EXHIBIT 1.1
8,850,000 Common Shares
CRM HOLDINGS, LTD.
COMMON SHARES
PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
December 20, 2005
Sandler X'Xxxxx & Partners, L.P.,
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CRM Holdings, Ltd., an exempted company incorporated in Bermuda (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to Sandler X'Xxxxx & Partners, L.P. and the other Underwriters
named in Schedule I hereto (the "Underwriters"), for whom Sandler X'Xxxxx &
Partners, L.P. is acting as representative (the "Representative"), an aggregate
of 6,000,0000 common shares, par value $0.01 per share ("Common Shares"), of the
Company, and the shareholders of the Company named in Schedule II hereto (the
"Selling Shareholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 2,850,000 Common Shares and
certain Selling Shareholders, at the election of the Underwriters and subject to
the terms and conditions stated herein, propose to sell up to 947,952 additional
Common Shares. The aggregate of 8,850,000 Common Shares to be sold by the
Company and the Selling Shareholders is herein called the "Firm Shares" and the
aggregate of 947,952 additional shares to be sold by certain Selling
Shareholders is herein called
the "Optional Shares." The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-128424)
(the "Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to each of
the other Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; the Company has
complied to the Commission's satisfaction with all requests of the Commission
for additional or supplemental information; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus;" the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the
Act to be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; and such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus"); all references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, a Preliminary Prospectus, the
Prospectus or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder, and did not 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in
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writing to the Company by an Underwriter through the Representative expressly
for use therein; there are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement which have not been described or filed as required;
(iii) Each Preliminary Prospectus and the Prospectus when
filed, if filed by electronic transmission, pursuant to XXXXX (except as may be
permitted by Regulation S-T under the Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Shares; the Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder; on the effective
date and at any Time of Delivery (as defined in Section 4 hereof), the
Registration Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and, when
filed and at any Time of Delivery, the Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representative expressly
for use therein;
(iv) As of the Applicable Time, neither (i) any
Issuer-Represented General Use Free Writing Prospectuses issued at or prior to
the Applicable Time and the Statutory Prospectus, all considered together
(collectively, the "General Disclosure Package"), nor (ii) any individual
Issuer-Represented Limited-Use Free Writing Prospectus issued at or prior to the
Applicable Time, when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representative expressly
for use therein. As used in this paragraph and elsewhere in this Agreement:
"Applicable Time" means 5:00 pm (Eastern time) on the date of this
Agreement.
"Statutory Prospectus" as of any time means the most recent
Preliminary Prospectus that is included in the Registration
Statement immediately prior to the Applicable Time.
"Issuer Represented Free Writing Prospectus" means any "issuer free
writing prospectus," as defined in Rule 433 under the Act, relating
to the Shares in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in
the Company's records pursuant to Rule 433(g) under the Act.
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"Issuer Represented General Use Free Writing Prospectus" means any
Issuer Represented Free Writing Prospectus that is intended for
general distribution to prospective investors, as evidenced by its
being specified in Schedule IV to this Agreement.
"Issuer-Represented Limited-Use Free Writing Prospectus" means any
Issuer Represented Free Writing Prospectus that is not an Issuer
Represented General Use Free Writing Prospectus.
(v) Each Issuer-Represented Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public
offer and sale of the Shares or until any earlier date that the Company notified
or notifies the Representative as described in Section 5(b), did not, does not
and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representative expressly
for use therein.
(vi) The financial statements, including the related schedules
and notes, filed with the Commission as a part of the Registration Statement and
included in each of the General Disclosure Package and the Prospectus (the
"Financial Statements") present fairly the combined financial position of each
of Compensation Risk Managers, LLC, a New York limited liability company
("CRM"), Compensation Risk Managers of California, LLC, a California limited
liability company ("CRM CA"), EIMAR L.L.C., a New York limited liability company
("EIMAR"), and Twin Bridges (Bermuda) Ltd., a Bermuda exempted company ("Twin
Bridges" and collectively together with any successor to such entities and CRM
USA Holdings, Inc., a Delaware corporation, which shall be formed under the laws
of the State of Delaware in accordance with the Reorganization Agreement (as
defined below), the "Subsidiaries") as of and at the dates indicated and the
results of their operations and cash flows for the periods specified; such
Financial Statements, unless otherwise noted therein have been prepared in
conformity with generally accepted accounting principles as applied in the
United States ("GAAP") applied on a consistent basis throughout the periods
involved; no other financial statements or supporting schedules are required to
be included in the Registration Statement; the income statement information for
the three fiscal years ended December 31, 2004 and balance sheet information as
of each of December 31, 2004 and December 31, 2003 as set forth in each of the
General Disclosure Package and the Prospectus under the captions "Summary
Combined Financial Information" and "Selected Combined and Pro Forma Financial
Information" fairly present the information therein on a basis consistent with
that of the audited combined financial statements contained in the Registration
Statement; the income statement information for each of the nine months ended
September 30, 2005 and September 30, 2004 and the balance sheet information as
of September 30, 2005 as set forth in each of the Statutory Prospectus and the
Prospectus under the captions "Summary Combined Financial Information" and
"Selected Combined and Pro Forma Financial Information" fairly present the
information therein on a basis consistent with that of the unaudited combined
financial statements contained in the Registration Statement; the
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income statement information for the two fiscal years ended December 31, 2001
and balance sheet information as of each of December 31, 2002, December 31, 2001
and December 31, 2000 as set forth in each of the General Disclosure Package and
the Prospectus under the captions "Summary Combined Financial Information" and
"Selected Combined and Pro Forma Financial Information" fairly present the
information therein on a basis consistent with that of the unaudited combined
financial statements of CRM, Eimar, CRM CA and Twin Bridges with respect to
those periods; the pro forma financial information included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the 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 and
circumstances referred to therein.
