Exhibit 1.1
2,520,000 Shares
LASALLE RE HOLDINGS LIMITED
Common Shares
U.S. UNDERWRITING AGREEMENT
---------------------------
November , 1996
XXXXX XXXXXX INC.
XXXXXX FRERES & CO. LLC
XXXXXX XXXXXXX & CO. INCORPORATED
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The persons named in Part A of Schedule I hereto (the "Selling
Shareholders") propose to sell an aggregate of 2,520,000 common shares, par
value $1.00 per share (the "Firm Shares"), of LaSalle Re Holdings Limited, a
Bermuda corporation (the "Company"), to Xxxxx Xxxxxx Inc., Xxxxxx Freres & Co.
LLC, and Xxxxxx Xxxxxxx & Co. Incorporated (the "U.S. Underwriters"). In
addition, solely for the purpose of covering over-allotments, the Selling
Shareholders propose to sell to the U.S. Underwriters, upon the terms and
conditions set forth in Section 2 hereof, up to an additional 472,500 common
shares, par value $1.00 per share (the "Additional Shares"), of the Company.
The Firm Shares and the Additional Shares are hereinafter collectively referred
to as the "Shares." The Company's common shares, par value $1.00 per share,
including the Shares and the International Shares (as defined herein) as
applicable, are sometimes referred to herein as the "Common Shares." References
herein to "LaSalle Re" are to LaSalle Re Limited, a Bermuda corporation and a
subsidiary of the Company.
It is understood that the Company and the Selling Shareholders are
concurrently entering into an International
Underwriting Agreement, dated the date hereof (the "International Underwriting
Agreement"), providing for the sale of 630,000 Common Shares (the "International
Shares"), all of which will be sold by the Selling Shareholders through
arrangements with certain underwriters outside the United States and Canada (the
"Managers"), for whom Xxxxx Xxxxxx Inc., Lazard Capital Markets and Xxxxxx
Xxxxxxx & Co. International Limited are acting as lead Managers (the "Lead
Managers"). The International Shares and the Shares, collectively, are herein
called the "Underwritten Shares."
The Company and the Selling Shareholders also understand that the U.S.
Underwriters and the Lead Managers have entered into an agreement (the
"Agreement Between U.S. Underwriters and Managers") contemplating the
coordination of certain transactions between the U.S. Underwriters and the
Managers and that, pursuant thereto and subject to the conditions set forth
therein, the U.S. Underwriters may purchase from the Managers a portion of the
International Shares or sell to the Managers a portion of the Shares. The
Company and the Selling Shareholders understand that any such purchases and
sales between the U.S. Underwriters and the Managers shall be governed by the
Agreement Between U.S. Underwriters and Managers and shall not be governed by
the terms of this Agreement or the International Underwriting Agreement.
The Company and the Selling Shareholders wish to confirm as follows
their respective agreements with the several U.S. Underwriters in connection
with the several purchases of the Shares by you.
i. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations of the Commission thereunder, a
registration statement on Form S-1, including prospectuses subject to
completion, relating to the Underwritten Shares. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, and as thereafter amended by post-effective amendment. The term
"Prospectuses" as used in this Agreement means the prospectuses in
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the forms included in the Registration Statement, or, if the prospectuses
included in the Registration Statement omit information in reliance on Rule 430A
under the Act and such information is included in prospectuses filed with the
Commission pursuant to Rule 424(b) under the Act, the term "Prospectuses" as
used in this Agreement means the prospectuses in the forms included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectuses filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectuses" as used in this Agreement means
the prospectuses subject to completion in the forms included in the Registration
Statement at the time of the initial filing of the Registration Statement with
the Commission, and as such prospectuses shall have been amended from time to
time prior to the date of the Prospectuses. If the Company has filed an
abbreviated registration statement to register additional Common Shares pursuant
to Rule 462(b) under the Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement.
It is understood that two forms of Prepricing Prospectus and two forms
of Prospectus are to be used in connection with the offering and sale of the
Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to the
Shares that are to be offered and sold in the United States (as defined herein)
or Canada (as defined herein) to U.S. or Canadian Persons (as defined herein)
(the "U.S. Prepricing Prospectus" and the "U.S. Prospectus," respectively), and
a Prepricing Prospectus and a Prospectus relating to the International Shares
which are to be offered and sold outside the United States or Canada to persons
other than U.S. or Canadian Persons (the "International Prepricing Prospectus"
and the "International Prospectus," respectively). The U.S. Prospectus and the
International Prospectus are herein collectively called the "Prospectuses," and
the U.S. Prepricing Prospectus and the International Prepricing Prospectus are
herein called the "Prepricing Prospectuses." For purposes of this Agreement:
"Rules and Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable; "U.S. or Canadian Person" means any
resident or national of the United States or Canada, any corporation,
partnership or other entity created or organized in or under the laws of the
United States or Canada or any estate or trust the income of which is subject to
United States or Canadian income taxation regardless of the source of its income
(other than the foreign branch of any U.S. or Canadian Person), and includes any
United States or Canadian branch of a person other than a U.S. or Canadian
Person; "United States" means the United States of America (including the states
thereof and the District of Columbia) and its territories, its possessions and
other areas subject to its jurisdiction; and "Canada" means Canada and its
territories, its possessions and other areas subject to its jurisdiction.
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ii. Agreements to Sell and Purchase. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein and to such adjustments as you may
determine to avoid fractional shares, each Selling Shareholder, severally and
not jointly, agrees to sell to each U.S. Underwriter and each U.S. Underwriter
agrees, severally and not jointly, to purchase from each Selling Shareholder, at
a purchase price of $ [_________] per share (the "purchase price per share"),
the number of Firm Shares that bears the same proportion to the number of Firm
Shares set forth opposite the name of such Selling Shareholder in Schedule I
hereto as the number of Firm Shares set forth opposite the name of such U.S.
Underwriter in Schedule II hereto (or such number of Firm Shares increased as
set forth in Section 12 hereof) bears to the aggregate number of Firm Shares to
be sold by the Selling Shareholders.
Upon the basis of the representations, warranties and agreements
contained herein and subject to all the terms and conditions set forth herein,
the Selling Shareholders listed in Part B of Schedule I hereto also agree,
severally and not jointly, to sell to the U.S. Underwriters, and the U.S.
Underwriters shall have the right to purchase from such Selling Shareholders
listed in Part B of Schedule I hereto, at the purchase price per share, pursuant
to an option (the "over-allotment option") which may be exercised prior to 5:00
P.M., New York City time, on the 30th day after the date of the U.S. Prospectus
(or, if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of 472,500 Additional Shares from the Selling Shareholders
listed in Part B of Schedule I hereto (the maximum number of Additional Shares
that each of them agrees to sell upon the exercise by the U.S. Underwriters of
the over-allotment option is set forth opposite their respective names in Part B
of Schedule I). The number of Additional Shares that the U.S. Underwriters elect
to purchase upon any exercise of the over-allotment option shall be provided by
each Selling Shareholder who has agreed to sell Additional Shares in proportion
to the respective maximum numbers of Additional Shares that each such Selling
Shareholder has agreed to sell. Additional Shares may be purchased only for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. Upon any exercise of the over-allotment option, each U.S.
Underwriter, severally and not jointly, agrees to purchase from each Selling
Shareholder who has agreed to sell Additional Shares the number of Additional
Shares (subject to such adjustments as you may determine in order to avoid
fractional shares) that bears the same proportion to the number of
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Additional Shares to be sold by each Selling Shareholder who has agreed to sell
Additional Shares as the number of Firm Shares set forth opposite the name of
such U.S. Underwriter in Schedule II hereto (or such number of Firm Shares
increased as set forth in Section 12 hereof) bears to the aggregate number of
Firm Shares to be sold by the Selling Shareholders.
Certificates in transferable form for the Shares (including any
Additional Shares) that each of the Selling Shareholders agrees to sell pursuant
to this Agreement have been placed in custody with First Chicago Trust Company
of New York (the "Custodian") for delivery under this Agreement pursuant to a
Selling Shareholder's Custody Agreement (the "Custody Agreement") and a Selling
Shareholder's Irrevocable Power of Attorney (the "Power of Attorney") executed
by each of the Selling Shareholders appointing Xxxxxx X. Xxxxx, Xxxxxx Xxxx and
Xxxxxx Given as agents and attorneys-in-fact (the "Attorneys-in-Fact"). Each
Selling Shareholder agrees that (i) the Shares represented by the certificates
held in custody pursuant to the Custody Agreement are subject to the interests
of the U.S. Underwriters, the Company and each other Selling Shareholder, (ii)
the arrangements made by the Selling Shareholders for such custody are, except
as specifically provided in the Custody Agreement, irrevocable, and (iii) the
obligations of the Selling Shareholders hereunder and under the Custody
Agreement and Power of Attorney shall not be terminated by any act of such
Selling Shareholder or by operation of law, whether by the death, incapacity,
dissolution or liquidation of any Selling Shareholder or the occurrence of any
other event (including, without limitation, the termination of any trust or
estate). If any Selling Shareholder shall die or become incapacitated,
dissolved, liquidated or terminated or if any other such event shall occur
before the delivery of the Shares hereunder and completion of the transactions
contemplated hereby, certificates for the Shares of such Selling Shareholder
shall be delivered to the Underwriters by the Custodian or the Attorneys-in-Fact
in accordance with the terms and conditions of this Agreement and the Custody
Agreement, and such actions shall be valid as if such death, incapacity,
dissolution, liquidation, termination or other event had not occurred,
regardless of whether or not the Custodian or the Attorneys-in-Fact or any U.S.
