Exhibit 1
PLATINUM UNDERWRITERS HOLDINGS, LTD.
COMMON SHARES
(par value $.01 per share)
-------------------
UNDERWRITING AGREEMENT
[ ] , 2002
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Platinum Underwriters Holdings, Ltd., a Bermuda company (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of ........ Common Shares, par value $.01 per share, of the Company (the "Firm
Shares") and, at the election of the Underwriters, up to ........ additional
Common Shares (the "Optional Shares") (the Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 3 hereof being
collectively called the "Shares").
On or prior to the First Time of Delivery (as defined in Section 5 hereof)
or immediately thereafter, (i) The St. Xxxx Companies, Inc., a Minnesota
corporation ("St. Xxxx"), and its subsidiaries that are engaged in the
reinsurance business will retrocede certain reinsurance agreements, and
contribute certain assets specified in Section 2.01 of the Formation and
Separation Agreement (as defined in Schedule II hereof) (such reinsurance
agreements and such assets collectively, the "Business"), to the Company and its
subsidiaries and (ii) the Company will issue to St. Xxxx (A) __________ Common
Shares at the First Time of Delivery and (B) up to ________ additional Common
Shares in the event the Underwriters elect to purchase Optional Shares (the
actions described in the foregoing clauses (i) and (ii), the "Transaction"). The
Company will conduct the Business through its wholly-owned operating
subsidiaries, Platinum Reinsurance (US) Inc., a Maryland corporation ("Platinum
US") (which, prior to the First Time of Delivery, is named USF&G
Family Insurance Company and indirectly owned by St. Xxxx), Platinum Re (UK)
Limited, a U.K. company ("Platinum UK"), and Platinum Underwriters Bermuda, Inc.
a Bermuda company ("Platinum Bermuda"), and will own Platinum US and Platinum UK
through its wholly-owned intermediate holding subsidiary, Platinum Regency
Holdings, an Ireland company ("Platinum Ireland" and, together with Platinum UK
and Platinum Bermuda, the "Non-U.S. Subsidiaries"). As used in this Agreement,
the "Filed Agreements" shall mean those agreements set forth on Schedule II
hereto, each of which has been or will be executed and delivered in connection
with the Transaction.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-....) (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 you for 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; 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, to the
knowledge of the Company, 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 6(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");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; 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 writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(c) 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 and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto, and as of the applicable filing date as to the Prospectus
and any amendment or
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supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; 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 Xxxxxxx, Sachs & Co. expressly for use therein;
(d) None of the Company, any of its subsidiaries or the Business has
sustained since December 31, 2001, 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 court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
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 the capital or surplus or long-term debt of the Company, any of its
subsidiaries or the Business or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, or of the
Business, otherwise than as set forth or contemplated in the Prospectus;
(e) At the First Time of Delivery, the Company and its subsidiaries will
have good title to all personal property described in the Prospectus as being
owned by them upon consummation of the Transaction, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and at the First Time of Delivery,
any real property and buildings held under lease by the Company and its
subsidiaries will be held by them under valid, subsisting and enforceable
sub-leases and assignments of leases with such exceptions as are not material
and do not materially interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries. The Company
does not own any real property;
(f) The Company has been duly incorporated and is validly existing as a
company in good standing under the laws of Bermuda, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation or a company in good standing under the laws of its
jurisdiction of organization, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business, or will own or lease property or conduct
business at the First Time of Delivery, so as to require such qualification, or
is subject to no material liability or disability by reason of the failure to be
so qualified in any such jurisdiction;
(g) This Agreement has been duly authorized, executed and delivered by the
Company;
(h) Except as described in the Prospectus, each of the Company and its
subsidiaries (i) was formed solely for the purpose of engaging in the
Transaction and the transactions contemplated hereby and in the Filed Agreements
and operating the Business after the First Time of Delivery and (ii) has not
engaged in any business activities, conducted any operations, entered into any
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agreements or contracts, incurred any liabilities, or owned any assets or
property, other than in connection with the Transaction and the transactions
contemplated hereby and in the Filed Agreements;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
conform in all material respects to the description of the capital stock
contained in the Prospectus; all of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and will be owned directly or indirectly by the
Company at the First Time of Delivery, free and clear of all liens,
encumbrances, equities or claims; except as described in the Prospectus under
the captions "Certain Relationships and Related Transactions--Formation and
Separation Agreement--Pre-Emptive Rights" anD "Certain Relationships and Related
Transactions--Option Agreement", the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to acquire
the Shares; there are no outstanding securities convertible into or exchangeable
for, or warrants, rights or options to purchase from the Company, or obligations
of the Company to issue, Common Shares or any other class of capital stock of
the Company (except as set forth in the Prospectus under the captions
"Management", "Certain Relationships and Related Transactions--Option Agreement"
and "Underwriting"); there are no restrictions on subsequent transfers of the
Shares under the laws of Bermuda or the United States (other than, pursuant to
the securities laws of the United States, by affiliates of the Company and other
than as described in the Prospectus under the caption "Description of Our Common
Shares"); and no party has the right to require the Company to register
securities except as disclosed in the Prospectus;
(j) All of (i) the Shares to be issued and sold by the Company to the
Underwriters hereunder and (ii) the Common Shares to be issued by the Company to
St. Xxxx in the Transaction (the "St. Xxxx Investment Shares"), have been duly
authorized and, when issued and delivered against payment therefor as provided
herein, will be validly issued and fully paid and non-assessable and will
conform in all material respects to the description of the Common Shares
contained in the Prospectus;
(k) The issue and sale of the Shares and the St. Xxxx Investment Shares by
the Company and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein 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, or give rise to a right of
termination under (i) the memorandum of association or bye-laws or other
organizational document of the Company or any of its subsidiaries, (ii) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is subject, or
(iii) any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties, except, in the case of clause (ii) or (iii), as
would not, individually or in the aggregate, have a material adverse effect on
the consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries (taken as a whole) following the
First Time of Delivery, or affect the due authorization and valid issuance of
the Shares or the St. Xxxx Investment Shares;
(l) Neither the Company nor any of its subsidiaries is in violation of its
memorandum of association or bye-laws or other organizational documents or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture,
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mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound;
(m) The statements set forth in the Prospectus under the captions
"Business--Regulation", "St. Xxxx Investment and Principal Shareholders",
"Certain Relationships and Related Transactions", "Description of Our Common
Shares", "Certain Tax Considerations" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are true and complete in all material respects;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, any of its subsidiaries
or the Business is a party or of which any property of the Company, any of its
subsidiaries or the Business is the subject which, if determined adversely to
the Company, any of its subsidiaries or the Business, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, or of the Business following the First Time of
Delivery; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(o) Each of the Filed Agreements when executed and delivered prior to the
First Time of Delivery will have been duly authorized, executed and delivered by
the Company or a subsidiary of the Company, as the case may be, and, assuming
that parties to the Filed Agreements other than the Company and its subsidiaries
have the power and authority to enter into and perform such agreements and that
such agreements have been duly authorized, executed and delivered by such
parties and constitute valid and binding agreements of such parties, will
constitute a valid and binding agreement of the Company and each of its
subsidiaries, as the case may be, enforceable against the Company and each of
its subsidiaries, in accordance with its terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium, or other
laws now or hereafter in effect affecting creditors' rights generally, (ii) the
enforceability thereof is subject to the general principles of equity (whether
such enforceability is considered in a proceeding in equity or at law), and
(iii) no representation or warranty is made with respect to the enforceability
of indemnification and contribution provisions relating to violations under the
Act contained in the Formation and Separation Agreement (as defined in Schedule
II hereto) and the Registration Rights Agreement (as defined in Schedule II
hereto);
(p) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any governmental agency
or body or any court is required to be obtained or made by the Company or any of
its subsidiaries for the issue and sale of the Shares and the St. Xxxx
Investment Shares or the consummation of the Transaction and the transactions
contemplated by this Agreement and the Filed Agreements, except (i) the
registration under the Act and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), of the Shares, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities, Blue Sky or insurance securities laws in connection with the
purchase and distribution of the Shares by the Underwriters, (iii) the filing of
the Prospectus under the Bermuda Companies Act 1981 in connection with the issue
and sale of the Shares, (iv) such consents, approvals, authorizations,
registrations or qualifications as may be required and have been obtained from
the Bermuda Monetary Authority, (v) such consents, approvals, authorizations,
registrations or qualifications that have been obtained or made under the
Insurance Laws (as defined below) of the State of Maryland, Bermuda and Ireland
and (vi) such consents, approvals, authorizations, registrations or
qualifications the failure of which to obtain or make would not, individually or
in the aggregate have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of
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the Company and its subsidiaries, taken as a whole, following the First Time of
Delivery, or affect the due authorization and valid issuance of the Shares or
the St. Xxxx Investment Shares;
(q) The execution, delivery and performance of each of the Filed
Agreements by each of the parties thereto and the consummation of the
Transaction and the transactions 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, or give rise to a right of termination under (i) the
memorandum of association or bye-laws or other organizational document of the
Company or any of its subsidiaries, (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, except, in
the case of clause (ii) or (iii), as would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery, or affect
the due authorization and valid issuance of the Shares or the St. Xxxx
Investment Shares;