(vii) Xxxxxxx & Xxxxxxx & Co., who have certified certain
financial statements of the Company and the Subsidiaries, are independent
registered public accountants as required by the Act and the rules and
regulations of the Commission thereunder and in accordance with the requirements
of applicable insurance laws and regulations, and the published standards of the
National Association of Insurance Commissioners ("NAIC"), and such accountants
are not in violation of the auditor independence requirements of the
Xxxxxxxx-Xxxxx Act of 2002 with respect to the Company (the "Xxxxxxxx-Xxxxx
Act");
(viii) The statistical and market related data contained in
the General Disclosure Package, the Prospectus or the Registration Statement are
based on or derived from sources which the Company believes are reliable and
accurate;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) Neither the Company nor any of the Subsidiaries has
sustained, since the date of the latest audited financial statements included in
the Prospectus, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or action, order or decree of any Governmental Entity (as
defined below), otherwise than as set forth in each of the General Disclosure
Package and the Prospectus; since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not been
any change in the capital stock or material change in the long-term debt of the
Company or any of the Subsidiaries or any material adverse change, or any event
or development that may cause a prospective material adverse change, in or
affecting the general affairs, management, financial position, business
prospects, stockholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole; and otherwise than as described in each of the
General Disclosure Package and the Prospectus, there have been no transactions
entered into by the Company or any of the Subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
the Subsidiaries, taken as a whole, and there has been no dividend or
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distribution of any kind declared, paid or made by the Company on any class of
its capital stock, other than the Distributions (as defined in the Prospectus);
(xi) The Company and the Subsidiaries have good and valid
title in fee simple to all real property and good and valid title to all
personal property owned by them, in each case free and clear of all any security
interest, mortgage, pledge, lien, encumbrance, restriction, defect or claim
(collectively, "Liens") except such as are described in each of the General
Disclosure Package and the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company and the Subsidiaries; and any real property
and buildings held under lease by the Company and the 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 of
such property and buildings by the Company and the Subsidiaries;
(xii) The Reorganization Agreement dated December 7, 2005, by
and among (a) the Company, (b) CRM, CRM CA, Eimar and Twin Bridges and (c) the
shareholders named therein (the "Reorganization Agreement") has been duly
authorized, executed and delivered by each of the parties thereto; the
Reorganization Agreement constitutes a valid and binding obligation of each of
the parties thereto enforceable in accordance with its terms; none of the
parties to the Reorganization Agreement is in default in the performance,
observance or fulfillment of, any obligation, agreements, covenant or condition
contained therein; and the description of the Reorganization Agreement and the
transactions contemplated thereby are accurately and completely described, in
all material respects, in each of the General Disclosure Package and the
Prospectus;
(xiii) Each of the Company and the Subsidiaries has been duly
incorporated or organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in each of the
General Disclosure Package and the Prospectus and, in the case of the Company,
to enter into and perform its obligations under this Agreement; the Company and
each subsidiary is duly qualified as a foreign corporation or limited liability
company to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify, or be in good standing, would not, individually
or in the aggregate, have a material adverse effect on the business, properties,
assets, current or future combined or consolidated financial position, business
prospects, shareholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole or on the ability of the Company to consummate the
transactions contemplated herein (a "Material Adverse Effect"); after the
consummation of the transaction contemplated by the Reorganization Agreement all
of the issued and outstanding share capital or equity interests of each
Subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries; the
Company owns, directly or through subsidiaries, the issued and outstanding share
capital or equity interests of each Subsidiary free and clear of any security
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Lien; the Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in
Exhibit 21 to the Registration Statement;
(xiv) The Company has an authorized capitalization as set
forth in each of the General Disclosure Package and the Prospectus under the
heading "Capitalization," and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and have been issued in compliance with Bermuda securities laws
(including any applicable Bermuda insurance securities laws); none of the
outstanding shares of Common Shares were issued in violation of any preemptive
rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company; the description of the Company's share
option, share bonus and other share plans or arrangements and the options or
other rights granted thereunder set forth in each of the General Disclosure
Package and the Prospectus accurately and completely presents, in all material
respects, the information required to be shown with respect to such plans,
arrangements, options and rights;
(xv) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable and will conform to the
description of the Common Shares contained in each of the General Disclosure
Package and the Prospectus;
(xvi) Except as described in each of the General Disclosure
Package and the Prospectus, (A) there are no outstanding rights (contractual or
otherwise), warrants or options to acquire, or instruments convertible into or
exercisable or exchangeable for, or agreements or understandings with the
Company with respect to the sale or issuance of, any shares of capital stock of
or other equity interest in the Company; and (B) there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act or otherwise register any securities the Company owned or to be owned by
such person;
(xvii) The issue and sale of the Shares by the Company and the
compliance by the Company and the Subsidiaries with all of the provisions of
this Agreement and the Reorganization Agreement and the consummation by the
Company and the Subsidiaries of the transactions contemplated herein or therein
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the certificate of incorporation or charter (as
applicable) or bylaws of the Company or any of the Subsidiaries or any law,
statute or any order, rule or regulation of any Regulatory Agency (as used
herein, the term "Regulatory Agency" means any Bermuda, federal or state agency
charged with the supervision or regulation of insurance companies, or any court,
administrative agency or commission or other governmental agency, authority or
instrumentality having supervisory or
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regulatory authority with respect to the Company or any of the Subsidiaries), or
any other federal, state, local or foreign court or governmental agency or
regulatory or other body, including self-regulating organizations, (each a
"Governmental Entity"), having jurisdiction over the Company or any of the
Subsidiaries or any of their properties or assets; and no consent, approval,
authorization, order, registration or qualification of or with any such
Governmental Entity, is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by herein, (a)
except the registration under the Act and the Securities Exchange Act of 1934,
as amended (the "1934 Act") of the Shares, (b) except as may be required under
the rules and regulations of the National Association of Securities Dealers,
Inc. ("NASD") and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities, insurance securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters, (c) except such as have been obtained from the Bermuda
Monetary Authority, (d) except that the Prospectus will have to be filed at the
Registrar of Companies in Bermuda pursuant to the laws of Bermuda and (e) except
for the issuance of an insurance broker license by the State of New York
Insurance Department and the issuance of an insurance broker license by the
State of California Department of Insurance each to CRM.
(xviii) Neither the Company nor any of the Subsidiaries is (a)
in violation of its certificate of incorporation or charter (as applicable) or
bylaws, or (b) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound, except for such
default or observance that would not, individually or in the aggregate, have a
Material Adverse Effect;
(xix) The statements set forth in each of the General
Disclosure Package and the Prospectus under the caption "Description of Share
Capital", insofar as they purport to constitute a summary of the terms of the
share capital of the Company, and under the captions "Regulation," "Material Tax
Considerations," "Risk Factors - We and the groups we manage are subject to
extensive regulation in the United States that may adversely affect our ability
to achieve our business objectives. If we and these groups do not comply with
regulations, we and they may be subject to penalties, including fines,
suspensions and withdrawals of licenses and restrictions on growth on the
groups," "Risk Factors - CRM Holdings could be considered a U.S. corporation for
U.S. federal income tax purposes, and thus subject to U.S. tax on its worldwide
income (including the current income of Twin Bridges), under recently enacted
U.S. legislation, if the value of Twin Bridges does not exceed 20% of our total
value of CRM, CRM CA, Eimar and Twin Bridges," "Risk Factors - We may be deemed
to be engaged in a U.S. trade or business or considered to be a personal holding
company subject to U.S. Tax," "Risk Factors - Provisions in our charter
documents may reduce or increase the voting power associated with our common
shares," "Risk Factors - If you acquire 10% or more of our shares, you may be
subject to taxation under the `controlled foreign corporation' rules," "Risk
Factors - U.S. persons who hold shares could be subject to adverse tax
consequences if we are considered a `passive foreign investment company' for
U.S. federal income tax purposes," "Risk Factors - U.S. persons who hold shares
may be subject to U.S. income taxation on their pro rata share of our `related
person
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insurance income,'" "Risk Factors - Our holding company structure and certain
regulatory, tax and other constraints affect our ability to pay dividends, make
other payments and redeploy capital among our subsidiaries," "Risk Factors - Our
business could be adversely affected by Bermuda employment restrictions," "Risk
Factors - We may become subject to taxes in Bermuda after March 28, 2016," "Risk
Factors - Anti-takeover provisions in our bye-laws could impede an attempt to
replace or remove our directors, which could diminish the value of our common
shares," "Risk Factors - U.S. persons who own our common shares may have more
difficulty protecting their interests than U.S. persons who are shareholders of
a U.S. corporation" "Risk Factors - Twin Bridges is subject to extensive
regulation in Bermuda that may adversely affect its ability to achieve its
business objectives. If Twin Bridges fails to comply with these regulations, it
may be subject to penalties, including fines, suspensions and withdrawal of its
insurance license," "Risk Factors - We may be deemed to be engaged in a U.S.
trade or business or considered to be a personal holding company subject to U.S.