Underwriter shall have received notice of such death, incapacity, dissolution,
liquidation, termination or other event.
Each U.S. Underwriter represents, warrants, covenants and agrees that,
except as contemplated under Section 2 of the Agreement Between U.S.
Underwriters and Managers dated the date
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hereof, (i) it is not purchasing any Shares for the account of anyone other than
a U.S. or Canadian Person, (ii) it has not offered or sold, and will not offer,
sell, resell or deliver, directly or indirectly, any Shares or distribute any
U.S. Prospectus outside the United States or Canada or to anyone other than a
U.S. or Canadian Person, and (iii) any offer of Shares in Canada will be made
only pursuant to an exemption from the requirement to file a prospectus in the
relevant province of Canada in which such offer is made.
iii. Terms of Public Offering. The Selling Shareholders have been advised
by you that the U.S. Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable and
initially to offer the Shares upon the terms set forth in the U.S. Prospectus.
iv. Delivery of the Shares and Payment Therefor. Delivery to the U.S.
Underwriters of and payment for the Firm Shares shall be made at the office of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX
00000, at 10:00 A.M., New York City time, on [_________], 1996 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date may be
varied by agreement among you, the Company and the Attorneys-in-Fact.
Delivery to the U.S. Underwriters of and payment for any Additional
Shares to be purchased by the U.S. Underwriters shall be made at the
aforementioned office of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. at such time on
such date (the "Option Closing Date"), which may be the same as the Closing Date
but shall in no event be earlier than the Closing Date nor earlier than two nor
later than ten business days after the giving of the notice hereinafter referred
to, as shall be specified in a written notice from you on behalf of the U.S.
Underwriters to the Company and the Attorneys-in-Fact of the U.S. Underwriters'
determination to purchase a number, specified in such notice, of Additional
Shares. The place of closing for any Additional Shares and the Option Closing
Date for such Shares may be varied by agreement between you, the Company and the
Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request by written notice, it being understood that a facsimile
transmission shall be deemed written notice, prior to 9:30 A.M., New York City
time, on the second business day preceding the Closing Date or any Option
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Closing Date, as the case may be. Such certificates shall be made available to
you in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates and stockpowers
evidencing the Firm Shares and any Additional Shares to be purchased hereunder
shall be delivered to you on the Closing Date or the Option Closing Date, as the
case may be, against payment of the purchase price therefor in immediately
available funds.
v. Agreements of the Company. The Company agrees with the several U.S.
Underwriters as follows:
(i) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(ii) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectuses or the Prospectuses or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, including the filing of any information, documents or reports
pursuant to the Exchange Act, that makes any statement of a material fact made
in the Registration Statement or the Prospectuses (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectuses (as then amended or
supplemented) in order to state a material fact required by the Act or the Rules
and Regulations to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectuses (as then amended or supplemented) to comply with the Act or any
other law. If at
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any time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(iii) The Company will furnish to you, without charge, four signed
copies of the Registration Statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the Registration Statement and will also furnish to you, without charge, such
number of conformed copies of the Registration Statement as originally filed and
of each amendment thereto, but without exhibits, as you may reasonably request.
(iv) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectuses of which you
shall not previously have been advised or to which you shall reasonably object
in writing after being so advised or (ii) so long as, in the written opinion of
counsel for the U.S. Underwriters (a copy of which shall be delivered to the
Company), a prospectus is required to be delivered in connection with sales by
any U.S. Underwriter or dealer, file any information, documents or reports
pursuant to the Exchange Act, without delivering a copy of such information,
documents or reports to you, prior to or concurrently with such filing.
(v) Prior to the execution and delivery of this Agreement, the Company
has delivered or will deliver to you, without charge, in such quantities as you
have reasonably requested or may hereafter reasonably request, copies of each
form of the U.S. Prepricing Prospectus. The Company consents to the use, in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the several U.S.
Underwriters and by dealers, prior to the date of the U.S. Prospectus, of each
U.S. Prepricing Prospectus so furnished by the Company.
(vi) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the written
opinion of counsel for the U.S. Underwriters a U.S. Prospectus is required by
the Act or the Rules and Regulations to be delivered in connection with sales by
any U.S. Underwriter or dealer, the Company will expeditiously deliver to each
U.S. Underwriter and each dealer, without charge, as many copies of the U.S.
Prospectus (and of any amendment or supplement thereto) as you may reasonably
request. The Company consents to
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the use of the U.S. Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and the Rules and Regulations and with
the securities or Blue Sky laws of the jurisdictions in which the Shares are
offered by the several U.S. Underwriters and by all dealers to whom Shares may
be sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the U.S. Prospectus is required by the Act or
the Rules and Regulations to be delivered in connection with sales by any U.S.
Underwriter or dealer. If during such period of time any event shall occur that
in the judgment of the Company or in the written opinion of counsel for the U.S.
Underwriters is required to be set forth in the U.S. Prospectus (as then amended
or supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the U.S. Prospectus to
comply with the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto and will expeditiously furnish to
the U.S. Underwriters and dealers a reasonable number of copies thereof. In the
event that the Company and you agree that the U.S. Prospectus should be amended
or supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(vii) The Company will cooperate with you and with counsel for the
U.S. Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several U.S. Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
reasonably designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Shares, and will file such
consents to service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Shares, or subject it to general taxation, in any jurisdiction where
it is not now so subject.
(viii) The Company will make generally available to its
securityholders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later
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than 15 months thereafter, as soon as reasonably practicable after the end of
such period, which consolidated earnings statement shall satisfy the provisions
of Section 11(a) of the Act.
(ix) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to shareholders or filed with the Commission or the Nasdaq National
Market, and (ii) from time to time such other information concerning the Company
as you may reasonably request; provided that the Company shall not be required
to provide to you any such information that is not available to the public.
(x) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the U.S. Underwriters because of any failure or refusal
on the part of the Company or any of the Selling Shareholders to comply, in any
material respect, with the terms or fulfill, in any material respect, any of the
conditions of this Agreement, the Company agrees to reimburse the U.S.
Underwriters for all reasonable out-of-pocket expenses (including reasonable
fees and expenses of counsel for the U.S. Underwriters) incurred by you in
connection herewith.
(xi) If Rule 430A of the Act is employed, the Company will timely file
the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(xii) For a period of 180 days after the date hereof (the "Lock-up
Period"), neither the Company nor XxxXxxxx Re will, without the prior written
consent of Xxxxx Xxxxxx Inc., sell, offer to sell, solicit an offer to buy,
contract to sell, grant any option or right to purchase or acquire, or otherwise
transfer or dispose of, any common shares of the Company or LaSalle Re or any of
their respective subsidiaries (or any securities convertible into or exercisable
or exchangeable for such common shares), except that the Company may issue
Common Shares pursuant to stock purchase plans and grant options pursuant to
stock option plans.
(xiii) The Company has furnished or will furnish to you "lock-up"
letters, signed by each of the officers and directors set forth under the
heading "Management" in the Prospectuses and each of the Selling Shareholders,
stating that, for the Lock-up
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Period, such officer, director or Selling Shareholder will not, without the
prior written consent of Xxxxx Xxxxxx Inc., sell, offer to sell, solicit an
offer to buy, contract to sell, grant any option or right to purchase or
acquire, or otherwise transfer or dispose of, any common shares of the Company
or any of its subsidiaries (or any securities convertible into or exercisable or
exchangeable for such common shares), except that such officer, director, or
Selling Shareholder may (i) sell shares subject to the over-allotment option
pursuant to the U.S. Underwriting Agreement; (ii) sell shares repurchased by the
Company pursuant to the Company's capital management strategy (as contemplated
in the Prospectuses); and (iii) transfer shares as bona fide gifts and pledge
shares so long as the donees or the pledgees, as the case may be, agree in
writing with the U.S. Underwriters to be bound by the terms of such lock-up
letter; each such lock-up letter shall also state that prior to the expiration
of the Lock-Up Period, such officer, director or Selling Shareholder will not
announce or disclose any intention to do anything after the expiration of such
period which such officer, director or Selling Shareholder is prohibited, as
provided in this Section 5(m), from doing during such period.
(xiv) Except as stated in this Agreement and in the International
Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses,
neither the Company nor any of its subsidiaries has taken or will take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Shares or any other security of the Company to facilitate the sale or resale of
the Shares pursuant to the distribution contemplated by this Agreement.