(r) The Company is not and, after giving effect to the offering and sale
of the Shares and the St. Xxxx Investment Shares, will not be an "investment
company", as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(s) Except as described in the Prospectus, each of the Company and its
subsidiaries is duly licensed as an insurance holding company or as an insurer
or reinsurer, as the case may be, under the insurance laws (including laws that
relate to companies that control insurance companies) and the rules, regulations
and interpretations of the insurance regulatory authorities thereunder
(collectively, "Insurance Laws"), of each jurisdiction in which the conduct of
its business as described in the Prospectus requires such licensing, except for
such jurisdictions in which the failure of the Company and its subsidiaries to
be so licensed would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position, shareholder's equity or
results of operations of the Company and its subsidiaries, taken as a whole,
following the First Time of Delivery. Each of the Company and its subsidiaries
has made all required filings under applicable holding company statutes or other
Insurance Laws in each jurisdiction where such filings are required, except for
such jurisdictions in which the failure to make such filings would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder's equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery. Except as described in the Prospectus, each of the Company and its
subsidiaries has all other necessary authorizations, approvals, orders,
consents, certificates, permits, registrations and qualifications of and from
all insurance regulatory authorities necessary to conduct their respective
businesses as described in the Prospectus and all of the foregoing are in full
force and effect, except where the failure to have such authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications or their failure to be in full force and effect would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder's equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery. None of the Company or any of its subsidiaries has received any
notification from any insurance regulatory authority or other governmental
authority in the United States, Bermuda, Ireland, the United Kingdom or
elsewhere to the effect that any additional authorization, approval, order,
consent, certificate, permit, registration or qualification is needed to be
obtained by either the Company or any of its subsidiaries; and no insurance
regulatory authority has issued any
6
order or decree impairing, restricting or prohibiting the payment of dividends
by the Company or any of its subsidiaries;
(t) On or prior to the First Time of Delivery or immediately thereafter,
the Company and its subsidiaries will own or possess or will be licensed to use,
or will be able to acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, services marks and trade names that are
necessary for the Company and its subsidiaries to be able to conduct the
business of reinsurance in the manner and to the extent described in the
Prospectus, and none of the Company or any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing, except for those which, if determined adversely
to the Company or any of its subsidiaries, would not have a material adverse
effect on the consolidated financial position, shareholder's equity or results
of operations of the Company and its subsidiaries taken as a whole following the
First Time of Delivery;
(u) Each of the Company and its subsidiaries has filed all statutory
financial returns, reports, documents and other information required to be filed
pursuant to the applicable Insurance Laws of the United States and the various
states thereof, Bermuda, Ireland, the United Kingdom and each other jurisdiction
applicable thereto, and has duly paid all taxes (including franchise taxes and
similar fees) it is required to have paid under the applicable Insurance Laws of
the United States and the various states thereof, Bermuda, Ireland, the United
Kingdom and each other jurisdiction applicable thereto, except where the
failure, individually or in the aggregate, to file such return, report, document
or information or to pay such taxes would not have a material adverse effect on
the consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, following the
First Time of Delivery; and each of the Company and its subsidiaries maintains
its books and records in accordance with, and is otherwise in compliance with,
the applicable Insurance Laws of the United States and the various states
thereof, Bermuda, Ireland, the United Kingdom and each other jurisdiction
applicable thereto, except where the failure to so maintain its books and
records or be in compliance would not individually or in the aggregate have a
material adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole, following the First Time of Delivery;
(v) Any tax returns required to be filed by the Company or any of its
subsidiaries in any jurisdiction have been filed and any material taxes,
including any withholding taxes, excise taxes, penalties and interest,
assessments and fees and other charges due or claimed to be due from such
entities have been paid, other than any of those being contested in good faith
and for which adequate reserves have been provided or any of those currently
payable without penalty or interest;
(w) The Company and Platinum Bermuda have received from the Bermuda
Minister of Finance an assurance under The Exempted Undertakings Tax Protection
Act, 1966 of Bermuda to the effect set forth in the Prospectus under the caption
"Certain Tax Considerations--Taxation of the Company, Platinum US, Platinum UK,
Platinum Bermuda and Platinum Ireland--Bermuda," and the Company has not
received any notification to the effect (and is not otherwise aware) that such
assurance may be revoked or otherwise not honored by the Bermuda government;
(x) The Company and its subsidiaries have not taken, and have no plan or
intention to take, directly or indirectly, any action that would or would be
reasonably expected to cause or result in (i) the Company and/or any Non-U.S.
Subsidiary being treated as engaged in a trade or business within the United
States for purposes of the Internal Revenue Code of 1986, as amended (the
"Code"), (ii)
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the Company and/or any Non-U.S. Subsidiary being treated as a passive foreign
investment company within the meaning of section 1297 of the Code, (iii) the
Company and/or any Non-U.S. Subsidiary being treated as a controlled foreign
corporation within the meaning of section 957 of the Code or (iv) any
shareholder of the Company having "related party insurance income" inclusions
for U.S. federal income tax purposes as a result of being a shareholder of the
Company;
(y) No stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of the
Underwriters to Bermuda or any political subdivision or taxing authority thereof
or therein in connection with the sale and delivery by the Company of the Shares
to or for the respective accounts of the Underwriters or the sale and delivery
outside Bermuda by the Underwriters of the Shares to the initial purchasers
thereof; and no registration, documentary, recording, transfer or other similar
tax, fee or charge by any Bermuda government authority is payable in connection
with the execution, delivery, filing, registration or performance of this
Agreement;
(z) It is not necessary to register under the Act the St. Xxxx Investment
Shares to be sold to St. Xxxx, because the issuance of such shares will be
exempt from registration under the Act;
(aa) There are no currency exchange control laws or withholding taxes, in
each case of Bermuda, the United Kingdom or Ireland (or any political
subdivision or taxing authority thereof), that would be applicable to the
payment of dividends (i) on the Shares by the Company (other than as may apply
to residents of Bermuda for Bermuda exchange control purposes) or (ii) by any of
the Company's subsidiaries to the Company. The Bermuda Monetary Authority has
designated the Company and Platinum Bermuda as nonresident for exchange control
purposes and has granted permission for the issue and transfer of the Shares
(including permission for the issue or transfer of up to 20% of the Company's
shares in issue from time to time to persons resident in Bermuda for exchange
control purposes), subject to the condition that the Common Shares of the
Company shall be listed on the New York Stock Exchange (the "Exchange") or any
other appointed stock exchange. Such permission has not been revoked and is in
full force and effect, and the Company has no knowledge of any proceedings
planned or threatened for the revocation of such permission. The Company and
Platinum Bermuda are "exempted companies" under Bermuda law and have not (i)
acquired and do not hold any land in Bermuda, other than that held by way of
lease or tenancy for terms of not more than 21 years, without the express
authorization of the Bermuda legislature, (ii) taken mortgages on land in
Bermuda to secure an amount in excess of $50,000, without the consent of the
Bermuda Minister of Finance, (iii) acquired any bonds or debentures secured by
any land in Bermuda (other than certain types of Bermuda government securities),
or (iv) conducted their business in a manner that is prohibited for "exempted
companies" under Bermuda law. Neither the Company nor Platinum Bermuda has
received notification from the Bermuda Monetary Authority or any other Bermuda
governmental authority of proceedings relating to the modification or revocation
of its designation as nonresident for exchange control purposes, its permission
to issue and transfer the Shares, or its status as an "exempted company";
(bb) The Company has validly and irrevocably submitted to the
non-exclusive jurisdiction of any United States Federal or State court in the
Borough of Manhattan, the City of New York, State of New York (a "New York
Court") with respect to suits, actions or proceedings arising out of or in
connection with violations of United States federal securities laws relating to
offers and sales of the Shares, has validly and irrevocably waived, to the
fullest extent permitted by law, any objections that it may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought in
any New York Court based on or arising under this Agreement or any claims that
any such suit, action or proceeding brought in any New York Court has been
brought in an inconvenient forum, and
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has duly and irrevocably appointed CT Corporation System as its agent to receive
service of process with respect to actions arising out of or in connection with
any such suit, action or proceeding; and service of process effected in the
manner set forth in Section 14 of this Agreement will be effective under the
laws of Bermuda to confer personal jurisdiction over the Company;
(cc) Immediately following the First Time of Delivery, St. Xxxx will have
transferred to the Company and its subsidiaries those assets, liabilities and
businesses that, together with the Filed Agreements, are necessary for the
Company and its subsidiaries to be able to conduct the Business in the manner
and to the extent described in the Prospectus;
(dd) The Company has not taken, directly or indirectly, any action that
has constituted or that was designed to or which has constituted or which might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of St.
Xxxx or the Company to facilitate the sale or resale of the Shares;
(ee) The historical financial statements and schedules of Predecessor (as
defined in the Prospectus) included in the Prospectus and the Registration
Statement (i) present fairly in all material respects the identifiable
underwriting assets and liabilities of The St. Xxxx Companies, Inc. Reinsurance
Underwriting Segment as of December 31, 2001, 2000 and 1999, and its
underwriting results and its identifiable underwriting cash flows for each of
the years in the three-year period ended December 31, 2001 in conformity with
accounting principles generally accepted in the United States of America, and
(ii) comply as to form in all material respects with the applicable accounting
requirements of the Act;
(ff) Immediately following the First Time of Delivery, St. Xxxx and the
holders of the Shares will be the only holders of issued and outstanding Common
Shares; and
(gg) KPMG, LLP, who have certified certain financial statements of the
Company, its subsidiaries and the Business, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
2. St. Xxxx represents and warrants to, and agrees with, each of the
Underwriters that:
(a) St. Xxxx has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota; and each
subsidiary of St. Xxxx that is a party to a Filed Agreement has been duly
incorporated and is validly existing as a corporation or a company in good
standing under the laws of its jurisdiction of organization, with corporate
power and authority to own its properties and conduct its business as described
in the Prospectus;
(b) This Agreement has been duly authorized, executed and delivered by St.
