EXHIBIT 1.2
EXECUTION COPY
XL CAPITAL LTD
7.00% EQUITY SECURITY UNITS
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UNDERWRITING AGREEMENT
December 6, 2005
Xxxxxxx, Xxxxx & Co.
Citigroup Global Markets Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XL Capital Ltd, a Cayman Islands exempted limited company (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 29,800,000 of its 7.00% Equity Security Units (the "Units"). Each Unit has a
stated amount of $25 and will initially consist of (a) a purchase contract
pursuant to which the Company agrees to sell and the holder agrees to purchase,
for $25, a number of Class A Ordinary Shares, par value $0.01 per share of the
Company ("Ordinary Shares") on February 15, 2009 (the "Purchase Contracts") to
be determined by the settlement rate set forth in the Purchase Contract
Agreement and (b) a 1/40, or 2.5%, ownership interest in a senior note of the
Company (the "Underlying Note") due February 15, 2011 with a principal amount of
$1,000. Any references in this Agreement to "you" relate to Xxxxxxx, Xxxxx & Co.
and Citigroup Global Markets Inc. as representatives of the several Underwriters
named in Schedule I hereto.
The terms and rights of the Units shall be as specified in this Agreement
and in or pursuant to the Purchase Contract Agreement, to be dated December 9,
2005, between the Company and The Bank of New York, as Purchase Contract Agent
(the "Purchase Contract Agreement"), the indenture, dated June 2, 2004 between
the Company and The Bank of New York, as trustee, including the supplemental
indenture relating to the Underlying Notes, to be dated December 9, 2005
(collectively, the "Indenture"), the Purchase Contracts, the pledge agreement,
to be dated December 9, 2005, between the Company and The Bank of New York as
Purchase Contract Agent and The Bank of New York as Collateral Agent, Custodial
Agent and Securities Intermediary (the "Pledge Agreement"), the Underlying Notes
and the remarketing agreement to be entered into between the Company, The Bank
of New York as Purchase Contract Agent and a nationally recognized investment
bank, as Remarketing Agent (the "Remarketing Agreement").
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1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) An "automatic shelf registration statement" as defined under
Rule 405 under the Securities Act of 1933, as amended (the "Act"), on Form
S-3 (File No. 333-130036) in respect of the Units has been filed with the
Securities and Exchange Commission (the "Commission") not earlier than
three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop
order suspending the effectiveness of such registration statement or any
part thereof has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission, and no notice of objection of
the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act
has been received by the Company (the base prospectus filed as part of
such registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this Agreement,
is hereinafter called the "Basic Prospectus"; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Units
filed with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto but excluding Form
T-1 and including any prospectus supplement relating to the Units that is
filed with the Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined in
Section 1(c) hereof), is hereinafter called the "Pricing Prospectus"; the
form of the final prospectus relating to the Units filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the "Prospectus"; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act, as of the date of the respective prospectus; any
reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement, any
prospectus supplement relating to the Units filed with the Commission
pursuant to Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference therein, in each case after the date of the
Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any "issuer free writing
prospectus" as defined in Rule 433 under the Act relating to the Units is
hereinafter called an "Issuer Free Writing Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
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Commission, and 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 the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
(c) For the purposes of this Agreement, the "Applicable Time" is
6:00 pm (Eastern time) on the date of this Agreement; the Pricing
Prospectus as supplemented by the final term sheet prepared and filed
pursuant to Section 5(a) hereof, taken together (collectively, the
"Pricing Disclosure Package") as of the Applicable Time, did not include
any 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, not misleading; and each Issuer
Free Writing Prospectus listed on Schedule II(a) hereto does not conflict
with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus,
as supplemented by and taken together with the Pricing Disclosure Package
as of the Applicable Time, did not include any 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, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(d) The documents incorporated by reference in the Pricing
Prospectus and the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will 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 not misleading; and no
such documents were filed with the Commission since the Commission's close
of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(b) hereto;
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(e) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement 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 in the Registration Statement not misleading and the
statements in the Prospectus in the light of the circumstances under which
they were made not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for
use therein;
(f) Neither the Company nor any of its Significant Subsidiaries
(as defined below) has sustained since the date of the latest audited
financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Pricing
Prospectus, which loss or interference would have a Material Adverse
Effect (as defined below), or would reasonably be expected to have a
prospective Material Adverse Effect; and, since the respective dates as of
which information is given in the Registration Statement and the Pricing
Prospectus, there has not been any change in the capital stock (other than
changes resulting from the exercise of stock options or the conversions of
warrants or capital stock which were outstanding as of such date, or from
the exercise of options granted after such date in the ordinary course of
business or from repurchases of capital stock) or long-term debt of the
Company or any of its Significant Subsidiaries or any material adverse
change, or any development that would reasonably be expected to involve a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its Significant Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Pricing
Prospectus;
(g) The Company has been duly incorporated and is validly existing
as an exempted limited company in good standing under the laws of the
Cayman Islands, with full power and authority to own its properties and
conduct its business as described in the Pricing Prospectus and has been
duly qualified as a foreign company 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, except where such failure to be so qualified in any such
jurisdiction or to have any such power or authority would not have a
material adverse effect on the current or future condition (financial or
