Exhibit 1.1
3,000,000 Shares
LASALLE RE HOLDINGS LIMITED
[____]% Series A Preferred Shares
(Liquidation Preference $[____] Per Share)
UNDERWRITING AGREEMENT
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March __, 1997
XXXXX XXXXXX INC.
XXXXXX FRERES & CO. LLC
XXXXXX XXXXXXX & CO. INCORPORATED
c/o XXXXX XXXXXX INC.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
LaSalle Re Holdings Limited, a Bermuda corporation (the "Company"),
proposes to issue and sell 3,000,000 of its [____]% Series A Preferred Shares,
par value $1.00 per share, liquidation preference $[____] per share (the
"Shares"), to the several Underwriters named in Schedule I hereto (the
"Underwriters") for whom Xxxxx Xxxxxx Inc., Xxxxxx Freres & Co. LLC, and Xxxxxx
Xxxxxxx & Co. Incorporated are acting as representatives (the
"Representatives"). References herein to "LaSalle Re" are to LaSalle Re Limited,
a Bermuda corporation and a subsidiary of the Company.
The Company wishes to confirm as follows its agreements with the
several Underwriters in connection with the several purchases of the Shares by
the Underwriters.
1. 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-3 under the Act, (the "registration
statement"), including a prospectus subject to completion, relating to the
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
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date of
the Prospectus. Any reference in this Agreement to the registration statement,
the Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under which, upon filing, are incorporated
by reference therein, as required by paragraph (b) of Item 12 of Form S-3. As
used herein, the term "Incorporated Documents" means the documents which at the
time are incorporated by reference in the registration statement, the
Registration Statement, any Prepricing Prospectus, the Prospectus, or any
amendment or supplement thereto. If the Company has filed an abbreviated
registration statement to register additional 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. 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.
2. 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, the Company agrees to sell to each
Underwriter and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $[____] per share (the "purchase price
per share"), the number of Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Shares increased as set
forth in Section 10 hereof).
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that the
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
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in your judgment is advisable and initially to offer the Shares upon the terms
set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the 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 __________, 1997 (the "Closing
Date"). The place of closing for the Shares and the Closing Date may be varied
by agreement between you and the Company.
Certificates for the 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. 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. The certificates evidencing the Shares to be purchased hereunder shall be
delivered to you on the Closing Date against payment of the purchase price
therefor in immediately available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) 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.
(b) 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
Prospectus or the Prospectus 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 Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
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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 Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at 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.
(c) The Company will furnish to you without charge (i) 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, (ii) 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, (iii) such number of copies of
the Incorporated Documents, without exhibits, as you may reasonably request, and
(iv) four copies of the exhibits to the Incorporated Documents.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, 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 Underwriters (a copy of which shall be delivered to the
Company), a Prospectus is required by the Act or the Rules and Regulations to be
delivered in connection with sales by any Underwriter or dealer, file any
information, document or report pursuant to the Exchange Act that upon filing
becomes an Incorporated Document, without delivering a copy of such information,
document or report to you, prior to or concurrently with such filing.
(e) 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 Prepricing Prospectus. The Company consents to the use, 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 Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a Prospectus is required by the Act or the Rules
and Regulations to be delivered in connection with sales by any Underwriter or
dealer, the Company will expeditiously deliver to each Underwriter and each
dealer, without charge, as many copies of the Prospectus (and of any amendment
or supplement thereto) as you may reasonably request. The Company consents to
the use of the Prospectus (and of any
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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 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 Prospectus is
required by the Act or the Rules and Regulations to be delivered in connection
with sales by any 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 Underwriters is required to be set forth in the 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
Prospectus (or to file under the Exchange Act any document which, upon filing,
becomes an Incorporated Document) in order 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 (or to such document), and will expeditiously furnish to the
Underwriters and dealers a reasonable number of copies thereof. In the event
that the Company and you agree that the 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.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several 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.
(h) 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 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.
(i) 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 New York Stock
Exchange ("NYSE") and (ii) from
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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.
(j) 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 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company 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 Underwriters for all reasonable out-of-pocket
expenses (including reasonable fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
(k) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing.
(l) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, 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 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.
(m) The Company will use its best efforts to have the Shares
registered under the Exchange Act and listed on the NYSE concurrently with the
effectiveness of the registration statement and to maintain such listing and the
registration of the Shares under the Exchange Act.
(n) 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 waives, 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.