Xxxx;
(c) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental agency or
body having jurisdiction over St. Xxxx or any of its subsidiaries or any of
their properties required for the execution and delivery by St. Xxxx of this
Agreement to be duly and validly authorized have been obtained or made and are
in full force and effect;
(d) The compliance by St. Xxxx with all applicable provisions of this
Agreement and the consummation of the transactions herein 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, or give rise to a right of
termination under (i) the certificate of incorporation or bylaws of St. Xxxx,
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which St. Xxxx is a party or by which St. Xxxx is bound or to
which any of the properties or assets of St. Xxxx is subject, or (iii) any
9
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over St. Xxxx or any of its properties, except, in the
case of clause (ii) or (iii), as would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of St. Xxxx and its subsidiaries,
taken as a whole, or of the Business;
(e) Each of the Filed Agreements when executed and delivered prior to the
First Time of Delivery will have been duly authorized, executed and delivered by
St. Xxxx or a subsidiary of St. Xxxx, as the case may be, and, assuming that
parties to the Filed Agreements other than St. Xxxx have the power and authority
to enter into and perform such agreements and that such agreements have been
duly authorized, executed and delivered by such parties and constitute valid and
binding agreements of such parties, will constitute a valid and binding
agreement of St. Xxxx and its subsidiaries, enforceable against St. Xxxx and its
subsidiaries, as the case may be, in accordance with its terms, except that (i)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other laws now or hereafter in effect affecting creditors' rights
generally, (ii) the enforceability thereof is subject to the general principles
of equity (whether such enforceability is considered in a proceeding in equity
or at law), and (iii) no representation or warranty is made with respect to the
enforceability of the indemnification and contribution provisions relating to
violations under the Act contained in the Formation and Separation Agreement and
the Registration Rights Agreement;
(f) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any governmental agency
or body or any court is required to be obtained or made by St. Xxxx or any of
its subsidiaries for the consummation of the Transaction and the transactions
contemplated by this Agreement and the Filed Agreements, except (i) such as have
been obtained or made under the Insurance Laws of the State of Maryland, Bermuda
and Ireland and (ii) such consents, approvals, authorizations, registrations or
qualifications the failure of which of obtain or make would not, individually or
in the aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of St. Xxxx and its
subsidiaries, taken as a whole, or of the Business;
(g) The execution, delivery and performance of each of the Filed
Agreements by St. Xxxx or any of its subsidiaries party thereto and the
consummation of the Transaction and the transactions 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, or give rise to a right of
termination under (i) the certificate of incorporation or bylaws or other
organizational documents of St. Xxxx or any of its subsidiaries, (ii) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which St. Xxxx or any of its subsidiaries is a party or by which
St. Xxxx or any of its subsidiaries is bound or to which any of the properties
or assets of St. Xxxx or its subsidiaries is subject, or (iii) any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over St. Xxxx, any of its subsidiaries, or any of their properties,
except, in the case of clause (ii) or (iii), as would not, individually or in
the aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of St. Xxxx and its
subsidiaries, taken as a whole, or of the Business;
(h) The historical financial statements and schedules of Predecessor
included in the Prospectus and the Registration Statement present fairly in all
material respects the underwriting results of Predecessor as of the dates and
for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
10
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein);
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which St. Xxxx or any of its subsidiaries in
respect of the Business is a party or of which any property of St. Xxxx or any
of its subsidiaries in respect of the Business is the subject which, if
determined adversely to St. Xxxx or any of its subsidiaries in respect of the
Business, would individually or in the aggregate have a material adverse effect
on the consolidated financial position, shareholders' equity or results of
operations of St. Xxxx and its subsidiaries, taken as a whole, or of the
Business; and to St. Paul's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(j) St. Xxxx and its subsidiaries in respect of the Business has not
sustained since December 31, 2001, 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 court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
since December 31, 2001, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management or results of operations of St. Xxxx or any of its
subsidiaries in respect of the Business, otherwise than as set forth or
contemplated in the Prospectus; and
(k) KPMG, LLP, who have certified certain financial statements of St.
Xxxx, its subsidiaries and the Business, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder.
3. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $................, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 3, 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.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 6,000,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 5
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
11
4. (a) 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.
(b) Each Underwriter agrees that it will not offer, sell or deliver any of
the Shares in any jurisdiction outside the United States except under
circumstances that will result in compliance by the Company and the
several Underwriters with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase
and resale of the Shares in such jurisdictions. Each Underwriter
understands that no action has been taken to permit a public offering in
any jurisdiction outside the United States where action would be required
for such purpose. Each Underwriter agrees not to cause any advertisement
of the Shares to be published in any newspaper or periodical or posted in
any public place and not to issue any circular relating to the Shares,
except in any case with Xxxxxxx, Xxxxx & Co.'s express written consent and
then only at its own expense.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight
hours' prior notice to the Company shall be delivered by or on behalf of
the Company to Xxxxxxx, Xxxxx & Co., through the facilities of The
Depository Trust Company ("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 account
specified by the Company to Xxxxxxx, Sachs & Co. at least forty-eight
hours in advance. The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with
respect thereto at the office of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30
a.m., New York City time, on ............., 2002 or such other time and
date as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time, on the
date specified by Xxxxxxx, Xxxxx & Co. in the written notice given by
Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co. and
the Company may agree upon in writing. Such time and date for delivery of
the Firm Shares is herein called the "First Time of Delivery", such time
and date for delivery of 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 9 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 9(o) hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City 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 5, "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.
12
6. 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 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 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 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 or Prospectus or suspending any such qualification, promptly to
use its reasonable best efforts to obtain the withdrawal of such order;
(b) 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 in
all material respects 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 or become subject to taxation in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as you may 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 furnish without
charge to each Underwriter and to any dealer in securities as many written
and electronic 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 written
and electronic copies as you may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
13
(d) 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 its 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);
(e) 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
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, 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 the issuance of the St. Xxxx Investment Shares to St. Xxxx or
pursuant to any director or employee stock option or benefit plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement),
without the prior written consent of Xxxxxxx, Sachs & Co.;
(f) To make available to its shareholders all information as
required by the Exchange Act;
(g) 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 non-confidential information
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 its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on the Exchange;
(j) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon 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., Washington, D.C. 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.
7. St. Xxxx agrees with each of the Underwriters that, during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, it will not offer, sell, contract to sell or
otherwise dispose of 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, without the prior
written consent of Xxxxxxx, Sachs & Co.
14
8. The Company and St. Xxxx covenant and agree with the several
Underwriters that the Company and St. Xxxx will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 6(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to, and the reasonable fees
and disbursements of counsel for the Underwriters in connection with, securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Shares; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 10 and 13 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
9. The obligations of the 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 St. Xxxx herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company and St. Xxxx 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 6(a) hereof; 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., Washington, D.C. time, on the date of this 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;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions
(a draft of each such opinion is attached as Annex II(a) hereto), dated
such Time of Delivery in a form or forms acceptable to you, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to render such opinion or opinions;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Company, shall have furnished
to you their written opinion (a draft of such opinion is attached as Annex
II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that (all capitalized terms
15
used but not defined in the subparagraphs of this Section 9(c) have the
meanings specified in such opinion):
(i)Assuming the Underwriting Agreement has been duly authorized,
executed and delivered by the Company under Bermuda law, the
Underwriting Agreement has been duly executed and delivered by the
Company.
(ii)The Underwriting Agreement has been duly authorized,
executed and delivered by St. Xxxx.
(iii) USF&G Family Insurance Company ("USF&G Family") has been
duly incorporated and is an existing corporation in good standing
under the laws of the State of Maryland.
(iv)All of the outstanding shares of USF&G Family's common stock
have been duly authorized and validly issued and are fully paid and
non-assessable. Platinum Regency Holdings, an Irish unlimited company
and a wholly owned subsidiary of the Company, is the registered owner
of 50,000 shares of USF&G Family's common stock, and such shares
constitute all of the outstanding shares of USF&G Family's capital
stock.
(v)To our knowledge, the only agreement in which the Company has
agreed to register any securities is the Registration Rights
Agreement.
(vi)Assuming that each of the Formation and Separation Agreement
and the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company under Bermuda law, the Formation
and Separation Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company.
(vii) The Formation and Separation Agreement and the Registration
Rights Agreement have been duly authorized, executed and delivered by
St. Xxxx.
(viii) Assuming that each of the Filed Agreements, as such term is
defined in the Underwriting Agreement, (other than the Formation and
Separation Agreement and the Registration Rights Agreement) that is
governed by New York law and to which the Company is a party has been
duly authorized, executed and delivered by the Company under Bermuda
law, each of such agreements has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(ix)Each of the Filed Agreements (other than the Formation and
Separation Agreement and the Registration Rights Agreement) that is
governed by New York law and to which St. Xxxx is a party, has been
duly authorized, executed and delivered by St. Xxxx and constitutes a
valid and legally binding obligation of St. Xxxx enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(x)Each of the Filed Agreements that is governed by New York law
and to which USF&G Family is a party has been duly authorized,
executed and delivered by USF&G Family and constitutes a valid and
legally binding obligation of USF&G Family
16
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles, except that we express no opinion as to
the enforceability of any leases, sub-leases or assignments of leases
or other agreements relating to real property constituting a Filed
Agreement.
(xi)Each of the Filed Agreements that is governed by New York law
and to which United States Fidelity and Guaranty Company, a Maryland
corporation and a wholly owned subsidiary of St. Xxxx ("USF&G"), is a
party, has been duly authorized, executed and delivered by USF&G and
constitutes a valid and legally binding obligation of USF&G
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(xii) Each of the Filed Agreements that is governed by New York
law and to which St. Xxxx Fire and Marine Insurance Company, a
Minnesota corporation and a wholly owned subsidiary of St. Xxxx ("Fire
and Marine"), is a party, has been duly authorized, executed and
delivered by Fire and Marine and constitutes a valid and legally
binding obligation of Fire and Marine enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(xiii) No consent, approval, authorization or order of, or
qualification with, any United States federal or New York State
governmental body or agency is required for the issue and sale of the
Shares and the Private Offering Shares (each as defined in the
Underwriting Agreement), except such as may be required by the
Securities Act of 1933 (the "Act"), the Securities Exchange Act of
1934 (the "Exchange Act") and the securities or Blue Sky laws of the
State of New York.
(xiv) The execution, delivery and performance by USF&G Family of
its obligations under each of the Filed Agreements to which it is a
party will not (a) violate USF&G Family's certificate of incorporation
or by-laws, (b) result in a default under or breach of any of the
Filed Agreements to which it is a party, or (c) violate any Federal
law of the United States or law of the State of New York applicable to
USF&G Family; provided, however, that, for the purposes of this
paragraph (--), we express no opinion with respect to Federal or state
securities laws, other antifraud laws, or fraudulent transfer laws;
provided, further, that insofar as performance by USF&G Family of its
obligations under such agreements is concerned, we express no opinion
as to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights.