tax" and "Risk Factors - We are a Bermuda company and it may be difficult for
you to enforce judgments against us," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
complete in all material respects;
(xx) Except as disclosed in each of the General Disclosure
Package and the Prospectus, the Company and the Subsidiaries conduct their
respective businesses in compliance with all federal, state, local and foreign
statutes, laws, rules, regulations, decisions, directives and orders applicable
to them (including, without limitation, rules and regulations promulgated by the
Bermuda Monetary Authority, the New York Workers' Compensation Board and the
California Department of Industrial Relations) except where the failure to so
comply would not, individually or in the aggregate, have a Material Adverse
Effect, and neither the Company nor any of the Subsidiaries has received any
communication from any Governmental Entity asserting that the Company or any of
the Subsidiaries is not in compliance with any such statute, law, rule,
regulation, decision, directive or order;
(xxi) Except as disclosed in each of the General Disclosure
Package and the Prospectus, there are no actions, suits, investigations or
proceedings before or by any Governmental Entity (a "Proceeding") now pending
or, to the knowledge of the Company, threatened or contemplated by Governmental
Entities or threatened or contemplated by others, to which the Company or any of
the Subsidiaries is a party or of which any property or asset of the Company or
any of the Subsidiaries is the subject (A) that is required to be disclosed in
the Registration Statement by the Act or by the rules and regulations of the
Commission thereunder and not disclosed therein or (B) which, if determined
adversely to the Company or any of the Subsidiaries, would, individually or in
the aggregate, have a Material Adverse Effect; all pending Proceedings to which
the Company or any of the Subsidiaries is a party or of which any of their
property or assets is the subject, either individually or in the aggregate,
which are not described in the Registration Statement, including ordinary
routine litigation incidental to their respective businesses, would not have a
Material Adverse Effect; and there are no contracts or documents of the Company
or any of the Subsidiaries which would be required to be described in the
Registration Statement or to be filed as exhibits thereto by the Act or by the
rules and regulations of the Commission thereunder which have not been so
described and filed;
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(xxii) Each of the Company and the Subsidiaries possess all
permits, licenses, including, but not limited to, insurance licenses from any
Regulatory Agency, exemptions, franchises, approvals, consents and other
authorizations of (collectively, "Governmental Licenses"), and has made all
filings, applications and registrations with and given all notices to, all
Governmental Entities to permit the Company or such subsidiary to conduct the
business now operated by the Company or the Subsidiaries, except in each case
where the failure to do so would not, individually or in the aggregate, have a
Material Adverse Effect; the Company and the Subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, individually or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would
not, individually or in the aggregate, have a Material Adverse Effect; and no
event has occurred (including, without limitation, the receipt of any notice
from any authority or governing body, the execution, delivery and performance of
this Agreement by the Company, the sale and delivery of the Shares and the
compliance by the Company with all of the provisions hereof and the consummation
by the Company and the Subsidiaries of the transactions contemplated in this
Agreement) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Governmental License or
results or, after notice or lapse of time or both, would result in any
impairment of the rights of the holder of any such Governmental License which
event, singly or in the aggregate, would result in a Material Adverse Effect;
(xxiii) To the knowledge of the Company and the Subsidiaries,
no change in any law or regulation is pending that would reasonably be expected
to result, individually or in the aggregate, in a Material Adverse Effect,
except as described in each of the General Disclosure Package and the
Prospectus; for the purpose of this paragraph, a law is considered to be
"pending" if has been passed by a legislative committee for consideration for
adoption by the legislature and if it has been published, and a regulation is
considered to be "pending" if has been published for comment by a Regulatory
Agency.
(xxiv) Each of the Company and the Subsidiaries is in
compliance in all material respects with all applicable federal, state and local
environmental laws, rules and regulations, including, without limitation, those
applicable to emissions to the environment, waste management, and waste disposal
(collectively, the "Environmental Laws"), except where such noncompliance would
not be reasonably likely to have a Material Adverse Effect, or except as
disclosed in each of the General Disclosure Package and the Prospectus;
(xxv) The Company and each of the Subsidiaries own or possess
adequate rights to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of their respective businesses
except where the failure to so own or possess would not, individually or in the
aggregate, have a Material Adverse Effect; and have no reason to believe that
the conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of others;
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(xxvi) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers, customers or
suppliers of the Company on the other hand, which is required to be described in
the Registration Statement by the Act or by the rules and regulations of the
Commission thereunder which has not been so described; and all descriptions of
such relationships in each of the General Disclosure Package and the Prospectus
are complete and accurate in all material respects;
(xxvii) The Company is not and, after giving effect to the
offering and sale of the Shares and after receipt of payment for the Shares and
the application of such proceeds as described in each of the General Disclosure
Package and the Prospectus, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(xxviii) The Company is in compliance with the provisions of
the Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission
thereunder applicable to it and will comply with those provisions of the
Xxxxxxxx-Xxxxx Act that will become effective in the future upon their
effectiveness; and the Company is in compliance with the applicable rules and
regulations of the Nasdaq National Market except, in either case, where the
failure to so comply would not, individually or in the aggregate, have a
Material Adverse Effect;
(xxix) The Company has not taken and will not take, directly
or indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of the Common
Shares to facilitate the sale or resale of the Shares;
(xxx) Neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or any subsidiary
in his/her capacity as an employee or agent of the Company or any subsidiary,
has made any contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any law or of the character
required to be disclosed in the Prospectus;
(xxxi) The Company maintains a system of accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(xxxii) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e)
under the 1934 Act). Such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's Co-Chief Executive
Officers and its Chief Financial Officer by others within those entities to
allow timely
11
decisions regarding disclosures and are effective to perform the functions for
which they were established; the Company's auditors have advised the members of
the Board of Directors of the Company of (1) any significant deficiencies or
material weaknesses in the design or operation of internal controls over
financial reporting which are reasonably likely to adversely affect the
Company's ability to record, process, summarize and report financial information
and (2) any fraud, whether or not material, that involves management or other
employees who have a role in the Company's internal controls over financial
reporting.
(xxxiii) Neither the Company nor any of the Subsidiaries is
subject or is party to, or has received any notice or advice that any of them
may become subject or party to any investigation with respect to, any
corrective, suspension or cease-and-desist order, agreement, consent agreement
or other regulatory enforcement action, proceeding or order with or by, or is a
party to any commitment letter or similar undertaking to, or is subject to any
directive by, or has been a recipient of any supervisory letter from, or has
adopted any board resolutions at the request of, any Regulatory Agency that
currently relates to or restricts in any material respect their business or that
in any manner relates to their capital and surplus adequacy (including, but not
limited to, any calculation or ratio relating to the "risk-based capital," of
any Subsidiary that is an insurance company (an "Insurance Subsidiary") as
contemplated under corresponding guidance published by the NAIC or applicable
Bermuda statutes or regulations) or their management (each, a "Regulatory
Agreement"), other than the agreement by and between CRM and the Workers'
Compensation Board of the State of New York, dated December 15, 2005, which
agreement, in the reasonable judgment of the Company, is not expected to result
in a Material Adverse Effect, nor has the Company or any of the Subsidiaries
been advised by any Regulatory Agency that it is considering issuing or
requesting any such Regulatory Agreement; there is no unresolved violation,
criticism or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of the Company or any of the Subsidiaries
which, in the reasonable judgment of the Company, is expected to result in a
Material Adverse Effect;
(xxxiv) Any "employee benefit plan" (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (collectively, "ERISA")) established or
maintained by the Company, the Subsidiaries or their "ERISA Affiliates" (as
defined below) are in compliance in all material respects with ERISA; "ERISA
Affiliate" means, with respect to the Company or a subsidiary, any member of any
group of organizations described in Section 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such subsidiary
is a member; no "reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, the Subsidiaries or any of their ERISA
Affiliates; no "employee benefit plan" established or maintained by the Company,
the Subsidiaries or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfunded benefit liabilities"
(as defined under ERISA); none of the Company, the Subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under
(A) Title IV of ERISA with respect to
12
termination of, or withdrawal from, any "employee benefit plan" or (B) Sections
412, 4971, 4975 or 4980B of the Code; each "employee benefit plan" established
or maintained by the Company, the Subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred whether by action or failure to act, which
would cause the loss of such qualification;
(xxxv) The Company and the Subsidiaries, taken as a whole, are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the business in
which they are engaged; and neither the Company nor any of the Subsidiaries has
any reason to believe that it will not be able to renew its existing insurance
coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect; neither the Company nor any
Subsidiary has been denied any insurance coverage which it has sought or for
which it has applied;
