EXHIBIT 1
PLATINUM UNDERWRITERS HOLDINGS, LTD.
PLATINUM UNDERWRITERS FINANCE, INC.
5,000,000
[ ]% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
----------------
FORM OF UNDERWRITING AGREEMENT
September __, 2002
Xxxxxxx, Xxxxx & Co.
[Co-Representatives]
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 enter into
the Purchase Contracts (the "Purchase Contracts") with you on behalf of the
Underwriters named in Schedule I hereto (the "Underwriters"). The Purchase
Contracts are evidenced by the Unit Certificates and are referred to in the
Purchase Contract Agreement, to be dated as , 2002 (the "Purchase Contract
Agreement"), between the Company and JPMorgan Chase Bank, as Purchase
Contract Agent (the "Purchase Contract Agent"), underlying an aggregate of
5,000,000 -% Adjustable Conversion-rate Equity Security Units with a stated
amount of $25 (the "Firm Units"). In connection therewith, the Company and
its indirect subsidiary, Platinum Underwriters Finance, Inc., a Delaware
corporation ("Platinum Finance"), propose, subject to the terms and
conditions stated herein, that Platinum Finance issue and sell to the
Underwriters an aggregate of $125,000,000 of -% senior notes (the "Senior
Notes"), guaranteed by the Company on a senior, unsecured basis (the
"Guarantees"). The Senior Notes and the Guarantees will be issued pursuant to
an Indenture, to be dated as of , 2002 (the "Base Indenture"),
between the Company, Platinum Finance and JPMorgan Chase Bank, as Trustee
(the "Trustee"), as supplemented by the First Supplemental Indenture, to be
dated as of , 2002 (the "First Supplemental Indenture and,
together with the Base Indenture, the "Indenture") between the Company,
Platinum Finance and the Trustee.
In connection with the Purchase Contract Agreement, pursuant to the
Pledge Agreement, to be dated as of , 2002 (the "Pledge
Agreement"), among the Company, the Purchase
1
Contract Agent and , as collateral agent and securities
intermediary (the "Collateral Agent"), the Senior Notes issued hereunder
initially will be pledged by the Purchase Contract Agent on behalf of the
holders of the Units to secure such holders' obligations to the Company under
the Purchase Contracts underlying such Units. The rights to purchase newly
issued Common Shares, par value $0.01 per share, of the Company (the
"Issuable Common Shares") under a Purchase Contract, together with an
ownership interest in a Pledged Note or Pledged Treasury Consideration or a
Pledged Treasury Security securing such Purchase Contract, subject to (a) the
obligations owed to the Company under such Purchase Contract and (b) the
pledge arrangements under the Pledge Agreement securing the foregoing
obligations, collectively constitute an Adjustable Conversion-rate Equity
Security Unit (a "Unit"). Unless the context otherwise requires, for purposes
of this Agreement, the act of entering into a Purchase Contract underlying a
Unit and purchasing an ownership interest in a Note underlying a Unit shall
be referred to as a "purchase" of such Unit. In addition to the purchase of
Firm Units subject to the terms and conditions herein, the Company and
Platinum Finance propose to grant the Underwriters an option to purchase up
to 750,000 additional Units (the "Optional Units"). The Firm Units and any
Optional Units purchased by the Underwriters are herein called the "Units".
Concurrently with the offering of the Units, the Company is making an
initial public offering of Common Shares (the "Firm Shares") and, at the
election of the underwriters of such offering (the "Common Shares
Underwriters"), up to an additional Common Shares (the "Optional Shares"
and, together with the Firm Shares, the "Shares"), by means of a separate
prospectus (the "Common Shares Prospectus") and pursuant to a separate
underwriting agreement (the "Common Shares Underwriting Agreement").
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 (A) contribute $ million in cash and (B) 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 Underwriters Reinsurance, Inc., a
Maryland corporation that, prior to the First Time of Delivery, is indirectly
owned by St. Xxxx ("Platinum US"), Platinum Re (UK) Limited, a U.K. company
("Platinum UK"), and Platinum Underwriters Bermuda, Ltd., a Bermuda company
("Platinum Bermuda"). The Company 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"). Platinum US will be owned directly by
Platinum Finance, which is a wholly-owned subsidiary of Platinum Ireland. 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.
Capitalized terms used herein without definition shall be used as defined
in the Purchase Contract Agreement (as defined herein).
1. The Company and Platinum Finance, jointly and severally, represent
and warrant to, and agree with, each of the Underwriters that:
2
(a) A registration statement on Form S-1 (File No. 333-....) (the
"Initial Registration Statement") in respect of the Units, the Purchase
Contracts and the Senior Notes underlying the Units, the Guarantees and the
Issuable Common Shares (collectively, the "Securities"), 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 (but excluding Form
T-1), 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 Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and, in each case, 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 or
Platinum Finance 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 Trust Indenture Act and, in each case, 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 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 or Platinum
Finance by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
3
(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) Each of this Agreement, the Jurisdiction Agreement, dated as of the
date hereof (the "Units Jurisdiction Agreement"), among the Company, Platinum
Finance, St. Xxxx and the Underwriters, the Common Shares Underwriting Agreement
and the Jurisdiction Agreement, dated as of the date hereof (the "Common Shares
Jurisdiction Agreement" and together with the Units Jurisdiction Agreement, the
"Jurisdiction Agreements"), among the Company, St. Xxxx and the Common Shares
Underwriters, has been duly authorized, executed and delivered by the Company;
and each of this Agreement and the Units Jurisdiction Agreement has been duly
authorized, executed and delivered by Platinum Finance;
(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 by the Common Shares
Underwriting Agreement and the Filed Agreements and operating
4
the Business after the First Time of Delivery and (ii) has not engaged in any
business activities, conducted any operations, entered into any 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
by the Common Shares Underwriting Agreement and 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 for the Units and 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 Platinum Holdings' 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
Common Shares Underwriters under the Common Shares Underwriting Agreement 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 in the Common
Shares Underwriting Agreement and the Formation and Separation Agreement,
respectively, 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; and the Issuable Common Shares have been duly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement, will be validly issued and fully paid and
non-assessable and will conform to the description of the Common Shares
contained in the Prospectus or to any amended or supplemented description of the
Common Shares contained in a then effective report or registration statement
filed pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the issuance of Issuable Common Shares will not be subject to any
preemptive or other similar right;
(k) The Units have been duly authorized and, when duly executed,
authenticated and delivered against payment therefor as provided herein and in
the Purchase Contract Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their 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, and will be in the form contemplated by, and will be
entitled to the benefits of, the Purchase Contract Agreement; at the First Time
of Delivery, the Units will conform in all material respects to the
5
description thereof contained in the Prospectus; and the issuance of the Units
is not subject to preemptive or other similar rights;
(l) The Purchase Contracts underlying the Units have been duly
authorized by the Company and, when duly executed, authenticated and delivered
as provided herein and in the Purchase Contract Agreement, will constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their 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; at the First
Time of Delivery, the Purchase Contracts will conform in all material respects
to the description thereof contained in the Prospectus; and the issuance of the
Purchase Contracts is not subject to any preemptive or similar rights;
(m) The Indenture has been duly qualified under the Trust Indenture Act;
and at the First Time of Delivery, the Indenture will conform in all material
respects to the description thereof contained in the Prospectus;
(n) The Senior Notes have been duly authorized by Platinum Finance and,
when the Senior Notes are duly executed, authenticated, issued and delivered as
provided herein and in the Indenture, the Senior Notes will constitute valid and
legally binding obligations of Platinum Finance, enforceable in accordance with
their 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, and will be in the
form contemplated by, and will be entitled to the benefits of, the Indenture;
and at the First Time of Delivery, the Senior Notes will conform in all material
respects to the description thereof contained in the Prospectus;
(o) The Guarantees have been duly authorized by the Company and, upon
the due execution, authentication, issuance and delivery of the Senior Notes and
the due endorsement of the Guarantees thereon, such Guarantees will have been
duly executed and delivered and will constitute valid and binding obligations of
the Company, enforceable in accordance with their 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, and will be entitled to the benefits of the Indenture; and at the
First Time of Delivery, the Guarantees will conform in all material respects to
the description thereof contained in the Prospectus;
(p) The Remarketing Agreement to be entered into by the Company,
Platinum Finance, the Purchase Contract Agent and the Remarketing Agent, has
been duly authorized by each of the Company and Platinum Finance and, when
executed and delivered by each of the Company and Platinum Finance, will be duly
executed and delivered by each of the Company and Platinum Finance; and at the
time of such execution and delivery, the Remarketing Agreement will conform in
all material respects to the description thereof contained in the Prospectus;