other), business, properties or results of operations of the Company and
its Subsidiaries taken as a whole or the transactions contemplated by this
Agreement (a "Material Adverse Effect"); and each Significant Subsidiary
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of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
(h) The Company had, on September 30, 2005, an authorized
capitalization as set forth in the Pricing Prospectus under the caption
"Actual" under the heading "Capitalization", and all of the issued shares
of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable ; the Ordinary Shares
issuable pursuant to the terms of the Purchase Contracts (the "Underlying
Shares") have been duly and validly authorized and reserved for issuance
and, when issued and delivered in accordance with the provisions of such
Purchase Contracts, will be duly and validly issued, fully paid and
non-assessable; the stockholders of the Company have no preemptive or
similar rights with respect to such Underlying Shares and no shareholder
consents are required in connection with the Company's issuance and sale
of Ordinary Shares to be issued pursuant to the Purchase Contracts; and
the Underlying Shares will conform to the description of the Stock
contained in the Pricing Disclosure Package and the Prospectus;
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(j) Each of the Purchase Contract Agreement and the Pledge
Agreement referred to therein have been duly authorized by the Company;
and, at the Time of Delivery, will be duly executed and delivered by the
Company, and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and remedies and
to general equity principles; and each of the Purchase Contract Agreement
and the Pledge Agreement will conform in all material respects, to the
descriptions thereof contained in the Pricing Disclosure Package and the
Prospectus;
(k) The Remarketing Agreement referred to therein has been duly
authorized by the Company; and, when duly executed and delivered by the
Company, will constitute a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and remedies and
to general equity principles; and the Remarketing Agreement will conform
in all material respects, to the description thereof contained in the
Pricing Disclosure Package and the Prospectus;
(l) The Purchase Contracts included in the Units shall have been
duly and validly authorized by the Company and, at the Time of Delivery
will be duly executed, authenticated and delivered in accordance with the
related Purchase Contract Agreement and paid for in accordance with the
terms of this Agreement and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
remedies and to general equity principles; the issuance of
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the Purchase Contracts is not subject to any preemptive or similar rights;
and the Purchase Contracts will conform in all material respects to the
description thereof contained in the Pricing Disclosure Package and the
Prospectus;
(m) The Underlying Notes included in the Units have been duly and
validly authorized, and, when such Underlying Notes are issued and
delivered, such Underlying Notes will have been duly executed,
authenticated and delivered and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and remedies and
to general equity principles and entitled to the benefits provided by the
Indenture;
(n) The Indenture is substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized by
the Company and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Underlying Notes (as defined in Section 4
hereof), will be duly executed and delivered by the Company and will
constitute a valid and legally binding instrument, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and remedies and to general equity principles; and the
Indenture and such Underlying Notes will conform, in all material
respects, to the descriptions thereof in the Pricing Disclosure Package
and in the Prospectus as amended or supplemented with respect to the
Units;
(o) The Units have been duly and validly authorized, and, when the
Units are issued and delivered pursuant to the related Purchase Contract
Agreement and this Agreement such Units will be duly and validly executed,
authenticated and delivered and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and remedies and
to general equity principles and entitled to the benefits provided by such
Purchase Contract Agreement; the Units and the Underlying Shares will be
duly registered under the Exchange Act and will be authorized for listing
on the Exchange subject to official notice of issuance, in each case,
prior to the Time of Delivery; and the Units will conform in all material
respects to the descriptions thereof contained in the Pricing Disclosure
Package and the Prospectus;
(p) The issue and sale of the Units, the Underlying Notes and the
Underlying Shares, the execution and delivery of this Agreement and the
compliance by the Company with all of the provisions of this Agreement,
the Remarketing Agreement, the Purchase Contract Agreement, the Pledge
Agreement, the Indenture, the Purchase Contracts and the Units and the
consummation of the transactions contemplated herein and therein will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its
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Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Articles of Association or the Memorandum of Association (or similar
organizational documents) of the Company or any of its Significant
Subsidiaries or any statute or any order, rule or regulation of any court
or governmental agency or body (a "Governmental Agency") having
jurisdiction over the Company or any of its Significant Subsidiaries or
any of its respective properties except in each case (other than with
respect to such Articles of Association or Memorandum of Association (or
similar organizational documents)) for such conflicts, violations,
breaches or defaults which would not result in a Material Adverse Effect;
(q) No consent, approval, authorization, order, filing,
registration or qualification of or with any Governmental Agency (a
"Governmental Authorization") is required for the issue and sale by the
Company of the Units or the consummation by the Company of the
transactions contemplated by this Agreement, or the Indenture, or the
Remarketing Agreement, or the Purchase Contract Agreement, or the Purchase
Contracts, or the Pledge Agreement, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Units by the
Underwriters and other filings, if any, required to be made under the New
York Uniform Commercial Code to perfect the Company's security interest as
contemplated by the Pledge Agreement and the filing of any registration
statements required in connection with the remarketing of the Underlying
Notes as contemplated by the Purchase Contract Agreement;
(r) All of the issued share capital of each Significant Subsidiary
of the Company which is a corporation has been duly and validly authorized
and issued, is fully paid and non-assessable and (except for (i) a 15%
ownership interest in XL Financial Assurance Ltd. owned by a third party
and (ii) directors' qualifying shares) is owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims
(for purposes of this Agreement, "Subsidiary" means, as applied to any
person, any corporation, limited or general partnership, trust,
association or other business entity of which an aggregate of greater than
50% of the outstanding Voting Shares of such person is, at any time,
directly or indirectly, owned by such person and/or one or more