(xv) The Company will use its best efforts to have the Common Shares
listed on the Nasdaq National Market concurrently with the effectiveness of the
registration statement and to maintain such listing and the registration of the
Shares under the Exchange Act.
(xvi) The Company hereby validly and irrevocably submits to the
jurisdiction of any federal or state court sitting in The City of New York and
irrevocably waive, to the fullest extent permitted by law, any objection that
either of them may now or hereafter have to the laying of venue of any such
suit, action or proceeding brought in any such court based on or arising under
this Agreement and any claim that any such suit, action or
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proceeding brought in any such court has been brought in an inconvenient forum.
(xvii) The Company will use all reasonable commercial efforts to
satisfy on or before the Closing Date all conditions contained in Section 10
hereof to the U.S. Underwriters' obligations to purchase the Shares.
vi. Agreements of the Selling Shareholders. Each of the Selling
Shareholders agrees with the several U.S. Underwriters as follows:
(i) Such Selling Shareholder will cooperate to the extent necessary to
cause the registration statement or any post-effective amendment thereto to
become effective at the earliest possible time.
(ii) Such Selling Shareholder will pay all Federal and other taxes,
if any, on the transfer or sale of such Shares that are sold by the Selling
Shareholder to the U.S. Underwriters.
(iii) Such Selling Shareholder will do or perform all things required
to be done or performed by the Selling Shareholder prior to the Closing Date or
any Option Closing Date, as the case may be, to satisfy all conditions precedent
to the delivery of the Shares pursuant to this Agreement.
(iv) Such Selling Shareholder has executed or will execute a "lock-up"
letter as provided in Section 5(m) above and will not, without the prior written
consent of Xxxxx Xxxxxx Inc., sell, offer to sell, solicit an offer to buy,
contract to sell, grant any option or right to purchase or acquire, or otherwise
transfer or dispose of, any common shares of the Company or any of its
subsidiaries (or any securities convertible into or exercisable or exchangeable
for such common shares), except for sales to the U.S. Underwriters pursuant to
this Agreement and the Managers pursuant to the International Underwriting
Agreement, and except that such Selling Shareholder may sell shares repurchased
by the Company pursuant to the Company's capital management strategy as
contemplated in the Prospectuses and may transfer shares as bona fide gifts and
pledge shares so long as donees or the pledgees, as the case may be, agree in
writing with the Underwriters to be bound by the terms of such "lock-up" letter.
(v) Except as stated in this Agreement and the International
Underwriting Agreement and in the Prepricing
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Prospectuses and the Prospectuses, such Selling Shareholder has not taken, nor
will it take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Shares or any other security of the Company to
facilitate the sale or resale of the Shares pursuant to the distribution
contemplated by this Agreement.
(vi) Such Selling Shareholder will advise you promptly upon becoming
aware, and if requested by you, will confirm such advice in writing, within the
period of time referred to in Section 5(f) hereof, of any change in the
Company's or LaSalle Re's condition, financial or otherwise, earnings, business,
prospects, properties or results of operations, or of the happening of any event
that makes any statement made in the Registration Statement or the Prospectuses
(as then amended or supplemented) untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectuses (as
then amended or supplemented) in order to state a material fact required by the
Act or the Rules and Regulations to be stated therein or necessary in order to
make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectuses (as then amended or supplemented) to comply with the
Act or any other law.
vii. Representations and Warranties of the Company. The Company represents
and warrants to each U.S. Underwriter that:
(i) Each U.S. Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act and the Rules
and Regulations, and did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; except that this representation and warranty does not
apply to statements in or omissions from such U.S. Prepricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity with
information relating to any U.S. Underwriter or Manager furnished to the Company
in writing by a U.S. Underwriter or by a Manager through the Lead Managers
expressly for use therein.
(ii) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the
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Prospectuses and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in all
material respects with the provisions of the Act and the Rules and Regulations
and will not at any such times contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectuses (or any amendment or supplement thereto) made in
reliance upon and in conformity with information relating to any U.S.
Underwriter or Manager furnished to the Company in writing by a U.S. Underwriter
or by a Manager through the Lead Managers expressly for use therein.
(iii) No order preventing or suspending the use of any Prepricing
Prospectus has been issued by the Commission and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company, threatened or
contemplated by the Commission.
(iv) The consolidated financial statements of the Company (together
with related notes) included in the Registration Statement and Prospectuses
comply as to form in all material respects with the requirements of the Act and
the Rules and Regulations and present fairly the financial position of the
Company as at the dates indicated and the results of its operations for the
periods specified; such financial statements have been prepared in conformity
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved, except as disclosed therein; and
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein. All statutory financial
statements of the Company and its subsidiaries where required or permitted to be
prepared in accordance with the insurance laws of each of the jurisdictions in
which it conducts its business and the rules and regulations promulgated
thereunder, from which certain ratios and other statistical data contained in
the Registration Statement and the Prospectuses have been derived, and for each
relevant period have been prepared in conformity in all material respects with
the requirements of such insurance laws and such rules and regulations and
present fairly the information purported to be shown.
(v) Since the respective dates as of which information is given in the
Registration Statement and the Prospectuses, except
14
as otherwise stated therein, (i) there has been no material adverse change in
the condition, financial or otherwise, earnings, business, prospects, or results
of operations of the Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business, (ii) there have been no
material transactions entered into by the Company or any of its subsidiaries
other than those in the ordinary course of business, (iii) neither the Company
nor any of its subsidiaries has incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries considered as a
whole, and there has not been any change in the capital stock of the Company or
any payment of or declaration to pay any dividends or any other distributions
with respect to the Company's capital stock, except as set forth in the
Prospectuses, and (iv) there has not been any material change in the
shareholders' equity, statutory surplus or reserves (including any such change
in the loss and loss expense reserves) of the Company or any of its
subsidiaries.
(vi) The Company has been duly incorporated and organized and is
validly existing as a corporation and as an exempted company in good standing
under the laws of Bermuda with all requisite power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as
described in the Registration Statement and Prospectuses; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases property or in which
the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
material adverse effect on the condition, financial or otherwise, earnings,
business, prospects, or results of operations of the Company and its
subsidiaries considered as a whole.
(vii) Each of the subsidiaries of the Company has been duly
incorporated and organized and is validly existing as a corporation and in the
case of LaSalle Re as an exempted company in good standing under the laws of the
jurisdiction of its incorporation, with all requisite power and authority
(corporate and other) to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Prospectuses; and each
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases property or in which
the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
15
earnings, business, prospects, or results of operations of the Company and its
subsidiaries considered as a whole; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and non-assessable, and (except as otherwise described
in the Registration Statement and the Prospectuses) as of the Closing Date all
such capital stock will be owned by the Company, directly or through one or more
of its subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance,
security interest adverse claim or equity.
(viii) Neither the Company nor any of its subsidiaries is in violation
of its or any of their charters or bye-laws or other organizational documents or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which it or any
of them is a party or by which it or any of them or their properties may be
bound; no consent, approval, authorization, order, registration, filing,
qualification or other action of or with any court, regulatory body, arbitrator,
administrative body or other governmental authority or agency (including,
without limitation, any insurance regulatory agency or body) is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required and
have been obtained from the Bermuda Monetary Authority and under the Act, the
Exchange Act, the Rules and Regulations or as may be required under state
securities or Blue Sky laws (including state insurance securities laws) in
connection with the distribution of the Shares by the U.S. Underwriters; and the
issue and sale of the Shares, the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will any such action
conflict with or result in a breach or violation of the terms and provisions of
or constitute a default under (i) the memorandum of association or bye-laws or
other organizational documents of the Company or any of its subsidiaries or (ii)
any statute, rule, regulation or administrative or court decree or order of any
governmental agency
16
or body (including, without limitation, any insurance regulatory agency or body)
or any court or arbitrator, which is applicable to the Company or any of its
subsidiaries or any of their respective properties.
(ix) The Company and each of its subsidiaries possess all necessary
consents, authorizations, approvals, orders, licenses, certificates, or permits
issued by any regulatory agencies or bodies (collectively, "Permits") which are
necessary to conduct the business now operated by them; each of the Company and
its subsidiaries has fulfilled and performed all obligations necessary to
maintain such Permits; all of such Permits are in full force and effect; there
is no pending, or to the knowledge of the Company or any of its subsidiaries,
contemplated or threatened action, suit, proceeding, investigation or event
against or involving the Company or any of its subsidiaries (and neither the
Company nor any of its subsidiaries know of any reasonable basis for any such
action, suit, proceeding, investigation or event) that could lead to the
revocation, modification, termination, suspension or any other material
impairment of the rights of the holder of any such Permit which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the condition, financial or otherwise,
earnings, business, prospects or results of operations of the Company and its
subsidiaries considered as a whole; neither the Company nor any of its
subsidiaries has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any additional
Permit from such authority, commission or body is needed to be obtained by
either the Company or any of its subsidiaries; and no insurance regulatory
agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of any dividends by the Company or any of its
subsidiaries or the continuation of the business of the Company or any
subsidiary of the Company as currently conducted.