(q) The Pledge Agreement creates, as collateral security for the
performance when due by the holders from time to time of the Units of their
respective obligations under the Purchase Contracts constituting part of such
Units, a legal, valid and perfected security interest (as defined in the Uniform
Commercial Code, as adopted and in effect in the State of New York (the "New
York UCC")) in favor of the Collateral Agent for the benefit of the Company, in
the right, title and interest of such holders in the securities and other assets
and interests pledged to the Collateral Agent pursuant to the Pledge Agreement
(the "Pledged Securities");
(r) The Units and the Issuable Common Shares have been approved for
listing on the New York Stock Exchange (the "Exchange"), subject to notice of
issuance, and at each Time of Delivery,
6
the Units issued at or prior to such Time of Delivery, and the Issuable Common
Shares relating to such Units, upon notice of issuance, will be listed on the
Exchange;
(s) The issue and sale of the Securities, the Shares and the St. Xxxx
Investment Shares, the compliance by each of the Company and Platinum Finance
with all of the provisions of this Agreement and the Units Jurisdiction
Agreement, the compliance by the Company with all of the provisions of the
Common Shares Underwriting Agreement and the Common Shares Jurisdiction
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, 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 Securities, the Shares or the St. Xxxx Investment Shares;
(t) 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, 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;
(u) 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 Platinum
Holdings' Common Shares", "Description of the Equity Security Units",
"Description of the Senior Notes", "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;
(v) 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;
(w) 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
7
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);
(x) 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 Securities, the Shares and the
St. Xxxx Investment Shares or the consummation of the Transaction and the
transactions contemplated by this Agreement, the Common Shares Underwriting
Agreement, the Jurisdiction Agreements and the Filed Agreements, except (i) the
registration under the Act and the Exchange Act, of the Shares and the
Securities, (ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under or state securities, Blue Sky or
insurance securities laws in connection with the purchase and distribution of
the Securities by the Underwriters and the Shares by the Common Shares
Underwriters under the Common Shares Underwriting Agreement, (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 Trust
Indenture Act or 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 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
Securities, the Shares or the St. Xxxx Investment Shares;
(y) 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 Securities, the Shares or the
St. Xxxx Investment Shares;
(z) Neither the Company nor Platinum Finance is or, after giving effect
to the offering and sale of the Shares, the St. Xxxx Investment Shares and the
Units, will be an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
8
(aa) 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 order or decree impairing, restricting or
prohibiting the payment of dividends by the Company or any of its subsidiaries;
(bb) 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;
(cc) 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
9
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;
(dd) 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;
(ee) 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;
(ff) 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) 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;
(gg) 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 Securities to or for the respective accounts of the Underwriters or the sale
and delivery outside Bermuda by the Underwriters of the Securities 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;
(hh) 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;
(ii) 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
10
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 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";
(jj) Under the Units Jurisdiction Agreement, each of the Company and
Platinum Finance 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 Units and 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, under the Units Jurisdiction Agreement, the Company 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 on CT Corporation
System effected in the manner set forth in the Units Jurisdiction Agreement will
be effective under the laws of Bermuda to confer personal jurisdiction over the
Company;
(kk) 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;
(ll) 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 Units;
(mm) 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
11
of America, and (ii) comply as to form in all material respects with the
applicable accounting requirements of the Act;
(nn) Immediately following the First Time of Delivery, the Company will
repurchase and cancel the Common Shares held by Codan Trust Company Limited, and
immediately following such repurchase and cancellation, St. Xxxx and the holders
of the Shares will be the only holders of issued and outstanding Common Shares;
and
(oo) 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) Each of this Agreement, the Common Shares Underwriting Agreement and
the Jurisdiction Agreements 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, the Common Shares Underwriting Agreement and the Jurisdiction
Agreements 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, the Common Shares Underwriting Agreement and the Jurisdiction
Agreements and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, 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 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
12
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, the Common Shares Underwriting Agreement, the
Jurisdiction Agreements 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 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 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
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
13
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;
(k) Under the Units Jurisdiction Agreement, St. Xxxx has validly and
irrevocably submitted to the non-exclusive jurisdiction of any 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 Units and 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
(l) 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 and each of the Underwriters, severally and not jointly, agree to enter
into the Purchase Contracts underlying the number of Firm Units set forth
opposite the name of such Underwriter in Schedule I hereto, (b) Platinum Finance
agrees that it will issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from Platinum
Finance, at a purchase price of ____% of the principal amount thereof, the
principal amount of Senior Notes underlying the number of Firm Units set forth
opposite the name of such Underwriter in Schedule I hereto, and (c) in the event
and to the extent that the Underwriters shall exercise the election to enter
into additional Purchase Contracts underlying Optional Units as provided below,
(i) the Company and each of the Underwriters, severally and not jointly, agree
to enter into that number of additional Purchase Contracts as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional Purchase Contracts) determined by multiplying the aggregate number of
additional Purchase Contracts the Underwriters elect to purchase by a fraction,
the numerator of which is the maximum number of Optional Units set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Units set forth in total opposite the
names of all such Underwriters in Schedule I hereto and (ii) Platinum Finance
agrees that it will issue and sell to each of the Underwriters and each of the
Underwriters agrees, severally and not jointly, to purchase from Platinum
Finance at the purchase price set forth in clause (a) of this Section 3, an
aggregate amount of Senior Notes underlying such additional Purchase Contracts.
The Company hereby grants to the Underwriters the right to enter into, at
their election, Purchase Contracts underlying up to 750,000 Optional Units and
Platinum Finance hereby grants the Underwriters the right to purchase from
Platinum Finance at their election up to an aggregate of $18,750,000 principal
amount of Senior Notes underlying such Optional Units, for the sole purpose of
covering overallotments in the sale of the Firm Units; provided, however that
the Underwriters may exercise such overallotment elections only in integral
multiples of 40 Optional Units. Any such election to enter into such additional
Purchase Contracts and purchase such Senior Notes may be exercised only by
written notice from you to the Company and Platinum Finance, given within a
period of 13 calendar days after the date of this Agreement and setting forth
the aggregate number of such additional Purchase Contracts to be entered into
and principal amount of Senior Notes to be purchased and the date on which the
related Optional Units 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,
14
the Company and Platinum Finance otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
4. (a) Upon the authorization by you of the release of the Firm Units,
the several Underwriters propose to offer the Firm Units 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 Units 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 Units 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 Units to be published in any newspaper or periodical or posted in
any public place and not to issue any circular relating to the Units,
except in any case with Xxxxxxx, Sachs & Co.'s express written consent and
then only at its own expense.
(c) Each Underwriter represents, warrants and agrees that: (i) it has
not offered or sold and, prior to the expiry of a period of six months
from the closing of the offering of the Units, will not offer or sell any
Units to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses
or otherwise in circumstances which have not resulted and will not result
in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (ii) it has only
communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any Units in circumstances in which section
21(1) of the FSMA does not apply to the Company; and (iii) it has complied
and will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the Units in, from or otherwise
involving the United Kingdom.