subsidiaries of such person and "Significant Subsidiary" shall have the
meaning of "significant subsidiary" as set forth in Regulation S-X under
the Act; for purposes of the definition of "Subsidiary," "Voting Shares"
means, with respect to any corporation, the capital stock having the
general voting power under ordinary circumstances to elect at least a
majority of the board of directors (irrespective of whether or not at the
time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency));
(s) None of the transactions contemplated to be performed by the
Company by this Agreement (including, without limitation, the use of the
proceeds from the sale of the Units) will violate or result in a violation
of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including,
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without limitation, Regulations T, U, and X of the Board of Governors of
the Federal Reserve System;
(t) Prior to the date hereof, neither the Company nor, to the
Company's knowledge, any of its affiliates has taken any action which is
designed to or which has constituted or which might have been expected to
cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Units in
violation of the Exchange Act;
(u) Other than as set forth or incorporated by reference in the
Pricing Prospectus prior to the date hereof, or as encountered in the
ordinary course of business in the Company's claims activities, there are
no legal or governmental actions, suits or proceedings pending to which
the Company or any of its Significant Subsidiaries is a party or of which
any property of the Company or any of its Significant Subsidiaries is the
subject, which would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect on the operations of the
Company and its Significant Subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) The financial statements of the Company and its consolidated
Subsidiaries incorporated by reference in the Pricing Prospectus and the
Prospectus present fairly the financial position of the Company and its
consolidated Subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and except as otherwise
disclosed in the Pricing Prospectus, such financial statements have been
prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis;
(w) The Company and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any written notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(x) Neither the Company nor any of its Significant Subsidiaries is
in violation of its Articles of Association or Memorandum of Association
(or similar 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, except for such defaults which would
not result in a Material Adverse Effect;
(y) The statements set forth in the Pricing Prospectus and the
Prospectus under the captions "Description of the Equity Security Units,"
"Description of the Senior Notes," "Prospectus Supplement Summary,"
"Description of XL Capital Share Capital," "Description of XL Capital
Ordinary Shares," "Description of XL Capital Ordinary Share Purchase
Contracts and Ordinary Share Purchase Units" and "Description of XL
Capital Debt Securities," insofar as they purport to constitute a summary
of the terms of the Units, the
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Underlying Notes, the Purchase Contracts, the Underlying Shares and the
other transaction documents described therein and the statements set forth
under the caption "Certain Tax Considerations" in the Pricing Prospectus
and the Prospectus, insofar as they purport to describe the provisions of
the laws referred to therein, are accurate, complete and fair in all
material respects;
(z) The Company is not and, after giving effect to the offering
and sale of the Units, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(aa) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its Subsidiaries, and have audited
the Company's internal control over financial reporting and management's
assessment thereof, are an independent registered public accounting firm
as required by the Act and the rules and regulations of the Commission
thereunder;
(bb) 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 the Cayman Islands or any political
subdivision or taxing authority thereof or therein in connection with (A)
the issuance, sale and delivery by the Company to or for the respective
accounts of the Underwriters of the Units (including the Underlying Shares
and the Underlying Notes) or (B) the sale or delivery outside the Cayman
Islands by the Underwriters of the Units (including the Underlying Shares
and the Underlying Notes) to the initial purchasers thereof, other than as
described in the opinion of Xxxxxxx Xxxxxxxx Xxxxxx delivered pursuant to
Section 8(d) of this Agreement;
(cc) (A) (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) under the Act) made any offer relating to
the Units in reliance on the exemption of Rule 163 under the Act, the
Company was a "well-known seasoned issuer" as defined in Rule 405 under
the Act; and (B) at the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Units, the Company was not an "ineligible issuer" as defined in Rule 405
under the Act;
(dd) The Company and its Subsidiaries maintain a system of
"internal control over financial reporting" (as such term is defined in
Rule 13a-15(f) under the Exchange Act). The Company's and its
Subsidiaries' internal control over financial reporting is effective and
the Company and its Subsidiaries are not aware of any material weaknesses
in its internal control over financial reporting;
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(ee) The Company and its Subsidiaries maintain "disclosure controls
and procedures" (as such term is defined in Rule 13a-15(e) under the
Exchange Act); such disclosure controls and procedures are effective;
(ff) The Registration Statement, the Prospectus, the Pricing
Disclosure Package, any Preliminary Prospectus and any other materials
prepared by or with the consent of the Company for distribution to the
Participants in connection with the Directed Share Program comply, and any
further amendments or supplements thereto will comply, with any applicable
laws or regulations of foreign jurisdictions in which the Prospectus, the
Pricing Disclosure Package, any Preliminary Prospectus, as amended or
supplemented, if applicable, and any other materials prepared by or with
the consent of the Company for distribution to the Participants in
connection with the Directed Share Program are distributed in connection
with the Directed Share Program, and no authorization, approval, consent,
license, order, registration or qualification of or with any government,
governmental instrumentality or court, other than such as have been
obtained, is necessary under the securities laws and regulations of
foreign jurisdictions in which the Directed Shares are offered outside the
United States. The Company has not offered, or caused the Underwriters to
offer, Units to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business
with the Company, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products; and
(gg) Except for the materials attached hereto in Annex I, the
Company has not provided or consented to the distribution of any written
materials to the Participants in connection with the Directed Share
Program. The Company will not issue any such materials to the Participants
without the prior written consent of Xxxxxxx, Xxxxx & Co. and Citigroup
Global Markets Inc.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per Unit of $24.25, the number of Units set forth opposite the
name of such Underwriter in Schedule I hereto.
