Commission the Prospectus or the
amendment referred to in Section 1(a) hereof, any amendment or supplement to the
Prospectus or any amendment to the Registration Statement unless you have
received a reasonable period of time to review any such proposed amendment or
supplement and consented to the filing thereof and will use its best efforts to
cause any such amendment to the Registration Statement to be declared effective
as promptly as possible. Upon the request of the Representatives or counsel for
the Underwriters, the Company will promptly prepare and file with the
Commission, in accordance with the rules and regulations of the Commission, any
amendments to the Registration Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in connection with the
distribution of the Shares by the several Underwriters and will use its best
efforts to cause any such amendment to the Registration Statement to be declared
effective as promptly as possible. If required, the Company will file any
amendment or supplement to the Prospectus with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. The Company will
advise the Representatives, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement thereto has
been filed and will provide evidence to the Representatives of each such filing
or effectiveness.
(c) The Company will advise the Representatives promptly after receiving
notice or obtaining knowledge of (i) when any post-effective amendment to the
Registration Statement is filed with the Commission, (ii) the receipt of any
comments from the Commission concerning the Registration Statement, (iii) when
any post-effective amendment to the Registration Statement becomes effective, or
when any supplement to the Prospectus or any amended Prospectus has been filed,
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (v) the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose or (vi) any request made by
the Commission or any securities authority of any other jurisdiction for
amending the Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order or suspension and, if any such
stop order or suspension is issued, to obtain the withdrawal thereof as promptly
as possible.
(d) If the delivery of a prospectus relating to the Shares is required
under the Act at any time prior to the expiration of nine months after the date
of the Prospectus and if at such time any events have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any
-13-
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
reason it is necessary during such same period to amend or supplement the
Prospectus, the Company will promptly notify the Representatives and upon their
request (but at the Company's expense) prepare and file with the Commission an
amendment or supplement to the Prospectus that corrects such statement or
omission or effects such compliance and will furnish without charge to each
Underwriter and to any dealer in securities as many copies of such amended or
supplemented Prospectus as the Representatives may from time to time reasonably
request.
(e) The Company promptly from time to time will take such action as the
Representatives may reasonably request to qualify the Shares for offering and
sale under the securities or blue sky laws of such jurisdictions as the
Representatives may request and will continue such qualifications in effect for
as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above provided.
(f) The Company will promptly provide the Representatives, without charge,
(i) four manually executed copies of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including all exhibits
and all documents or information incorporated by reference therein, (ii) for
each other Underwriter, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto, without exhibits but including
all documents or information incorporated by reference therein, and (iii) so
long as a prospectus relating to the Shares is required to be delivered under
the Act, as many copies of each Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto as the Representatives may reasonably request.
(g) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its security
holders an earnings statement of the Company and its subsidiaries, if any,
covering a period of at least 12 months beginning after the effective date of
the Registration Statement (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder. "Availability Date"
means the 45th day after the end of the fourth fiscal quarter following the
fiscal quarter in which the Registration Statement went effective, except that
if such fourth fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(h) During the period beginning on the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, the Company will
not, and will cause its officers and directors not to, without the prior written
consent of the Representatives (which consent shall not be unreasonably
withheld), (i) sell, offer to sell, solicit an offer to buy, contract to sell,
encumber, distribute, pledge, grant any option for the sale of, or otherwise
transfer or dispose of, directly or indirectly, in one or a series of
transactions, any Common Shares or any securities that are substantially similar
to, convertible or exercisable into or
-14-
exchangeable for Common Shares or (ii) enter into any swap or other agreement or
any transaction that transfers, in whole or in part, the economic consequences
of ownership of Common Shares whether any such swap or other agreement is to be
settled by delivery of Common Shares, other securities, cash or otherwise;
except for the sale of the Shares hereunder and except for the grant to
employees, in the ordinary course of business, of stock options to purchase
Common Shares which are not exercisable within such 180 days.
(i) During the period of three years after the effective date of the
Registration Statement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, without charge, (i) copies of
all reports or other communications (financial or other) furnished to
shareholders and (ii) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission, the NASD or any
national securities exchange.