(xv)Following our examination of the Order of the Maryland
Insurance Administration, dated _______, 2002, approving or
acknowledging that no regulatory approval is required for, inter alia,
the transactions contemplated by the Filed Agreements to which the
Company or USF&G Family is a party, and the issuance to USF&G Family
by the New York State Insurance Department of a license to engage in
the reinsurance business, all statutory and regulatory consents,
authorizations, approvals and filings required to be obtained or made
by or on behalf of the Company and USF&G Family under the insurance
laws of the State of Maryland and the insurance laws of the State of
17
New York to consummate the transactions contemplated by the Filed
Agreements to which the Company or USF&G Family is a party have been
obtained or made.
(xvi) Under the laws of the State of New York relating to
submission to jurisdiction, the Company has validly submitted to the
non-exclusive jurisdiction of any United States Federal or New York
State court sitting in the Borough of Manhattan, The City of New York,
New York, has validly waived any objection to the venue of a
proceeding in any such court and has validly appointed CT Corporation
System as its authorized agent for the purpose and to the extent
described in Section __ of the Underwriting Agreement and assuming (a)
the validity of such actions under Bermuda law, (b) the due
authorization, execution and delivery of the Underwriting Agreement by
or on behalf of the Underwriters and (c) that the Registration
Statement and the Prospectus do not contain any material misstatements
or omissions.
(xvii) Registration of the Company under the Investment Company
Act of 1940, as amended, is not required.
(d) Xxxxxxx, Xxxx & Xxxxxxx, outside Bermuda counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(c) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that (all capitalized
terms used but not defined in the subparagraphs of this Section 9(d) have
the meanings specified in such opinion):
(i)Each of the Company and the Subsidiary is a limited liability
company duly incorporated and existing under the laws of Bermuda in
good standing ("good standing" meaning solely that it has not failed
to make any filing with any Bermuda governmental authority or to pay
any Bermuda government fee or tax which would make it liable to be
struck off the Register of Companies and thereby cease to exist under
the laws of Bermuda).
(ii)Each of the Company and the Subsidiary has the power and
capacity to acquire by purchase or otherwise and hold, sell, dispose
of and deal in real property situated outside Bermuda and in personal
property of all kinds wheresoever situated.
(iii) The Company has the necessary corporate power and authority,
pursuant to its Memorandum of Association, to own and hold the issued
shares in the Subsidiary. The Subsidiary has the necessary corporate
power and authority, pursuant to its Memorandum of Association, to
carry on insurance and reinsurance business as described in the
Registration Statement and was registered as a Class IV insurer in
terms of the Insurance Xxx 0000 effective [ ] 2002 and is authorized
to carry on business in that capacity as described in the Registration
Statement subject to the provisions of the Insurance Act, 1978 and the
regulations promulgated thereunder, and the conditions set out in
Schedule I to the Certificate of Registration, issued by the Registrar
of Companies to the Subsidiary, dated [ ] 2002. A copy of the said
Certificate of Registration, together with the said Schedule I, is
attached as Exhibit A to this opinion. No further approvals of the
insurance regulatory, governmental or administrative body or authority
of Bermuda are required for the conduct of such business by each of
the Company and the Subsidiary respectively.
(iv)Each of the Company and the Subsidiary has the necessary
corporate power and authority to enter into and perform its
obligations under the Documents. The execution
18
and delivery of the Documents by the Company and the performance by
the Company of its obligations thereunder, and the performance of the
transactions contemplated by the Documents and the Registration
Statement, will not violate the memorandum of association or bye-laws
of the Company nor any applicable law, regulation, order or decree in
Bermuda.
(v)Each of the Company and the Subsidiary has taken all corporate
action required to authorise its execution, delivery and performance
of the Documents. The Documents have been duly executed and delivered
by or on behalf of the Company, and constitute the valid, binding and
enforceable obligations of the Company in accordance with the terms
thereof.
(vi)The Company has taken all corporate action required to duly
authorise its execution and delivery to the SEC of the Registration
Statement.
(vii) No order, consent, approval, licence, authorisation or
validation of, registration with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof is
required to authorise or is required in connection with the execution,
delivery, performance and enforcement of the Documents, except such as
have been duly obtained in accordance with Bermuda law.
(viii) No order, consent, approval, license, authorisation or
validation of, registration with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof is
required to authorise or is required in connection with the issue and
sale of the Shares, except such as have been duly obtained in
accordance with Bermuda law.
(ix)It is not necessary or desirable to ensure the enforceability
in Bermuda of the Documents that they be registered in any register
kept by, or filed with, any governmental authority or regulatory body
in Bermuda.
(x)The Company has an authorized share capitalization as described
in the Registration Statement. Upon payment in cash or in kind for the
Shares in accordance with the [ ], the Shares will be duly authorised
and validly issued, fully paid and nonassessable ("nonassessable"
meaning that no further sums are required to be paid by the holders
thereof in connection with the issue thereof).
(xi)Based solely on our review of the bye-laws of the Company and
the Register of Members of the Company, and except as disclosed in the
Documents, the Company has no (i) outstanding securities or other
obligations convertible into or exchangeable for shares in the
authorised share capital of the Company, or (ii) outstanding rights to
subscribe for or purchase, or options for the purchase of, or
agreement providing for the issuance (contingent or otherwise) of, or
calls, commitments or claims of any character relating to, any shares
in the authorised share capital of the Company, or (iii) securities
convertible into or exchangeable or exercisable for any shares in the
authorised share capital of the Company, or (iv) obligation (in the
nature of the existence of a pre-emptive or similar right) to offer
the shares in the authorised share capital of the Company to any
shareholder of the Company prior to the sale of the Shares.
(xii) Subject to the requirement that shares of the Company are
listed on the New York Stock Exchange or on another appointed stock
exchange (as defined in section 2(1) of the Companies Xxx 0000, the
Company has received permission under the Exchange
19
Control Act 1972 (and Regulations made thereunder) from the Bermuda
Monetary Authority for: (i) the issue and subsequent free
transferability of the Company's shares, up to the amount of its
authorised capital from time to time, to and among persons
non-resident of Bermuda for exchange control purposes; (ii) the issue
and subsequent free transferability of up to 20% of the Company's
shares in issue from time to time to persons resident in Bermuda for
exchange control purposes; and, (iii) the issue of options, warrants,
depository receipts, rights, loan notes and other securities of the
Company and the subsequent free transferability thereof.
(xiii) The rights attaching to the Shares conform to the
description found in the Registration Statement under the caption [ ].
(xiv) The form of certificates for the Shares conforms to the
requirements of Bermuda law, a copy of the form of said certificates
is attached as Exhibit B to this opinion.
(xv)Based solely on our review a certified copy of the Register of
Members of the Subsidiary dated [ ] 2002, a copy of the said Register
of Members is attached as Exhibit C to this opinion, all of the issued
common shares of the Subsidiary have been duly authorised and validly
issued, fully paid and non-assessable (as such term is defined above)
and are registered in the name of the Company.
(xvi) The Documents will not be subject to ad valorem stamp duty
in Bermuda and no registration, documentary, recording, transfer or
other similar tax, fee or charge is payable in Bermuda in connection
with the execution, delivery, filing, registration or performance of
the Documents or the issue and delivery of Shares to investors
pursuant to the Subscription Agreements.
(xvii) Under current Bermuda law there is no Bermuda income tax,
withholding tax, capital gains tax, capital transfer tax, estate or
inheritance tax, payable by investors who are not resident in Bermuda
(or are deemed not to be resident in Bermuda for Bermuda exchange
purposes).
(xviii) The Company and the Subsidiary have received from the
Bermuda Minister of Finance an assurance under The Exempted
Undertakings Tax Protection Act 1966 of Bermuda to the effect that in
the event Bermuda enacts any legislation imposing tax computed on
profits or income, or computed on any capital asset, gain or
appreciation, or any tax in the nature of estate duty or inheritance
tax, then such tax will not apply to the Company and the Subsidiary or
to any of their operations or their shares, debentures or other
obligations, until March 28, 2016. This assurance will not prevent the
application of any tax or duty on persons ordinarily resident in
Bermuda or the application of any tax payable in accordance with the
provisions of The Land Tax Act 1967 of Bermuda or otherwise payable in
relation to any property leased to the Company or the Subsidiary.
(xix) The statements in the Registration Statement under the
captions [ ], insofar as such statements constitute summaries of the
legal matters referred to therein, fairly present the information
called for with respect to such legal matters and documents and fairly
summarize the matters referred to therein.
(xx)The Company can xxx and be sued in its own name under the laws
of Bermuda.
20
(xxi) The choice of the Foreign Laws as the governing law of the
Documents is a valid choice of law and would be recognised and given
effect to in any action brought before a court of competent
jurisdiction in Bermuda, except for those laws (i) which such court
considers to be procedural in nature, (ii) which are revenue or penal
laws or (iii) the application of which would be inconsistent with
public policy, as such term is interpreted under the laws of Bermuda.
The submission in the Documents to the non-exclusive jurisdiction of
the Foreign Courts is valid and binding upon the Company.
(xxii) The courts of Bermuda would recognise as a valid judgment,
a final and conclusive judgment in personam obtained in the Foreign
Courts against the Company based upon the Documents under which a sum
of money is payable (other than a sum of money payable in respect of
multiple damages, taxes or other charges of a like nature or in
respect of a fine or other penalty) and would give a judgment based
thereon provided that (a) such courts had proper jurisdiction over the
parties subject to such judgment, (b) such courts did not contravene
the rules of natural justice of Bermuda, (c) such judgment was not
obtained by fraud, (d) the enforcement of the judgment would not be
contrary to the public policy of Bermuda, (e) no new admissible
evidence relevant to the action is submitted prior to the rendering of
the judgment by the courts of Bermuda and (f) there is due compliance
in seeking validation of such judgment with the correct procedures
under the laws of Bermuda.