As part of the offering contemplated by this Agreement, the
Underwriters have agreed to reserve out of the Units set forth opposite each
Underwriter's name on Schedule I to this Agreement, up to 80,000 Units, for sale
to the Company's officers, and directors (collectively, "Participants"), as set
forth in the Prospectus under the heading "Underwriting" (the "Directed Share
Program"). The Units to be sold by the Underwriters pursuant to the Directed
Share Program (the "Directed Shares") will be sold by the Underwriters pursuant
to this Agreement at the public offering price. Any Directed Shares not orally
confirmed for purchase by any Participants by 7:30 a.m. New York City time on
the business day following the date on which this Agreement is executed will be
offered to the public by the Underwriters as set forth in the Prospectus.
3. Upon the authorization by you of the release of the Units, the
several Underwriters propose to offer the Units for sale upon the terms and
conditions set forth in the Prospectus.
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4. (a) The Units to be purchased by each Underwriter hereunder will
be represented by one or more definitive global Units in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the Units
to Xxxxxxx, Sachs & Co., for the account of each Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by wire transfer
of Federal (same-day) funds to the account specified by the Company to Xxxxxxx,
Xxxxx & Co. at least twenty-four hours in advance, by causing DTC to credit the
Units to the account of Xxxxxxx, Sachs & Co. at DTC. The Company will, upon
request by Xxxxxxx, Xxxxx & Co., cause the certificates representing the Units
to be made available to Xxxxxxx, Sachs & Co. for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the Units,
9:30 a.m., New York City time, on December 9, 2005 or such other time and date
as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing. Such time and
date for delivery of the Units is herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Units and any additional documents requested by the
Underwriters pursuant to Section 8(n) hereof, will be delivered at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Units will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 4:30 p.m., New York City time, on the New York Business Day
next preceding the 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.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement, the Basic Prospectus or the Prospectus
prior to the Time of Delivery 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 amendment or supplement to the Prospectus has
been filed and to furnish you with copies thereof; to prepare a final term
sheet, containing a description of the Units, in a form approved by you and to
file such term sheet pursuant to Rule 433(d) under the Act within the time
required by such Rule; to file promptly all other material required to be filed
by the Company with the Commission pursuant to Rule 433(d) under the Act; to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required in connection
with the offering or sale of the Units; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission prior to the
completion of the distribution of the Units contemplated by this Agreement (the
date of which shall be confirmed to the Company by you) of any stop order or of
any order preventing or
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suspending the use of any preliminary prospectus or other prospectus in respect
of the Units, of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act, of the suspension of the qualification of the Units 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 prior to
the completion of the distribution of the Units contemplated by this Agreement
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 other prospectus or suspending any such qualification, to promptly use its
best efforts to obtain the withdrawal of such order; and in the event of the
issuance of any such notice of objection, promptly to amend the Registration
Statement in such manner as may be required to permit offers and sales of the
Units;
(b) If required by Rule 430B(h) under the Act in connection with
the offering of the Units contemplated by this Agreement, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or supplement to such
form of prospectus which shall be disapproved by you promptly after reasonable
notice thereof;
(c) Promptly from time to time to take such action as you may
reasonably request to qualify the Units, the Underlying Shares, the Purchase
Contracts and the Underlying Notes for offering and sale under the securities
laws of such jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
such Units, the Underlying Shares, the Purchase Contracts and the Underlying
Notes, provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(d) If by the third anniversary (the "Renewal Deadline") of the
initial effective date of the Registration Statement, any of the Units remain
unsold by the Underwriters, the Company will file, if it has not already done so
and is eligible to do so, a new automatic shelf registration statement relating
to the Units, in a form satisfactory to you. If at the Renewal Deadline the
Company is no longer eligible to file an automatic shelf registration statement
and the distribution of the Units contemplated by this Agreement has not yet
been completed, the Company will, if it has not already done so, file a new
shelf registration statement relating to the Units, in a form satisfactory to
you and will use its best efforts to cause such registration statement to be
declared effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public offering and
sale of the Units to continue as contemplated in the expired registration
statement relating to the Units. References herein to the Registration Statement
shall include such new automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(e) Prior to 3:00 p.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 (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in
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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
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify you and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in Units 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 (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) 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 request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
you will inform the Company when the Underwriters' obligation to deliver a
prospectus has expired.