5. (a) The Units to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
the name of Cede & Co. and shall be delivered by or on behalf of the
Company and Platinum Finance 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 Platinum Finance to Xxxxxxx, Sachs & Co. at
least forty-eight hours in advance. The Company will cause the
certificates representing the Units 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] [DTC or its designated
custodian] (the "Designated Office"). The time and date of such delivery
and payment shall be, with respect to the Firm Units, 9:30 a.m., New York
City time, on ............., 2002 or such other time and date as Xxxxxxx,
Sachs & Co., the Company and Platinum Finance may agree upon in writing,
and, with respect to the Optional Units, 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 Units, or such other time and date as Xxxxxxx, Xxxxx & Co., the
Company and Platinum Finance may
15
agree upon in writing. Such time and date for delivery of the Firm Units
is herein called the "First Time of Delivery", such time and date for
delivery of the Optional Units, 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 Units and any additional documents requested by the
Underwriters pursuant to Section 9(p) hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Units 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.
6. The Company and Platinum Finance agree, jointly and severally, 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 Securities 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 Securities 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 Securities, provided that in
connection therewith neither the Company nor Platinum Finance shall 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;
16
(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 Units 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 or the Trust Indenture 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 Units 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;
(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 Units, Purchase Contracts, Senior Notes,
Common Shares or any securities of the Company or Platinum Finance that
are substantially similar to the Units, Purchase Contracts, Senior Notes
or Common 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 (i) the Shares issued pursuant to the Common Stock Underwriting
Agreement, (ii) the St. Xxxx Investment Shares issued to St. Xxxx, and
(ii) securities issued 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, Xxxxx & 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
17
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
Units 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 Units and the Issuable Common 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;
(k) If the Company and Platinum Finance elect to rely upon Rule
462(b), the Company and Platinum Finance 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 and Platinum Finance 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;
(l) Prior to or contemporaneously with the First Time of Delivery,
to take all actions necessary in order to consummate the Transaction and
the concurrent offering of Common Shares by the Company;
(m) Immediately upon receipt of payment for the Firm Shares, the
Company shall cause all of the Common Shares held by Codan Trust Company
Limited to be repurchased and cancelled;
(n) To reserve and keep available at all times, free of preemptive
rights, Issuable Common Shares to satisfy the obligation of the Company to
issue Common Shares pursuant to the Purchase Contracts; and
(o) To enter into the Remarketing Agreement with a nationally
recognized investment banking firm at least one month prior to
, 2005, such Remarketing Agreement to contain provisions
that are consistent in all material respects with the descriptions in the
Prospectus of the rights and obligations of each of the Company, Platinum
Finance, the Purchase Contract Agent and the Remarketing Agent under the
Remarking Agreement.
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 Common Shares, Units, Purchase Contracts,
Senior Notes or any securities of the Company or Platinum Finance that are
substantially similar to the Common Shares, Units, Purchase Contracts or Senior
Notes 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, Xxxxx & Co.
8. The Company, Platinum Finance and St. Xxxx covenant and agree with
the several Underwriters that the Company, Platinum Finance and St. Xxxx will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the counsel and accountants of the Company and Platinum Finance in connection
with the registration of the Securities 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
18
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
Securities; (iii) all expenses in connection with the qualification of the
Securities 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 Units and the Issuable Common 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
Securities; (vi) the cost and charges of any transfer agent or registrar; (vii)
any fees charged by securities rating services for rating the Units; (viii) the
cost of preparing the Securities and any certificates thereof and any
agreements, documents and instruments incident thereto; (ix) the fees and
expenses of the Purchase Contract Agent and Collateral Agent, and any agent of
the Purchase Contract Agent and the Collateral Agent, and the fees and
disbursements of any counsel for the Purchase Contract Agent, Collateral Agent
or Remarketing Agent in connection with the Purchase Contract Agreement, Pledge
Agreement or Remarketing Agreement; (x) the fees and expenses of the Trustee
under the Indenture, and any agent of the Trustee, and the fees and
disbursements of any counsel for the Trustee in connection with the Indenture
and the Notes; and (xi) 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 Units by them, and any advertising expenses
connected with any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Units 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, Platinum Finance and St. Xxxx herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company, Platinum Finance 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 and Platinum Finance have 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 and Platinum
Finance, shall have furnished to you their written opinion or opinions (a
draft of such opinion or opinions are
19
attached as Annex II(b) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Assuming each of this Agreement, the Common Shares
Underwriting Agreement and the Jurisdiction Agreements has been duly
authorized, executed and delivered by the Company under Bermuda law,
each of this Agreement, the Common Shares Underwriting Agreement and
the Jurisdiction Agreements has been duly executed and delivered by
the Company.
(ii) Each of this Agreement, the Common Shares Underwriting
Agreement and the Jurisdiction Agreements has been duly authorized,
executed and delivered by St. Xxxx.
(iii) Platinum US has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to conduct its business
as described in the Prospectus.
(iv) All of the outstanding shares of Platinum US's common
stock have been duly authorized and validly issued and are fully
paid and non-assessable. Platinum Finance is the registered owner of
50,000 shares of Platinum US's common stock, and such shares
constitute all of the outstanding shares of Platinum US's capital
stock.
(v) Platinum Finance has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to conduct its business
as described in the Prospectus.
(vi) All of the outstanding shares of Platinum Finance's
common stock have been duly authorized and validly issued and are
fully paid and non-assessable. Platinum Ireland is the registered
owner of 100 shares of Platinum Finance's common stock, and such
shares constitute all of the outstanding shares of Platinum
Finance's capital stock.
(vii) To such counsel's knowledge, the only agreement in which
the Company has agreed to register any securities is the
Registration Rights Agreement.
(viii) 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, and constitute valid and legally binding obligations of the
Company enforceable in accordance with their 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 such
counsel expresses no opinion as to the enforceability of any
indemnification or contribution provisions relating to violations
under any federal or state securities laws contained in the
Formation and Separation Agreement and the Registration Rights
Agreement.
(ix) The Formation and Separation Agreement and the
Registration Rights Agreement have been duly authorized, executed
and delivered by St. Xxxx and constitute valid and legally binding
obligations of St. Xxxx enforceable in accordance with their 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 such counsel expresses no opinion as to the
enforceability of any
20
indemnification or contribution provisions relating to violations
under any federal or state securities laws contained in the
Formation and Separation Agreement and the Registration Rights
Agreement.
(x) Assuming that 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 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.
(xi) 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.
(xii) Each of the Filed Agreements that is governed by New
York law and to which Platinum Finance is a party has been duly
authorized, executed and delivered by Platinum Finance and
constitutes a valid and legally binding obligation of Platinum
Finance 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) Each of this Agreement and the Units Jurisdiction
Agreement has been duly authorized, executed and delivered by
Platinum Finance.
(xiv) Each of the Filed Agreements that is governed by New
York law and to which Platinum US is a party has been duly
authorized, executed and delivered by Platinum US and constitutes a
valid and legally binding obligation of Platinum US 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 such counsel expresses 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.
(xv) 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.
(xvi) 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 Units, the Shares or the St. Xxxx Investment Shares, except such
as
21
may be required by the Act, the Exchange Act, the Trust Indenture
Act and the securities or Blue Sky laws of the State of New York.
(xvii) The execution, delivery and performance by Platinum US
of its obligations under each of the Filed Agreements to which it is
a party will not (a) violate Platinum US'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 Platinum US; provided, however, that, for the purposes
of this paragraph (xvii), such counsel expresses no opinion with
respect to Federal or state securities laws, other antifraud laws or
fraudulent transfer laws; provided, further, that insofar as
performance by Platinum US of its obligations under such agreements
is concerned, such counsel expresses no opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(xviii) The execution, delivery and performance by Platinum
Finance of its obligations under each of the Filed Agreements to
which it is a party will not (a) violate Platinum Finance'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 Platinum Finance; provided,
however, that, for the purposes of this paragraph (xvii), such
counsel expresses no opinion with respect to Federal or state
securities laws, other antifraud laws or fraudulent transfer laws;
provided, further, that insofar as performance by Platinum Finance
of its obligations under such agreements is concerned, such counsel
expresses no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
(xix) The Remarketing Agreement to be entered into by the
Company, Platinum Finance, the Purchase Contract Agent and the
Remarketing Agent, has been duly authorized by Platinum Finance, and
the holders of the Senior Notes will be entitled to the benefits of
the Remarketing Agreement and the Purchase Contract Agreement, in
each case in respect of the remarketing of the Senior Notes;
(xx) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated June 21, 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 Platinum US is a party, and the issuance to Platinum
US 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 Platinum US under the
insurance laws of the State of Maryland and the insurance laws of
the State of New York to consummate the transactions contemplated by
the Filed Agreements to which the Company or Platinum US is a party,
and in the case of Platinum US, to conduct its business as described
in the Prospectus, have been obtained or made.