(xxxvi) Neither the Company nor any of its Insurance
Subsidiaries is in violation of, or in default in the performance, observance or
fulfillment of, any obligation, agreements, covenant or condition contained in
reinsurance and retrocessional treaties, contracts, agreements and arrangements
to which the Company or any of its Insurance Subsidiaries is a party, except for
such violations or defaults which would not, individually or in the aggregate,
result in a Material Adverse Effect; except as described in each of the General
Disclosure Package and the Prospectus, all such reinsurance and retrocessional
treaties, contracts, agreements and arrangements are in full force and effect;
neither the Company nor any of its Insurance Subsidiaries has received any
notice from any of the other parties to such treaties, contracts, agreements or
arrangements that such other party intends not to perform its obligations
thereunder and none of them has any reason to believe that any of the other
parties to such treaties, contracts, agreements or arrangements will be unable
to perform its obligations thereunder, except to the extent that such
nonperformance would not, individually or in the aggregate, result in a Material
Adverse Effect; neither the Company nor any of its Insurance Subsidiaries has
received any notice from any of the other parties to such treaties, contracts,
agreements or arrangements that such other party intends to terminate such
treaty, contract, agreement or arrangement, except to the extent that such
termination would not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect;
(xxxvii) Except as disclosed in each of the General Disclosure
Package and the Prospectus, there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid claim against
the Company, or any Underwriter, for a brokerage commission, finder's fee or
other like payment;
(xxxviii) No Subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company,
from making any other distribution on such Subsidiary's capital stock or from
repaying to the Company any loans or advances to such subsidiary from the
Company, other than general restrictions and limitations applicable to all
insurance companies domiciled in the country or state of organization of such
Insurance Subsidiary pursuant to
13
applicable law and other than as described in each of the General Disclosure
Package and the Prospectus;
(xxxix) The Company and its Insurance Subsidiary have made no
material changes in their insurance reserving practices since the respective
dates as of which relevant financial information is presented in the
Registration Statement, except as disclosed in each of the General Disclosure
Package and Prospectus;
(xl) The Company and the Subsidiaries have filed all necessary
federal, state and foreign income, franchise and premium tax returns or have
properly requested extensions thereof and have paid all taxes required to be
paid by any of them; the Company and the applicable Subsidiaries have made
adequate charges, accruals and reserves in the applicable financial statements
referred to in Section 1(a)(vi) hereof in respect of all federal, state and
foreign income, franchise and premium taxes for all periods as to which the tax
liability of the Company or any of the Subsidiaries has not been finally
determined;
(xli) No forward-looking statement (within the meaning of
Section 27A of the Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the General Disclosure Package or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith;
(xlii) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those obtained,
is required in connection with the offering of the Reserved Shares (as defined
below) in any jurisdiction where the Reserved Shares are being offered, except
for such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities, insurance securities or Blue Sky laws in
connection with the purchase and distribution of the Reserved Shares by the
Underwriters. The Company has not offered, or caused any Underwriter to offer,
Shares to any person pursuant to the Reserved Share Program (as defined below)
with the specific intent to unlawfully influence (i) a customer or supplier of
the Company to alter the customer's or supplier's level or type of business with
the Company or (ii) a trade journalist or publication to write or publish
favorable information about the Company or its products;
(xliii) At the time of the initial filing of the Registration
Statement and on the date hereof the Company was not and is not an "ineligible
issuer," as defined in Rule 405 under the Act;
(xliv) The Common Shares, including the Shares being sold
hereunder by the Company and the Selling Shareholders, have been approved for
quotation on the Nasdaq National Market under the symbol "CRMH", subject to
notice of issuance and evidence of satisfactory distribution; and
(xlv) Except for the Public Entities Trust of New York, each
of the self-insured groups managed by CRM or CRM CA, as the case may be, on the
date hereof are in full compliance with all laws, statutes or any order, rule or
regulation of any applicable Regulatory Agency, except where the failure to so
comply would not, individually or in the aggregate, have a material adverse
effect on the business, properties, assets, current or future combined or
14
consolidated financial position, business prospects, shareholders' equity or
results of operations of such self-insured group and in the aggregate such
failures to so comply by all of the self-insured groups (including the Public
Entities Trust of New York) would not have a Material Adverse Effect; each of
such self-insured groups was duly formed and is validly existing under the laws
of the state in which it was formed; and none of such self-insured groups, other
than the Public Entities Trust of New York, is currently deemed to be
"underfunded" as determined by the New York Workers' Compensation Board or the
California Department of Industrial Relations, as applicable.
(b) Any certificate signed by an officer of the Company and
delivered to you or to counsel for the Underwriters at any Time of Delivery
shall be deemed to be a representation and warranty by the Company to each
Underwriter as to the matters set forth therein.
(c) Each of the Selling Shareholders for itself, severally and not
jointly, represents and warrants to, and agrees with, each of the Underwriters
and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Shareholder of this
Agreement, the Power of Attorney (as defined below) and the Custody Agreements
(as defined below) and for the sale and delivery of the Shares to be sold by
such Selling Shareholder hereunder, have been obtained; and such Selling
Shareholder has full right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreements and to sell, assign, transfer
and deliver the Shares to be sold by such Selling Shareholder hereunder;
(ii) Each of this Agreement, the Custody Agreements and the
Power of Attorney have been duly authorized, executed and delivered by such
Selling Shareholder and each of the Custody Agreements and the Power of Attorney
constitutes a valid and binding obligation of such Selling Shareholder
enforceable against such Selling Shareholder in accordance with its terms;
(iii) The sale of the Shares to be sold by such Selling
Shareholder hereunder and the compliance by such Selling Shareholder with all of
the provisions of this Agreement, the Power of Attorney and the Custody
Agreements and the consummation by such Selling Shareholder of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder is bound or to which any of the property or assets of
such Selling Shareholder is subject, nor will any such action result in any
violation of the provisions of the constituent documents of such Selling
Shareholder if such Selling Shareholder is a corporation or other entity, or any
statute or any order, rule or regulation of any Governmental Entity having
jurisdiction over such Selling Shareholder or the property or assets of such
Selling Shareholder;
(iv) Immediately prior to each Time of Delivery such Selling
Shareholder will be, except with respect to such Shares at such times as to
which the Share Custodian (as defined below) is the registered owner, the sole
registered and beneficial owner of the Shares to be sold by such Selling
Shareholder hereunder, free and clear of all Liens; and, upon delivery of
15
such Shares as directed by the Underwriters to a nominee designated by The
Depository Trust Company ("DTC") and payment therefor pursuant hereto, the
respective Underwriters, upon the crediting of such Shares on the records of DTC
to securities accounts of the respective Underwriters, will acquire a security
entitlement in respect of such Shares under Section 8-501 of the New York UCC,
will be a "protected purchaser" (as defined under the Uniform Commercial Code of
New York (the "New York UCC")) provided that it has no "notice" of an adverse
claim within the meaning of Section 8-105 of the New York UCC, and no action
based on an adverse claim to such security entitlement may be asserted against
the respective Underwriters provided that they have no "notice" of such adverse
claim within the meaning of Section 8-105 of the New York UCC;
(v) Such Selling Shareholder has duly authorized, executed and
delivered a copy of the agreement attached hereto as Annex I and such agreement
is in full force and effect and constitutes a valid and binding obligation of
such Selling Shareholder enforceable against such Selling Shareholder in
accordance with its terms;
(vi) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(vii) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer -- Represented Free Writing Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written information
furnished to the Company by such Selling Shareholder expressly for use therein,
the Registration Statement, any Preliminary Prospectus and any Issuer --
Represented Free Writing Prospectus conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement, any Issuer --
Represented Free Writing Prospectus or the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder; on the effective date and at any Time of Delivery,
to the knowledge of such Selling Shareholder, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; to the knowledge of such Selling Shareholder,
at the Applicable Time, each of the General Disclosure Package and any
individual Issuer -- Represented Limited-Use Free Writing Prospectus, when
considered together with the General Disclosure Package, will not include any
untrue statement of a material fact or omit 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; to the knowledge of such Selling
Shareholder, when filed and at any Time of Delivery, the Prospectus (together
with any supplement thereto) will not include any untrue statement of a material
fact or omit 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;
(viii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982
16
with respect to the transactions herein contemplated, such Selling Shareholder
will deliver to you prior to or at the First Time of Delivery (as hereinafter
defined) a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(ix) All of the Shares to be sold by such Selling Shareholder
hereunder will be transferred for registration in the name of Computershare
Shareholder Services, LLC, as custodian (the "Share Custodian"), under a custody
agreement, in the form heretofore furnished to you (the "Share Custody
Agreement"), duly executed and delivered by such Selling Shareholder to the
Share Custodian, and such Selling Shareholder has duly executed and delivered a
custody agreement, in the form heretofore furnished to you (together with the
Share Custody Agreement, the "Custody Agreements") with respect to such Selling
Shareholder's interests in each of CRM, CRM CA, Eimar and Twin Bridges in favor
of Xxxxx X. Xxxxxxxx, Esq. and Xxxxx X. Xxxxxxxx as custodians (together with