(j) Prior to the termination of the underwriting syndicate contemplated by
this Agreement, neither the Company nor any of its officers, directors or
affiliates will (i) take, directly or indirectly, any action designed to cause
or to result in, or that might reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of the Company or
(ii) sell, bid for, purchase or pay anyone any compensation for soliciting
purchases of, the Shares.
(k) In case of any event, at any time within the period during which a
prospectus is required to be delivered under the Act, as a result of which any
Preliminary Prospectus or the Prospectus, as then amended or supplemented, would
contain an untrue statement of a material fact, or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, if it is necessary
at any time to amend any Preliminary Prospectus or the Prospectus to comply with
the Act or any applicable securities or blue sky laws, the Company promptly will
prepare and file with the Commission, and any applicable state securities
commission, an amendment, supplement or document that will correct such
statement or omission or effect such compliance and will furnish to the several
Underwriters such number of copies of such amendment(s), supplement(s) or
document(s) as the Representatives may reasonably request. For purposes of this
subsection (k), the Company will provide such information to the
Representatives, the Underwriters' counsel and counsel to the Company as shall
be necessary to enable such persons to consult with the Company with respect to
the need to amend or supplement the Registration Statement, any Preliminary
Prospectus or the Prospectus or file any document, and shall furnish to the
Representatives and the Underwriters' counsel such further information as each
may from time to time reasonably request.
(l) The Company will use its best efforts to obtain, and thereafter
maintain, the listing of the Common Shares (including, without limitation, the
Shares) on the Nasdaq National Market.
(m) The Company will apply the net proceeds of the offering in the manner
set forth under "Use of Proceeds" in the Prospectus.
(n) In connection with the Directed Share Program, the Company will ensure
that the Directed Shares will be restricted, to the extent required by the NASD
or the NASD rules and regulations, including but not limited to the "Free-Riding
and Withholding" Interpretation, from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Advest will notify the Company as
to which Participants will need to be so restricted. At the request of Advest,
the Company will direct the transfer agent to place stop transfer restrictions
upon such securities for such period of time.
-15-
6. Expenses.
--------
The Company will pay all costs and expenses incident to the performance of
the obligations of the Company under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including, without limitation, all costs and
expenses incident to (i) the printing of and mailing expenses associated with
the Registration Statement, the Preliminary Prospectus and the Prospectus and
any amendments or supplements thereto, this Agreement, the Agreement among
Underwriters, the Underwriters' Questionnaire submitted to each of the
Underwriters by the Representatives in connection herewith, the power of
attorney executed by each of the Underwriters in favor of Advest, Inc. in
connection herewith, the Dealer Agreement and related documents (collectively,
the "Underwriting Documents") and the preliminary Blue Sky memorandum relating
to the offering prepared by ▇▇▇▇▇▇ & Bird LLP, counsel to the Underwriters
(collectively with any supplement thereto, the "Preliminary Blue Sky
Memorandum"); (ii) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the Act
and all other expenses in connection with the preparation and, if applicable,
filing of the Registration Statement (including all amendments thereto), any
Preliminary Prospectus, the Prospectus and any amendments and supplements
thereto, the Underwriting Documents and the Preliminary Blue Sky Memorandum;
(iii) the delivery of copies of the foregoing documents to the Underwriters;
(iv) the filing fees of the Commission and the NASD relating to the Shares and
the fees and disbursements of counsel for the Underwriters in connection with
filings with the NASD; (v) the qualification of the Shares for offering and sale
under state securities and blue sky laws, including the fees and disbursements
of counsel for the Underwriters (and local counsel therefor) relating thereto;
provided, however, that the aggregate fees of counsel for the Underwriters with
regard to the matters set forth in clause (iv) and this clause (v) shall not
exceed $7,500; (vi) the preparation, issuance and delivery to the Underwriters
of any certificates evidencing the Shares, including transfer agent's and
registrar's fees; (vii) any listing of the Shares on the Nasdaq National Market;
(viii) any expenses for travel, lodging and meals incurred by the Company and
any of its officers, directors and employees in connection with any meetings
with prospective investors in the Shares; (ix) the costs of advertising the
offering, including, without limitation, with respect to the placement of
"tombstone" advertisements in publications selected by the Representatives; (x)