(xxi) Assuming that the Units being delivered at such Time of
Delivery have been duly authorized, executed, authenticated, issued
and delivered by the Company under Bermuda law, the Units have been
duly authorized, executed, authenticated, issued and delivered by
the Company, and assuming due execution by the Purchase Contract
Agent as attorney-in-fact of the holders thereof and due
authentication by the Purchase
22
Contract Agent and upon payment and delivery in accordance with this
Agreement, such Units will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their 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, and are in the form contemplated by, and
are entitled to the benefits of, the Purchase Contract Agreement;
and the issuance of the Units is not subject to preemptive or other
similar rights;
(xxii) Assuming the Purchase Contracts underlying the Units
being delivered at such Time of Delivery have been duly authorized,
issued and delivered by the Company under Bermuda law, the Purchase
Contracts underlying the Units being delivered at such Time of
Delivery have been duly authorized, issued and delivered and
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their 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; and
the issuance of the Purchase Contracts is not subject to preemptive
or other similar rights;
(xxiii) The Indenture has been duly qualified under the Trust
Indenture Act;
(xxiv) The Senior Notes underlying the Units being delivered
at such Time of Delivery have been duly authorized, executed,
authenticated, issued and delivered by Platinum Finance and
constitute valid and legally binding obligations of Platinum
Finance, enforceable against Platinum Finance in accordance with
their 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; the
Senior Notes are in the form contemplated by, and are entitled to
the benefits of, the Indenture;
(xxv) Assuming the Guarantees underlying the Units being
delivered at such Time of Delivery have been duly authorized by the
Company under Bermuda law, such Guarantees have been duly authorized
and upon the due execution, authentication, issuance and delivery of
the Senior Notes pursuant to this Agreement and the Indenture, and
upon the Guarantees being duly endorsed on the Senior Notes and
executed, such Guarantees will have been duly issued and delivered
will constitute valid and binding obligations of the Company,
enforceable in accordance with their 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, and are entitled to the benefits of
the Indenture;
(xxvi) Under the NY UCC in effect at such Time of Delivery,
the Pledge Agreement creates, as collateral security for the
performance when due by the holders of the Units under the
respective Purchase Contracts, a legal and valid security interest
(as that term is defined in the New York UCC) in favor of the
Collateral Agent for the benefit of the Company, in the right, title
and interest of such holders in all of the Pledged Securities that
constitute "securities" (as that term is defined in Section
8-102(a)(15) of the New York UCC); and in the case of such Pledged
Securities that are certificated (as defined in the New York UCC),
such security interest shall be perfected upon delivery of such
certificates (endorsed in blank) to the Collateral Agent and,
assuming that neither the Collateral Agent nor the Company has
notice on or prior to the date of such delivery of an
23
adverse claim with respect to such Pledged Securities, the
Collateral Agent will acquire a security interest in the Pledged
Securities free of any adverse claim (as that term in defined in the
New York UCC); in the case of Pledged Securities that are credited
by a securities intermediary (as defined in the New York UCC) to a
securities account (as defined in the New York UCC) in the name of a
Collateral agent, the Collateral Agent shall have a perfected
security interest in all security entitlements (as defined in the
New York UCC) relating to such Pledged Securities;
(xxvii) Under the laws of the State of New York relating to
submission to jurisdiction, pursuant to the Units Jurisdiction
Agreement, (i) each of the Company, Platinum Finance and St. Xxxx
has validly and irrevocably submitted to the non-exclusive
jurisdiction of any New York Court and has validly and irrevocably
waived any objection to the venue of a proceeding in any such court,
and (ii) the Company has validly appointed CT Corporation System as
its authorized agent for the purpose and to the extent described in
the Units Jurisdiction Agreement, and service of process effected on
such agent in the manner set forth therein will be effective to
confer valid personal jurisdiction over the Company, assuming, in
each of clauses (i) and (ii), (a) with respect to the Company only,
the validity of such actions under Bermuda law and (b) the due
authorization, execution and delivery of this Agreement by or on
behalf of the Underwriters.
(xxviii) Registration of the Company or Platinum Finance under
the Investment Company Act is not required.
(xxix) The issuance of the St. Xxxx Investment Shares pursuant
to the Formation and Separation Agreement does not require
registration under the Act.
(xxx) The statements made in the Prospectus under the captions
"Description of the Equity Security Units" and "Description of the
Senior Notes", insofar as they purport to constitute a summary of
the terms of the Securities and the Filed Agreements relating to the
Securities, and under the captions "Business--Our Business--U.S.
Regulation--U.S. Insurance Holding Company Regulation of Platinum
Holdings" and "-- -- --State Insurance Regulation of Platinum US",
insofar as they relate to summaries of the provisions of the
insurance laws of the State of Maryland therein described, are
accurate, fair and complete.
Such counsel shall also furnish to you its written opinion that the
Registration Statement, as of its effective date, and the Prospectus, as
of the date of the Prospectus, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act, the
Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder. Further, nothing that came to such counsel's
attention in the course of its review has caused such counsel to believe
that the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of the date of the Prospectus,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Also, nothing that has come to such counsel's attention has caused such
counsel to believe that the Prospectus, as of the date and time of
delivery of this letter, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
24
Such counsel may state that its opinions are solely for the benefit
of the several Underwriters and may not be relied upon by any other
person.
(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:
(i) Each of the Company and Platinum Bermuda 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 Platinum Bermuda 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 carry on
its business as described in the Registration Statement. Platinum
Bermuda has the necessary corporate power and authority, pursuant to
its Memorandum of Association, to carry on its business as described
in the Registration Statement, including its insurance and
reinsurance business as described in the Registration Statement, and
was registered as a Class 4 insurer in terms of the Insurance Xxx
0000 effective [ ] 2002 and subject to Platinum Bermuda being
capitalized with US $[ ] 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 Platinum Bermuda, dated [ ] 2002. 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 Platinum Bermuda respectively.
(iv) Each of the Company and Platinum Bermuda has the
necessary corporate power and authority to enter into and perform
its obligations under the Documents (as defined in Annex II(c)
hereto). The execution and delivery of the Documents by the Company
and Platinum Bermuda and the performance by the Company and Platinum
Bermuda of their respective obligations thereunder including, but
not limited to, in the case of the Company, the issue and sale of
the Shares, the St. Xxxx Investment Shares, the Units (and the
Purchase Contracts and the Guarantees underlying such Units) and the
Issuable Common Stock 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
or of Platinum Bermuda nor any applicable law, regulation, order or
decree in Bermuda.
(v) Each of the Company and Platinum Bermuda has taken all
corporate action required to authorize its execution, delivery and
performance of the Documents. The Documents have been duly executed
and delivered by or on behalf of the Company or Platinum Bermuda, as
applicable, and constitute the valid, binding and enforceable
25
obligations of the Company or Platinum Bermuda, as applicable, in
accordance with the terms thereof.
(vi) The Remarketing Agreement to be entered into by the
Company, Platinum Finance, the Purchase Contract Agent and the
Remarketing Agent, has been duly authorized by the Company and, when
executed and delivered by each of the Company, will be duly executed
and delivered by of the Company; and at the time of such execution
and delivery, the Remarketing Agreement will conform in all material
respects to the description thereof contained in the Prospectus;
(vii) The Guarantees have been duly authorized by the Company.