(f) To make generally available to its security holders 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
of the Commission thereunder (including, at the option of the Company, Rule
158);
(g) During the period beginning from the date hereof and
continuing to and including the date 60 days after the date of the Prospectus,
not to offer, sell, contract to sell, pledge, hedge, grant any option to
purchase, make any short sale or otherwise dispose, except as provided hereunder
with regard to the Units, of any Ordinary Shares, equity-linked securities or
Equity Security Units (including the related Purchase Contracts and Underlying
Notes) of the Company or any securities of the Company that are substantially
similar to Ordinary Shares, equity-linked securities or Equity Security Units
(including the related Purchase Contracts and Underlying Notes), or any
securities convertible into, exchangeable for or that represent the right to
receive Ordinary Shares, equity linked securities or (other than sales of
Ordinary Shares pursuant to (i) employee stock option plans existing on, or upon
the conversion or exchange of convertible or exchangeable securities outstanding
as of, the date of this Agreement and (ii) the dividend reinvestment and stock
purchase plan that the Company expects to establish), without your prior written
consent;
(h) To pay the required Commission filing fees relating to the
Units within the time required by Rule 456(b)(1) under the Act without regard to
the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)
under the Act;
(i) To use its best efforts to list, subject to notice of
issuance, the Units and the Underlying Shares on the Exchange;
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(j) To use the net proceeds received by it from the sale of the
Units pursuant to this Agreement in the manner specified in the Pricing
Prospectus and Prospectus under the caption "Use of Proceeds";
(k) To enter into the Remarketing Agreement with a nationally
recognized investment banking firm at least one month prior to the Remarketing
Date, such Remarketing Agreement to contain provisions that are consistent in
all material respects with the descriptions in the Prospectus as amended or
supplemented of the rights and obligations of each of the Company, the Purchase
Contract Agent and the Remarketing Agent under the Remarketing Agreement;
(l) To reserve and keep available at all times, free of preemptive
rights, Ordinary Shares for the purpose of enabling the Company to satisfy its
obligations to issue the Underlying Shares in accordance with the provisions of
such Purchase Contracts;
(m) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's corporate
logo for use on the website, if any, operated by such Underwriter for the
purpose of facilitating the on-line offering of the Units (the "License");
PROVIDED, HOWEVER, that the License shall be used solely for the purpose
described above, is granted without any fee and may not be assigned or
transferred; and
(n) To comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
6.
(a) (i) The Company represents and agrees that, other than the
final term sheet prepared and filed pursuant to Section 5(a) hereof, without the
prior consent of Xxxxxxx, Xxxxx & Co. and Citigroup Global Markets Inc., it has
not made and will not make any offer relating to the Units, the Underlying Notes
or the Underlying Shares that would constitute a "free writing prospectus" as
defined in Rule 405 under the Act; (ii) each Underwriter represents and agrees
that, other than one or more term sheets relating to the Units containing
customary information and conveyed to the purchasers of the Units, without the
prior consent of the Company, Xxxxxxx, Sachs & Co. and Citigroup Global Markets
Inc. (as to both form and content), it has not made and will not make any offer
relating to the Units, the Underlying Notes or the Underlying Shares that would
constitute a free writing prospectus; and (iii) any such free writing
prospectus, the use and content of which have been consented to by the Company
and Xxxxxxx, Xxxxx & Co. and Citigroup Global Markets Inc. (including the final
term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on
Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements
of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and
(c) The Company agrees that if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the information in
the Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue
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statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to
Xxxxxxx, Sachs & Co. and Citigroup Global Markets Inc. and, if requested by
Xxxxxxx, Xxxxx & Co. or Citigroup Global Markets Inc., will prepare and furnish
without charge to each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission; provided,
however, that this covenant shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Units under the Act and the issuance and
sale of the Units and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus
and any amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Indenture, any
Remarketing Agreement, any Purchase Contract Agreement, any Purchase Contracts,
any Pledge Agreement, any Blue Sky and Legal Investment Memoranda and closing
documents (including any compilations thereof); (iii) all expenses in connection
with the qualification of the Units for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Underlying
Notes; (v) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Units; (vi) the cost of preparing the Units, the Underlying Notes and
certificates for the Underlying Shares; (vii) the fees and expenses of any
Trustee, any Purchase Contract Agent, any Collateral Agent, any Custodial Agent,
any Securities Intermediary, any Remarketing Agent, any Registrar, any Transfer
Agent, Dividend Disbursing Agent, or Calculation Agent and any agent of any
Trustee, Purchase Contract Agent, Collateral Agent, Custodial Agent, Securities
Intermediary, Remarketing Agent, Registrar, Transfer Agent , Dividend Disbursing
Agent, or Calculation Agent and the fees and disbursements of counsel for any
such persons in connection with any Indenture, any Remarketing Agreement, any
Purchase Contract Agreement, any Purchase Contracts and any Pledge Agreement;
(viii) the cost and charges of any transfer agent or registrar or dividend
disbursing agent; (ix) all expenses and taxes arising as a result of the
issuance, sale and delivery of the Units, of the sale and delivery outside of
the Cayman Islands of the Units by the Underwriters to the initial purchasers
thereof in the manner contemplated under this Agreement, including, in any such
case, any Cayman Islands income, capital gains, withholding, transfer or other
tax asserted against an Underwriter by reason of the purchase and sale of the
Units pursuant to this Agreement; (x) any cost incurred in connection with
listing the Units or the Underlying Shares on the Exchange; and (xi) all other
costs and expenses incident to the performance of the Company's 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
9, 12 and 24 hereof, the Underwriters will pay all of their own costs and
expenses, including the
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fees of their counsel, transfer taxes on resale of any of the Units by them, and
any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Units to be
