EXHIBIT 1.1
ODYSSEY RE HOLDINGS CORP.
(a Delaware corporation)
$___,000,000
___% [TITLE OF DEBT SECURITIES] due ____
UNDERWRITING AGREEMENT
____, 20__
[Name of Representatives]
[Address of Representatives]
[As Representatives of the Several Underwriters]
Ladies and Gentlemen:
Odyssey Re Holdings Corp, a Delaware corporation (the "Company"), proposes
to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $___,000,000 principal amount of its ___% [Title of Debt
Securities] due ____ (the "Securities"), to be issued under an indenture (the
"Base Indenture"), dated as of [Date], between the Company and The Bank of New
York, as trustee (the "Trustee"), as supplemented and amended, being referred to
as the "Indenture". To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires.
Certain terms used herein are defined in Section 17 hereof. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company represents and warrants to
and agrees with each Underwriter as of the date hereof and as of the Closing
Date (as defined in Section 3 below) (each, a "Representation Date") as follows:
(i) The Company meets the requirements for use of Form S-3 under the Act
and has prepared and filed with the Commission a registration statement
(Registration Statement No. 333- ) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, including
a Preliminary Final Prospectus, each of which has previously been furnished to
you. The Registration Statement, as so amended, has been declared effective by
the Commission. The Company will next file with the Commission a final
prospectus supplement relating to the Securities in accordance with Rules 430A
and 424(b). The Company has included in such registration statement, as amended,
all information (other than Rule 430A Information) required by the Act and the
rules thereunder to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment and
form of final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
(ii) On the Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date (as defined herein), the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did 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; on the Closing Date the
Indenture will comply in all material respects with the applicable requirements
of the Trust Indenture Act and the rules thereunder; and, on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final 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 the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(iii) Independent Accountants. The accountants who certified the financial
statements [and supporting schedules] included or incorporated by reference in
the Registration Statement and the Final Prospectus are independent public
accountants with respect to the Company and its subsidiaries as required by the
Act and the rules and regulations of the Commission thereunder.
(iv) Financial Statements. The financial statements of the Company included
in the Registration Statement and the Final Prospectus, together with the
related [schedules and] notes, present fairly the financial position of the
Company and its consolidated subsidiaries and
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as at the dates indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included or
incorporated by reference in the Registration Statement and the Final Prospectus
present fairly in accordance with GAAP the information required to be stated
therein.
(v) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Registration Statement and the Final
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business, operations or prospects of the Company and its subsidiaries, in each
case whether or not arising in the ordinary course of business, considered as
one entity (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries, and (C) except for regular quarterly dividends on the Common
Stock, there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus and to enter into and perform its obligations under each of the
Operative Agreements to which it is a party; and the Company is duly qualified
as a foreign corporation 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 where
the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Final Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the capital stock of
each such Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock of
any Subsidiary was issued in violation of the preemptive or other similar rights
of any securityholder of such Subsidiary. The only subsidiaries of the Company
are (A) the subsidiaries listed on Schedule II hereto and (B) certain other
subsidiaries which, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
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(viii) Capitalization. The authorized, issued and outstanding capital stock
of the Company is as set forth in the Final Prospectus under the captions
"[Description of Capital Stock]", "[Selected Financial Information]" and
"[Capitalization]" (except for subsequent issuances, if any, pursuant to this
Agreement, [pursuant to the Company's Dividend Reinvestment Plan referred to in
the Final Prospectus or] pursuant to the exercise of options outstanding as of
the date of the Final Prospectus or issued pursuant to existing employee benefit
plans in the ordinary course of business consistent with prior practice). The
shares of issued and outstanding capital stock have been duly authorized and
validly issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Solicitation. The Company has not paid or agreed to pay to any person
any compensation for soliciting another to purchase any Securities (except as
contemplated by this Agreement).
(x) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) Authorization of the Indenture and the Securities. The Indenture has
been duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Indenture by the Trustee, the
Indenture constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law). The Securities have been duly authorized by
the Company and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture, enforceable against
the Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law). The Securities will be in the form
contemplated by, and each registered holder thereof will be entitled to the
benefits of, the Indenture.
(xii) Descriptions of the Securities and the Operative Agreements. The
Securities and the Operative Agreements, as of each Representation Date, conform
and will conform, as applicable, in all material respects to the statements
relating thereto contained in the Final Prospectus and will be in substantially
the form filed or incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(xiii) Absence of Defaults and Conflicts. None of the Company or any of the
Subsidiaries is in violation of its charter or bylaws or other constitutive
documents or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any
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subsidiary of the Company is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance by the Company of the
Operative Agreements and the consummation of the transactions contemplated
therein or in the Registration Statement and the Prospectus (including, the
issuance and sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Prospectus under the caption "Use of
Proceeds") and the compliance by the Company with their obligations hereunder
and thereunder do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such actions result in
any violation of the provisions of the charter or bylaws or other constitutive
documents of the Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or a
Subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent, that, individually or in the aggregate, may reasonably be expected
to result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary of the Company,
which is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which, individually or in the aggregate, might reasonably
be expected to result in a Material Adverse Effect, or which, individually or in
the aggregate, might reasonably be expected to materially and adversely affect
the properties or assets thereof, the consummation of the transactions
contemplated in the Operative Agreements or the performance by the Company of
its obligations under any of the Operative Agreements; the aggregate of all
pending legal or governmental proceedings to which the Company or any subsidiary
of the Company is a party or of which any of their respective property or assets
is the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no material contracts or documents
which are required to be described in the Registration Statement, the Final
Prospectus or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described or filed as required.