all other costs and expenses reasonably incident to the performance of the
Company's obligations hereunder that are not otherwise specifically provided for
in this Section 6; and (xi) any fees and disbursements incurred by counsel for
the Underwriters and all stamp duties, similar taxes or duties or
other taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
-16-
7. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Company contained herein as of the
date hereof and as of such Time of Delivery, to the accuracy of the statements
of the Company's officers made pursuant to the provisions hereof, to the
performance by the Company of its covenants and agreements hereunder, and to the
following additional conditions precedent:
(a) If the registration statement as amended to date has not become
effective prior to the execution of this Agreement, such registration statement
shall have been declared effective not later than 11:00 a.m., Hartford,
Connecticut time, on the date of this Agreement or such later date and/or time
as shall have been consented to by you in writing. All filings required by
Rules 424, 430A, 434 and 462(b), if relied upon by the Company, shall have been
made; no stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted, threatened or, to the knowledge of the Company and
the Representatives, contemplated by the Commission; the NASD, upon review of
the terms of the public offering of the Shares, shall not have objected thereto
or to the Underwriters' participation in the public offering; and all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction.
(b) The Representatives shall have received a copy of an executed lock-up
agreement from each of the Company's officers, directors and holders of Common
Shares.
(c) You shall have received an opinion, dated such Time of Delivery, of
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the Company, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Bermuda and has the corporate
power and corporate authority to own or lease its properties and conduct its
business as described in the Registration Statement and the Prospectus and to
enter into this Agreement and perform its obligations hereunder.
(ii) Each of the Company's subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and corporate
authority to own or lease its properties and conduct its business as described
in the Registration Statement and the Prospectus. Each of the Company's United
States subsidiaries is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of each jurisdiction, other
than its jurisdiction of incorporation, in which it owns or leases property, or
conducts any business, so as to require such qualification, except where the
failure to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole.
-17-
(iii) The Company's authorized, issued and outstanding capital stock is as
disclosed in the Prospectus. All of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description of the Common Shares contained in
the Prospectus. None of the issued Common Shares of the Company or capital
stock of any of its subsidiaries has been issued or is owned or held in
violation of any statutory (or any other) preemptive rights of shareholders, and
no person or entity (including any holder of outstanding Common Shares of the
Company or capital stock of its subsidiaries) has any statutory (or any other)
preemptive or other rights to subscribe for any of the Shares.
(iv) All of the issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned beneficially by the Company or its subsidiaries,
free and clear of all liens, security interests, pledges, charges, encumbrances,
shareholders' agreements, voting agreements, proxies, voting trusts, defects,
equities or claims of any nature whatsoever (collectively, "Encumbrances"),
including, without limitation, any Encumbrance arising or resulting from any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement of
or entered into by the Company or its subsidiaries. Other than the subsidiaries
listed on Exhibit 21 to the Registration Statement and on Exhibit A hereto and
the equity securities held in the investment portfolios of the Company and such
subsidiaries, the Company does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any ownership
interest in any partnership, joint venture or other association.
(v) Except as disclosed in the Prospectus, there are no outstanding (A)
securities or obligations of the Company or any of its subsidiaries convertible
into or exchangeable for any capital stock of the Company or any subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the Company or any
of its subsidiaries any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the Company or any
of its subsidiaries to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants, rights or
options.
(vi) When the Shares to be sold by the Company have been delivered against
payment therefor as contemplated by this Agreement, the Shares will be duly
authorized, validly issued and fully paid and nonassessable, the holders thereof
will not be subject to personal liability solely by reason of being such holders
and the Shares will conform to the description of the Common Shares contained in
the Prospectus; the certificates evidencing the Shares will comply with all
applicable requirements of Bermuda law.