delivered at the Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its 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) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; the final term sheet contemplated by
Section 5(a) hereof, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time periods prescribed for such filings by Rule 433; 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 no notice of objection
of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been
received; no stop order suspending or preventing the use of the Prospectus or
any Issuer Free Writing Prospectus 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) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
shall have furnished to you their written opinion or opinions and letter, dated
the Time of Delivery, in form and substance reasonably satisfactory to you, in
the form attached hereto in Annex II-1 and Annex II-2, respectively, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxx Xxxxxx & Xxxxxxx LLP, United States counsel for the
Company, shall have furnished to you their written opinion or opinions and
letter, dated the Time of Delivery, in form and substance reasonably
satisfactory to you, in the form attached hereto in Annex III-1 and Annex III-2,
respectively;
(d) Xxxxxxx Xxxxxxxx Xxxxxx, Cayman Islands counsel for the
Company, shall have furnished to you their written opinion or opinions, dated
the Time of Delivery, in form and substance reasonably satisfactory to you, in
the form attached hereto in Annex IV;
(e) Xxxxxxx X. Xxxx, Executive Vice President and General Counsel
to the Company, shall have furnished to you his written opinion or opinions,
dated the Time of Delivery, in form and substance reasonably satisfactory to
you, in the form attached hereto in Annex V;
(f) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New York,
as Purchase Contract Agent and Collateral Agent, shall have furnished their
written opinion or opinions dated the Time of Delivery, in form and substance
reasonably satisfactory to the Representatives in the form attached hereto in
Annex VI;
-16-
(g) 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 but prior to the Time of Delivery and also at the
Time of Delivery, PricewaterhouseCoopers LLP, the independent registered public
accounting firm of the Company, who have certified the financial statements of
the Company and its Subsidiaries and have audited the Company's internal control
over financial reporting and management's assessment thereof included or
incorporated by reference in the Registration Statement, shall have furnished to
you a "comfort" letter or letters, dated the respective dates of delivery
thereof, in form and substance reasonably satisfactory to you;
(h) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing Prospectus any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus, and (ii) since the respective dates as
of which information is given in the Pricing Prospectus, there shall not have
been any change in the capital stock (other than changes resulting from the
exercise of options or the conversion of warrants or capital stock which were
outstanding as of such date, or from the exercise of options granted after such
date in the ordinary course of business or from repurchases of capital stock) or
long-term debt of the Company or any of its Significant Subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its Significant Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Units on the terms and
in the manner contemplated in the Prospectus;
(i) On or after the Applicable Time (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) other than any announcements
made prior to the date of this Agreement, 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;
(j) On or after the date of the Applicable Time 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, the Cayman
Islands or Bermuda declared by the relevant authority or a material disruption
in commercial banking or securities settlement or clearance services in the
United States or any other relevant jurisdiction; (iv) the outbreak or
escalation of hostilities involving the United States, the Cayman Islands or
Bermuda or the declaration by the United States, the Cayman Islands or Bermuda
of a national emergency or war, if the effect of any such event specified in
this clause (iv) in
-17-
your judgment is so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Units
being delivered at the Time of Delivery on the terms and in the manner
contemplated in the Prospectus; (v) a change or development involving a
prospective change in the Cayman Islands or Bermuda taxation affecting the
Company, the Units or the transfer thereof or the imposition of exchange
controls by the United States, Bermuda or the Cayman Islands; or (vi) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or currency exchange rates or
controls in the United States, the Cayman Islands, Bermuda or elsewhere, if the
effect of any such event specified in this clause (vi) in your judgment is so
material and adverse as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Units being delivered at the Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(k) The Units shall have been duly listed, subject to notice of
issuance, on the Exchange;
(l) The Company shall have complied with the provisions of Section
5(e) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(m) You shall have received letters, dated the date of this
Agreement, from the Chairman of the Board and the Chief Executive Officer of the
Company whereby each such person agrees, for the period commencing on the date
of the date of this Agreement and ending 60 days after the date of this
Agreement, not to offer, sell, contract to sell, pledge, hedge, grant any option
to purchase, make any short sale or otherwise dispose of any Ordinary Shares,
equity-linked securities or Equity Security Units (including the related
Purchase Contracts and Underlying Notes) of the Company or any securities of the
Company that are substantially similar to Ordinary Shares, equity-linked
securities or Units (including the related Purchase Contracts and Underlying
Notes), or any securities convertible into, exchangeable for or that represent
the right to receive Ordinary Shares, equity linked securities or Units
(including the related Purchase Contracts and Underlying Notes) or publicly
announce any intention to do so (other than transfers of Ordinary Shares (i)
pursuant to Rule 10b5-1 programs, if any, for such person existing on the date
of the Prospectus, (ii) (so long as such person does not thereby transfer any of
such person's Ordinary Shares to any third person) in connection with the entry
by such person into arrangements with the Company intended solely to provide for
the extension, renewal or reloading of options to purchase Ordinary Shares or
the issuance of new options to purchase Ordinary Shares to such person, (iii) at
any time after the date on which such person ceases to be a director or officer
of the Company, or (iv) in an amount not greater than 10% of the number of
Ordinary Shares owned by such person on the date of this Agreement), (v) as a
bona fide gift or gifts, provided that the donee or donees thereof agree to be
bound in writing by the restrictions set forth in this subsection (m), or as
charitable donations, (vi) to any trust for the direct or indirect benefit of