(xvii) Possession of Intellectual Property. Except as disclosed in the
Final Prospectus, the Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including
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trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, other than
those the absence of which would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property, which infringement or conflict, if the
subject of an unfavorable decision, would result in a Material Adverse Change.
(xviii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required in connection
with the offering of the Securities, for the due authorization, execution and
delivery by the Company of the Operative Agreements or for the performance by
the Company of its obligations under any of the Operative Agreements to which it
is a party, except such as has been already obtained or as may be required under
the Act and the rules and regulations of the Commission thereunder or state
securities or blue sky laws.
(xix) Possession of Licenses and Permits. The Company and its Subsidiaries
own or possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them other than those the absence of which
would not have a Material Adverse Effect; the Company and its Subsidiaries are
in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real properties owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Final Prospectus or (b) do not, singly or in the aggregate, 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 or any of its subsidiaries; and all
of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Final Prospectus, are in
full force and effect, and neither the Company nor any subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxi) Investment Company Act. The Company is not, and upon the issuance and
sale (as applicable) of the Securities as herein contemplated and the
application of the net
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proceeds therefrom as described in the Final Prospectus, will not be required to
register as an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(b) Officer's Certificates. Any certificate signed by any officer of the
Company and delivered to the Underwriters or to counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company, as applicable, to the Underwriters as to the
matters covered thereby.
SECTION 2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, the Securities, in the respective
principal amounts set forth opposite such Underwriter's name in Schedule I
hereto, at a purchase price equal to ______% of the principal amount thereof
(the "Purchase Price").
SECTION 3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at [Time], New York City time, on _____, 20__, or at such time on
such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters,
against payment by the several Underwriters through the Representatives, of the
Purchase Price thereof to or upon the order of the Company by wire transfer
payable in immediately available funds to an account specified by the Company or
in such other manner of payment as the Company and the Representatives may
agree. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
SECTION 4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
SECTION 5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the Company
will not file any amendment to the Registration Statement or any supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to the
Basic Prospectus or any Rule 462(b) Registration Statement unless the Company
has furnished you a copy of the same. Subject to the foregoing sentence, the
Company will cause the Final Prospectus and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide reasonable evidence to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (1) when the Final Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (2) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information, (4) of
the issuance by the Commission of any stop order suspending the
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effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (5) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its reasonable best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company will promptly (1) notify the
Representatives of such event, (2) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any fee of the
National Association of Securities Dealers, Inc., in connection with its review
of the offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
[Representative], offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
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Section 16 of the Exchange Act, any debt securities issued or guaranteed by the
Company (other than the Securities) or publicly announce an intention to effect
any such transaction, within 30 days after the Closing Date.
(g) The Company will not take, directly or indirectly, any action designed
to or which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities. The Company will use the proceeds of the offering as described in
the Final Prospectus under "Use of Proceeds."
(h) The Company, during the period when the Final Prospectus is required to
be delivered under the Act or the Exchange Act, will file all documents required
to be filed with the Commission pursuant to the Act and the Exchange Act within
the time periods required by the same.
SECTION 6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Shearman & Sterling, U.S.
counsel to the Company, and Xxxxxx X. Xxxxx, Esq., Senior Vice President,
General Counsel and Corporate Secretary to the Company, to have furnished to the
Representatives their opinions in the Forms provided in Schedule III and
Schedule IV, respectively, dated the Closing Date and addressed to the
Representatives.
(c) The Company shall have requested and caused Shearman & Sterling, U.S.
counsel to the Company to have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives that the statements
set forth in the Final Prospectus under the caption "[Certain United States
Federal Income Tax Considerations]" insofar as they purport to constitute
summaries of matters of United States federal income tax law and regulations or
legal conclusions with respect thereto, constitute accurate summaries of the
matters discussed therein in all material respects.
(d) The Representatives shall have received from [Name of counsel to the
Underwriters], counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Indenture, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
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(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the President and Chief Executive Officer or the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Final Prospectus (exclusive of any
supplement thereto), there has been no material change in the condition
(financial or otherwise), earnings, business or properties or prospects of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused [name of auditors] to have
furnished to the Representatives, at the Execution Time and at the Closing Date,
letters, (which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the respective applicable rules and regulations adopted
by the Commission thereunder and that they have conducted an audit of the
consolidated financial information of the Company for the year ended December
31, [Year End] and as of December 31, [Year End] and have performed a review of
the unaudited interim financial information of the Company for the [three, six
or nine-month] period ended [Quarterly End], and as at [Quarterly End], in
accordance with Statement on Auditing Standards No. 71.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto), there
shall not have been (i) any change or decrease in the items specified in the
letter or letters referred to in paragraph (f) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business, properties or prospects
of the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
reasonable judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
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(h) Subsequent to the Execution Time, there shall not have been any
decrease in the financial strength rating of any of the Company's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible adverse
change to a rating.