(xxiii) Under Section 16 of the Companies Xxx 0000, the bye-laws
of the Company shall bind the Company and the members of the Company
to the same extent as if such bye-laws had been signed and sealed by
each such member, and contain covenants on the part of each such
member to observe all the provisions of the bye-laws of the Company,
except, as provided in Section 17 of the Companies Xxx 0000, no member
of the Company shall be bound by an alteration made in the bye-laws
after the date on which he became a member, if and so far as the
alteration requires him to take or subscribe for more shares than the
number held by him at the date on which the alteration is made, or in
any way increases his liability as at that date to contribute to the
share capital of, or otherwise to pay money to, the Company (unless
the member agrees in writing, either before or after the alteration is
made, to be bound thereby).
(xxiv) Based solely on a search of the Register of Charges,
maintained by the Registrar of Companies pursuant to Section 55 of the
Companies Xxx 0000, conducted at [ ] on [ ], there are no registered
charges registered against the Company or the Subsidiary.
(xxv) Based solely upon a search of the Cause Book of the Supreme
Court of Bermuda conducted at [ ] on [ ], there are no judgments, nor
legal or governmental proceedings pending in Bermuda to which either
of the Company or Subsidiary is a party.
(xxvi) Neither the Underwriters nor the St. Xxxx Purchasers will
be deemed to be resident, domiciled or carrying on business in Bermuda
by reason only of the execution, performance and enforcement of the
Documents.
(xxvii) Each of the Underwriters and the St. Xxxx Purchasers has
standing to bring an action or proceedings before the appropriate
courts in Bermuda for the enforcement of the Documents. It is not
necessary or advisable in order for any Underwriter or St. Xxxx
Purchaser to enforce its rights under the Documents, including the
exercise of remedies
21
thereunder, that it be licensed, qualified or otherwise entitled to
carry on business in Bermuda.
(xxviii) The Company and the Subsidiary have been designated as
non-resident for the purposes of the Exchange Control Act, 1972 and as
such are free to acquire, hold and sell foreign currency and
securities. No currency exchange control laws or withholding taxes of
Bermuda apply to the payment of dividends (a) on the Common Shares by
the Company or (b) by the Subsidiary to the Company, except in each
case as described in or contemplated by the Registration Statement;
and Subsidiary is not currently prohibited by any Bermuda law or
governmental authority, directly or indirectly, from paying any
dividends to the Company, from making any other distributions on its
capital stock, from repaying to the Company any loans or advances to
it from the Company or from transferring any of its property or assets
to the Company, except as summarised in the Registration Statement.
(xxix) Neither the Company nor the Subsidiary is entitled to any
immunity under the laws of Bermuda, whether characterised as sovereign
immunity or otherwise, from any legal proceedings to enforce the
Documents in respect of itself or its property.
(xxx) The procedure for the service of process on the Company
through C.T. Corporation in New York, New York, United States of
America, acting as agent for the Company, as set out in section [2
(bb) and 14 ] of the Underwriting Agreement, would be effective, in so
far as Bermuda law is concerned, to constitute valid service of the
proceedings on the Company. ]
(e) Xxxxxxxxx & May, outside U.K. counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(d) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that (all capitalized terms
used but not defined in the subparagraphs of this Section 9(e) have the
meanings specified in such opinion):
(i) Each of Platinum UK and St. Xxxx Re UK is a validly existing
limited liability company duly incorporated under the laws of England
and registered in England and has power and authority under its
Memorandum of Association to own leasehold property and conduct its
business as described in the Prospectus.
(ii) Platinum Ireland is the duly registered holder of l ordinary
shares of l xxxxx each in Platinum UK and such shares are all of the
issued shares of Platinum UK and all such shares have been duly and
validly authorised and issued.
(iii) Subject to compliance by each of the underwriters with their
obligations under the second paragraph of Section 4 of the Agreement
Among Underwriters dated June__ , 2002 and made among Xxxxxxx Xxxxx &
Co., Xxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxx Incorporated, Xxxxxxx Xxxxx
Barney Inc., Banc of America Securities LLC, Credit Suisse First
Boston Corp., and X. X. Xxxxxx Securities Inc., the issue and sale of
the Shares and the St. Xxxx Investment Shares being delivered at each
Time of Delivery (each as defined in the Underwriting Agreement) in
the manner described in the Prospectus and the compliance by [Platinum
Holdings] and [St. Xxxx] with all of the provisions of the
[Underwriting Agreement] and the consummation of the transactions
therein contemplated will not conflict with or result in any violation
of the provisions of (i) the Memorandum or Articles of Association of
Platinum UK or St. Xxxx Re UK, or (ii) any
22
statute or statutory instrument of the UK, or (iii) any rule or
regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
(iv) Each of the agreements listed in Schedule 1 to this letter
(in this letter, "UK Agreements") to which Platinum UK is a party has
been duly authorised and executed by Platinum UK, and constitutes a
valid and binding agreement of Platinum UK enforceable against
Platinum UK.
(v) Each of the UK Agreements to which St. Xxxx Re UK is a party
has been duly authorised and executed by St. Xxxx Re UK, and
constitutes a valid and binding agreement of St. Xxxx Re UK
enforceable against St. Xxxx Re UK;
(vi)Assuming that each of the UK Agreements to which a person
other than Platinum UK or St. Xxxx Re UK is a party has been duly
authorised and executed by such person, each such UK Agreement
constitutes a valid and binding agreement of such person enforceable
against such person.
(vii) Except as provided in the Prospectus, neither Platinum UK
nor St. Xxxx Re UK is required to obtain any consent, approval,
authorisation or order of, or make any filing with, the Financial
Services Authority or any other regulatory body in the United Kingdom
in order to perform their respective obligations under the UK
Agreements and, in the case of Platinum UK and except as provided in
the Prospectus, to conduct its business as described in the
Prospectus.
(viii) The execution, delivery and performance by Platinum UK of
each of the UK Agreements to which Platinum UK is a party and the
consummation of the transactions therein contemplated will not
conflict with or result in any violation of (i) the Memorandum or
Articles of Association of Platinum UK, or (ii) any statute or
statutory instrument of the UK, or (iii) any rule or regulation of the
Financial Services Authority set out in the Financial Services
Authority Handbook.
(ix) The execution, delivery and performance by St. Xxxx Re UK of
each of the UK Agreements to which St. Xxxx Re UK is a party and the
consummation of the transactions therein contemplated will not
conflict with or result in any violation of (i) the Memorandum or
Articles of Association of St. Xxxx Re UK, or (ii) any statute or
statutory instrument of the UK, or (iii) any rule or regulation of the
Financial Services Authority set out in the Financial Services
Authority Handbook.
(x) The statements set forth in the Prospectus and listed in
Schedule 2 to this letter, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate
and fair.
(f) A&L Goodbody, outside Irish counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(e) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that (all capitalized terms
used but not defined in the subparagraphs of this Section 9(f) have the
meanings specified in such opinion):
(i) The Company has been duly incorporated under the laws of
Ireland. Based only on searches carried out in the Irish Companies
Office and the Central Office of the High Court on [ ], 2002 the
Company is validly existing under the laws of Ireland and no steps
have been taken or are being taken to appoint a receiver, examiner or
liquidator
23
over it or to wind it up and the Company has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact its business in
Ireland.
(ii) All of the issued shares of the Company have been duly and
validly authorised and issued, are fully paid and are not subject to
calls for any additional payments. Ten thousand (10,000) shares have
been issued, nine thousand, nine hundred and ninety nine (9,999)
registered in the name of Platinum Underwriters Holdings, Ltd and one
registered in the name of Platinum Underwriters Bermuda, Ltd. To the
best of our knowledge, based on a Certificate of Xxxxxx X. Xxxxxx, all
the issued shares are free and clear of all liens, encumbrances,
equities or claims.
(iii) Based only on the Certificate of Xxxxxx X. Xxxxxx and
searches carried out in the Central Office of the High Court, we do
not know of any legal or governmental proceedings pending or
threatened in Ireland to which the Company is a party or to which any
of the properties of the Company is subject.
(iv) Based on the Certificate of Xxxxxx X. Xxxxxx, there is no
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is
subject, nor are we actually aware of any such agreement referred to
in this paragraph [ ].
(v) Based only on the Certificate of Xxxxxx X. Xxxxxx, the Company
is not in violation of its Certificate of Incorporation or its
Memorandum or Articles of Association.
(vi) Based only on the description of the Transaction in the
Prospectus, the Company is not required under Irish law to obtain any
consent, approval, authorisation or order of, or make any filling
with, any governmental agency or body or any court in Ireland to
conduct its business, pay any dividends or consummate the Transaction
and based only on the description thereof in the Prospectus, the
transactions contemplated by the Filed Agreements.
(vii) Based only on the description of the Transaction in the
Prospectus, the consummation of the Transaction and based only on the
description thereof in the Prospectus, the Transactions contemplated
in the Filed Agreements will not result in any violation of the
Certificate of Incorporation or the Memorandum and Articles of
Association of the Company, any Irish statute, any rule or regulation
of any governmental agency or body of Ireland having general
application, or based only on the Certificate of Xxxxxx X. Xxxxxx and
on searches in the Central Office of the High Court on [ ], any order
of any court of Ireland.
(viii) Based only on the description in the Prospectus, the issue
and sale of the Shares and [the St. Xxxx Investment Shares] being
delivered at such Time of Delivery by [Platinum Holdings] and the
compliance by [Platinum Holdings] and St. Xxxx with all of the
provisions of the Underwriting Agreement and the consummation of the
transactions therein contemplated will not result in any violation of
the Certificate of Incorporation or the Memorandum and Articles of
Association of the Company, any Irish statute, any rule or regulation
of any governmental agency or body of Ireland having general
application or based only on the Certificate of Xxxxxx X. Xxxxxx and
on searches in the Central Office of the High Court on [], 2002, any
order of any court of Ireland.
24
(ix) The statements in the Prospectus under the captions
["Management's Discussion and Analysis of Pro Forma Financial
Condition and Underwriting Results--Liquidity and Capital
Resources--Restrictions on Dividend Payments from our Operating
Subsidiaries--Ireland", "Business--Regulation--Ireland Regulation",
"Certain Tax Considerations--Taxation of the Company, Platinum US,
Platinum UK, Platinum Bermuda and Platinum Ireland--Ireland" and
"Certain Tax Considerations--Taxation of Shareholders--Ireland
Taxation"] insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
present the requirements of Irish law with respect to such legal
matters, documents and proceedings and fairly summarise the matters
referred to therein.