(vii) 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 Act with respect to any securities of
the Company owned or to be owned by such person, requiring the Company to
include such securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
requiring the registration of any securities pursuant to any other registration
statement filed by the Company under the Act.
-18-
(viii) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or passage of time or both, would be, in violation of its
charter or bylaws, in each case as amended to date, or, to the knowledge of such
counsel, in default in any material respect under any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or to which any of their
respective properties or assets is subject.
(ix) The sale of the Shares being sold at such Time of Delivery and the
performance of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or violate any provision of the charter or
bylaws of the Company or any of its subsidiaries, in each case as amended to
date, or any existing law, statute, rule or regulation, or conflict with or
(with or without the giving of notice or the passage of time or both) result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or to which any of their respective properties or assets is subject, or
conflict with or violate any order, judgment or decree of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets.
(x) No consent, approval, authorization, order or declaration of or from,
or registration, qualification or filing with, any court or governmental or
regulatory agency or body is required for the sale of the Shares or the
consummation of the transactions contemplated by this Agreement, except such as
have been or will have been obtained and are or will be in effect.
(xi) Other than as disclosed in or contemplated by the Prospectus, there is
no litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or, to the knowledge of such counsel, threatened, in which
the Company or any of its subsidiaries is a party or of which any of their
respective properties or assets is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the financial position, results of operations
or business of the Company and its subsidiaries taken as a whole; and neither
the Company nor any of its subsidiaries is in violation of, or in default with
respect to, any law, statute, rule, regulation, order, judgment or decree,
except as described in the Prospectus or such as do not and will not
individually or in the aggregate have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole, nor is the Company or any of its subsidiaries required to take
any action in order to avoid any such violation or default.
(xii) The statements in the Prospectus under "Risk Factors -
Enforceability of Certain Civil Liabilities," "Business -- American Safety
Risk Retention Group, Inc. -- Regulation," "Business -- Legal Proceedings,"
"Regulatory Matters," "Description of Capital Stock," "Shares Eligible for
Future Sale," "Certain Bermuda Law Considerations" and "Certain Tax
Considerations--Taxation of American Safety and its Bermuda Subsidiary--Bermuda"
and "--Tax Treatment of Shareholders--Bermuda" have been reviewed by such
counsel, and insofar as they refer to statements of law, descriptions of
statutes, licenses, rules or regulations, or legal conclusions, are correct in
all material respects.
-19-
(xiii) This Agreement has been duly authorized, executed and delivered by
the Company and, assuming due execution by the Representatives, constitutes the
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating to or
affecting the enforcement of creditors' rights generally and to general
equitable principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable securities
laws or the public policy underlying such laws.
(xiv) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled" by an investment company as such terms are
defined in Sections 3(a) and 2(a)(9), respectively, of the Investment Company
Act and, if the Company or any subsidiary conducts its business as set forth in
the Registration Statement and the Prospectus (including the application of the
net proceeds of the public offering as described under the section entitled
"Underwriting" in the Registration Statement and the Prospectus), will not
become an "investment company" and will not be required to register under the
Investment Company Act.
(xv) The Company and its subsidiaries have received all permits, licenses,
franchises, authorizations, registrations, qualifications and approvals
(collectively, "permits") of governmental or regulatory authorities (including,
without limitation, state and other insurance regulatory authorities) as may be
required of them to own their properties and to conduct their businesses in the
manner described in the Prospectus, subject to such qualifications as may be set
forth in the Prospectus; the Company and its subsidiaries have fulfilled and
performed all of their material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time or both would
allow, revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such permits, subject in each case
to such qualifications as may be set forth in the Prospectus; and other than as
described in the Prospectus, such permits contain no restrictions that
materially affect the ability of the Company and its subsidiaries to conduct
their businesses.
(xvi) All reinsurance treaties, contracts, agreements, and arrangements to
which the Company or any of its subsidiaries is a party and as to which any of
them reported recoverables, premiums due or other amounts in its financial
statements are in full force and effect, and neither the Company nor any of its
subsidiaries is in violation of, or in default in the performance, observance or
fulfillment of, any material obligation, agreement,
-20-
covenant or condition contained therein, which violation or default would,
singularly or in the aggregate, have a material adverse effect on the financial
condition, results of operations or business of the Company and its subsidiaries
taken as a whole.