the Share Custodian, the "Custodians") and such Selling Shareholder has duly
executed and delivered a Power of Attorney, in the form heretofore furnished to
you (the "Power of Attorney"), appointing the persons indicated in footnote (a)
in Schedule II hereto, and each of them, with full power of substitution, as
such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to authorize the Share Custodian to instruct the transfer agent of the
Company to transfer the registered ownership of the Shares to be sold by such
Selling Shareholder hereunder and otherwise to act on behalf of such Selling
Shareholder in connection with the transactions contemplated by this Agreement,
the Reorganization Agreement and the Custody Agreements;
(x) The Shares to be sold by such Selling Shareholder
hereunder will be registered in the name of the Share Custodian under the Share
Custody Agreement prior to the First Time of Delivery and are subject to the
interests of the Underwriters hereunder; the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, is irrevocable;
the obligations of such Selling Shareholder hereunder will not be terminated by
operation of law, whether by the death or incapacity or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event; if such Selling Shareholder or any such executor
or trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation should be
dissolved, or if any other such event should occur, before the delivery of the
Shares hereunder, the Shares will be transferred by or on behalf of such Selling
Shareholder in accordance with the terms and conditions of this Agreement and of
the Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to
the Powers of Attorney will be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of whether
or not the Custodians, the Attorneys-in-Fact, the Company or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event; and
(xi) Neither such Selling Shareholder nor any of its
affiliates directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common
17
control with, or has any other association with (within the meaning of Article
I, Section (dd) of the By-laws of the NASD) any member firm of the NASD.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Shareholders, severally and not jointly, agree to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Shareholders,
at a purchase price per share of $12.155, the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
the aggregate number of Shares to be sold by the Company and each of the Selling
Shareholders as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Firm Shares to
be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate
number of Firm Shares to be purchased by all of the Underwriters from the
Company and all of the Selling Shareholders hereunder and (b) in the event and
to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, certain of such Selling Shareholders to the
extent indicated in Schedule II hereto, severally and not jointly, agrees to
sell to each of the Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase from such Selling Shareholders, at the purchase
price per share set forth in clause (a) of this Section 2, that portion of the
number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum number of Optional Shares that all
of the Underwriters are entitled to purchase hereunder.
Certain of the Selling Shareholders, as and to the extent indicated in
Schedule II hereto, hereby, severally and not jointly, grants to the
Underwriters the right to purchase at their election up to 947,952 Optional
Shares, at the purchase price per share set forth in the paragraph above, for
the sole purpose of covering overallotments in the sale of the Firm Shares. Any
such election to purchase Optional Shares shall be made in proportion to the
maximum number of Optional Shares to be sold by each Selling Shareholder as set
forth in Schedule II hereto. Any such election to purchase Optional Shares may
be exercised only by written notice from you to the Attorney-in-Fact, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery or, unless you and
Attorney-in-Fact otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
It is understood that 300,000 Common Shares of the Firm Shares ("Reserved
Shares") have been reserved by the Underwriters for offer and sale to officers,
directors, existing shareholders, employees, business associates and related
persons of the Company ("Reserved Share Participants") upon the terms and
conditions set forth in the Prospectus and in accordance with the rules and
regulations of the NASD (the "Reserved Share Program"). Under no circumstances
will any Underwriter be liable to the Company or to any Reserved Share
18
Participant for any action taken or omitted to be taken in good faith in
connection with such Reserved Share Program.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Representative may request upon at least forty-eight hours' prior
notice to each of the Company and the Attorneys-in-Fact shall be delivered by or
on behalf of the Company to the Representative through the facilities of the
DTC, for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same day) funds to the respective accounts specified by the Company and the
Attorneys-in-Fact to the Representative at least 48 hours in advance. The time
and date of such delivery and payment shall be, with respect to the Firm Shares,
10 a.m., Eastern time, on December 27, 2005 or such other time and date as the
Representative and each of the Company and the Attorneys-in-Fact may agree upon
in writing, and, with respect to the Optional Shares, 10 a.m., New York time, on
the date specified by the Representative in the written notice given by the
Representative of the Underwriters' election to purchase such Optional Shares,
or such other time and date as the Representative and each of the Company and
the Attorneys-in-Fact may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(n) hereof, will be delivered at the offices
of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP (the "Closing Location"), and delivery of
the Shares shall be made through the facilities of the DTC, unless the
Representative shall otherwise instruct, all at such Time of Delivery. A meeting
will be held at the Closing Location at 10 a.m., Eastern Time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section
4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be
19
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus, Issuer -- Represented Free
Writing Prospectus or Prospectus, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement, any
Preliminary Prospectus, any Issuer -- Represented Free Writing Prospectus or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, Issuer -- Represented Free Writing Prospectus or
Prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order; to advise you, promptly after it
receives notice thereof, of any pending proceeding or examination with respect
to the Registration Statement pursuant to Section 8(d) or 8(e) of the Act;
(b) If at any time following issuance of an Issuer-Represented Free
Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer-Represented Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or
included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company has notified or will notify promptly the
Representative so that any use of such Issuer-Represented Free-Writing
Prospectus may cease until it is amended or supplemented and the Company has
promptly amended or will promptly amend or supplement such Issuer-Represented
Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission; provided, however, that this covenant shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representative
expressly for use therein.
(c) The Company represents and agrees that, unless it obtains the
prior written consent of the Representative, and each Underwriter represents and
agrees that, unless it obtains the prior written consent of each of the Company
and the Representative, it has not made and will not make any offer relating to
the Shares that would constitute an "issuer free writing prospectus," as defined
in Rule 433 under the Act, or that would otherwise constitute a "free writing
prospectus," as defined in Rule 405 under the Act, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and the
Representative is hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company represents that it has treated or agrees that it will
treat each Permitted Free Writing Prospectus as an "issuer free writing
prospectus," as defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record
keeping. The Company represents that it has satisfied the conditions in Rule 433
to avoid a requirement to file with the Commission any electronic road show.
20
(d) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(e) Prior to 10:00 a.m., Eastern Time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as you may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and file with the Commission (subject to Section
5(a) hereof) and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and the Subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, not to
directly or indirectly, sell, offer, agree to sell, contract to sell,
hypothecate, pledge, grant any option to purchase, make any short sale,
establish an open "put equivalent position" within the meaning of Rule 16a-l(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file a registration statement under the Act in respect of,
except as provided hereunder, any Common Shares or any securities of the Company
that are substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive, Common Shares or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities outstanding as
of, the date of this Agreement), or publicly announce an intention to effect any
such transaction without your prior written consent; provided, however,
21
that if: (1) during the last 17 days of such 180-day period the Company issues
an earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of such 180-day period, the Company
announces that it will release earnings results during the 16-day-period
beginning on the last day of such 180-day period, the restrictions imposed by
this Section 5(e) shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the occurrence of
the material news or material event;
(h) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its shareholders
consolidated summary financial information of the Company and the Subsidiaries
for such quarter in reasonable detail;
(i) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information (provided that to the extent such information is not
publicly available, it shall be provided on a confidential basis) concerning the
business and financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and the Subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission); provided,
however, that the Company shall not be required to provide you with any such
information, reports or communications that have been filed or furnished with
the Commission by an electronic transmission pursuant to the XXXXX or an
equivalent electronic database authorized by the Commission and that are
available to the public;
(j) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the each of the
General Disclosure Package and the Prospectus under the caption "Use of
Proceeds";
(k) To comply with all applicable securities and other applicable
laws, rules and regulations, including without limitation, the rules and
regulations of the NASD in each jurisdiction in which the Reserved Shares are
offered in connection with the Reserved Share Program;
(l) If the Company elects to rely on Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Eastern time on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act; and
(m) To use its best efforts to list for quotation the Shares on the
Nasdaq
22
National Market.