(o) The Company will use all reasonable commercial efforts to satisfy
on or before the Closing Date all conditions contained in Section 8 hereof to
the Underwriters' obligations to purchase the Shares.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Underwriter that:
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(a) Each Prepricing Prospectus included as part of any registration
statement or as part of the Registration Statement or 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 Prepricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
an Underwriter through the Representatives expressly for use therein.
(b) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. 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 Prospectus 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 Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through the Representatives expressly for use therein.
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), complied in all material respects with the provisions of
the Exchange Act and the Rules and Regulations and any further Incorporated
Documents so filed will, when they are filed, comply in all material respects
with the provisions of the Exchange Act and the Rules and Regulations; no such
document at any such times contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and no such further document, when
it is filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(d) 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.
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(e) The consolidated financial statements of the Company (together
with related notes) included or incorporated by reference in the Registration
Statement and Prospectus 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 or incorporated by
reference in the Registration Statement present fairly the information required
to be stated therein. The consolidated pro forma financial statements of the
Company (together with related notes) included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the applicable requirements
of the Act and the Rules and Regulations, have been properly compiled on the pro
forma bases described therein and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein; and the
supporting schedules included or incorporated by reference in the Registration
Statement fairly present the information 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 or
incorporated by reference in the Registration Statement and the Prospectus 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.
(f) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except 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 Prospectus, 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.
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(g) 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 Prospectus; 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.
(h) 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 Prospectus; 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, 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 Prospectus) 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.
(i) 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
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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 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 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.
(j) 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.
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(k) Except as set forth in the Prospectus, 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 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 Prospectus, (d) is required to be
disclosed in the Registration Statement or the Prospectus 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 Prospectus (or any
amendment or supplement thereto) or filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations or to any Incorporated
Document which have not been so described or have not been so filed as required.
(l) 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 Prospectus 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.
(m) 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.
(n) The Company and LaSalle Re have an authorized capitalization as
set forth or incorporated by reference in the Prospectus, 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
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description thereof contained or incorporated by reference in the Prospectus;
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 the NYSE; and the Shares have been approved for quotation on the NYSE.
(o) 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.
(p) 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.
(q) Except as described in the Prospectus, 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.
(r) 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 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.
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(s) 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 Prospectus.
(t) 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"); and neither the Company nor any of its subsidiaries is subject
to the insurance laws of any other jurisdiction, provided that LaSalle Re
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Corporate Capital Ltd., a Bermuda corporation and a subsidiary of the Company
("LaSalle Re Capital"), has been admitted by Lloyd's of London ("Lloyd's") to
corporate membership and is an underwriting member of Lloyd's.
(u) 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 customary for persons in
similar businesses or for similar property.
(v) 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.
(w) 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
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material adverse effect on the condition, financial or otherwise, earnings,
business, prospects or results of operations of the Company or any of its
subsidiaries.
(x) The Company, LaSalle Re and LaSalle Re Capital 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 Prospectus under
the caption "Certain Tax Considerations-Taxation of the Company and its
Subsidiaries--Bermuda.
(y) 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 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.
(z) 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.
(aa) 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").
(bb) 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.
(cc) 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 Underwriters or counsel for the
Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(dd) 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.
(ee) KPMG Peat Marwick, who certified the financial statements and
supporting schedules included or incorporated by reference in the Registration
Statement, is the independent public accountant with respect to the Company as
required by the Act and the Rules and Regulations.
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(ff) 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 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.
(gg) 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.
(hh) 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.
(ii) 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, and each of them is
listed in an exhibit to the Company's Annual Report on Form 10-K which is
incorporated by reference into the Registration Statement.
(jj) 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.
(kk) Neither the 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.
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(ll) 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(n) above.
(mm) Each of the Company and LaSalle Re now has, and on the Closing
Date will have, the legal right and power, and all necessary consents, approvals
and authorizations, to effectuate its dividend policy as described in the
Prospectus, 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 either of them 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 bye-
laws or other organizational documents of either of them 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 either of
them; provided, however, that the payment of dividends by LaSalle Re to the
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Company is limited under Bermuda law and regulations, including Bermuda
insurance law, and that dividends are payable when, as and if declared by the
board of directors of the Company and LaSalle Re, as the case may be.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any 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 Prepricing Prospectus or in the Registration
Statement or the 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 Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through a Representative expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus or the Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such Underwriter to
any person if a copy of the Prepricing Prospectus or the Prospectus (as then
amended or supplemented) shall not have been delivered or sent to such person
within the
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time required by the Act and the Rules and Regulations, and the untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
contained in such Prepricing Prospectus or the Prospectus was corrected in the
Prepricing Prospectus or the Prospectus (as then amended or supplemented),
provided that the Company has delivered the Prepricing Prospectus or the
Prospectus (as then amended or supplemented) to the several Underwriters in
requisite quantity on a timely basis to permit such delivery or sending.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such 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 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 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 Underwriter or such controlling person and the indemnifying parties and
such 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
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 expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such 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 Underwriter, to
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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.