(viiii) The Company has taken all corporate action required to
duly authorize its execution and delivery to the SEC of the
Registration Statement.
(ix) 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.
(x) No order, consent, approval, license, authorization 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 authorize or is required in connection with the valid
issue and sale of the Shares, the St. Xxxx Investment Shares and the
Units, except such as have been duly obtained in accordance with
Bermuda law.
(xi) 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.
(xii) The Company has an authorized share capitalization as
described in the Registration Statement. Upon payment in cash or in
kind by the Underwriters, the St. Xxxx Purchasers (as defined in
Annex II(c) hereto) and the Common Shares Underwriters for the
Units, the St. Xxxx Investment Shares and the Shares, respectively,
in accordance with this Agreement, the Formation and Separation
Agreement and the Common Shares Underwriting Agreement,
respectively, the Units, the St. Xxxx Investment Shares and the
Shares will be duly authorized 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).
(xiii) Based solely on such counsel's review of the bye-laws
of the Company and the Register of Members of the Company, and
except as disclosed in the Prospectus under the captions "Certain
Relationships and Related Transactions - Formation and Separation
Agreement - Pre-Emptive Rights", "Certain Relationships and Related
Transactions - Option Agreement", "Description of the Equity
Security Units", "Management" and "Underwriting", the Company has no
(i) outstanding securities or other obligations convertible into or
exchangeable or exercisable for shares in the authorized 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 authorized
share capital of the Company, or (iii) securities convertible
26
into or exchangeable or exercisable for any shares in the authorized
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 authorized share capital of the Company to any shareholder of
the Company prior to the sale of the Units, the Shares or the St.
Xxxx Investment Shares.
(xiv) 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 Control
Xxx 0000 (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.
(xv) The Shares and the St. Xxxx Investment Shares conform to
the description of the Company's Common Shares found in the
Prospectus under the caption "Description of Platinum Holdings'
Common Shares".
(xvi) The issue and sale of the Shares, the St. Xxxx
Investment Shares and the Units by the Company pursuant to the
Documents will not constitute unlawful financial assistance by the
Company under Bermuda law.
(xvii) The form of certificates for the Shares and the St.
Xxxx Investment Shares conforms to the requirements of Bermuda law.
(xviii) Based solely on such counsel's review of a certified
copy of the Register of Members of Platinum Bermuda dated [ ] 2002,
all of the issued common shares of Platinum Bermuda 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.
(xix) Based solely on such counsel's review of a certified
copy of the Register of Members of the Company dated [ ] 2002, all
of the issued Common Shares of the Company 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 Codan Trust Company
Limited (the "Purpose Trust").
(xx) The Company has a contractual right to and has taken all
necessary corporate action other than the payment of the repurchase
price of US$120,000 to effect the repurchase of the Common Shares
held by the Purpose Trust and upon the receipt of the payment of the
repurchase price of US$120,000 by the Purpose Trust, the Company
shall be entitled, without any further action by the Company or the
Purpose Trust, to cancel the Common Shares held by the Purpose Trust
by making the appropriate entry in the Register of Members of the
Company, and thereafter the Purpose Trust will not have any rights
as a member of the Company.
(xxi) 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
27
payable in Bermuda in connection with the execution, delivery,
filing, registration or performance of the Documents or the issue
and delivery of the St. Xxxx Investment Shares, the Shares and the
Units to the St. Xxxx Purchasers, the Underwriters and the Units
Underwriters, respectively, pursuant to the Formation and Separation
Agreement, this Agreement and the Units Underwriting Agreement,
respectively.
(xxii) 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).
(xxiii) 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 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 Platinum
Bermuda 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 Platinum Bermuda.
(xxiv) 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
- Bermuda", "Business - Regulation - Bermuda", "Description of
Platinum Holdings' Common Shares", "Certain Tax Considerations -
Taxation of the Company, Platinum US, Platinum UK, Platinum Bermuda
and Platinum Ireland - Bermuda", "Certain Tax Considerations
-Taxation of Shareholders - Bermuda Taxation", the fourth paragraph
set forth under the caption "Risk Factors - Risks Related to Our
Common Shares - There are limitations on the ownership, transfers
and voting rights of our Common Shares", and, the first and second
paragraphs under "Item 14. Indemnification of Directors and
Officers" in Part II of the Registration Statement 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.
(xxv) The Company can xxx and be sued in its own name under
the laws of Bermuda.
(xxvi) The choice of the Foreign Laws (as defined in Annex
II(c) hereto) as the governing law of the Documents is a valid
choice of law and would be recognized 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 (as defined in Annex II(c) hereto) is valid and
binding upon the Company.
28
(xxvii) 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.
(xxviii) 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).
(xxix) 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 Platinum
Bermuda.
(xxx) 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 Platinum Bermuda is a party.
(xxxi) Neither the Underwriters, the Units 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.
(xxxii) Each of the Underwriters, the Units 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, Units Underwriter or St. Xxxx Purchaser
to enforce its rights under the Documents, including the exercise of
remedies thereunder, that it be licensed, qualified or otherwise
entitled to carry on business in Bermuda.
(xxxiii) The Company and Platinum Bermuda 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 Platinum Bermuda to the Company,
except in each
29
case as described in or contemplated by the Registration Statement;
and Platinum Bermuda 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 summarized in the Registration
Statement.
(xxxiv) Neither the Company nor Platinum Bermuda is entitled
to any immunity under the laws of Bermuda, whether characterized as
sovereign immunity or otherwise, from any legal proceedings to
enforce the Documents in respect of itself or its property.
(xxxv) The procedure for the service of process on the Company
through C.T. Corporation System in New York, New York, United States
of America, acting as agent for the Company, as set out in sections
[1(kk) and 14] of this 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 or opinions (a draft of such
opinion or opinions attached as Annex II(d) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each of Platinum UK and St. Xxxx Reinsurance Company
Limited, a wholly-owned subsidiary of St. Xxxx ("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.
St. Xxxx Management Limited, a wholly-owned subsidiary of St. Xxxx
("SPML") is a validly existing limited liability company duly
incorporated under the laws of England and registered in England.
(ii) Platinum Ireland is the duly registered holder of [two]
ordinary shares of [one pound] 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 authorized and issued.
(iii) Provided that each of the Underwriters complies with its
obligations under Sections 4(b) and 4(c) of this Agreement
(notwithstanding Section 9 of this Agreement), the issue and sale of
the Units being delivered at each Time of Delivery in the manner
described in the Prospectus, the issue and sale of the Shares and
the St. Xxxx Investment Shares and the compliance by the Company,
Platinum Finance and St. Xxxx with all of the provisions of this
Agreement and the Common Shares Underwriting Agreement, as
applicable, and the consummation of the transactions herein and
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, St. Xxxx Re UK or SPML, or (ii) any
statute or statutory instrument of the United Kingdom, or (iii) any
rule or regulation of the Financial Services Authority set out in
the Financial Services Authority Handbook.
(iv) Each of the UK Agreements (as defined in Annex II(d)
hereto) to which Platinum UK is a party has been duly authorized and
executed by Platinum UK, and constitutes a valid and binding
agreement of Platinum UK enforceable against Platinum UK.
30
(v) Each of the UK Agreements to which St. Xxxx Re UK is a
party has been duly authorized 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) Each of the UK Agreements to which SPML is a party has
been duly authorized and executed by SPML, and constitutes a valid
and binding agreements of SPML enforceable against SPML.
(vii) Assuming that each of the UK Agreements to which a
person other than Platinum UK, St. Xxxx Re UK or SPML is a party has
been duly authorized and executed by such person, each such UK
Agreement constitutes a valid and binding agreement of such person
enforceable against such person.
(viii) Except as provided in the Prospectus, neither Platinum
UK, St. Xxxx Re UK nor SPML is required to obtain any consent,
approval, authorization 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.