(xvii) The Registration Statement and the Prospectus and each amendment or
supplement thereto (other than the financial statements, the notes and schedules
thereto and other financial data included therein, to which such counsel need
express no opinion), as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the Act and the
respective rules and regulations thereunder. The descriptions in the
Registration Statement and the Prospectus of contracts and other documents are
accurate and fairly present the information required to be shown; and there are
no contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
Such counsel shall also state that he has participated in the preparation
of the Registration Statement and the Prospectus and in conferences with
officers and other representatives of the Company, outside counsel to the
Company, representatives of the independent certified public accountants for the
Company, and representatives of and counsel to the Underwriters at which the
contents of the Registration Statement, the Prospectus and related matters were
discussed and, although such counsel has not passed upon or assumed any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, and although such
counsel has not undertaken to verify independently the accuracy or completeness
of the statements in the Registration Statement or the Prospectus, on the basis
of the foregoing, nothing has come to such counsel's attention to lead him to
believe that the Registration Statement, or any further amendment thereto made
prior to such Time of Delivery, on its effective date and as of such Time of
Delivery, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, not misleading, or that the
Prospectus, or any amendment or supplement thereto made prior to such Time of
Delivery, as of its issue date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements, the notes and
schedules thereto and other financial data contained in the Registration
Statement, any amendment thereto, or the Prospectus, or any amendment or
supplement thereto).
In rendering any such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deem proper, on certificates of officers of the
Company, public officials and letters from officials of the NASD. In rendering
any such opinion, such counsel may rely as to matters governed by the laws of
Bermuda, the laws of Delaware and the laws of Vermont on the opinions of
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda counsel to the Company, the Bayard
Firm, special Delaware counsel to American Safety Risk Retention Group, Inc., a
non-subsidiary affiliate of the Company, and ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc.,
special Vermont counsel to the Company, respectively. Copies of such
certificates of officers of the Company shall be addressed and furnished to the
Underwriters and furnished to counsel for the Underwriters, and copies of such
other opinions shall be addressed dually and furnished to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
the Underwriters and furnished to counsel for the Underwriters.
(d) ▇▇▇▇▇▇ & Bird LLP, counsel for the Underwriters, shall have furnished
to you such opinion or opinions, dated such Time of Delivery, with respect to
the incorporation of the Company, the validity of the Shares being delivered at
such Time of Delivery, the Registration Statement, the Prospectus, and other
related matters as you may reasonably request, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. Such opinion or opinions may be
rendered in reliance upon the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ as to matters
governed by the laws of Bermuda.
-21-
(e) The Representatives shall have received from KPMG Peat Marwick LLP,
independent certified public accountants, (i) on each of the date hereof and the
Closing Date, as the case may be, a letter or letters, as the case may be, in
form and substance satisfactory to the Representatives, 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 Prospectus;
provided that the letter or letters, as the case may be, delivered on the
Closing Date shall use a "cut-off date" not earlier than the date hereof, and
(ii) at each Time of Delivery, an opinion or opinions, in form and substance
satisfactory to the Representatives, that the statements in the Prospectus under
"Certain Tax Considerations--Taxation of American Safety and its Bermuda
Subsidiary--United States" and "--Tax Treatment of Shareholders--United States"
have been reviewed by them and are correct in all material respects.