(c) Each 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 Underwriter,
but only with respect to information relating to such Underwriter furnished in
writing by or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any 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 Prospectus
or any Prepricing Prospectus, or any amendment or supplement thereto, and in
respect of which indemnity may be sought against any Underwriter pursuant to
this paragraph (c), such 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 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 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 Underwriters by
paragraph (b) above.
(d) If the indemnification provided for in this Section 7 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 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 on the one hand and the 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 on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus computed on the basis of the respective
amounts set forth in the notes to the table on the cover page of
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the Prospectus. The relative fault of the Company on the one hand and the
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 on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation (even if the 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 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 7, no 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 Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective numbers of Shares set forth opposite their names in Schedule I
hereto (or such numbers of Shares increased as set forth in Section 10 hereof)
and not joint.
(f) 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.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 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 7 and the
representations and warranties of the Company 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
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Underwriter or any person controlling any Underwriter, the Company or the
Company's directors or officers or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any 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 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase the Shares hereunder are subject to the following
conditions:
(a) 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 Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your reasonable satisfaction.
(b) 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
Prospectus, 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 which makes any statement made
in the Prospectus untrue or which, in the opinion of the Company and its counsel
or the Underwriters and their counsel, requires the making of any addition to or
change in the Prospectus 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 Prospectus
to reflect such event or development would, in your opinion, materially
adversely affect the market for the Shares.
(c) 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:
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(i) This Agreement is a valid and binding agreement of the Company.
(ii) 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 or incorporated by
reference in the Prospectus; 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 NYSE; and the
Shares have been registered under the Exchange Act and approved for quotation on
the NYSE.
(iii) 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.
(iv) 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 Prospectus
pursuant to Rule 424(b) has been made in accordance with such rule.
(v) Statements set forth in the Prospectus under the headings "Risk
Factors", "Business", "Description of Series A Preferred Shares" and in the
Registration Statement under Item 15 of 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.
(vi) 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 the issue and sale of the Shares, the execution, delivery
and
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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.
(vii) 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(n) above.
(viii) 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 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
Prospectus 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 Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
or to any Incorporated Document that is not so described or filed as required.
(ix) 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.
(x) Such counsel (1) is of the opinion that the Registration Statement
(including the Incorporated Documents), as of the date it became effective, any
amendment to the Registration Statement (including the Incorporated Documents),
as of its effective date, and the Prospectus, as of its 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
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Regulations, (2) is of the opinion that each of the Incorporated Documents
(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 Exchange Act and the Rules and Regulations, and (3) 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 (including the Incorporated
Documents), as of the date it became effective, or any amendment to the
Registration Statement (including the Incorporated Documents), 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 Prospectus, as of its date, 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.
(xi) The discussion of tax matters set forth under the heading
"Certain Tax Considerations" in the Prospectus accurately reflects such
counsel's opinion as to such tax laws (subject to the qualifications and
assumptions set forth in such discussion).
Such opinion shall also state that such counsel has participated in the
preparation of the Registration Statement and the Prospectus 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 Prospectus (including the contents of all Incorporated Documents)
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
Prospectus or any Incorporated Document. 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:
(i) 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
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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
Prospectus.
(ii) Based solely upon certified copies of the respective members
registers, the minutes, resolutions, memoranda of association and Bye-laws of
the Companies, 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 Company, 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 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.
(iii) 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 Prospectus; 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.
(iv) 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.
(v) 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,
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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.
(vi) 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.
(vii) 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.
(viii) All statements made in the Registration Statement and
Prospectus 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.
(ix) 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.
(x) Each of the Company, LaSalle Re and LaSalle Re Capital 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
Prospectus under the heading "Certain Tax Considerations-Taxation of the Company
and its Subsidiaries-Bermuda."
(xi) The 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
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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.
(xii) There are no statutes or Bermuda government rules, regulations
or orders which seek to challenge the validity of this Agreement or the Shares.
(xiii) 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 of the Company, LaSalle Re or LaSalle Re Capital
pursuant to this Agreement or the Prospectus.
(xiv) The discussion of tax matters relating to Bermuda set forth
under the heading "Certain Tax Considerations" in the Prospectus accurately
reflects the opinion of such counsel as to such matters (subject to the
qualifications and assumptions set forth in such discussion).