6. The Company and each of the Selling Shareholders covenants and agrees
with one another and with the several Underwriters that the Company will pay or
cause to be paid the following, whether or not the transactions contemplated
herein are completed: (i) the reasonable out-of-pocket expenses incurred by the
Underwriters in connection with the transactions contemplated hereby, including,
without limitation, disbursements, fees and expenses of Underwriters' counsel up
to an aggregate amount of $250,000 and marketing, syndication and travel
expenses; (ii) the fees, disbursements and expenses of the Company's counsel,
counsel for the Selling Shareholders and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers, including, but not limited to, the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Permitted Free
Writing Prospectus and the Prospectus and any amendments or supplements thereto
and any costs associated with electronic delivery of any of the foregoing by the
Underwriters to investors; (iii) the cost of printing or producing any agreement
among Underwriters, this Agreement, the Blue Sky Survey, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iv) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities or insurance securities laws as provided in Section 5(b)
hereof, including the disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(v) all fees and expenses in connection with listing the Shares on the Nasdaq
National Market; (vi) the filing fees incident to, or in connection with,
securing any required review by the NASD of the terms of the sale of the Shares;
(vii) the cost of preparing share certificates; (viii) the cost and charges of
any transfer agent or registrar; (ix) all reasonable disbursements of counsel
incurred by the Underwriters in connection with the Reserved Share Program and
stamp duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Reserved Share Program; and (x) all other
costs and expenses incident to the performance of its and the Selling
Shareholders' obligations hereunder which are not otherwise specifically
provided for in this Section.
7. The obligations of the several Underwriters hereunder, as to the Shares
to be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Company and each of the Selling Shareholders herein are, at and as of such
Time of Delivery, true and correct, the condition that the Company and each of
the Selling Shareholders shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof (or a post-effective amendment shall have been filed and declared
effective in accordance with the requirements of Rule 430A); if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Eastern Time, on the date of this
23
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction; and the NASD shall have
raised no objection to the fairness and reasonableness of the underwriting terms
and arrangements;
(b) Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, with respect to such matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(d) Xxxxx & XxXxxxxx LLP, special U.S. counsel for the Company,
shall have furnished to you their written opinion, dated such Time of Delivery,
in substantially the form set forth in Exhibit A hereto.
(e) Xxxxx X. Xxxxxxxx, General Counsel of the Company, shall have
furnished to you his written opinion, dated such Time of Delivery, in
substantially the form set forth in Exhibit B hereto.
(f) Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel for the Company, shall
have furnished to you their written opinion, dated such Time of Delivery, in
substantially the form set forth in Exhibit C hereto.
(g) Xxxxx & XxXxxxxx LLP, special U.S. counsel for the Selling
Shareholders, shall have furnished to you their written opinion, dated such Time
of Delivery, in substantially the form set forth in Exhibit D hereto.
(h) (i) At the time of the execution of this Agreement, you shall
have received from Xxxxxxx & Xxxxxxx & Co., a letter dated such date, in form
and substance satisfactory to you, to the effect that (A) they are independent
registered public accountants with respect to the Company and the Subsidiaries
within the meaning of the Code of Ethics of the American Institute of Certified
Public Accountants, the Act and the rules and regulations of the Commission
thereunder and they are not in violation of the auditor independence
requirements of the Xxxxxxxx-Xxxxx Act; (B) it is their opinion that the
combined financial statements and supporting schedules of CRM, CRM CA, Eimar and
Twin Bridges and the balance sheet of the Company included in the Registration
Statement and covered by their opinions therein and any supplementary financial
information, schedules and pro forma financial information included in the
Registration Statement, the General Disclosure Package or the Prospectus comply
as to form in all material respects with the applicable accounting requirements
of the Act and the rules and regulations of the Commission thereunder; (C) based
upon limited procedures as agreed upon by you and Xxxxxxx & Xxxxxxx & Co. set
forth in detail in such letter, including a reading of the latest available
interim financial statements of the Company and the Subsidiaries, a reading of
24
the minute books of the Company and the Subsidiaries, inquiries of officials of
the Company and the Subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, nothing has come to their attention which causes them to believe that
(I) (x) the unaudited combined statements of income, combined balance sheets and
combined statements of cash flows included in each of the General Disclosure
Package and the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related published
rules and regulations, (y) any material modifications should be made to the
unaudited combined statements of income, combined balance sheets, combined
statements of shareholders' equity and combined statements of cash flows
included in each of the General Disclosure Package and the Prospectus, for them
to be in conformity with generally accepted accounting principles, or (z) any
unaudited pro forma combined financial information included in the General
Disclosure Package or the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of those
statements, (II) at a specified date not more than five days prior to the date
of this Agreement, except as disclosed in such letter, there has been any change
in the share capital of the Company or any increase in the combined long term or
short term debt of CRM, CRM CA, Eimar and Twin Bridges or the debt of the
Company or any decrease in combined total assets, retained earnings or
shareholders' and members' equity of CRM, CRM CA, Eimar and Twin Bridges or the
total assets or shareholders' equity of the Company, in each case as compared
with the amounts shown in the most recent combined balance sheet of CRM, CRM CA,
Eimar and Twin Bridges included in the Registration Statement or the audited
balance sheet of the Company, as the case may be, or (III) during the period
from the date of the most recent combined statement of income included in the
Registration Statement to a specified date not more than five days prior to the
date of this Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in the combined total revenues and
net income of CRM, CRM CA, Eimar and Twin Bridges, except in all instances for
changes, increases or decreases set forth in such letter, (D) in addition to the
audits referred to in their opinions and the limited procedures referred to in
clause (C) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in the Registration Statement and in
each of the General Disclosure Package and the Prospectus and which are
specified by you, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and other
records of the Company and the Subsidiaries identified in such letter and (E)
they have compared the information in each of the General Disclosure Package and
the Prospectus under the captions "Selected Combined and Pro Forma Financial
Information" and "Management - Executive Compensation" with the respective
disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of Items 301
and 402, respectively, of Regulation S-K.
(ii) At 9:30 a.m., Eastern time, on the effective date of any
post-effective amendment to the Registration Statement filed after the date of
this Agreement and also at each
25
Time of Delivery, you shall have received from Xxxxxxx & Xxxxxxx & Co. a letter,
dated as of each such date, to the effect that they reaffirm the statements made
in the letter furnished pursuant to Section 7(h)(i) hereof, except that the
specified date referred to shall be a date not more than five days prior to the
date of such letter.
(i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or action, order or decree of any Governmental Entity, otherwise than as
described in each of the General Disclosure Package and the Prospectus, and
since the respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term debt of
the Company or any of the Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, business prospects, shareholders' and members' equity or
results of operations of the Company and the Subsidiaries taken as a whole,
otherwise than as described in each of the General Disclosure Package and the
Prospectus, the effect of which, in any such case described in this paragraph,
is in the judgment of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(j) The Shares to be sold at such Time of Delivery shall have been
duly listed for quotation on the Nasdaq National Market.