such person or the immediate family of such person, provided that the trustee of
the trust agrees to be bound in writing by the restrictions set forth in this
subsection (m), and provided further that any such transfer shall not involve a
disposition for value, and (vii) for bona fide tax planning purposes), without
your prior written consent;
(n) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the Company satisfactory
to you as to the
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accuracy of the representations and warranties of the Company herein at and as
of the Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Time of Delivery, as to
the matters set forth in subsections (a), (h) and (i) of this Section and as to
such other matters as you may reasonably request; and
(n) Prior to the Time of Delivery, the Company shall have
furnished to you such further information, certificates and documents as you may
reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment
or supplement thereto, any Issuer Free Writing Prospectus or any "issuer
information" filed or required to be filed pursuant to Rule 433(d) under the
Act, 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 expenses of one counsel (in addition to any local counsel) engaged
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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 the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, 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 the Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
the Pricing Prospectus, the Prospectus or any such amendment or supplement
thereto, or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred, including the reasonable fees and expenses of one counsel
(in addition to any applicable local counsel).
-19-
(c) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any of the materials prepared
by or with the consent of the Company for distribution to the Participants in
connection with the Directed Share Program, the prospectus wrapper material
prepared by or with the consent of the Company for distribution in foreign
jurisdictions in connection with the Directed Share Program attached to the
Prospectus or any Preliminary Prospectus, 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, when considered in
conjunction with the Prospectus or any applicable Preliminary Prospectus, not
misleading; (ii) caused by the failure of any Participant to pay for and accept
delivery of the securities that were, immediately following the date of this
Agreement, subject to a properly confirmed agreement to purchase; or (iii)
related to or arising out of, or in connection with, the Directed Share Program,
and in each case, will reimburse each Underwriter for any legal expenses of one
counsel (in addition to local counsel), which shall be the same counsel engaged
pursuant to subsection (a) above (unless such counsel advises the Underwriters
that it cannot act as counsel in connection with both this subsection (c) and
subsection (a)) if any such counsel is engaged pursuant to subsection (a) above
(but which otherwise may be separate counsel), reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable to the extent that any such loss, claim, damage or liability, in
the case of clause (i) arises out of or is based upon an untrue statement or an
alleged untrue statement or omission or alleged omission made in such material
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein and, in the case of clause (iii), is finally judicially determined to
have resulted primarily from the gross negligence or willful misconduct of the
Underwriters.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) 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 in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel 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 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 (except as set forth below).
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel
-20-
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party, and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action, or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. 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 (1) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (2) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company 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 (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a
-21-
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), 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 (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company under this Section 9 shall be
in addition to any liability which the Company may 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 9 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase
the Units which it has agreed to purchase hereunder at the Time of Delivery, you
may in your discretion arrange for you or another party or other parties
satisfactory to the Company 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 shall be entitled
to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Units on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Units, or the Company
notifies you that it has so arranged for the purchase of such Units, you or the
Company shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements 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
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 the Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Units which such Underwriter agreed to purchase hereunder at the 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
-22-
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
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 the Time of Delivery, or if the Company 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 shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Units.
12. If this Agreement shall be terminated pursuant to Section 10 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 7, 9 and 24 hereof; but, if for any other reason, any Units
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out of pocket expenses
approved in writing by you, including reasonable 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 the Company shall
then be under no further liability to any Underwriter except as provided in
Sections 7, 9 and 24 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Xxxxx &
Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 9(e) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 9 and 11 hereof,
-23-
the officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Units from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person who
controls any Underwriter arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal district court
for the Southern District of New York and the New York County Court, (ii)
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT Corporation System, New York,
New York, as its authorized agent (the "Authorized Agent") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in the federal district
court for the Southern District of New York and the New York County Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
16. Time shall be of the essence in 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. "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.