(xv) Upon delivery of the share certificates duly executed in favour
of the Underwriters' designees in respect of the Shares, 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.
(e) 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:
(i) 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 Prospectus; 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 or the Prospectus) 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.
(ii) 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 are subject to the payment at the same time of
Advance Corporation Tax under the tax laws of the United Kingdom.
(iii) The discussion set forth under the heading "Certain Tax
Considerations--Taxation of the Company and its
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Xxxxxxxxxxxx--Xxxxxx Xxxxxxx" in the Prospectus is accurate (subject to the
qualifications, limitations and assumptions set forth in such discussion).
(iv) 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 Prospectus, provided that
--------
LaSalle Re Capital is admitted by Lloyd's to corporate membership and is an
underwriting member of Lloyd's.
(f) You shall have received on the Closing Date an opinion of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the 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.
(g) 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
Prospectus, (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 Prospectus; the representations and
warranties of the Company contained in Section 6 are true and correct with the
same force and effect as though made on and as of the Closing Date and the
Company has complied with all agreements and satisfied all 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.
(h) 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 Underwriters (with conformed
copies for each of the Underwriters), substantially in the forms heretofore
approved by you.
(i) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its
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agreements herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(j) Prior to the Closing Date the Shares shall have been listed,
subject to notice of issuance, on the NYSE.
(k) The Shares shall have a rating of at least (i) ["_____"] from
Standard & Poor's Rating Services and (ii) ["_____"] from Xxxxx'x Investors
Service, Inc. and the Company shall have delivered to the Representatives a
letter from each such rating agency (or other evidence satisfactory to the
Representatives), confirming that the Shares have such rating.
(l) On and after the date hereof, except as disclosed in the
Prospectus, (i) no downgrading shall have occurred in any rating (or preliminary
rating) of any active insurance subsidiary of the Company by A.M. Best Company,
Inc. ("A.M. Best"), (ii) A.M. Best shall not have publicly announced that it has
under surveillance or review, with possible negative implications, any such
rating, and (iii) neither the Company nor Xxxxx Xxxxxx Inc. shall have received
any indication of any such downgrading.
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 and
delivered to the Underwriters, or to counsel for the Underwriters, shall be
deemed a representation and warranty by the Company to each Underwriter as to
the statements made therein.
9. 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
respective obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of each registration statement and
the Registration Statement (including financial statements and exhibits
thereto), each Prepricing Prospectus, the Prospectus, 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 each registration statement, the Registration Statement, each
Prepricing Prospectus, the Prospectus, the Incorporated Documents, 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 preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the original
issuance and sale of the Shares; (v) the registration of the Shares under the
Exchange Act and the listing of the Shares on the NYSE; (vi) the registration
or
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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 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 fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Company; and
(x) any fees and expenses payable in connection with the rating of the Shares.
10. 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.
If any one or more of the 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 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 Underwriters are obligated to
purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Shares set forth
opposite its name in Schedule I hereto bears to the aggregate number of Shares
set forth opposite the names of all non-defaulting 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 Underwriter or Underwriters are obligated, but fail or refuse,
to purchase. If any one or more of the Underwriters shall fail or refuse to
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 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
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 Underwriter or the Company. 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
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Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date, 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 cover page of the Prospectus or to enforce contracts for the resale
of the Shares by the Underwriters.
Notice of such termination may be given by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
front cover page, and the sentences of the first paragraph of text under the
caption "Underwriting" concerning the terms of the offering by the Underwriters
and the table thereunder and the second and sixth paragraphs in such
Underwriting section in any Prepricing Prospectus and in the Prospectus
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 6 and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and 11
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company 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 Underwriters, care of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Manager, Investment Banking Division.
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This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, the Company's directors and officers, the other
controlling persons referred to in Section 7 hereof 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 Underwriter of any of the Shares in his
status as such purchaser.
14. 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 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.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
LASALLE RE HOLDINGS LIMITED
By______________________________
President and Chief
Executive Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
XXXXX XXXXXX INC.
LAZARD FRERES & CO. LLC
XXXXXX XXXXXXX & CO. INCORPORATED
By XXXXX XXXXXX INC.
By_____________________________
Managing Director
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SCHEDULE I
LASALLE RE HOLDINGS LIMITED
Number of
Underwriter Shares
----------- ---------
Xxxxx Xxxxxx Inc.............................. [ ]
Lazard Freres & Co. LLC....................... [ ]
Xxxxxx Xxxxxxx & Co. Incorporated............. [ ]
-------
Total.................................
=======
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