(ix) 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 United Kingdom, or (iii) any rule or
regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
(x) 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 United Kingdom, or (iii) any rule or
regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
(xi) The execution, delivery and performance by SPML of each
of the UK Agreements to which SPML 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 SPML, or (ii) any statute or statutory instrument of
the United Kingdom, or (iii) any rule or regulation of the Financial
Services Authority set out in the Financial Services Authority
Handbook.
(xii) The statements set forth in the Prospectus and listed in
Schedule 2 to Annex II(d) hereof, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and fair.
Such counsel shall also furnish to you its written opinion that the
discussions set forth under each of the headings "The United Kingdom" and
"United Kingdom Taxation" in the section entitled "Certain Tax
Consequences" in the Prospectus, insofar as they relate to United Kingdom
tax law and Inland Revenue practice, are a fair summary of the material
United Kingdom tax laws and Inland Revenue practices referred to therein.
31
(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:
(i) Platinum Ireland 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 Platinum Ireland 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 over it or to wind it up and
Platinum Ireland 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 Platinum Ireland have been
duly and validly authorized 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 the Company and one registered in
the name of Platinum Bermuda. To the best of such counsel's
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, such
counsel does not know of any legal or governmental proceedings
pending or threatened in Ireland to which Platinum Ireland is a
party or to which any of the properties of Platinum Ireland 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 Platinum Ireland is a party or by
which Platinum Ireland is bound or to which any of the property or
assets of Platinum Ireland is subject, nor is such counsel actually
aware of any such agreement referred to in this paragraph.
(v) Based only on the Certificate of Xxxxxx X. Xxxxxx,
Platinum Ireland 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, Platinum Ireland is not required under Irish law to
obtain any consent, approval, authorization 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 Platinum Ireland, 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 descriptions in the Prospectus and
the Common Shares Prospectus, the issue and sale of the Units being
delivered at such Time of Delivery, the
32
issue and sale of the Shares and the St. Xxxx Investment Shares and
the compliance by the Company, Platinum Finance and St. Xxxx with
all of the provisions of this Agreement and the Common Shares
Underwriting Agreement, as applicable, and the consummation of the
transactions herein and therein contemplated will not result in any
violation of the Certificate of Incorporation or the Memorandum and
Articles of Association of Platinum Ireland, 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.
(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"
and "Certain Tax Considerations--Taxation of the Company, Platinum
US, Platinum UK, Platinum Bermuda and Platinum Ireland--Ireland"
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 summaries the matters
referred to therein.
(x) Based only on the Certificate of Xxxxxx X. Xxxxxx,
Platinum Ireland has not received any notification from any
insurance regulatory authority or other governmental authority to
the effect that any authorization not already held by Platinum
Ireland, 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, Platinum Ireland
has filed all statutory financial returns, reports, documents and
other information required to be filed under Irish law and Platinum
Ireland maintains its books and registers required by 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:
(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) Fire and Marine 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 so as to require such
qualification or is subject to no material liability or disability
by reason of failure to be so qualified in any such jurisdiction.
(iii) Each of this Agreement, the Units Underwriting Agreement
and the Jurisdiction Agreements has been duly authorized, executed
and delivered by St. Xxxx.
(iv) 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
33
Agreement has been duly authorized, executed and delivered by St.
Xxxx or Fire and Marine, as the case may be.
(v) 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.
(vi) 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.
(vii) Assuming that each of the Filed Agreements that is
governed by Minnesota law and to which Platinum US is a party has
been duly authorized, executed and delivered by Platinum US under
the laws of the State of Maryland, each such Filed Agreement has
been duly authorized, executed and delivered by Platinum US 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.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which St. Xxxx or Fire and
Marine, in each case in respect of the Business, is a party or of
which the Business is the subject, which, if determined adversely to
St. Xxxx and Fire and Marine, 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 at the First Time of Delivery; and, to such counsel's
knowledge, no such proceedings are threatened by governmental
authorities or by others.
(ix) 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 contemplated in such agreements 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, (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 such counsel is
expressing no opinion under this clause (iii) with respect to the
indemnification and contribution provisions relating to federal and
state securities laws contained in the Formation and Separation
Agreement and the Registration Rights Agreement.
(x) The compliance by St. Xxxx with the provisions of this
Agreement, the Common Shares Underwriting Agreement and the
Jurisdiction Agreements 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 such counsel 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.
34
Xxxx is subject, or (ii) violate the provisions of St. Paul's
Restated Articles of Incorporation, as amended, or By-laws, as
amended.
(xi) 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 such counsel 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
the Articles of Incorporation, as amended, or By-laws, as amended,
of Fire and Marine, or (iii) violate any statute or any order, rule
or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over Fire and Marine or any of
its properties.
(xii) Neither St. Xxxx nor Fire and Marine is in violation of
its Restated Articles of Incorporation, as amended, or its Articles
of Incorporation, as amended, respectively, or its By-laws, as
amended, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
agreement or instrument known to me to which it is a party or by
which it or any of its properties is or may be bound, except where
any such default does not have or would not reasonably be expected
to have a material adverse effect on Platinum and its subsidiaries
taken as a whole.
(xiii) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated June 21, 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 Platinum
US 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 either is a
party, except the registration under the Act and the Exchange Act of
the Common Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under Maryland
insurance laws and New York insurance laws, which have been
obtained, or such as may be required under other state insurance
laws or foreign laws or as may be required by state securities or
Blue Sky laws in connection with the purchase and distribution of
the Common Shares by the Underwriters.
(xiv) 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 contemplated
by the Filed Agreements to which St. Xxxx or Fire and Marine are a
party have been obtained or made.
(xv) To such counsel's 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, in each case
in respect of the Business, or that St. Xxxx or Fire and Marine is
not in compliance with any applicable insurance laws, in each case
in respect of the Business, except where such failure to
35
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 or
shareholders' equity of Platinum and its subsidiaries taken as a
whole at the First Time of Delivery.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(h) Xxxxx Xxxx, Vice President-Corporate, Legal Services of St.
Xxxx, shall have furnished to you his 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 Platinum US has been duly incorporated
and is an existing corporation in good standing under the laws of
the State of Maryland and, in the case of Platinum US, has corporate
power and authority to conduct its business as described in the
Prospectus.
(ii) All of the issued shares of capital stock of Platinum US
have been duly authorized and validly issued, are fully paid and
non-assessable, and , immediately prior to the First Time of
Delivery, were 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 Platinum
US is a party has been duly authorized, executed and delivered by
USF&G and Platinum US, as the case may be.
(iv) Each of the Filed Agreements that is governed by
Maryland law and to which Platinum US is a party constitutes a valid
and legally binding obligation of Platinum US 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.
(v) Assuming that each of the Filed Agreements that is
governed by Maryland law has been duly authorized, executed and
delivered by each party thereto (other than Platinum US) under the
laws of jurisdiction where such party is domiciled, each such Filed
Agreement has been duly authorized, executed and delivered by each
party thereto and constitutes a valid and legally binding obligation
of such party 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.
(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which USF&G or Platinum US is a
party, which, if determined adversely to USF&G or Platinum US, 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 such counsel's knowledge, no such proceedings
are threatened by governmental authorities or by others.
36
(vii) The compliance by USF&G and Platinum US with the
provisions of the Filed Agreements to which USF&G or Platinum US 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 Platinum US is
a party or by which USF&G or Platinum US is bound or to which any of
the property or assets of USF&G or Platinum US is subject, (ii)
violate the provisions of USF&G's or Platinum US's 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 USF&G
or Platinum US or any of their properties.
(viii) Neither USF&G nor Platinum US is in violation of its
articles of incorporation or by laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument known to me to
which it is a party or by which it or any of its properties is or
may be bound, except where any such default does not have or would
not reasonably be expected to have a material adverse effect on
Platinum and its subsidiaries taken as a whole.