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement attached hereto as Annex I from each officer and
director and the shareholders listed on Schedule III hereto of the Company and
such agreements shall be in full force and effect;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(m) Each of the transactions contemplated by the Reorganization
Agreement has been consummated prior to the First Time of Delivery and the
Company shall cause to be delivered to you such documentation as you may
reasonably request evidencing such consummation;
(n) The Company and Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company or the Selling Shareholders, respectively, satisfactory to you as
to the accuracy of the representations and warranties of the Company and the
Selling Shareholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Shareholders of all of
their respective obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a), (j) and (k) of this
Section 7 and as to such other matters as you may reasonably request;
(o) The Company shall have filed, or caused to be filed, the
Prospectus at the
26
Registrar of Companies in Bermuda; and
(p) CRM shall have (i) been issued an insurance broker license by
the State of New York Insurance Department and been issued an insurance broker
license by the State of California Department of Insurance or (ii) established
arrangements for the receipt of brokerage commissions that are reasonably
satisfactory to the Underwriters;
If any condition specified in this Section 7 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by you,
on behalf of the Underwriters, by notice to the Company at any time on or prior
to the Time of Delivery. If the sale of the Shares provided for herein is not
consummated because any condition set forth in this Section 7 is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, the Company
will reimburse the Underwriters upon demand for all documented out-of-pocket
expenses (including all fees, expenses and disbursements of counsel) that shall
have been incurred by the Underwriters in connection with the proposed offering
of the Shares. In addition, such termination shall be subject to Section 6
hereof, and Sections 1, 8 and 10 hereof shall survive any such termination and
remain in full force and effect.
8. (a) The Company shall indemnify and hold harmless each Underwriter and
each Selling Shareholder against any losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use therein (provided that the Company and the
Underwriters hereby acknowledge and agree that the only information that the
Underwriters have furnished to the Company specifically for inclusion in any
Preliminary Prospectus, the Registration Statement, the General Disclosure
Package, the Prospectus or any individual Issuer-Represented Limited-Use Free
Writing Prospectus (or any amendment or supplement thereto) are (i) the
concession and reallowance figures appearing in the Prospectus and the Statutory
Prospectus in the section entitled "Underwriting," (ii) the second sentence of
the seventh paragraph under the
27
section entitled "Underwriting" relating to the Underwriters' reservation of the
right to withdraw, cancel or modify the offer contemplated by this Agreement and
to reject orders in whole or in part, (iii) the thirteenth paragraph under the
section entitled "Underwriting" relating to stabilization transactions,
over-allotment transactions, syndicate covering transactions and penalty bids in
which the Underwriters may engage and (iv) the last sentence of the fourteenth
paragraph relating to the effecting of stabilization transactions, syndicate
covering transactions and penalty bids (collectively, the "Underwriters'
Information").
In addition, the Company, will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Reserved Share
Participants in connection with the Reserved Share Program, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; (B) the failure of any Reserved Share
Participant to receive Reserved Shares for which such Reserved Share Participant
submitted an indication of interest, (C) the failure of any Reserved Share
Participant to pay for and accept delivery of Reserved Shares which, by the end
of the second business day following the date of this Agreement, were subject to
a properly confirmed agreement to purchase; or (D) the Reserved Share Program
(other than as a result of willful misconduct or bad faith by the Underwriters).
(b) Each of the Selling Shareholders, severally and not jointly,
shall indemnify and hold harmless the Company and each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
General Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement, the General
Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Selling
Shareholder expressly for use therein (provided that the Company, the Selling
Shareholders and the Underwriters hereby acknowledge and agree that the only
information that each Selling Shareholder has furnished to the Company
specifically for inclusion in any Preliminary Prospectus, the Registration
Statement, the General Disclosure Package, the Prospectus or any
Issuer-Represented Limited-Use Free Writing Prospectus (or any amendment or
supplement thereto) is the information set forth opposite such Selling
Shareholder's name in
28
the Prospectus and the Statutory Prospectus in the section entitled "Selling
Shareholders"); and will reimburse each such indemnified party for any legal or
other expenses reasonably incurred by the Company or such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that with respect to any amount due to
an indemnified person under this Section 8(b), each Selling Shareholder shall be
liable only to the extent of the net proceeds received by such Selling
Shareholder from the sale of such Selling Shareholder's Shares.
(c) Each Underwriter shall indemnify and hold harmless the Company
and each Selling Shareholder against any losses, claims, damages or liabilities
to which they or any of them may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the General Disclosure Package, the Prospectus or any
individual Issuer-Represented Limited-Use Free Writing Prospectus, when
considered together with the General Disclosure Package, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the General Disclosure Package, the
Prospectus or any individual Issuer-Represented Limited-Use Free Writing
Prospectus, when considered together with the General Disclosure Package, or any
such amendment or supplement in reliance upon and in conformity with the
Underwriters' Information; and will reimburse each such indemnified party for
any legal or other expenses reasonably incurred by the them in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under Section
8(a), (b), or (c) hereof of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such Section, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such Section, except to the extent that
such indemnifying party has been materially prejudiced by such omission. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with a single counsel (in addition to local counsel)
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party which consent shall not be unreasonably withheld, be
counsel to the indemnifying party) and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation unless the indemnifying party shall not have employed counsel
satisfactory to the indemnified party within a reasonable time after notice of
29
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party; provided, however, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties, in which case the fees
and expenses of counsel shall be at the expense of the indemnifying party. The
indemnifying party under this Section 8 shall not be liable for any settlement
of any proceedings effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by this Section 8(d), the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request (other than those fees and expenses that are being contested
in good faith) prior to the date of such settlement. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as
30
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Shareholders 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. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Shareholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Shareholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8(e). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
8(e) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(e), (i) no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) no Selling
Shareholder shall be required to contribute any amount in excess of the net
proceeds it receives in connection with the offering of the Shares. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this Section
8(e) to contribute are several in proportion to their respective underwriting
obligations and not joint. The obligations of the Selling Shareholders in this
Section 8(e) to contribute are several in proportion to the net proceeds
received from the sale of Shares by each such Selling Shareholder and not joint.
(f) The obligations of the Company and the Selling Shareholders
under this Section 8 shall be in addition to any liability which the Company and
the respective Selling Shareholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls (within the
meaning of Section 15 of the Act) any Underwriter, or any of the respective
partners, directors, officers and employees of any Underwriter or any such
controlling person; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company), each officer of the Company who signs the Registration Statement and
to each person, if any, who controls the Company or any Selling Shareholder
within the meaning of the Act.
31
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Shareholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties reasonably satisfactory to you to purchase such Shares on such terms. In
the event that, within the respective prescribed periods, you notify the Company
and the Attorneys-in-Fact for the Selling Shareholders that you have so arranged
for the purchase of such Shares, or the Company and the Attorneys-in-Fact for
the Selling Shareholders notify you that they have so arranged for the purchase
of such Shares, you, the Company and the Selling Shareholders shall have the
right to postpone a Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section 9 with like effect as if such person
had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you, the Company and
the Selling Shareholders as provided in Section 9(a) hereof, the aggregate
number of such Shares which remains unpurchased does not exceed one-tenth of the
aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Shareholders shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you, the Company and
the Selling Shareholders as provided in Section 9(a) hereof, the aggregate
number of such Shares which remains unpurchased exceeds one-tenth of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Shareholders shall not exercise the right
described in Section 9(b) hereof to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Shareholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Selling Shareholders, except for the expenses
to be borne by the Company and the Selling Shareholders and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
32
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the
Shares.
11. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time on or prior to the Time of Delivery if, since the time of
execution of this Agreement or, in the case of (i) below, since the date of the
most recent balance sheet included in the Financial Statements, there has
occurred, (i) a suspension or material limitation in trading in the Company's
securities on the Nasdaq National Market or securities generally; (ii) a general
moratorium on commercial banking activities declared by either United States
federal, New York or Bermuda authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; or
(iii) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other calamity or crisis or any material change in financial,
political or economic conditions in the United States, including without
limitation, as a result of terrorist activities occurring after the date hereof,
if the effect of any such event specified in clause (ii), (iii) or (iv) above,
in the judgment of the Representative makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus.