(f) Since the date of the latest audited financial statements included in
the Prospectus, neither the Company nor any of the subsidiaries shall have
sustained any change, or any development involving a prospective change
(including, without limitation, a change in management or control of the
Company), in or affecting the position (financial or otherwise), results of
operations, net worth or business prospects of the Company and its subsidiaries,
otherwise than as disclosed in or contemplated by the Prospectus, the effect of
which, in either such case, in your sole judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares being
delivered at such Time of Delivery as contemplated by the Registration
Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof, there shall not have occurred any of the
following: (i) any suspension or limitation in trading in securities generally
on the New York Stock Exchange or the American Stock Exchange or any setting of
minimum prices for trading on such exchange, or in the Common Shares of the
Company by the Commission or the Nasdaq National Market; (ii) a moratorium on
commercial banking activities in New York, Connecticut, Georgia or Bermuda
declared by either federal or state authorities; or (iii) any outbreak or
escalation of hostilities involving the United States or Bermuda, declaration by
the United States or Bermuda of a national emergency or war or any other
national or international calamity or emergency if the effect of any such event
specified in this clause (iii) in your sole judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares being
delivered at such Time of Delivery as contemplated by the Registration
Statement, as amended as of the date hereof.
(h) The Company shall have furnished to you at such Time of Delivery
certificates of the chief executive and chief financial officers of the Company
satisfactory to you, as to the accuracy of the respective representations and
warranties of the Company herein at and as of such Time of Delivery with the
same effect as if made at such Time of Delivery, as to the performance by the
Company of all of its respective obligations hereunder to be performed at or
prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to be
furnished certificates of such officers as to such matters as you may reasonably
request.
-22-
(i) The representations and warranties of the Company in this Agreement and
in the certificates delivered by the Company pursuant to this Agreement shall be
true and correct in all material respects when made and on and as of each Time
of Delivery as if made at such time, and the Company shall have performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by the Company at or before such
Time of Delivery.
(j) The Shares shall continue to be listed on the Nasdaq National Market.
8. Indemnification and Contribution.
--------------------------------
(a) The Company, on behalf of itself and each of its subsidiaries, agrees
to indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement made by the Company in Section
1 of this Agreement; (ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any application or other document, or amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange (each an
"Application"); or (iii) the omission of or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or any Application of a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
--------
however, that the Company shall not be liable in any such case to the extent
-------
that any such loss, claim, damage, liability or action arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
any Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly for use
therein (which information is solely as set forth in Section 1(c) hereof). The
Company will not, without the prior written consent of the Representatives of
the Underwriters, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding (or related cause
-23-
of action or portion thereof) in respect of which indemnification may be sought
hereunder (whether or not any Underwriter is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Underwriter from all liability arising out of such
claim, action, suit or proceeding (or related cause of action or portion
thereof).
(b) The Company, on behalf of itself and each of its subsidiaries, agrees
to indemnify and hold harmless Advest and each person, if any, who controls
Advest within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act ("Advest Entities"), against any and all losses, claims,
damages or liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim): (i) that arises out of or is based upon any untrue
statement or alleged untrue statement of any material fact contained in the
prospectus wrapper material prepared by or with the consent of the Company for
distribution in foreign jurisdictions in connection with the Directed Share
Program attached to the Prospectus or Preliminary Prospectus or any amendment or
supplement thereto or caused by any omission of or alleged omission to state in
the Prospectus or Preliminary Prospectus or any amendment or supplement thereto,
a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) caused by the failure of any Participant
to pay for and accept delivery of the Shares which, immediately following the
effectiveness of the Registration Statement, were subject to a properly
confirmed agreement to purchase; or (iii) related to, arising out of, or in
connection with the Directed Share Program, provided that the Company shall not
be responsible under this subsection 8(b) for any losses, claims, damages or
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of Advest
Entities.
(c) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, or any Application or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through you expressly for use therein (which information is solely as set forth
in Section 1(c) hereof); and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action.
(d) Promptly after receipt by an indemnified party under subsections (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under such subsections
(a), (b) or (c). In case any such action shall be brought against any
-24-
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party); provided, however,
-------- -------
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. After such notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. Nothing in this
Section 8(d) shall preclude an indemnified party from participating at its own
expense in the defense of any such action so assumed by the indemnifying party.
Notwithstanding anything contained herein to the contrary, if indemnity may be
sought pursuant to section 8(b) hereof in respect of such action or proceeding,
then in addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of
counsel for Advest for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control Advest within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgement in any pending or threatened claim, action, suit or proceeding
(or related cause of action or portion thereof) in respect of which
indemnification may be sought hereunder (whether or not any indemnified party is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding
(or related cause of action or portion thereof).