(ix) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated June 21, 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 Platinum US is a party, no statutory or regulatory consent,
authorization, approval or filing is required to be obtained or made
under the laws of Maryland in connection with such transactions or
the transactions contemplated by the Underwriting Agreement or the
Formation and Separation Agreement other than such as have been
obtained or made, and other than such as may be required under
Maryland securities or Blue Sky laws.
(x) Each of USF&G and Platinum US is, and, in the case of
Platinum US, will continue to be immediately following the First
Time of Delivery, a duly licensed insurance company under the
insurance laws of the State of Maryland.
(xi) To such counsel's knowledge, Platinum US has not
received any notification from any insurance authority, commission
or other insurance regulatory body to the effect that Platinum US is
not in compliance with any applicable insurance laws.
(xii) 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 insofar as they relate
to summaries of provisions of the insurance laws of the State of
Maryland therein described are accurate, fair and complete.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(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
37
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 Units 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 Units 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 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)
38
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Units being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(m) The Units and the Issuable Common 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 (i) each of the parties to whom any
St. Xxxx Investment Shares will be delivered at such Time of Delivery and
(ii) each of the Company's officers and directors, in each case,
substantially to the effect set forth in Section 6(e) hereof in form and
substance satisfactory to you;
(o) The Company and Platinum Finance 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) Each of the Company and Platinum Finance shall have furnished
or caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and Platinum Finance, respectively, reasonably
satisfactory to you as to the accuracy of the representations and
warranties of the Company and Platinum Finance, as applicable, herein at
and as of such Time of Delivery, as to the performance by the Company and
Platinum Finance of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (j)(i) of this Section 9 and as to such other
matters as you may reasonably request;
(q) St. Xxxx shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of St. Xxxx reasonably
satisfactory to you as to the accuracy of the representations and
warranties of St. Xxxx herein at and as of such Time of Delivery, as to
the performance by St. Xxxx of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsection (j)(ii) of this Section 9 and as to such other matters
as you may reasonably request;
(r) 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; and
(s) The closing of the offering of the Shares under the Common
Shares Underwriting Agreement shall have occurred simultaneously with the
closing of the offering of Units hereunder.
10. (a) The Company and Platinum Finance, jointly and severally, 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 neither
the Company nor Platinum Finance shall 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
39
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 or Platinum Finance by any Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company,
Platinum Finance and St. Xxxx against any losses, claims, damages or liabilities
to which the Company, Platinum Finance 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 and Platinum Finance by such Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will reimburse the
Company, Platinum Finance and St. Xxxx for any legal or other expenses
reasonably incurred by the Company, Platinum Finance 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,
40
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Platinum Finance on the one hand
and the Underwriters on the other from the offering of the Units. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under 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 and Platinum Finance (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 and Platinum Finance on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and
Platinum Finance bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or Platinum Finance (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 and Platinum Finance'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 Platinum Finance 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 Units 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 and Platinum Finance fail to fulfill
when due any of their 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 or
Platinum Finance 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) and to the Common Shares
Underwriters under Section 10(e) of the Common Shares
41
Underwriting Agreement, taken together, 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
Units pursuant to the Prospectus, and any amendment or supplement thereto, or
Common Shares pursuant to the Common Shares 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 or Platinum Finance 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 and Schedule III to the Common
Shares Underwriting Agreement. The Company, Platinum Finance, St. Xxxx and the
Underwriters 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, Platinum Finance and St. Xxxx under
this Section 10 shall be in addition to any liability which the Company,
Platinum Finance 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, Platinum Finance 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 Units 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 Units 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 Units, then the Company and Platinum Finance 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 Units on such terms. In
the event that, within the respective prescribed periods, you notify the Company
and Platinum Finance that you have so arranged for the purchase of such Units,
or the Company and Platinum Finance notify you that they have so arranged for
the purchase of such Units, you or the Company and Platinum Finance 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 and Platinum Finance agree 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
Units.
(b) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Company and
Platinum Finance as provided in subsection (a) above, the aggregate number of
such Units which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Units to be purchased at such Time of
42
Delivery, then the Company and Platinum Finance 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 Units which such Underwriter agreed to purchase
hereunder) of the Units 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
Units of a defaulting Underwriter or Underwriters by you and the Company and
Platinum Finance as provided in subsection (a) above, the aggregate number of
such Units which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Units to be purchased at such Time of Delivery, or if the
Company and Platinum Finance shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Units of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase
and of the Company and Platinum Finance to sell the Optional Units) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company and Platinum Finance, except for the expenses to be
borne by the Company and Platinum Finance 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, Platinum Finance, St. Xxxx 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 officer or director or
controlling person of any Underwriter, the Company, Platinum Finance or St.
Xxxx, or any officer or director or controlling person of the Company, Platinum
Finance or St. Xxxx, and shall survive delivery of and payment for the Units.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither the Company nor Platinum Finance shall then be under any liability to
any Underwriter except as provided in Sections 8 and 10 hereof; but, if for any
other reason, any Units are not delivered by or on behalf of the Company and
Platinum Finance as provided herein, the Company and Platinum Finance 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 Units not so delivered, but neither the Company nor Platinum
Finance shall then be under any further liability to any Underwriter except as
provided in Sections 8 and 10 hereof.
14. 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
43
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.
15. 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 Platinum Finance shall be delivered or sent by mail to the
address of Platinum Finance set forth in the Registration Statement; 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 and Platinum
Finance by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
16. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, Platinum Finance and St. Xxxx and, to
the extent provided in Sections 10 and 12 hereof, the officers and directors of
the Company, Platinum Finance and St. Xxxx and each person who controls the
Company, Platinum Finance, St. Xxxx 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 Units from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
17. 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.
18. 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.
19. 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.
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.
[SIGNATURE PAGE FOLLOWS]
.
44
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the
Company, Platinum Finance and St. Xxxx. 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:
PLATINUM UNDERWRITERS FINANCE, INC.
By: .........................................
Name:
Title:
THE ST. XXXX COMPANIES, INC.
By: .........................................
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, XXXXX & Co.
[Co-Representatives]
BY:......................................
(Xxxxxxx Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
NUMBER OF OPTIONAL
UNITS TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM UNITS MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx, Xxxxx & Co.........................
[NAMES OF OTHER UNDERWRITERS].....................................
1
SCHEDULE II
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS HOLDINGS, LTD., A BERMUDA COMPANY (THE "COMPANY"), IS A GOVERNING LAW
PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o Formation and Separation Agreement, dated as of the date hereof (the New York
"FORMATION AND SEPARATION AGREEMENT"), between the Company and
St. Xxxx (as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o Master Services Agreement, dated as of the First Time of Delivery (the "MASTER SERVICES New York
AGREEMENT"), between the Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o Transitional Trademark License Agreement, dated as of the First Time of Delivery (the New York
"TRADEMARK LICENSE AGREEMENT"), between the Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o Registration Rights Agreement, dated as of the First Time of Delivery (the "REGISTRATION RIGHTS New York
AGREEMENT"), between the Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o Option Agreement, dated as of the First Time of Delivery (the "OPTION AGREEMENT"), between the New York
Company and St. Xxxx.
---------------------------------------------------------------------------------------------------------- ------------------
o 364-Day Credit Agreement, dated as of June 21, 2002, among the Company, the banks, financial New York
institutions and other institutional lenders listed on the signature pages thereof, JPMorgan
Chase Bank and Bank Of America, N.A., as syndication agents, Xxxxxxx Xxxxx Xxxxxx Inc., as lead
arranger, and Citibank, N.A., as agent for the lenders.
---------------------------------------------------------------------------------------------------------- ------------------
o Purchase Contract Agreement, dated as of ____________ (the "PURCHASE CONTRACT AGREEMENT"), New York
between the Company and _____________, as Purchase Contract Agent.
---------------------------------------------------------------------------------------------------------- ------------------
o Indenture, dated as of ____________, among the Company (the "BASE INDENTURE"), Platinum Finance New York
(as defined herein) and JPMorgan Chase Bank, as Trustee.