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of [name of counsel for the Underwriters], counsel for the
Underwriters, at [address], on the Closing Date.
SECTION 7. Payment of Expenses.(a) (a) The Company will pay all expenses
incident to the performance of the obligations of the Company under this
Agreement, including (i) the costs associated with the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto (ii) the costs
associated with the preparation, issuance and delivery of the Securities to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the counsel, accountants and other advisors or
agents (including transfer agents and registrars) to the Company, as well as the
fees and disbursements of the Trustee and any Depositary, and their respective
counsel, (iv) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, and the Prospectus and any amendments or supplements
thereto, (v) the fees charged by nationally recognized statistical rating
organizations for the rating of the Securities, (vi) the qualification of the
Securities under securities laws in accordance with the provisions of Section
5(e) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, and (vii) the
cost of making the Securities eligible for clearance and settlement through the
facilities of The Depository Trust Company.
(b) If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters attributable to the
Company set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10(i) hereof 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 other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
[Representative] on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
them in connection with the proposed purchase and sale of the Securities.
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SECTION 8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will 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 any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein;
and provided, further, that with respect to any Preliminary Final Prospectus,
the foregoing indemnity agreement shall not inure to the benefit of any
Underwriter from whom the person asserting any loss, claim, damage, liability or
expense purchased Securities, or any person controlling such Underwriter, if
copies of the Final Prospectus were timely delivered to the Underwriter and a
copy of the Final Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person at or prior to the
written confirmation of the sale of the Securities to such person, and if such
Final Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in [Paragraphs provided by the Underwriters] under the heading
"[Underwriting]" by the Underwriters constitute the only information furnished
in writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in
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writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint one counsel of the indemnifying
party's choice at the indemnifying party's reasonable expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded 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, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party, it being
understood that the indemnifying party shall not be liable for more than one
separate firm (in addition to one local firm in each jurisdiction) for all
indemnified parties in each jurisdiction in which any claim or action arising
out of the same general allegations or circumstances is brought. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party will not, without the prior written
consent of the indemnified party, enter into any settlement or compromise or
consent to the entry of any judgment.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the
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Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Underwriters on the other, and the relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
SECTION 9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
SECTION 10. Termination. This Agreement shall be subject to termination by
the Representatives by notice given to the Company prior to delivery of and
payment for the
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Securities, if at any time prior to such time (i) there has been, subsequent to
the Execution Time or, if earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto) the
effect of which is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), or (ii) if trading in the common stock or
any other security of the Company has been suspended or limited by the
Commission, the New York Stock Exchange, or if trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, or (iii) a banking
moratorium shall have been declared either by Federal or New York State
authorities, or (iv) there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
SECTION 11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
SECTION 12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to [Representative] (fax no.: [Fax No.] and confirmed to
[Representative and Address], Attention: General Counsel; or, if sent to the
Company, will be mailed, delivered or telefaxed to [Address], Attention of
[Name] (fax no: [Fax No.]).
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
SECTION 14. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
SECTION 15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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SECTION 16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
SECTION 17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in Section 1(a)
above contained in the Registration Statement at the Effective Date including
any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law executive order or regulation to close in New
York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Investment Grade" shall mean BBB- or above in the case of ratings assigned
by Standard & Poor's Rating Services and its successors (or its equivalent under
any successor ratings category of Standard & Poor's Rating Services and its
successors), or Baa3 on the case or ratings assigned by Xxxxx'x Investors
Service, Inc. and its successors (or its equivalent under any successor ratings
category of Xxxxx'x Investors Service, Inc. and its successors).
"Operative Agreements" shall refer collectively to the Indenture and this
Agreement.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred to
in Section 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration statement as so
amended or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule
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430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
ODYSSEY RE HOLDINGS CORP.
By
----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[REPRESENTATIVE[S]]
[NAMES OF OTHER UNDERWRITERS]
By: [REPRESENTATIVE[S]]
By:
--------------------------------------------------
Name:
Title:
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SCHEDULE I
Principal Amount of Securities
Underwriters to be Purchased
------------ -------------------------------
[Name of Underwriter]........................ $
[Name of other Underwriter].................. $
[Name of other Underwriter].................. $
Total........................................ $
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SCHEDULE II
Subsidiaries
-20-
SCHEDULE III
[OPINION OF SHEARMAN & STERLING]
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SCHEDULE IV
[OPINION OF GENERAL COUNSEL
TO THE COMPANY]
-22-