(b) If this Agreement is terminated pursuant to this Section 11,
such termination shall be without liability of any party to any other party
except as provided in Section 6 hereof, and provided further that Sections 8 and
10 hereof shall survive such termination and remain in full force and effect.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to you as the Representative at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxxxx, General Counsel,
Facsimile Number (000) 000-0000; if to any Selling Shareholder shall be
delivered or sent by mail facsimile transmission to the Attorneys-in-Fact at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail or facsimile to XX Xxx XX 0000, Xxxxxxxx XX XX,
Xxxxxxx, Xxxxxxxxx Number + 000-000-0000, Attention: Xxxxx X. Xxxxxxxx, Esq.,
General Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire constituting such Questionnaire, which address will be supplied to
the Company by you upon
33
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. The Company and each of the Selling Shareholders acknowledge and agree
that, in connection with the purchase and sale of the Shares pursuant to this
Agreement, (i) the purchase and sale of the Shares pursuant to this Agreement,
including the determination of the public offering price of the Shares and any
related discounts and commissions, is an arm's length commercial transaction
between the Company and the Selling Shareholders, on the one hand, and the
several Underwriters, on the other hand, (ii) in connection with the process
leading to such transaction, each Underwriter is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, any Selling
Shareholder, or their respective stockholders, creditors, employees or any other
party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company or any Selling Shareholder with respect
to the offering contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company or
any Selling Shareholder on other matters) and no Underwriter has any obligation
to the Company or any Selling Shareholder with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (iv) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company or any Selling Shareholder, and (v) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company and each Selling Shareholder has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, the Selling Shareholders and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company,
each person who controls the Company, any Selling Shareholder or any Underwriter
and any of the respective partners, directors, officers and employees of any
Underwriter or any such controlling person, and their respective heirs,
executors, administrators, successors and assigns. No other person shall acquire
or have any right under or by virtue of this Agreement. No purchaser of any of
the Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
17. By the execution and delivery of this Agreement, the Company hereby
designates and appoints Xxxxx X. Xxxxxxxx, Esq. as the authorized agent of the
Company upon whom process may be served in any suit, proceeding or other action
against the Company instituted by any Underwriter, by any person controlling an
Underwriter, by any Selling Shareholder or any
34
person controlling a Selling Shareholder as to which such Underwriter or Selling
Shareholder or any such controlling person is a party and based upon this
Agreement, or in any other action against the Company in any Federal or state
court sitting in the County of New York, arising out of the offering made by the
Prospectus or any purchase or sale of Shares in connection therewith. The
Company, on behalf of itself and each of the Subsidiaries, and each Selling
Shareholder expressly accepts the exclusive jurisdiction of any such court in
respect of any such suit, proceeding or other action and, without limiting other
methods of obtaining jurisdiction, expressly submit to exclusive personal
jurisdiction of any such court in respect of any such suit, proceeding or other
action. Such designation and appointment shall be irrevocable, unless and until
a successor authorized agent in the County and State of New York reasonably
acceptable to the Underwriters shall have been appointed by the Company, such
successor shall have accepted such appointment and written notice thereof shall
have been given to the Underwriters. The Company further agrees that service of
process upon its authorized agent or successor shall be deemed in every respect
personal service of process upon the Company in any such suit, proceeding or
other action. In the event that service of any process or notice of motion or
other application to any such court in connection with any such motion in
connection with any such action or proceeding cannot be made in the manner
described above, such service may be made in the manner set forth in conformance
with the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents on Civil and Commercial Matters or any successor convention or treaty.
The Company and each of the Selling Shareholders hereby irrevocably waives any
objection that they may have or hereafter have to the laying of venue of any
such action or proceeding arising out of or based on the Shares, or this
Agreement or otherwise relating to the offering, issuance and sale of the Shares
in any Federal or state court sitting in the County of New York and hereby
further irrevocably waives any claim that any such action or proceeding in any
such court has been brought in an inconvenient forum. The Company, and each of
the Selling Shareholders agrees that any final judgment after exhaustion of all
appeals or the expiration of time to appeal in any such action or proceeding
arising out of the sale of the Shares or this Agreement rendered by any such
Federal court or state court shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by
law. Nothing contained in this Agreement shall affect or limit the right of the
Underwriters to serve any process or notice of motion or other application in
any other manner permitted by law or limit or affect the right of the
Underwriters to bring any action or proceeding against the Company or the
Selling Shareholders or any of their respective property in the courts of any
other jurisdiction. The Company further agrees to take any and all action,
including the execution and filing of all such instruments and documents, as may
be necessary to continue such designations and appointments or such substitute
designations and appointments in full force and effect.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
19. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties hereto.
35
[Signatures on Next Page]
36
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Shareholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Agreement among Underwriters, but without warranty on your part as
to the authority of the signer thereof.
Very truly yours,
CRM HOLDINGS, LTD.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Co-Chief Executive Officer and
Chairman of the Board
37
SELLING SHAREHOLDERS
Very truly yours,
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
38
Very truly yours,
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
39
Very truly yours,
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
40
Very truly yours,
By: /s/ Xxxxxxx Xxxxxxx, Xx.
----------------------------
Name: Xxxxxxx Xxxxxxx, Xx.
41
Very truly yours,
By: /s/ Xxxx Xxxxxxx
-----------------------
Name: Xxxx Xxxxxxx
42
Very truly yours,
By: /s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
43
Very truly yours,
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
44
Very truly yours,
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxxx
45
Very truly yours,
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
46
Accepted as of the date hereof:
SANDLER X'XXXXX & PARTNERS, L.P.
As representative of the Underwriters
By: Sandler X'Xxxxx & Partners Corp.,
the sole general partner
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: An Officer of the Corporation
47
Annex I
LOCK-UP LETTER
Schedule I
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ---------
5,752,500 616,169
Sandler X'Xxxxx & Partners, L.P.
KeyBanc Capital Markets 3,097,500 331,783
--------- -------
A division of McDonald Investments
Total 8,850,000 947,952
========= =======
49
Schedule II
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER OF TO BE SOLD IF
FIRM SHARES MAXIMUM OPTION
SELLING SHAREHOLDERS TO BE SOLD EXERCISED
-------------------- ---------- ---------
Xxxxxx X. Xxxxxx, Xx. 630,000 0
Xxxxxx X. Xxxxxx, Xx. 509,000 0
Xxxxxx X. Xxxxxx 509,000 0
Xxxxx X. Xxxxxxxx 96,000 0
Xxxx Xxxxxxx 249,750 236,988
Xxxxxxx Xxxxxxx, Xx. 249,750 236,988
Xxxxx X. Xxxxxxx, Xx. 249,750 236,988
Xxxxxxxx Xxxxxxxx 249,750 236,988
Xxxxx X. Xxxxxxx 107,000 0
TOTAL 2,850,000 947,952
----- --------- -------
Attorneys-in-Fact: Xxxxx X. Xxxxxxxx, Esq and Xxxxx X. Xxxxxxxx
Address:
c/o Compensation Risk Managers, LLC
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxx 00000
Schedule III
PERSONS EXECUTING AND DELIVERING LOCK-UP LETTERS
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxxxxx, Xx.
Xxxxx Xxxxxxx, Xx.
Xxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxx
Schedule IV
ISSUER -- REPRESENTED FREE WRITING PROSPECTUSES
Exhibit A
Opinion of Xxxxx & XxXxxxxx
Exhibit B
Opinion of Xxxxx X. Xxxxxxxx
Exhibit C
Opinion of Xxxxxxx Xxxxxxxx Xxxxxx
Exhibit D
Opinion of Xxxxx & XxXxxxxx in
connection with Selling Shareholders