---------------------------------------------------------------------------------------------------------- ------------------
o First Supplemental Indenture, dated as of ____________ (the "SUPPLEMENTAL INDENTURE"), among New York
the Company, Platinum Finance and JPMorgan Chase Bank, as Trustee.
---------------------------------------------------------------------------------------------------------- ------------------
o Pledge Agreement, dated as of _______________ (the "PLEDGE AGREEMENT"), among the Company, New York
_________________, as Collateral Agent, Custodial Agent and Securities Intermediary, and
_________________, as Purchase Contract Agent.
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS FINANCE, INC., A DELAWARE CORPORATION ("PLATINUM GOVERNING LAW
FINANCE"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o Base Indenture New York
---------------------------------------------------------------------------------------------------------- ------------------
o Supplemental Indenture New York
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS REINSURANCE INC., A MARYLAND DOMICILED INSURANCE COMPANY GOVERNING LAW
("PLATINUM US"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o Employee Benefits and Compensation Matters Agreement, dated as of the First Time of Delivery New York
(the "Employee Matters Agreement"), between St. Xxxx and Platinum US.
---------------------------------------------------------------------------------------------------------- ------------------
o Run-Off Services Agreement, dated as of the First Time of Delivery (the "US RUN-OFF SERVICES New York
AGREEMENT"), between Platinum US and Fire & Marine (as
---------------------------------------------------------------------------------------------------------- ------------------
II-1
---------------------------------------------------------------------------------------------------------- ------------------
defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o Underwriting Management Agreement, dated as of the First Time of Delivery (the "US UNDERWRITING New York
AGREEMENT"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "FLORIDA LEASE [not specified]
ASSIGNMENT AGREEMENT"), between Metropolitan Life Insurance Company, Platinum US and St. Xxxx
Re, Inc. (as defined herein).
---------------------------------------------------------------------------------------------------------- ------------------
o Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "ILLINOIS [not specified]
LEASE ASSIGNMENT AGREEMENT"), between WHCHC Real Estate Limited Partnership, St. Xxxx Re, Inc.
and Platinum US.
---------------------------------------------------------------------------------------------------------- ------------------
o Sub Lease Agreement, dated as of the First Time of Delivery (the "SUB LEASE AGREEMENT"), New York
between Platinum US and St. Xxxx Re, Inc.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Traditional), dated as of the First Time of Delivery Minnesota
(the "US QUOTA SHARE TRADITIONAL"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-1), dated as of the First Time of Vermont
Delivery (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), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL A"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL B-1"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - B-2), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL B-2"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - C), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL C"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-2), dated as of the First Time of Vermont
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-2"), between Platinum US and Mountain Ridge.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D Stop Loss), dated as of the First Vermont
Time of Delivery (the "US QUOTA SHARE NON-TRADITIONAL D STOP LOSS"), between Platinum US and
Mountain Ridge.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D Spread Loss), dated as of the Minnesota
First Time of Delivery (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), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-3"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - D-4), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-4"), between Platinum US and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Non-Traditional - E), dated as Minnesota
---------------------------------------------------------------------------------------------------------- ------------------
II-2
---------------------------------------------------------------------------------------------------------- ------------------
of the First Time of Delivery (the "US QUOTA SHARE NON-TRADITIONAL E"), between Platinum US
and Fire & Marine.
---------------------------------------------------------------------------------------------------------- ------------------
o 100% Quota Share Retrocession Agreement (Traditional), dated as of the First Time of Delivery England
(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), dated as of the First Time of England
Delivery (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), dated as of the First Time of England
Delivery (the "UK QUOTA SHARE NON-TRADITIONAL B-1"), between Platinum US and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
o Trust Agreement, dated as of the First Time of Delivery (the "FIRE AND MARINE TRUST Maryland
AGREEMENT"), among Platinum US, Fire and Marine and [Name of Trustee Bank].
---------------------------------------------------------------------------------------------------------- ------------------
o Trust Agreement, dated as of the First Time of Delivery (the "MOUNTAIN RIDGE TRUST AGREEMENT"), Maryland
among Platinum US, Mountain Ridge and [Name of Trustee Bank].
---------------------------------------------------------------------------------------------------------- ------------------
o Trust Agreement, dated as of the First Time of Delivery (the "ST. XXXX RE UK TRUST AGREEMENT"), Maryland
among Platinum US, St. Xxxx Re UK and [Name of Trustee Bank].
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH PLATINUM RE (UK) LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER THE GOVERNING LAW
LAWS OF ENGLAND ("PLATINUM UK"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Master Services Agreement, dated as of the First Time of Delivery (the "UK MASTER SERVICES England
AGREEMENT"), between St. Xxxx Re UK and Platinum UK.
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Run-off Services Agreement, dated as of the First Time of Delivery (the "UK RUN-OFF England
SERVICES AGREEMENT"), between St. Xxxx Re UK and Platinum UK.
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Underwriting Agency and Underwriting Management Agreement, dated as of the First Time of England
Delivery (the "UK UNDERWRITING AGREEMENT"), between Platinum UK and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
o U.K. Business Transfer Agreement, dated as of the First Time of Delivery (the "UK BUSINESS England
TRANSFER AGREEMENT"), between Platinum UK and St. Xxxx Re UK.
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH THE ST. XXXX COMPANIES INC., A MINNESOTA CORPORATION ("ST. XXXX"), IS A PARTY GOVERNING 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 LAW
---------------------------------------------------------------------------------------------------------- ------------------
II-3
---------------------------------------------------------------------------------------------------------- ------------------
MINNESOTA DOMICILED INSURANCE COMPANY ("FIRE & Marine"), is a party
---------------------------------------------------------------------------------------------------------- ------------------
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
---------------------------------------------------------------------------------------------------------- ------------------
o Fire and Marine Trust Agreement Maryland
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH MOUNTAIN RIDGE INSURANCE COMPANY, A VERMONT DOMICILED INSURANCE COMPANY GOVERNING LAW
("MOUNTAIN RIDGE"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
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
---------------------------------------------------------------------------------------------------------- ------------------
o Mountain Ridge Trust Agreement Maryland
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX REINSURANCE COMPANY LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED GOVERNING LAW
UNDER THE LAWS OF ENGLAND ("ST. XXXX RE UK"), IS A 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 Master Services Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Run-Off Services Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Underwriting Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Business Transfer Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o St. Xxxx Re UK Trust Agreement Maryland
---------------------------------------------------------------------------------------------------------- ------------------
o Inter-company Asset Transfer Agreement, dated as of the First Time of Delivery, between St. Xxxxxxx
Xxxx Re UK and SPML (as defined herein) (the "UK Inter-Company Asset Transfer Agreement").
---------------------------------------------------------------------------------------------------------- ------------------
o Letter agreement, dated as of the First Time of Delivery, between St. Xxxx Re UK and SPML England
regarding services to be provided under the UK Master Services Agreement ("UK Letter
Agreement").
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX RE, INC., A NEW YORK CORPORATION, IS A PARTY GOVERNING LAW
---------------------------------------------------------------------------------------------------------- ------------------
o Florida Lease Assignment Agreement [not specified]
---------------------------------------------------------------------------------------------------------- ------------------
o Illinois Lease Assignment Agreement [not specified]
---------------------------------------------------------------------------------------------------------- ------------------
o Sub Lease Agreement New York
---------------------------------------------------------------------------------------------------------- ------------------
II-4
---------------------------------------------------------------------------------------------------------- ------------------
FILED AGREEMENTS TO WHICH ST. XXXX MANAGEMENT LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER GOVERNING LAW
THE LAWS OF ENGLAND ("SPML"), IS A PARTY
---------------------------------------------------------------------------------------------------------- ------------------
o UK Inter-company Asset Transfer Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
o UK Letter Agreement England
---------------------------------------------------------------------------------------------------------- ------------------
---------------------------------------------------------------------------------------------------------- ------------------
II-5
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 [ ];
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 authorized 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:
III-1
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".
III-2
ANNEX I
Pursuant to Section 9(i) 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
A-1
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
A-2
(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.
A-3