(x) Except as set forth in the Prospectuses, as amended or
supplemented, there is no (i) action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or any of its subsidiaries, contemplated or threatened
against the Company or any of its subsidiaries, (ii) statute, rule, regulation
or order that has been enacted, adopted or issued by any governmental agency or
body, domestic or foreign, or (iii) injunction, restraining order or order of
any nature by a court of competent jurisdiction that has been issued, any of the
foregoing of which (a) might individually or in the aggregate result in any
material adverse
17
change in the condition, financial or otherwise, earnings, business, prospects
or results of operations of the Company and its subsidiaries considered as a
whole, (b) might materially and adversely affect the properties or assets
thereof, (c) might interfere with or adversely affect the offering of the Shares
in the manner contemplated by the Prospectuses, (d) is required to be disclosed
in the Registration Statement or the Prospectuses and is not disclosed or (e) in
any manner seek to challenge the validity of this Agreement or the Shares; and
there are no material contracts or other documents which are required to be
described in the Registration Statement or the Prospectuses or filed as exhibits
to the Registration Statement by the Act or by the Rules and Regulations which
have not been so described or have not been so filed as required.
(xi) Each of the Company and its subsidiaries has good and marketable
title to all personal property and assets owned by it, in each case free and
clear of all liens, encumbrances and defects except (i) such as are referred to
in the Prospectuses or (ii) such as do not materially and adversely affect the
value of such property to the Company or such subsidiary, and do not materially
interfere with the use made and proposed to be made of such property by the
Company or such subsidiary; neither the Company nor any of its subsidiaries owns
any real property; and any real property and buildings held under lease by the
Company or any of its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made by the Company or any of its
subsidiaries, and no default (other than any default by the lessor) related
thereto has occurred or is continuing.
(xii) This Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(xiii) The Company and LaSalle Re have an authorized capitalization as
set forth in the Prospectuses, and on the Closing Date, all of the outstanding
shares of capital stock of the Company and LaSalle Re (including the Shares)
will have been duly authorized and validly issued and will be fully paid and
non-assessable; such shares conform to the description thereof contained in the
Prospectuses; the Shares are not subject to pre-emptive or other similar rights;
the form of certificates for the Shares conforms to the requirements of the laws
of Bermuda and
18
the Nasdaq National Market; and the Shares have been approved for quotation on
the Nasdaq National Market.
(xiv) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company or its subsidiaries, contemplated or threatened against
the Company or any of its subsidiaries, or any injunction, restraining order or
order of any nature by a court of competent jurisdiction, arising out of or in
connection with the consummation of the transactions contemplated by this
Agreement.
(xv) On the Closing Date, except as set forth in the Prospectuses,
the Company will be the exclusive owner of all rights, title and interests in
LaSalle Re that were previously held by shareholders of LaSalle Re that exchange
their shares for Common Shares to be sold pursuant to the Prospectuses.
(xvi) Consummation of the transactions contemplated by this Agreement,
including but not limited to any actions taken pursuant to the indemnification
and contribution provisions set forth herein, will not constitute unlawful
financial assistance by the Company or LaSalle Re under Bermuda law.
(xvii) Except as described in the Prospectuses, there are no (i)
contracts, agreements or understandings between the Company or any of its
subsidiaries and any person granting such person the right to require the
Company or such subsidiary to file a registration statement under the Act with
respect to any securities of the Company or such subsidiary owned or to be owned
by such person or to require the Company to include such securities under the
Registration Statement or with any securities being registered pursuant to any
other registration statement filed by the Company or such subsidiary under the
Act or (ii) outstanding options, warrants or other rights with respect to the
issuance of, and there are no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or any subsidiary or any security
convertible or exchangeable into or exercisable for such shares.
(xviii) Each of the Company and its subsidiaries has filed all
reports, information statements and other documents as required to be filed
pursuant to applicable insurance statutes, including the statutes relating to
companies which control insurance companies, and the rules, regulations and
interpretations of the insurance regulatory authorities thereunder (the
"Applicable
19
Insurance Laws"), and has duly paid all taxes (including franchise taxes and
similar fees) it is required to have paid under the Applicable Insurance Laws,
except where the failure to file such statement or reports would not have a
material adverse effect on the condition, financial or otherwise, earnings,
business, prospects or results of operations of the Company and its subsidiaries
considered as a whole; and each of the Company and its subsidiaries maintains
its books and records in accordance with the Applicable Insurance Laws, except
where the failure to so maintain its books and records would not have a material
adverse effect on the condition, financial or otherwise, earnings, business,
prospects, or results of operations of the Company and its subsidiaries
considered as a whole.
(xix) LaSalle Re is duly registered as an insurer and is subject to
regulation and supervision in Bermuda. Each of the Company and its subsidiaries
is duly licensed or admitted as an insurer or an insurance holding company, as
applicable, in each jurisdiction where it is required to be so licensed or
admitted to conduct its business as described in the Prospectuses.
(xx) The Company and each of its subsidiaries are in compliance with
the applicable requirements of the Bermuda Insurance Xxx 0000, as amended, and
any applicable rules and regulations thereunder (collectively, the "Bermuda
Insurance Act"); neither the Company nor any of its subsidiaries is subject to
the insurance laws of any other jurisdiction, provided that LaSalle Re Corporate
--------
Capital Ltd., a Bermuda corporation and a subsidiary of the Company ("LaSalle Re
Capital"), must be admitted by Lloyd's of London ("Lloyd's") to corporate
membership in order to carry on insurance business as a member of Lloyd's
syndicates.
(xxi) All liability, property and casualty, workers compensation,
directors and officers liability, surety bonds and other similar insurance
contracts that insure the business, properties, operations or affairs of the
Company and each of its subsidiaries or affect or relate to the ownership, use
or operations of the Company's or any of its subsidiaries' assets or properties
are in full force and effect and, to the knowledge of the Company and each of
its subsidiaries, are with financially sound and reputable insurers and in
accordance with normal industry practice and, to the knowledge of the Company
and each of its subsidiaries, in light of the respective businesses, properties,
operations and affairs of the Company and each of its subsidiaries, are in
amounts and provide coverage that is reasonable and
20
customary for persons in similar businesses or for similar property.
(xxii) All reinsurance treaties, retrocessional agreements, contracts
and agreements to which the Company or any of its subsidiaries is a party 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 obligation, agreement, covenant or condition contained therein, except where
any such violation or default would not have a material adverse effect on the
condition, financial or otherwise, earnings, business, prospects, or results of
operations of the Company and its subsidiaries taken as a whole; neither the
Company nor any of its subsidiaries has received any notice from any of the
other parties to such treaties, contract or agreements that such other party
intends not to perform in any material respect such treaty, contract or
agreement, and the Company and its subsidiaries have no reason to believe that
any of the other parties to such treaties, contracts or agreements will be
unable to perform such treaty, contract, agreement or arrangement.
(xxiii) To the knowledge of the Company and each of its subsidiaries,
no change in any insurance law or regulation is pending which could have,
individually or in the aggregate, a material adverse effect on the condition,
financial or otherwise, earnings, business, prospects or results of operations
of the Company or any of its subsidiaries.
(xxiv) The Company and LaSalle Re have received from the Bermuda
Minister of Finance an assurance under The Exempted Undertakings Tax Protection
Act, 1966 of Bermuda to the effect set forth in the Prospectuses under the
caption "Certain Tax Considerations--Taxation of the Company and its
Subsidiaries--Bermuda".
(xxv) Other than as permitted by the Act or the Rules and Regulations,
the Company and its subsidiaries have not distributed and will not distribute,
prior to the later to occur of (i) the Closing Date or the Option Closing Date
and (ii) completion of the distribution of the Shares, any prospectus or other
offering material in connection with the offering and sale of the Shares.
(xxvi) No material labor dispute with the employees of the Company or
any of its subsidiaries exists, or to the knowledge of the Company and each of
its subsidiaries, is threatened.
21
(xxvii) Neither the Company nor any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(xxviii) Other than as set forth in this Agreement, there is no
broker, finder or other party that is entitled to receive from the Company or
any of its subsidiaries any brokerage commission, finder's fee or other like
payment as a result of any of the transactions contemplated by this Agreement.
(xxix) The Company and each of its subsidiaries is in compliance with
all provisions of Section 1 of the Laws of Florida, Chapter 92-198, An Act
------
Relating to Disclosure of Doing Business with Cuba.
--------------------------------------------------
(xxx) Any certificate signed by an officer of the Company or any of
its subsidiaries in their capacities as such and delivered, pursuant to this
Agreement or in connection with the payment of the purchase price and delivery
of the certificates for the Shares, to the U.S. Underwriters or counsel for the
U.S. Underwriters shall be deemed a representation and warranty by the Company
to the U.S. Underwriters as to the matters covered thereby.