(x) Based only on the Certificate of Xxxxxx X. Xxxxxx, the Company
has not received any notification from any insurance regulatory
authority or other governmental authority to the effect that any
authorisation not already held by the Company, approval, order,
consent, certificate, permit, registration or qualification is needed
to be obtained, to conduct its business as described in the Prospectus
or to pay any dividends.
(xi) Based only on the Certificate of Xxxxxx X. Xxxxxx and
searches carried out in the Irish Companies Office, the Company has
filed all statutory financial returns, reports, documents and other
information required to be filed under Irish law and the Company
maintains its books and registers required the Companies Acts 1963 to
2001 of Ireland in accordance with those Acts.
(g) Xxxxx X. Xxxxxxxx, Senior Vice President and Corporate Secretary
of St. Xxxx, shall have furnished to you his written opinion (a draft of
such opinion is attached as Annex II(f) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that
(all capitalized terms used but not defined in the subparagraphs of this
Section 9(g) have the meanings specified in such opinion):
(i) Each of St. Xxxx and Fire and Marine has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Minnesota.
(ii) The Underwriting Agreement has been duly authorized,
executed and delivered by St. Xxxx.
(iii) Assuming that each of the Filed Agreements that is governed
by a law other than Minnesota law or New York law and to which St.
Xxxx or Fire and Marine is a party has been duly executed and
delivered under the applicable law, each such Filed Agreement has been
duly authorized, executed and delivered by St. Xxxx or Fire and
Marine, as the case may be.
(iv) Each of the filed Agreements that is governed by New York
law and to which St. Xxxx is a party has been duly authorized,
executed and delivered by St. Xxxx.
(v) Each of the Filed Agreements that is governed by Minnesota
law and to which Fire and Marine is a party has been duly authorized,
executed and delivered by Fire and Marine and constitutes a valid and
legally binding obligation of Fire and Marine enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
25
(vi) To my knowledge, there are no legal or governmental
proceedings pending to which St. Xxxx in respect of the Business (as
such term is defined in the Underwriting Agreement) is a party or of
which the Business is the subject, which, if determined adversely to
St. Xxxx, would individually or in the aggregate (after giving effect
to any applicable insurance, reinsurance or reserves therefor) have a
material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of Platinum and its
subsidiaries taken as a whole following the First Time of Delivery (as
such term is defined in the Underwriting Agreement); and, to my
knowledge, no such proceedings are threatened by governmental
authorities or by others.
(vii) The compliance by St. Xxxx with the provisions of the Filed
Agreements to which St. Xxxx is a party and the consummation of the
transactions therein contemplated will not (i) result in a default
under or breach of any agreement or instrument known to me to which
St. Xxxx is a party or by which St. Xxxx is bound or to which any of
the property or assets of St. Xxxx is subject and (ii) violate the
provisions of St. Paul's Restated Articles of Incorporation, as
amended, or By-laws, as amended, or (iii) violate any statute or any
order, rule or regulation known to me of any court or governmental
agency or body having jurisdiction over St. Xxxx or any of its
properties, provided that I am expressing no opinion under this clause
(iii) with respect to the Formation and Separation Agreement and the
Registration Rights Agreement.
(viii) The compliance by Fire and Marine with the provisions of
the Filed Agreements to which Fire and Marine is a party and the
consummation of the transactions therein contemplated will not (i)
result in a default under or breach of any agreement or instrument
known to me to which Fire and Marine is a party or by which Fire and
Marine is bound or to which any of the property or assets of Fire and
Marine is subject, (ii) violate the provisions of St. Paul's Restated
Articles of Incorporation, as amended, or By-laws, as amended, or
(iii) violate any statute or any order, rule or regulation known to me
of any court or governmental agency or body having jurisdiction over
Fire and Marine or any of its properties.
(ix) Following my examination of the Order of the Maryland
Insurance Administration, dated _______, 2002, approving or
acknowledging that no regulatory approval is required for, inter alia,
the transactions contemplated by the Filed Agreements to which St.
Xxxx or Fire and Marine is a party, and the issuance to USF&G Family
Insurance Company by the New York State Insurance Department of a
license to engage in the reinsurance business, no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the consummation
by St. Xxxx or Fire and Marine of the transactions contemplated by the
Underwriting Agreement or the Filed Agreements to which it is a party,
except the registration under the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended, of the Common
Shares, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign insurance
laws or as may be required by state securities or Blue Sky laws or
insurance laws in connection with the purchase and distribution of the
Common Shares by the Underwriters.
(x) All statutory and regulatory consents, authorizations,
approvals and filings required to be obtained or made by or on behalf
of St. Xxxx and Fire and Marine under the insurance laws of the State
of Minnesota to consummate the transactions
26
contemplated by the Filed Agreements to which St. Xxxx and Fire and
Marine are a party have been obtained or made.
(xi) Fire and Marine maintains its books and records in accordance
with the insurance laws of the State of Minnesota, except where the
failure to so maintain its books and records would not individually or
in the aggregate have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
Platinum and its subsidiaries taken as a whole following the First
Time of Delivery.
(xii) To my knowledge, neither St. Xxxx nor Fire and Marine has
received any notification from any insurance authority, commission or
other insurance regulatory body to the effect that any license from
such authority, commission or body is needed to be obtained by St.
Xxxx or Fire and Marine or that St. Xxxx or Fire and Marine is not in
compliance with any applicable insurance laws, except where such
failure to obtain such license or to be in such compliance would not,
individually or in the aggregate (after giving effect to any
applicable insurance, reinsurance or reserves therefor) have a
material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of Platinum and its
subsidiaries taken as a whole following the First Time of Delivery.
(h) Xxxxxxxx Xxxxxxx, Vice President and Group General Counsel of St.
Xxxx, shall have furnished to you her written opinion (a draft of such
opinion is attached as Annex II (g) hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that (all
capitalized terms used but not defined in the subparagraphs of this
Section 9(h) have the meanings specified in such opinion):
(i) Each of USF&G and USF&G Family has been duly incorporated and
is an existing corporation in good standing under the laws of the
State of Maryland.
(ii) All of the issued shares of capital stock of USF&G Family
have been duly authorized and validly issued, are fully paid and
non-assessable, and are owned by USF&G, free and clear of all liens,
encumbrances, equities or claims.
(iii) Each of the Filed Agreements to which USF&G or USF&G Family
is a party has been duly authorized, executed and delivered by USF&G
and USF&G Family.
(iv) To my knowledge, there are no legal or governmental
proceedings pending to which USF&G or USF&G Family is a party, which,
if determined adversely to USF&G or USF&G Family, as the case may be,
would individually or in the aggregate (after giving effect to any
applicable insurance, reinsurance or reserves therefor) have a
material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of Platinum and its
subsidiaries, taken as a whole, following the First Time of Delivery
(as such term is defined in the Underwriting Agreement); and, to my
knowledge, no such proceedings are threatened by governmental
authorities or by others.
(v)The compliance by USF&G and USF&G Family with the provisions of
the Filed Agreements to which USF&G or USF&G Family is a party and the
consummation of the transactions therein contemplated will not (i)
result in a default under or breach of any agreement or instrument
known to me to which USF&G or USF&G Family is a party or by which
USF&G or USF&G Family is bound or to which any of the property or
assets of USF&G or USF&G Family is subject, (ii) violate the
provisions of USF&G or USF&G Family's Articles of Incorporation, as
amended, or By-laws, as amended, or (iii) violate
27
any statute or any order, rule or regulation known to me of any court
or governmental agency or body having jurisdiction over USF&G or USF&G
Family or any of their properties.
(vi) Following my examination of the Order of the Maryland
Insurance Administration, dated _______, 2002, approving or
acknowledging that no regulatory approval is required for, inter alia,
the transactions contemplated by the Filed Agreements to which USF&G
or USF&G Family is a party, and the issuance to USF&G Family by the
New York State Insurance Department of a license to engage in the
reinsurance business, no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the consummation by USF&G
or USF&G Family of the transactions contemplated by the Filed
Agreements to which USF&G or USF&G Family is a party, except the
approval by the Maryland Insurance Administrator of the change of
control of USF&G Family contemplated by the Filed Agreements and
except the registration under the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended, of the Common
Shares, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign insurance
laws or as may be required by securities or Blue Sky laws in
connection with the purchase and distribution of the Common Shares by
the Underwriters.
(vii) Each of USF&G and USF&G Family is a duly licensed insurance
company under the insurance laws of the State of Maryland.
(viii) All statutory and regulatory consents, authorizations,
approvals and filings required to be obtained or made by or on behalf
of USF&G and USF&G Family under the insurance laws of the State of
Maryland to consummate the transactions contemplated by the Filed
Agreements to which USF&G or USF&G Family is a party have been
obtained or made.
(ix) Each of USF&G and USF&G Family maintains its books and
records in accordance with the insurance laws of the State of
Maryland, except where the failure to so maintain its books and
records would not individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of Platinum and its subsidiaries taken
as whole following the First Time of Delivery.
(x) To my knowledge, neither USF&G nor USF&G Family has received
any notification from any insurance authority, commission or other
insurance regulatory body to the effect that any license from such
authority, commission or body is needed to be obtained by USF&G or
USF&G Family or that USF&G or USF&G Family is not in compliance with
any applicable insurance laws, except where such failure to obtain
such license or to be in such compliance would not, individually or in
the aggregate (after giving effect to any applicable insurance,
reinsurance or reserves therefor) have a material adverse effect on
the consolidated financial position, shareholders' equity or results
of operations of Platinum and its subsidiaries taken as a whole
following the First Time of Delivery.
(xi) The statements made under the captions "Business-Our
Business-Regulation-U.S. Regulation-U.S. Insurance Holding Company
Regulation of Platinum Holdings" and "-- -- --State Insurance
Regulation of Platinum US" in the Prospectus (as defined in the
Underwriting Agreement) insofar as they relate to summaries of
provisions of the
28
insurance laws of the State of Maryland therein described are
accurate, fair and complete.