17. The Company acknowledges and agrees that (i) the purchase and sale
of the Units pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not as the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or (except with respect to advisory responsibility, as
provided in the letter dated November 14, 2005 from the Xxxxxxx, Sachs & Co. to
the Company and the letter dated November 17, 2005 from Citigroup Global Markets
Inc. to the Company) the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set
forth in this Agreement and (iv) the Company has consulted its own legal and
financial advisors to the extent it deemed appropriate. The Company agrees that
it will not claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such
-24-
transaction or (except with respect to advisory services, as provided in the
letter dated November 14, 2005 from Xxxxxxx, Xxxxx & Co. to the Company and the
letter dated November 17, 2005 from Citigroup Global Markets Inc. to the
Company) the process leading thereto.
18. For the avoidance of doubt and anything in this Agreement to the
contrary notwithstanding, all references in this Agreement to the Pricing
Disclosure Package as of the Applicable Time shall be deemed to include the
final term sheet relating to the Units dated December 6, 2005 and filed with the
Commission on December 7, 2005.
19. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of
them, with respect to the subject matter hereof; provided that the letter dated
December 2, 2005 shall remain in full force and effect.
20. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
21. The Company and each of the Underwriters hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22. 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 respective counterparts shall together constitute one and
the same instrument.
23. Notwithstanding anything herein to the contrary, the Company is
authorized to disclose to any persons the U.S. federal and state income tax
treatment and tax structure of the potential transaction and all materials of
any kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Underwriters' imposing any
limitation of any kind. However, any information relating to the tax treatment
and tax structure shall remain confidential (and the foregoing sentence shall
not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, "tax structure" is limited to any facts that
may be relevant to that treatment.
24. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation
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 an Underwriter is able to purchase United
States dollars with the amount of judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order 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.
-25-
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
-26-
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of you plus one for each counsel
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
XL Capital Ltd
By: /s/ Xxxxxxx Xxxxxx Xxxxx
------------------------
Name: Xxxxxxx Xxxxxx Xxxxx
Title: Senior Vice President and
Chief Corporate Legal Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------------------
(Xxxxxxx, Xxxxx & Co.)
Citigroup Global Markets Inc.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
On behalf of each of the Underwriters
-27-
SCHEDULE I
TOTAL NUMBER OF
UNDERWRITER UNITS TO BE PURCHASED
----------- ---------------------
Xxxxxxx, Sachs & Co........................................ 8,940,000
Citigroup Global Markets Inc............................... 5,960,000
X.X. Xxxxxx Securities Inc................................. 2,731,667
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated......... 2,731,667
Wachovia Capital Markets, LLC.............................. 2,731,667
ABN AMRO Rothschild LLC.................................... 579,444
Banc of America Securities LLC............................. 579,444
Barclays Capital Inc....................................... 579,444
Deutsche Bank Securities Inc............................... 579,444
HSBC Securities (USA) Inc.................................. 579,444
KeyBanc Capital Markets, a Division of
McDonald Investments Inc................................. 579,444
Lazard Capital Markets LLC................................. 579,444
Xxxxxx Brothers Inc........................................ 579,444
UBS Securities LLC......................................... 579,444
Bear, Xxxxxxx & Co......................................... 496,668
BNP Paribas Securities Corp................................ 496,668
PNC Capital Markets LLC.................................... 496,667
------------
Total.................................................... 29,800,000
============
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure
Package:
None
(b) Additional Documents Incorporated by Reference:
Current Report on Form 8-K dated December 6, 2005
ANNEX I
WRITTEN MATERIALS PROVIDED TO PARTICIPANTS IN DIRECTED SHARE PROGRAM
o Memorandum to Directors and Executive Management Board Members that are
Potential Participants in the XL Capital Ltd Directed Equity Program, from
Xxxxxxx Xxxxx regarding General Information about the Director and Executive
Management Board Member Participation in the XL Capital Ltd Equity Units and
Ordinary Shares Offerings, dated December 2, 2005
o Registration Statement.
o Pricing Prospectus.
o Final term sheet.
o Prospectus.
ANNEX II-1
XXXXXXX XXXXXXX & XXXXXXXX LLP FORM OF OPINION
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ANNEX II-2
XXXXXXX XXXXXXX & XXXXXXXX LLP FORM OF NEGATIVE ASSURANCE LETTER
----------------------------------------------------------------
ANNEX III-1
XXXXXX XXXXXX & XXXXXXX LLP FORM OF OPINION
-------------------------------------------
ANNEX III-2
XXXXXX XXXXXX & XXXXXXX LLP FORM OF NEGATIVE ASSURANCE LETTER
-------------------------------------------------------------
ANNEX IV
XXXXXXX XXXXXXXX XXXXXX FORM OF OPINION
---------------------------------------
ANNEX V
XL CAPITAL LTD FORM OF OPINION
------------------------------
ANNEX VI
FORM OF OPINION OF XXXXX, XXXXXX & XXXXXX, LLP
----------------------------------------------