(xxxi) To the knowledge of the Company and each of its subsidiaries,
neither the Company nor any of its subsidiaries has violated any foreign,
federal, state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, or any law relating to discrimination in the
hiring, promotion or pay of employees or any applicable wages and hours laws.
(xxxii) KPMG Peat Marwick, who certified the financial statements and
supporting schedules included in the Registration Statement, is the independent
public accountant with respect to the Company as required by the Act and the
Rules and Regulations.
(xxxiii) Each of the Company and its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in all material respects in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
United States generally accepted accounting principles and with statutory
accounting principles, as the case may be, and to
22
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxiv) Any tax returns required to be filed by the Company or any of
its subsidiaries in any jurisdiction have been filed, and any material taxes,
including any withholding taxes, penalties and interest, assessments and fees
and other charges due or claimed to be due from such entities have been paid,
other than any of those being contested in good faith and for which adequate
reserves have been provided or any of those currently payable without penalty
or interest.
(xxxv) The Company and each of its subsidiaries owns or has valid
and adequate rights to use all patents, trademarks, trademark registration,
service marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights owned by it or necessary for the conduct
of its respective business, free and clear of all liens, claims, security
interests, encumbrances and restrictions that may materially interfere with the
conduct of its business, and neither the Company nor any of its subsidiaries is
aware of any claim to the contrary or any challenge by any other person to the
rights of the Company or any of its subsidiaries with respect to the foregoing.
(xxxvi) As of the Closing Date, LaSalle Re, LaSalle Re (Services)
Limited ("LaSalle Services") and LaSalle Re Capital will be the only
"subsidiaries" of the Company within the meaning of Rule 405 under the Act.
(xxxvii) There are no currency exchange control laws or withholding
taxes imposed in Bermuda or the United Kingdom that are applicable to the
payment of dividends (i) on the Shares by the Company or (ii) by any subsidiary
of the Company, except in the United Kingdom to the extent that dividends
payable are subject to the payment at the same time of Advance Corporation Tax
under the laws of the United Kingdom.
(xxxviii) Neither the U.S. Underwriters nor any subsequent purchasers
of the Shares is subject to any stamp duty, excise or similar tax imposed in
Bermuda in connection with the offering, sale or purchase of the Shares.
23
(xxxix) The Company and each of its subsidiaries have validly
appointed CT Corporation Systems as its authorized agent to receive service of
process in any suit, action or proceeding as contemplated in Section 5(p) above.
(x1) Each document filed or to be filed by the Company pursuant to the
Exchange Act so long as, in the written opinion of counsel for the U.S.
Underwriters (a copy of which shall be delivered to the Company), a prospectus
is required to be delivered in connection with sales by any U.S. Underwriter or
dealer, complied or will comply when so filed in all material respects with the
Exchange Act and the Rules and Regulations.
viii. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
U.S. Underwriter that:
(i) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder and is a valid and binding agreement of
such Selling Shareholder, enforceable against such Selling Shareholder in
accordance with its terms.
(ii) Such Selling Shareholder now has, and on the Closing Date will
have, the legal right and power, and all necessary consents, approvals and
authorizations, to enter into this Agreement, the Custody Agreement and the
Power of Attorney and on the Closing Date, such Selling Shareholder will have
the legal right and power, and all necessary consents, approvals and
authorizations, to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder in the manner provided in this Agreement, such Selling
Shareholder has complied with all of the provisions under the Company's
Memorandum of Association and Bye-Laws in order to sell, transfer and deliver
the Shares to the U.S. Underwriters in the manner provided in this Agreement,
and no such action will conflict with or result in a breach or violation of the
terms and provisions of or constitute a default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument or agreement to which
such Selling Shareholder is a party or by which it may be bound, nor will any
such action conflict with or result in a breach or violation of the terms and
provisions of or constitute a default under (i) the charter or by-laws or other
organizational documents of such Selling Shareholder or (ii) any statute, rule,
regulation or administrative or court decree or order of any governmental agency
or body or any court or arbitrator, which is applicable to such Selling
Shareholder; and no
24
consent, approval, authorization, order, filing, registration, qualification or
other action of or with any court, regulatory body, arbitrator, administrative
body or other governmental authority or agency is required for the execution and
delivery of this Agreement, the Custody Agreement or the Power of Attorney, the
sale, transfer and delivery of the Shares or the consummation by such Selling
Shareholder of the transactions contemplated by this Agreement, the Custody
Agreement and the Power of Attorney, except such as may be required and have
been obtained under the Act, the Exchange Act or the Rules and Regulations or as
may be required under state securities or Blue Sky laws (including state
insurance securities laws) in connection with the purchase and distribution of
the Shares by the U.S. Underwriters.
(iii) On the Closing Date, such Selling Shareholder will have, good
and valid title to the Shares to be sold by such Selling Shareholder, free and
clear of any security interests, adverse claims, liens, equities, preferential
arrangements and other encumbrances.
(iv) Prior to the Closing Date, certificates in negotiable form for
the Shares to be sold by such Selling Shareholder will have been placed in
custody, for delivery pursuant to the terms of this Agreement, under the Custody
Agreement, in the form heretofore furnished to you, which Custody Agreement,
prior to the Closing Date, shall have been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder; the Power of Attorney in
the form heretofore furnished to you has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder; and the Custody Agreement
and such Power of Attorney are valid and binding obligations of such Selling
Shareholder, enforceable against such Selling Shareholder in accordance with
their respective terms.
(v) Delivery of the certificates and executed Share transfers for the
Shares to be sold by such Selling Shareholder pursuant to this Agreement and the
register in the Register of Members of the entities designated by the U.S.
Underwriters will pass good and valid title to such Shares to such entities free
and clear of any security interests, adverse claims, liens, equities,
preferential arrangements and other encumbrances.
(vi) All information furnished in writing by or on behalf of such
Selling Shareholder for use in the Registration Statement and Prospectuses is,
and on the Closing Date will be, true, correct and complete, and does not, and
on the Closing Date will not,
25
contain any untrue statement of a material fact or omit to state any material
fact necessary to make such information not misleading.
(vii) Unless otherwise noted on Schedule I, such Selling Shareholder
is not an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act. If, as specified on
Schedule I, such Selling Shareholder falls within either of the categories set
forth in the preceding sentence, such Selling Shareholder is in compliance in
all material respects with the provisions of the Investment Company Act.
(viii) Other than as permitted by the Act or the Rules and
Regulations, such Selling Shareholder has not distributed and will not
distribute, prior to completion of the distribution of the Shares, any
prospectus or other offering material in connection with the offering and sale
of the Shares.
(ix) Other than as set forth in this Agreement, there is no broker,
finder or other party that is entitled to receive from such Selling Shareholder
any brokerage commission, finder's fee or other like payment as a result of any
of the transactions contemplated by this Agreement.
(x) Any certificate signed by or on behalf of such Selling Shareholder
(or any of the Attorneys-in-Fact) and delivered, pursuant to this Agreement, or
in connection with the payment of the purchase price and delivery of the
certificates for the Shares, to the U.S. Underwriters or counsel for the U.S.
Underwriters shall be deemed a representation and warranty by such Selling
Shareholder to the U.S. Underwriters as to the matters covered thereby.
(xi) Each of the Selling Shareholders that is a non-U.S. person (as
contemplated by the Power of Attorney) has validly submitted to the jurisdiction
of any federal or state court sitting in The City of New York, has validly and
irrevocably waived, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court based on or arising under this Agreement
and any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum, and has validly and irrevocably
appointed CT Corporation System as its authorized agent to receive service of
process in any such suit, action or proceeding.
26
(xii) Except as set forth in Schedule B to each Power of Attorney,
the undersigned is neither a member of the National Association of Securities
Dealers, Inc. (the "NASD") nor "affiliated" with nor a "person associated with"
such a member as contemplated by the rules of the NASD.
(xiii) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or to the
knowledge of such Selling Shareholder, contemplated or threatened against such
Selling Shareholder, or any injunction, restraining order or order of any nature
by a court of competent jurisdiction, arising out of or in connection with the
consummation of the transactions contemplated by this Agreement.
ix. Indemnification and Contribution.
(i) The Company agrees to indemnify and hold harmless each U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act from
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable legal fees and expenses and reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any U.S. Prepricing Prospectus
or in the Registration Statement or the U.S. Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such U.S. Underwriter or any Manager furnished
in writing to the Company by you or by or on behalf of any Manager through a
Lead Manager expressly for use in connection therewith; provided, however, that
the indemnification contained in this paragraph (a) with respect to any U.S.
Prepricing Prospectus or the U.S. Prospectus shall not inure to the benefit of
any U.S. Underwriter (or to the benefit of any person controlling such U.S.