(i) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, KPMG, LLP shall have furnished to you a letter or letters, dated
the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(j) (i)(A) Neither the Company nor any of its subsidiaries shall have
sustained since April 24, 2002, 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 court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (B) since April 24, 2002, there shall not have been any
change in the capital stock, capital or surplus or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (A) or (B), is in the
judgment of the Representatives 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;
(ii)(A) Neither St. Xxxx nor any of its subsidiaries in respect of
the Business shall have sustained since December 31, 2001, 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 court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (B) since
December 31, 2001, there shall not have been any change, or any
development involving a prospective change, in or affecting the general
affairs, management or results of operations of St. Xxxx and its
subsidiaries in respect of the Business, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (A) or (B), is in the judgment of the
Representatives 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;
(k) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or the Company's
financial strength or claims paying ability by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities or the Company's financial strength or claims
paying ability;
(l) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a
29
suspension or material limitation in trading in the Company's securities
on the Exchange; (iii) a general moratorium on commercial banking
activities in New York or London declared by the relevant authorities or a
material disruption in commercial banking or securities settlement or
clearance services in the United States or the United Kingdom; (iv) a
change or development involving a prospective change in Bermuda taxation
affecting the Company or the Shares or the transfer thereof; (v) the
outbreak or escalation of hostilities involving the United States, the
United Kingdom or Bermuda or the declaration by the United States, the
United Kingdom or Bermuda of a national emergency or war or (vi) the
occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States, the United Kingdom,
Bermuda or elsewhere, if the effect of any such event specified in clause
(v) or (vi) in the judgment of the Representatives 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;
(m) The Shares to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the Exchange;
(n) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the Company's officers and
directors, substantially to the effect set forth in Section 6(e) hereof in
form and substance satisfactory to you;
(o) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(p) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (j) of this Section 9 and as to such
other matters as you may reasonably request; and
(q) All conditions to the consummation of the Transaction, as set
forth in the Filed Agreements, shall have been satisfied or waived prior
to the First Time of Delivery.
10. (a) 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 an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, 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 Underwriter for any legal or
other expenses reasonably incurred by such Underwriter 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
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein.
30
(b) Each Underwriter will indemnify and hold harmless the Company and St.
Xxxx against any losses, claims, damages or liabilities to which the Company or
St. Xxxx, as the case may be, 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 or the Prospectus, 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 or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse the Company and St. Xxxx for any legal or other expenses reasonably
incurred by the Company or St. Xxxx, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party and St. Xxxx in
writing of the commencement thereof; but the omission so to notify the
indemnifying party and St. Xxxx shall not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party and St. Xxxx of the
commencement thereof, the indemnifying party (and, if it is reasonably likely
that St. Xxxx will be liable to make any payment pursuant to Section 10(e)
hereof, St. Xxxx at its own expense) shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, 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 (and, if the indemnifying
party is the Company, St. Xxxx) shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. 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.
(d) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other 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
31
notice required under subsection (c) 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 (which for purposes of this subsection (d)
shall include the fault of St. Xxxx) 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 well
as any other relevant equitable considerations. The relative benefits received
by the Company 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 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 (which for
purposes of this subsection (d) shall be deemed to include, without limitation,
the information described in Schedule III hereto) on the one hand or the
Underwriters on the other and the Company's (which for purposes of this
subsection (d) shall include St. Paul's), on the one hand, and the
Underwriter's, on the other, 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
contributions pursuant to this subsection (d) were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) In the event that the Company fails to fulfill when due any of its
payment obligations under subsections (a) or (d) of this Section 10 because it
has not obtained the necessary funds from internal sources (due to insurance
regulatory or other legal restrictions) or external sources, St. Xxxx agrees to
make all such payments to the same extent as the Company is obligated to do so;
provided, however, that notwithstanding anything to the contrary in this Section
10, (i) St. Paul's aggregate liability to the Underwriters under this subsection
(e) shall not exceed the excess of (I) $400 million over (II) the sum of (x) any
indemnification, contribution or reimbursement of expense payments paid or
payable by St. Xxxx to the Company pursuant to Section 10.02 of the Formation
and Separation Agreement and (y) any damages or other amounts paid or payable by
St. Xxxx to investors purchasing Common Shares pursuant to the Prospectus, and
any amendment or supplement thereto, and (ii) St. Paul's obligation to make a
payment under this subsection (e) shall arise only in the event, and to the
extent, that the related obligation of the Company to make a payment to the
Underwriters under subsections (a) and (d) of this Section 10 relates to the
information described in Schedule III hereto. The Company, St. Xxxx and the
Underwriters
32
understand that the identification of items in Schedule III hereto is made
solely for the purposes of defining St. Paul's obligations to the Underwriters
pursuant to this subsection (e) and for no other purpose. St. Xxxx must advise
Xxxxxxx, Sachs & Co. in writing 60 days prior to paying or agreeing to pay an
amount pursuant to clauses (i)(II)(x) or (y) of the second preceding sentence
that would reduce St. Paul's remaining aggregate potential liability to the
Underwriters pursuant to clause (ii) to below $100 million.
(f) The obligations of the Company and St. Xxxx under this Section 10
shall be in addition to any liability which the Company and St. Xxxx xxx
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 10 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and St. Xxxx (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Act.
11. (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 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 that you have so arranged
for the purchase of such Shares, or the Company notifies you that it has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone such 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 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 and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; 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 and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to
33
the Second Time of Delivery, the obligations of the Underwriters to purchase and
of the Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 8 hereof and the indemnity and contribution agreements in Section 10
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company 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 officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 8 and 10 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 8
and 10 hereof.
14. Each of the Company and St. Xxxx irrevocably (i) agrees that any legal
suit, action or proceeding against the Company brought by any Underwriter or by
any person who controls such Underwriter within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act (a "Control Person") arising out of
or based on this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) irrevocably waives, to the fullest extent
it may effectively do so, any objection which it may now or hereafter have to
the laying of venue of any such proceeding, (iii) irrevocably waives, to the
fullest extent it may effectively do so, any objection based on the absence of a
necessary or indispensable party in any such PROCEEDING, and (iv) irrevocably
submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby which is instituted in any New York Court or in any foreign court. To the
fullest extent permitted by law, the Company hereby waives any objection to the
enforcement by any competent foreign court of any judgment validly obtained in
any such proceeding. The Company designates and appoints CT Corporation in New
York City as its authorized agent (the "Authorized Agent") upon which process
may be served in any such action arising out of or based on this Agreement or
the transactions contemplated hereby which may be instituted in any New York
Court by any Underwriter or by any Control Person, expressly consents to the
jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that its Authorized Agent has agreed to act as such agent for service
of process and the Company agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service
34
of process to the Company shall be deemed, in every respect, effective service
of process upon the Company.
The provisions of this Section 14 shall survive any termination of this
Agreement, in whole or in part.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in currency (the "judgment currency") other
than United States dollars, the party against whom such judgment or order has
been given or made will indemnify each party in whose favor such judgment or
order has been given or made (the "Indemnitee") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount of the
judgment currency actually received by such Indemnitee. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and the
Underwriters and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
16. 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 jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; and if to St. Xxxx shall be delivered to The St. Xxxx Companies,
Inc., 000 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 10(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
17. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 10 and
12 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
18. 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.
19. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS RULES
OF SUCH STATE.
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.
35
20. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us [SIX] 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 between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
-----------------------------------
Name:
Title:
THE ST. XXXX COMPANIES, INC.
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
BY:
-----------------------------------
(Xxxxxxx Sachs
& Co.)
On behalf of each of the Underwriters
36
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ---------
Xxxxxxx, Xxxxx & Co.........................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.......................
Xxxxxxx Xxxxx Barney Inc....................
Banc of America Securities LLC..............
Credit Suisse First Boston Corporation......
X.X. Xxxxxx Securities Inc..................
[NAMES OF OTHER UNDERWRITERS]...............
37
SCHEDULE II
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS HOLDINGS, LTD., A GOVERNING
BERMUDA COMPANY (THE "COMPANY"), IS A PARTY LAW
--------------------------------------------------------------------------------------
o Formation and Separation Agreement, dated as of June __, 2002 New York
(the "FORMATION AND SEPARATION AGREEMENT"), between the Company
and St. Xxxx (as defined herein).
o Master Services Agreement, dated as of June __, 2002 (the "MASTER New York
SERVICES AGREEMENT"), between the Company and St. Xxxx.
o Transitional Trademark License Agreement, dated as of June __, New York
2002 (the "TRADEMARK LICENSE AGREEMENT"), between the Company and
St. Xxxx.
o Registration Rights Agreement, dated as of June __, 2002 (the New York
"REGISTRATION RIGHTS AGREEMENT"), between the Company and St.
Xxxx.
o Option Agreement, dated as of June __, 2002 (the "OPTION New York
Agreement"), between the Company and St. Xxxx.
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS REINSURANCE INC., A GOVERNING
MARYLAND DOMICILED INSURANCE COMPANY ("PLATINUM US") (OR USF&G FAMILY LAW
INSURANCE COMPANY ("USF&G FAMILY"), TO BE RENAMED PLATINUM UNDERWRITERS
REINSURANCE INC. ON OR PRIOR TO THE FIRST TIME OF DELIVERY), IS A PARTY
--------------------------------------------------------------------------------------
o Employee Benefits and Compensation Matters Agreement, dated as of New York
June __, 2002 (the "Employee Matters Agreement"), between St. Xxxx
and USF&G Family.
o Run-Off Services Agreement, dated as of June __, 2002 (the "US New York
RUN-OFF SERVICES AGREEMENT"), between Platinum US and Fire & Marine
(as defined herein).
o Underwriting Management Agreement, dated as of June __, 2002 (the New York
"US UNDERWRITING AGREEMENT"), between Platinum US and Fire &
Marine.
o Assignment and Assumption Agreement, dated as of June __, 2002 [New York]
(the "NY LEASE ASSIGNMENT AGREEMENT"), between Metropolitan Life
Insurance Company, Platinum US and St. Xxxx Re, Inc.
o Sub Lease Agreement, dated as of June __, 2002 (the "SUB LEASE New York
AGREEMENT"), between Platinum US and St. Xxxx Reinsurance
Management Corporation.
o 100% Quota Share Retrocession Agreement (Traditional), dated as Minnesota
of June __, 2002 (the "US QUOTA SHARE TRADITIONAL"), between
Platinum US and Fire & Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-1), Vermont
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
D-1"), between Platinum US and Mountain Ridge (as defined herein).
o 100% Quota Share Retrocession Agreement (Non-Traditional - A), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
A"), between Platinum US and Fire & Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
B-1"), between Platinum US and Fire & Marine.