(e) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsections (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand
from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (d) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
-25-
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and employee of
the Underwriters and to each person, if any, who controls any Underwriter within
the meaning of the Act or the Exchange Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer, trustee and director of the Company and
to each person, if any, who controls the Company within the meaning of the Act
or the Exchange Act.
9. Default of Underwriters.
-----------------------
(a) If any Underwriter defaults in its obligation to purchase Shares at a
Time of Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein within 36
hours after such default by any Underwriter. In the event that, within the
respective prescribed period, you notify the Company that you have so arranged
for the purchase of such Shares, you shall have the right to postpone a Time of
Delivery for a period of not more than seven days in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus
that in your opinion may thereby be made necessary. The cost of preparing,
printing and filing any such amendments shall be paid for by the Underwriters.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such Shares.
-26-
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you as provided in
subsection (a) above, if any, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh (1/11) of the aggregate number of
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
10. Termination.
-----------
(a) This Agreement may be terminated in the sole discretion of the
Representatives by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that (i)
any condition to the obligations of the Underwriters set forth in Section 7
hereof has not been satisfied, or (ii) the Company shall have failed, refused or
been unable to deliver the Shares or the Company shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder at or prior to such Time of Delivery, in
either case other than by reason of a default by any of the Underwriters. If
this Agreement is terminated pursuant to this Section 10(a), the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including counsel fees and disbursements) that shall have been incurred by them
in connection with the proposed purchase and sale of the Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you as provided in Section
9(a), the aggregate number of such Shares which remains unpurchased exceeds one-
eleventh (1/11) of the aggregate number of Shares to be purchased at such Time
of Delivery, then this Agreement (or, with respect to a Subsequent Time of
Delivery, the obligations of the Underwriters to purchase and of the Company to
sell the Optional Shares) shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. Survival. The respective indemnities, agreements, representations,
--------
warranties and other statements of the Company, its officers and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person referred to in
Section 8(e) or the Company or any officer, trustee or director or controlling
person of the Company referred to in Section 8(e), and shall survive delivery of
and payment for the Shares. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
-27-
12. Notices. All communications hereunder shall be in writing and, if
-------
sent to any of the Underwriters, shall be mailed, delivered or telecopied and
confirmed in writing to you in care of Advest, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇ (with a copy to ▇▇▇▇▇▇ & Bird, LLP,
One Atlantic Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.); if to the Company shall be sufficient in all
respects if mailed, delivered or telecopied and confirmed in writing to American
Safety Insurance Company, Ltd., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇. ▇▇▇ (with copies to American Safety Casualty Insurance
Company, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq., and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.).
13. Binding Effect. This Agreement shall be binding upon, and inure
--------------
solely to the benefit of, the Underwriters, the Company and to the extent
provided in Sections 8 and 10 hereof, the officers, trustees, directors and
employees and controlling persons referred to therein and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York without giving effect to any
provisions regarding conflicts of laws.
15. Counterparts. This Agreement may be executed by any one or more of
------------
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
-28-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, and upon the
acceptance hereof by Advest, Inc., on behalf of each of the Underwriters, this
letter will constitute a binding agreement among the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in the Agreement
Among Underwriters, a copy of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
AMERICAN SAFETY INSURANCE GROUP, LTD.
By:
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇
President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above at
Hartford, Connecticut.
ADVEST, INC.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇ & ▇▇▇▇▇▇ INCORPORATED
By: ADVEST, INC.
By:__________________________________
______________________
Managing Director
On behalf of each of the Underwriters
-29-
EXHIBIT A
SUBSIDIARIES
------------
American Safety Casualty Insurance Company, a Delaware corporation
American Safety Reinsurance, Ltd., a Bermuda company
Synergy Insurance Services, Inc., a Georgia corporation
Sureco Bond Services, Inc., a Georgia corporation
Harbor Insurance Services, Inc., a Georgia corporation
Environmental Claims Services, Inc., a Georgia corporation
American Safety Purchasing Group, Inc., a Georgia corporation
-30-