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such U.S. Underwriter to any person if a
copy of the U.S. Prospectus (as then amended or supplemented) shall not have
been delivered or sent to such person within the time required by the Act and
the Rules and
27
Regulations, and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in such U.S. Prepricing Prospectus
or the U.S. Prospectus was corrected in the U.S. Prepricing Prospectus or the
U.S. Prospectus (as then amended or supplemented), provided that the Company has
delivered the U.S. Prepricing Prospectus or the U.S. Prospectus (as then amended
or supplemented) to the several U.S. Underwriters in requisite quantity on a
timely basis to permit such delivery or sending.
(ii) If any action, suit or proceeding shall be brought against any
U.S. Underwriter or any person controlling any U.S. Underwriter in respect of
which indemnity may be sought against the Company, such U.S. Underwriter or such
controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses; however, the omission to notify
the indemnifying party shall relieve the indemnifying party from liability only
to the extent prejudiced thereby. Such U.S. Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such U.S. Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel within a reasonable period of time
after being notified of such action, suit or proceeding, or (iii) the named
parties to any such action, suit or proceeding (including any impleaded parties)
include both such U.S. Underwriter or such controlling person and the
indemnifying parties and such U.S. Underwriter or such controlling person shall
have been advised by its counsel in writing that representation of such
indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such U.S. Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and
28
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such U.S. Underwriters and controlling persons,
which firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all
such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any U.S. Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(iii) Each U.S. Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors and officers of the
Company who sign the Registration Statement and any person who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each U.S. Underwriter, but only with respect to information relating to such
U.S. Underwriter furnished in writing by or on behalf of such U.S. Underwriter
through you expressly for use in the Registration Statement, the U.S. Prospectus
or any U.S. Prepricing Prospectus, or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against the Company, any of the
Company's directors, any such officer or any such controlling person based on
the Registration Statement, the U.S. Prospectus or any U.S. Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any U.S. Underwriter pursuant to this paragraph
(c), such U.S. Underwriter shall have the rights and duties given to the Company
by paragraph (b) above (except that if the Company shall have assumed the
defense thereof such U.S. Underwriter shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but the
fees and expenses of such counsel shall be at such U.S. Underwriter's expense),
and the Company, the Company's directors, any such officer and any such
controlling person shall have the rights and duties given to the U.S.
Underwriters by paragraph (b) above.
(iv) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall
29
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
each of the Selling Shareholders on the one hand and the U.S. Underwriters on
the other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and the U.S. Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the U.S. 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 Selling Shareholders bear
to the total underwriting discounts and commissions received by the U.S.
Underwriters, in each case as set forth in the table on the cover page of the
U.S. Prospectus; provided that, in the event that the U.S. Underwriters shall
have purchased any Additional Shares hereunder, any determination of the
relative benefits received by the Company, the Selling Shareholders or the U.S.
Underwriters from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Selling Shareholders, and the
underwriting discounts and commissions received by the U.S. Underwriters, from
the sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
U.S. Prospectus. The relative fault of the Company and the Selling Shareholders
on the one hand and the U.S. Underwriters on the other hand 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 or the Selling
Shareholders on the one hand or by the U.S. Underwriters on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(v) The Company, the Selling Shareholders and the U.S. Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a pro rata allocation (even if the U.S.
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to
30
in paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no U.S.
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such U.S. 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 U.S. Underwriters' obligations to contribute pursuant to
this Section 9 are several in proportion to the respective numbers of Firm
Shares set forth opposite their names in Schedule II hereto (or such numbers of
Firm Shares increased as set forth in Section 12 hereof) and not joint.
(vi) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(vii) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Shareholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any U.S. Underwriter
or any person controlling any U.S. Underwriter, the Company, the Company's
directors or officers or the Selling Shareholders, any director, officer or
partner of a Selling Shareholder or any person controlling the Company or any
Selling Shareholder, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any
31
termination of this Agreement. A successor to any U.S. Underwriter or any person
controlling any U.S. Underwriter, or to the Company, the Company's directors or
officers or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 9.
x. Conditions of U.S. Underwriters' Obligations. The several obligations
of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to
the following conditions:
(i) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M. New York City time, on the date hereof, or at
such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any U.S. Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectuses or
otherwise) shall have been complied with to your reasonable satisfaction.
(ii) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, that would have a material adverse effect on the condition, financial or
otherwise, earnings, business, prospects, or results of operations of the
Company and its subsidiaries taken as a whole, not contemplated by the
Prospectuses, which in your opinion would materially adversely affect the market
for the Shares, or (ii) any event or development relating to or involving the
Company or any officer or director of the Company or any Selling Shareholder
which makes any statement made in the Prospectuses untrue or which, in the
opinion of the Company and its counsel or the U.S. Underwriters and their
counsel, requires the making of any addition to or change in the Prospectuses in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectuses to reflect such event or development
would, in
32
your opinion, materially adversely affect the market for the Shares.
(iii) You shall have received on the Closing Date an opinion of Xxxxx,
Xxxxx & Xxxxx, counsel for the Company and LaSalle Re, dated the Closing Date
and addressed to you to the effect that:
(1) This Agreement is a valid and binding agreement of the Company.
(2) On the Closing Date, all of the outstanding shares of capital
stock of the Company and LaSalle Re (including the Shares) conformed in all
material respects to the description thereof contained in the Prospectuses; to
the knowledge of such counsel, the Shares are not subject to any contractual
pre-emptive or other similar rights; the form of certificates for the Shares
conforms to the requirements of the Nasdaq National Market; and the Shares have
been approved for quotation on the Nasdaq National Market.
(3) To the knowledge of such counsel there is no legal or
governmental action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, contemplated or threatened
against the Company or any of its subsidiaries or any injunction, restraining
order or order of any nature by a court of competent jurisdiction, arising out
of or in connection with the consummation of the transactions contemplated by
this Agreement.
(4) The Registration Statement and each post-effective amendment,
if any, is effective under the Act and the Rules and Regulations and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof or preventing or suspending the use
of any Prepricing Prospectus has been issued under the Act or the Rules and
Regulations or proceedings therefor initiated or threatened or are pending or
contemplated by the Commission, and any required filing of the Prospectuses
pursuant to Rule 424(b) has been made in accordance with such rule.
(5) Statements set forth in the Prospectuses under the headings
"Risk Factors", "Management's Discussion and Analysis of Financial Condition
and Results of Operations", "Business", "Management", "Certain Transactions",
"Description of Capital Stock" and in the Registration Statement under Items 14
and 15 of
33
Part II of the Registration Statement, insofar as such statements constitute a
summary of the legal matters, documents or proceedings or refer to statements of
regulation, law or legal conclusions referred to therein fairly present the
information called for with respect to such legal matters, documents or
proceedings and statements, and are accurate in all material respects.
(6) No consent, approval, authorization, order, filing,
registration, qualification or other action of or with any court, regulatory
body, arbitrator, administrative body or other governmental authority or agency
is required for the issue and sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except such as may be required and
have been obtained under the Act, the Exchange Act and the Rules and
Regulations, or as may be required under state securities or Blue Sky laws
(including state insurance securities laws) in connection with the distribution
of the Shares by the Underwriters and other than the Form SR required to be
filed under the Act and the Rules and Regulations; and the issue and sale of the
Shares, the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument or agreement to which
the Company or any of its subsidiaries is a party or by which it or any of them
may be bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject and which is listed on Exhibit A to such opinion,
nor will any such action conflict with or result in a breach or violation of the
terms and provisions of or constitute a default under any material statute,
rule, regulation or administrative or court decree or order of any governmental
agency or body or any court or arbitrator, which is applicable to the Company or
any of its subsidiaries or any of their respective properties.
(7) The Company and each of its subsidiaries have validly
appointed CT Corporation Systems as its authorized agent to receive service of
process in any suit, action or proceeding as contemplated in Section 5(p) above.
(8) To the knowledge of such counsel no (i) legal or governmental
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, contemplated or threatened against the
Company or any of its
34
subsidiaries; (ii) statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency or body, domestic or foreign, or
(iii) injunction, restraining order or order of any nature by a court of
competent jurisdiction that has been issued, any of the foregoing of which (a)
is required to be disclosed in the Registration Statement or the Prospectuses
and is not so disclosed; or (b) in any manner seek to challenge the validity of
this Agreement or the Shares; and, after due inquiry, such counsel is not aware
of any material contract or other document that is required to be described in
the Registration Statement or the Prospectuses or to be filed as an exhibit to
the Registration Statement that is not so described or filed as required.
(9) Neither the Company nor any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act.
(10) Such counsel (1) is of the opinion that the Registration
Statement, as of the date it became effective, any amendment to the Registration
Statement, as of its effective date, and the Prospectuses, as of their date
(other than the financial statements and schedules included therein, as to which
no opinion need be expressed) complies as to form in all material respects with
the requirements of the Act and the Rules and Regulations, and (2) shall also
state that nothing has come to their attention that leads them to believe that
(other than the financial statements and schedules included therein, as to which
no belief need be expressed) the Registration Statement, as of the date it
became effective, or any amendment to the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and that the Prospectuses, as of their dates,
as of the date of any amendments or supplements thereto, and as amended or
supplemented at the Closing Date, 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.