38
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-2), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
B-2"), between Platinum US and Fire & Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - C), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
C"), between Platinum US and Fire & Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-2), Vermont
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
D-2"), between Platinum US and Mountain Ridge.
o 100% Quota Share Retrocession Agreement (Non-Traditional - D Stop Vermont
Loss), dated as of June __, 2002 (the "US QUOTA SHARE
NON-TRADITIONAL D STOP LOSS"), between Platinum US and
Mountain Ridge.
o 100% Quota Share Retrocession Agreement (Non-Traditional - D Minnesota
Spread Loss), dated as of June __, 2002 (the "US QUOTA SHARE
NON-TRADITIONAL D SPREAD LOSS"), between Platinum US and Fire
& Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-3), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
D-3"), between Platinum US and Fire & Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-4), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
D-4"), between Platinum US and Fire & Marine.
o 100% Quota Share Retrocession Agreement (Non-Traditional - E), Minnesota
dated as of June __, 2002 (the "US QUOTA SHARE NON-TRADITIONAL
E"), between Platinum US and Fire & Marine.
o [100% Quota Share Retrocession Agreement (Traditional), dated as England
of June __, 2002 (the "UK QUOTA SHARE TRADITIONAL"), between
Platinum US and St. Xxxx Re UK (as defined herein)].
o [100% Quota Share Retrocession Agreement (Non-Traditional - A), England
dated as of June __, 2002 (the "UK QUOTA SHARE NON-TRADITIONAL
A"), between Platinum US and St. Xxxx Re UK.]
o [100% Quota Share Retrocession Agreement (Non-Traditional - B-1), England
dated as of June __, 2002 (the "UK QUOTA SHARE NON-TRADITIONAL
B-1"), between Platinum US and St. Xxxx Re UK.]
FILED AGREEMENTS TO WHICH PLATINUM RE (UK) LIMITED, A LIMITED LIABILITY GOVERNING
COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND ("PLATINUM UK"), IS A LAW
PARTY
--------------------------------------------------------------------------------------
o [U.K. Transitional Services Agreement, dated as of June __, 2002 England
(the "UK TRANSITIONAL SERVICES AGREEMENT"), between St. Xxxx Re
UK and Platinum UK.]
o [U.K. Run-off Services Agreement, dated as of June __, 2002 (the England
"UK RUN-OFF SERVICES AGREEMENT"), between St. Xxxx Re UK and
Platinum UK.]
o [U.K. Underwriting Agency and Underwriting Management Agreement, England
dated as of June __, 2002 (the "UK UNDERWRITING AGREEMENT"),
between Platinum UK and St. Xxxx Re UK.]
o [U.K. Business Transfer Agreement, dated as of June __, 2002 (the England
"UK BUSINESS TRANSFER AGREEMENT"), between Platinum UK and St.
Xxxx Re UK.]
39
FILED AGREEMENTS TO WHICH THE ST. XXXX COMPANIES INC., A MINNESOTA GOVERNING
CORPORATION ("ST. XXXX"), IS A PARTY LAW
--------------------------------------------------------------------------------------
o Formation and Separation Agreement New York
o Employee Matters Agreement New York
o Master Services Agreement New York
o Trademark License Agreement New York
o Registration Rights Agreement New York
o Option Agreement New York
FILED AGREEMENTS TO WHICH ST. XXXX FIRE AND MARINE INSURANCE COMPANY, A GOVERNING
MINNESOTA DOMICILED INSURANCE COMPANY ("FIRE & MARINE"), IS A PARTY LAW
--------------------------------------------------------------------------------------
o US Run-Off Services Agreement New York
o US Underwriting Agreement New York
o US Quota Share Traditional Minnesota
o US Quota Share Non-Traditional A Minnesota
o US Quota Share Non-Traditional B-1 Minnesota
o US Quota Share Non-Traditional B-2 Minnesota
o US Quota Share Non-Traditional C Minnesota
o US Quota Share Non-Traditional D Spread Loss Minnesota
o US Quota Share Non-Traditional D-3 Minnesota
o US Quota Share Non-Traditional D-4 Minnesota
o US Quota Share Non-Traditional E Minnesota
FILED AGREEMENTS TO WHICH MOUNTAIN RIDGE INSURANCE COMPANY, A VERMONT GOVERNING
DOMICILED INSURANCE COMPANY ("MOUNTAIN RIDGE"), IS A PARTY LAW
--------------------------------------------------------------------------------------
o US Quota Share Non-Traditional D-1 Vermont
o US Quota Share Non-Traditional D-2 Vermont
o US Quota Share Non-Traditional D Stop Loss Vermont
FILED AGREEMENTS TO WHICH ST. XXXX REINSURANCE COMPANY LIMITED, A GOVERNING
UNITED KINGDOM DOMICILED INSURANCE COMPANY ("ST. XXXX RE UK"), IS A LAW
PARTY
--------------------------------------------------------------------------------------
o UK Quota Share Traditional England
o UK Quota Share Non-Traditional A England
o UK Quota Share Non-Traditional B-1 England
o UK Transitional Services Agreement England
o UK Run-Off Services Agreement England
o UK Underwriting Agreement England
o UK Business Transfer Agreement England
FILED AGREEMENTS TO WHICH ST. XXXX RE, INC., A [ ] GOVERNING
CORPORATION, IS A PARTY LAW
--------------------------------------------------------------------------------------
o NY Lease Assignment Agreement [New York]
40
FILED AGREEMENTS TO WHICH ST. XXXX REINSURANCE MANAGEMENT CORPORATION, GOVERNING
A NEW YORK CORPORATION, IS A PARTY LAW
--------------------------------------------------------------------------------------
o Sub Lease Agreement New York
41
SCHEDULE III
1. In any Preliminary Prospectus or the Prospectus, or any amendment
or supplement thereto, the following information:
o All information (including both text and tables) in the following
sections: "Pro Forma Financial Information", "Management's
Discussion and Analysis of Pro Forma Financial Condition and
Underwriting Results", "St. Xxxx Investment and Principal
Shareholders" and "The Predecessor Business";
o All information (including both text and tables) in the "Prospectus
Summary" section under the captions "--Background and the
Transferred Business", "--St. Paul's Share Ownership", "--Selected
Pro Forma Consolidated Financial Information and Operating Data";
o The information set forth in each table in the "Business" section
under the captions "Our Business--Our Lines of Business" and "Our
Business--Marketing";
o All text of the second paragraph in the "Business" section under the
caption "Our Business--Marketing";
o All information (including both text and tables) on pages [F-13
through F-34];
o The following phrases and sentences:
o "At January 1, 2001, St. Xxxx Re had approximately 398
employees" and "from a total of 398 employees who were
employed by St. Xxxx Re as of January 1, 2001";
o "The number of underwriting offices was reduced by St. Xxxx Re
from ten at January 1, 2001 to five as of March 31, 2002";
o "With respect to January 2002 renewals, St. Xxxx Re
experienced substantial rate increases, generally ranging from
20% to 50% depending on the line of business";
o "Commencing January 2002, St. Xxxx Re has maintained normal
maximum program limits of $5 million on risk programs, $6
million on casualty clash programs and $20 million on property
catastrophe programs"; and
o "St. Xxxx Re has conducted admitted reinsurance activities in
the U.S. and London for many years, and has been well
established as a lead underwriter in excess casualty, property
catastrophe and certain other classes of reinsurance".
2. In the Registration Statement, or any amendment or supplement thereto, the
following information:
42
o In Part II, all information (including both text and tables) set forth
under the captions "Financial Statement Schedules of
Predecessor--Schedule III--Supplementary Insurance Information",
"Financial Statement Schedules of Predecessor--Schedule
IV--Reinsurance", and "Financial Statement Schedules of
Predecessor--Schedule V--Valuation and Qualifying Accounts".
43
ANNEX I
Pursuant to Section 9(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations thereunder; and,
if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company and Predecessor (as such term is defined in the
Prospectus) for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been separately furnished to
the representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the
[unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows] included in the
Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives and on the basis of specified
procedures including inquiries of officials of the Company and St. Xxxx
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements referred
to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations, nothing came to their attention
that cause them to believe that the unaudited condensed consolidated
financial statements 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;
(iv) The unaudited selected financial information with respect to [the
consolidated results of operations and financial position] of Predecessor
for the five most recent fiscal years included in the Prospectus agrees
with the corresponding amounts (after restatements where applicable) in
the audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the St. Paul's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the 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, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial
44
statements and other information referred to below, a reading of the
latest available interim financial statements of St. Xxxx, the Company and
their respective subsidiaries, inspection of the minute books of St. Xxxx,
the Company and their respective subsidiaries since the date of the latest
audited financial statements included in the Prospectus, inquiries of
officials of St. Xxxx, the Company and their respective subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the [unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows] included in 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, or (ii)
any material modifications should be made to the [unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows] included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included
in the Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for
the audited consolidated financial statements included in the
Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in 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;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest financial statements included in the
Prospectus) or the capital or surplus, or any increase in the
consolidated long-term debt of the Company and its subsidiaries,
or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
45
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified procedures,
not constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived
from the general accounting records of St. Xxxx, the Company and their
respective subsidiaries, which appear in the Prospectus, or in Part II of,
or in exhibits and schedules to, the Registration Statement specified by
the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of St.
Xxxx, the Company and their respective subsidiaries and have found them to
be in agreement.
46