(11) The discussion of tax matters set forth under the heading
"Certain Tax Considerations" in the Prospectuses accurately reflects such
counsel's opinion as to such tax laws (subject to the qualifications and
assumptions set forth in such discussion).
35
Such opinion shall also state that such counsel has participated in the
preparation of the Registration Statement and the Prospectuses and has
participated in conferences with officers and other representatives of the
Company and its subsidiaries, at which the contents of the Registration
Statement and Prospectuses were discussed. With respect to subparagraph (x) of
paragraph (c) above, such counsel may state they are not passing upon the
adequacy or accuracy of the financial or statistical data contained in the
Registration Statement or Prospectuses. Regarding matters relating to Bermuda
law, such counsel shall be entitled to rely on the opinion of Xxxxxxx, Xxxx &
Xxxxxxx, Bermuda counsel to the Company.
(d) You shall have received a favorable opinion of Xxxxxxx, Xxxx &
Xxxxxxx, Bermuda counsel for the Company, LaSalle Re and LaSalle Re Capital,
dated the Closing Date, to the effect that:
(1) Each of the Company, LaSalle Re and LaSalle Re Capital is
incorporated and validly existing as an exempted company, and has been duly
organized (meaning that the provisional directors meeting and the statutory
members meeting required by the Companies Xxx 0000 have been held), under the
laws of Bermuda and is in good standing under the laws of Bermuda (meaning that
it has not failed to make any required filing with any Bermuda government
authority or to pay any Bermuda government fee or tax, the failure of which
would make such company liable to be struck off the register of companies and
thereby cease to exist under the laws of Bermuda) with all requisite corporate
power and authority and has all necessary permits of Bermuda government
authorities (including regulatory authorities) which remain in full force and
effect, to carry on its business and to own, lease and operate its properties as
both are described in the Registration Statement and the Prospectuses.
(2) Based solely upon certified copies of the respective members
registers, the minutes, resolutions, memoranda of association and Bye-laws of
the Company, LaSalle Re and LaSalle Re Capital which we have examined and
searches of the register of charges maintained by the Bermuda Registrar of
Companies: (a) all of the issued shares in the capital of the Company, including
the Shares to be sold by the Selling Shareholders, have been duly and validly
authorized and issued and are fully paid and non-assessable (which term when
used in such opinion shall mean that no further sums are required to be paid by
the holders thereof in connection with the issue of such shares); and (b) each
of LaSalle Re and
36
LaSalle Re Capital is a subsidiary of the Company. The Shares are not subject to
any statutory pre-emptive rights (or similar statutory rights), and the form of
share certificates relating thereto conforms with the requirements of Bermuda
law.
(3) LaSalle Re is duly registered as an insurer under The Insurance
Xxx 0000 and the regulations promulgated thereunder (together, the "Insurance
Act") and as so registered, LaSalle Re may conduct the insurance business as
described in the Prospectuses; and, based solely on Certificates of Compliance
issued by the Bermuda Registrar of Companies and without independent enquiry,
LaSalle Re has filed with the appropriate Bermuda governmental authority
(including regulatory authority) all reports, documents or other information
required to be filed under the Insurance Act.
(4) The Company has taken all corporate action required to authorize
its due execution, delivery and performance of this Agreement. This Agreement
has been duly authorized and executed by the Company and when delivered will
constitute the valid and binding obligations thereof enforceable in accordance
with its terms.
(5) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and the consummation by
the Company of the transactions contemplated by this Agreement do not and will
not:
(a) violate any provision of the Memorandum of Association or Bye-laws
of the Company or LaSalle Re;
(b) contravene any provision of any of the laws, rules and regulations
of Bermuda;
(c) based solely upon a search of the Cause Book maintained in the
registry of the Bermuda Supreme Court, and without further
enquiry, contravene any judgment, order or decree by the Bermuda
Supreme Court against the Company or LaSalle Re; or
(d) require any consent, approval, authorization, qualification or
order of, or filing or registration with, any Bermuda Court or
Bermuda governmental agency (including regulatory and
administrative), except such as have been obtained or such as may
relate to the effect of the indemnity provisions of this
37
Agreement on LaSalle Re's statutory solvency margins.
(6) Based solely upon our search of the Cause Book maintained in the
registry of the Bermuda Supreme Court and without further enquiry, there is no
action, suit, proceeding, injunction, restraining order or other order now
pending before any Bermuda Court against the Company, LaSalle Re or LaSalle Re
Capital or any of their respective properties.
(7) Based solely upon a search of the register of charges
maintained by the Bermuda Registrar of Companies, and without further enquiry,
there are no registered liens, encumbrances, equities or claims in such register
of charges in respect of those shares issued in the Company, LaSalle Re and
LaSalle Re Capital other than: (a) a Mortgage of Shares dated as of 1 December
1995 between the Company and Chemical Bank; and (b) a Deed dated as of 1
December 1995 between the Company and Chemical Bank.
(8) All statements made in the Registration Statement and
Prospectuses with respect to statutes, regulations, rules, treaties and other
laws of Bermuda fairly and accurately present the information set forth therein
and such counsel's opinion as to such matters.
(9) Based upon an assumption that there are reasonable grounds for
believing that immediately before and after entering this Agreement the Company
(a) is able to pay its liabilities as they fall due and (b) has assets with a
realizable value equal to or greater than the sum of its respective liabilities,
issued share capital and share premium account, the consummation of the
transactions contemplated by this Agreement (including but not limited to any
actions taken pursuant to the indemnification and contribution provisions
contained herein) will not constitute unlawful financial assistance by the
Company under Bermuda law.
(10) Each of the Company and LaSalle Re has received from the Bermuda
Minister of Finance an assurance pursuant to the Exempted Undertakings Tax
Protection Xxx 0000 to the effect set forth in the Prospectuses under the
heading "Certain Tax Considerations - Taxation of the Company and its
Subsidiaries -Bermuda."
38
(11) The U.S. Underwriters and subsequent purchasers of the Shares
purchased pursuant to this Agreement are not subject to any stamp duty, excise
or similar tax imposed in Bermuda in connection with the offering, sale or
purchase of such Shares, and there are no currency exchange control laws or
withholding taxes that are applicable to the payment of dividends by the
Company, LaSalle Re or LaSalle Re Capital.
(12) There are no statutes or Bermuda government rules, regulations or
orders which seek to challenge the validity of this Agreement or the Shares.
(13) The discussion of tax matters relating to Bermuda set forth under
the heading "Certain Tax Considerations" in the Prospectuses accurately reflects
the opinion of such counsel as to such matters (subject to the qualifications
and assumptions set forth in such discussion).
(14) Upon delivery of the share certificates and share transfer forms
duly executed in favour of the U.S. Underwriters' designees in respect of the
Shares to be sold by the Selling Shareholders, and the entry in the Company's
register of members of such designees, such designees will be the registered
owners of legal title to such Shares.
(v) You shall have received a favorable opinion of Xxxxx & Co., United
Kingdom counsel for the Company and LaSalle Services, dated the Closing Date, to
the effect that:
(1) LaSalle Services has been duly incorporated and organized and is
validly existing as a corporation under the laws of the United Kingdom, with all
requisite power and authority (corporate and otherwise) to own, lease and
operate its properties and conduct its business as described in the Registration
Statement and the Prospectuses; all of the issued and outstanding capital stock
of LaSalle Services has been duly authorized and validly issued and is fully
paid and non-assessable and, all of such capital stock (except as otherwise
described in the Registration Statement of the Prospectuses) will be owned by
the Company, directly or through one or more of its subsidiaries and, to the
knowledge of such counsel, free and clear of any mortgage, pledge, lien,
encumbrance, security interest, adverse claim or equity.
(2) There are no currency exchange control laws or withholding taxes
that are applicable to the payment of dividends by LaSalle Services, except to
the extent that dividends payable
39
are subject to the payment at the same time of Advance Corporation Tax under the
tax laws of the United Kingdom.
(3) The discussion set forth under the heading "Certain Tax
Consideration--Taxation of the Company and its Subsidiaries--United Kingdom" in
the Prospectuses is accurate (subject to the qualifications, limitations and
assumptions set forth in such discussion).
(4) Neither the Company nor any of its subsidiaries is required to
be licensed or admitted as an insurer or an insurance holding company, as
applicable, under, or to otherwise comply with, the insurance laws or
regulations of any jurisdiction within the United Kingdom in order to conduct
their respective businesses as described in the Prospectuses, provided that
--------
LaSalle Re Capital must be admitted by Lloyd's to corporate membership in order
to carry on insurance business as a member of Lloyd's syndicates.
(vi) You shall have received a favorable opinion of counsel for each
Selling Shareholder, dated the Closing Date, to the effect that:
(1) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder and is a valid and binding agreement of
such Selling Shareholder, enforceable against such Selling Shareholder in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(2) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not conflict with or
result in a breach or violation of the terms and provisions of or constitute a
default under the charter or by-laws or other organizational documents of such
Selling Shareholder.
(3) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by or on behalf of such Selling Shareholder
and are valid and binding obligations of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
40
relating to or affecting creditors' rights and to general equity principles.
(4) Delivery of the certificates and executed Share transfers for the
Shares to be sold by such Selling Shareholder pursuant to this Agreement and the
register in the Register of Members of the entities designated by the U.S.
Underwriters will pass good and valid title to such Shares to such entities free
and clear of any security interests, adverse claims, liens, equities,
preferential arrangements and other encumbrances.
Such counsel shall be satisfactory to the U.S. Underwriters and of good
standing. Regarding matters relating to Bermuda law, such counsel shall be
entitled to rely on the opinion of Xxxxxxx, Xxxx & Xxxxxxx, Bermuda counsel to
the Company. The opinion of such counsel described above shall be rendered to
the U.S. Underwriters at the request of the Company and shall so state therein.
(vii) You shall have received on the Closing Date an opinion of LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the U.S. Underwriters, dated the
Closing Date, with respect to such matters as you may reasonably request.
Regarding matters relating to Bermuda law, such counsel shall be entitled to
rely on the opinion of Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to the Company.
(viii) You shall have received from the Chief Executive Officer and the
Chief Financial Officer of the Company a certificate, dated the Closing Date, in
which such officers, to the best of their knowledge and after reasonable
investigation, shall state that there has not been, since the respective dates
as of which information is given in the Registration Statement and the
Prospectuses, (i) any material adverse change in the condition, financial or
otherwise, earnings, business, prospects, or results of operations of the
Company and its subsidiaries considered as a whole, whether or not arising in
the ordinary course of business, (ii) any material transaction entered into by
the Company or any of its subsidiaries other than those in the ordinary course
of business, or (iii) any material change in the capital stock of the Company
nor any material increase in the short-term or long-term debt of the Company
(other than in the ordinary course of business), except in the case of clauses
(i), (ii) and (iii) as set forth in the Prospectuses; the representations and
warranties of the Company contained in Section 7 are true and correct with the
same force and effect as though made on and as of the Initial Closing Date and
the Company has complied with all agreements and satisfied all
41
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date; and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened or are contemplated by the Commission.
(ix) You shall have received from KPMG Peat Marwick, independent public
accountants, two letters, the first dated the date of this Agreement and the
other dated such Closing Date, addressed to the U.S. Underwriters (with
conformed copies for each of the U.S. Underwriters), substantially in the forms
heretofore approved by you.
(x) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(xi) All the representations and warranties of the Selling Shareholders
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date with the same force and effect as if
made on and as of the Closing Date, and you shall have received a certificate
satisfactory to you, dated the Closing Date and signed by or on behalf of the
Selling Shareholders to the effect set forth in this Section 10(k) and in
Section 10(l) hereof.
(xii) The Selling Shareholders shall not have failed at or prior to the
Closing Date to have performed or complied with any of their agreements and
satisfied all conditions contained in this Agreement or the International
Underwriting Agreement and required to be performed or complied with or
satisfied by them at or prior to the Closing Date.
(xiii) The Selling Shareholders shall have furnished or caused to be
furnished to you such further certificates and documents as you shall have
reasonably requested.
(xiv) The Common Shares shall have been listed or approved for listing
on the Nasdaq National Market.
(xv) The closing under the International Underwriting Agreement shall
have occurred concurrently with the closing hereunder on the Closing Date.
42
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or any
Attorney-in-Fact or any Selling Shareholder and delivered to the U.S.
Underwriters, or to counsel for the U.S. Underwriters, shall be deemed a
representation and warranty by the Company, the Selling Shareholders or the
particular Selling Shareholder, as the case may be, to each U.S. Underwriter as
to the statements made therein.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in this Section 10 shall be dated the Option Closing Date in
question and the opinions or letters called for by paragraphs (c), (d), (e),
(f), (g), (h), (k) and (m) shall be revised to reflect the sale of Additional
Shares.
xi. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance of the Company's
and the Selling Shareholders' respective obligations hereunder: (i) the
preparation, printing or reproduction, and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
each Prepricing Prospectus, the Prospectuses, and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Prepricing Prospectus, the
Prospectuses, and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the International Underwriting Agreement, the
Supplemental Agreement Among U.S. Underwriters, the Agreement Among Managers,
the Agreement Between U.S. Underwriters and Managers, the International Selling
Agreement, the Managers' Questionnaire, the preliminary and supplemental Blue
Sky Memoranda and all other agreements or documents printed (or reproduced) and
delivered in
43
connection with the original issuance and sale of the Shares; (v) the listing of
the Shares on the Nasdaq National Market; (vi) the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 5(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the U.S. Underwriters relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such registration and qualification);
(vii) the fees and expenses of the Registrar and Transfer Agent for the Shares
and its counsel; (viii) the filing fees in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.; (ix) the
transportation and other expenses incurred by or on behalf of representatives of
the Company in connection with presentations to prospective purchasers of the
Shares; and (x) the fees and expenses of the Company's accountants and the fees
and expenses of counsel (including local and special counsel) for the Company.
xii. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the registration statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying you, or
by you, by notifying the Company and the Selling Shareholders.
If any one or more of the U.S. Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting U.S.
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the U.S.
Underwriters are obligated to purchase on the Closing Date, each non-defaulting
U.S. Underwriter shall be obligated, severally, in the proportion which the
number of Firm Shares set forth opposite its name in Schedule II hereto bears to
the aggregate number of Firm Shares set forth opposite the names of all non-
defaulting U.S. Underwriters or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Shares which such defaulting U.S. Underwriter or
Underwriters are obligated, but fail or refuse, to purchase. If any one or more
of the U.S. Underwriters shall fail or refuse to
44
purchase Shares which it or they are obligated to purchase on the Closing Date
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares which the U.S.
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting U.S. Underwriters or other party or parties approved by you
and the Company are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting U.S.
Underwriter or the Company or any Selling Shareholder. In any such case which
does not result in termination of this Agreement, either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectuses or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
U.S. Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "U.S. Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule II hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting U.S. Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
xiii. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
U.S. Underwriter to the Company or any Selling Shareholder, by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case
may be, (i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York or Bermuda shall have been declared by either federal or
state (or comparable) authorities, or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to make
it, in your judgment, impracticable or inadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on the
45
cover page of the U.S. Prospectus or to enforce contracts for the resale of the
Shares by the U.S. Underwriters.
Notice of such termination may be given by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
xiv. Information Furnished by the U.S. Underwriters. The statements set
forth in the last paragraph on the cover page, the first three legends on the
inside front cover page, and the sentences of the first two paragraphs of text
under the caption "Underwriting" concerning the terms of the offering by the
Underwriters and the tables thereunder and the third, eighth, ninth, tenth,
eleventh, fourteenth and last paragraphs in such Underwriting section in any
U.S. Prepricing Prospectus and in the U.S. Prospectus constitute the only
information furnished by or on behalf of the U.S. Underwriters as such
information is referred to in Sections 7 and 9 hereof.
xv. Miscellaneous. Except as otherwise provided in Sections 5, 12 and 13
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Selling Shareholders
at the office of the Company at, 00 Xxxxxx Xxxxxx, X.X. Xxx XX 0000, Xxxxxxxx XX
FX Bermuda, Attention: Xxxxxx X. Xxxxx, Chairman; or (ii) if to the U.S.
Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
U.S. Underwriters, the Company, the Company's directors and officers, the other
controlling persons referred to in Section 9 hereof and the Selling Shareholders
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any U.S. Underwriter of
any of the Shares in his status as such purchaser.
xvi. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in
46
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
47
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Shareholders and the several U.S. Underwriters.
Very truly yours,
LASALLE RE HOLDINGS LIMITED
By______________________________
President and Chief
Executive Officer
Each of the Selling Shareholders
named in Schedule I hereto
By______________________________
Attorney-in-Fact
By______________________________
Attorney-in-Fact
By______________________________
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several U.S.
Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
LAZARD FRERES & CO. LLC
XXXXXX XXXXXXX & CO. INCORPORATED
By XXXXX XXXXXX INC.
By_____________________________
Managing Director
48
SCHEDULE I
LASALLE RE HOLDINGS LIMITED
Part A - Firm Shares
--------------------
Number of
Selling Shareholders Firm Shares
-------------------- -----------
--------------
Total...........
--------------
Part B - Additional Shares
--------------------------
Number of
Selling Shareholders Additional
-------------------- ----------
---------------
Total...........
---------------
49
SCHEDULE II
LASALLE RE HOLDINGS LIMITED
Number of
Underwriter Number of
Firm Shares Firm Shares Underwriter
----------- ----------- -----------
Xxxxx Xxxxxx Inc............
Lazard Freres & Co. LLC
Xxxxxx Xxxxxxx & Co.
Incorporated...............
Total................
50
