EXHIBIT 1
PLATINUM UNDERWRITERS HOLDINGS, LTD.
COMMON SHARES
(par value $.01 per share)
---------------
UNDERWRITING AGREEMENT
October __, 2002
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Platinum Underwriters Holdings, Ltd., a Bermuda company (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 30,040,000 Common Shares, par value $.01 per share, of the Company (the "Firm
Shares") and, at the election of the Underwriters, up to 4,506,000 additional
Common Shares (the "Optional Shares") (the Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 3 hereof being
collectively called the "Shares").
Concurrently with the initial public offering of Shares, the Company is
offering an aggregate of 5,000,0000 __% equity security units (the "Firm Units")
and, at the election of the underwriters of such offering (the "Units
Underwriters"), up to an additional 750,000 equity security units (the "Optional
Units" and, together with the Firm Units, the "Units"), by means of a separate
prospectus (the "Units Prospectus") and pursuant to a separate underwriting
agreement (the "Units Underwriting Agreement").
Concurrently with the initial public offering of Shares, the Company has
agreed to (i) sell to RenaissanceRe Holdings, Ltd., a Bermuda company ("RenRe"),
and RenRe has agreed to purchase, (A) 3,960,000 Common Shares at the First Time
of Delivery (as defined in Section 5 hereof) and (B) up to 594,000 additional
Common Shares (as determined by RenRe) in the event the Underwriters
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elect to purchase Optional Shares (collectively, the "RenRe Investment Shares")
pursuant to the RenRe Investment Agreement (as defined in Schedule II hereof)
and (ii) grant RenRe an option to purchase up to an additional 2,500,000 Common
Shares (the "RenRe Investment Option," and together with the RenRe Investment
Shares, the "RenRe Private Offering Securities"), pursuant to the RenRe Option
Agreement (as defined in Schedule II hereof).
On or prior to the First Time of Delivery or immediately thereafter, (i)
The St. Xxxx Companies, Inc., a Minnesota corporation ("St. Xxxx"), and its
subsidiaries that are engaged in the reinsurance business will (A) contribute
$_____ million in cash and (B) retrocede certain reinsurance agreements, and
contribute certain assets specified in Section 2.01 of the Formation and
Separation Agreement (as defined in Schedule II hereof) (such reinsurance
agreements and such assets collectively, the "Business"), to the Company and its
subsidiaries and (ii) the Company will (A) issue to St. Xxxx (X) 6,000,000
Common Shares at the First Time of Delivery and (Y) up to 900,000 additional
Common Shares (as determined by St. Xxxx) in the event the Underwriters elect to
purchase Optional Shares (collectively, the "St. Xxxx Investment Shares") and
(B) grant to St. Xxxx an option to purchase up to an additional 6,000,000 Common
Shares (the "St. Xxxx Investment Option," and together with the St. Xxxx
Investment Shares, the "St. Xxxx Private Offering Securities") (the actions
described in the foregoing clauses (i) and (ii), the "Transaction"). The Company
will conduct the Business through its wholly owned operating subsidiaries,
Platinum Underwriters Reinsurance, Inc., a Maryland corporation that, prior to
the First Time of Delivery, is indirectly owned by St. Xxxx ("Platinum US"),
Platinum Re (UK) Limited, a U.K. company ("Platinum UK"), and Platinum
Underwriters Bermuda, Ltd., a Bermuda company ("Platinum Bermuda"). The Company
will own Platinum US and Platinum UK through its wholly-owned intermediate
holding subsidiary, Platinum Regency Holdings, an Ireland company ("Platinum
Ireland" and, together with Platinum UK and Platinum Bermuda, the "Non-U.S.
Subsidiaries"). Platinum US will be owned directly by Platinum Underwriters
Finance, Inc., a Delaware corporation ("Platinum Finance"), which is a wholly
owned subsidiary of Platinum Ireland. As used in this Agreement, the "Filed
Agreements" shall mean those agreements set forth on Schedule II hereto, each of
which has been or will be executed and delivered in connection with the
Transaction.
It is understood and agreed that Xxxxxxx, Sachs & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc. (the "Lead
Representatives") are joint book-running managers for the offering of the Shares
contemplated hereby and any determinations or other actions to be made under
this Agreement by the representatives shall require the concurrence of Xxxxxxx,
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx
Xxxxx Barney Inc.
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-86906) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
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initiated or, to the knowledge of the Company, threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 6(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Lead Representatives expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto, and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Lead Representatives expressly for use
therein;
(d) None of the Company, any of its subsidiaries or the Business has
sustained since December 31, 2001, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
or the capital or surplus or long-term debt of the Company, any of its
subsidiaries or the Business or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, or of the
Business, otherwise than as set forth or contemplated in the Prospectus;
(e) At the First Time of Delivery, the Company and its subsidiaries will
have good title to all personal property described in the Prospectus as being
owned by them upon consummation of the Transaction, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and do
not
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materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and at the First Time of Delivery, any real
property and buildings held under lease by the Company and its subsidiaries will
be held by them under valid, subsisting and enforceable sub-leases and
assignments of leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries. The Company does not own any
real property;
(f) The Company has been duly incorporated and is validly existing as a
company in good standing under the laws of Bermuda, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation or a company in good standing under the laws of its
jurisdiction of organization, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business, or will own or lease property or conduct
business at the First Time of Delivery, so as to require such qualification, or
is subject to no material liability or disability by reason of the failure to be
so qualified in any such jurisdiction;
(g) Each of this Agreement, the Jurisdiction Agreement, dated as of the
date hereof (the "Common Shares Jurisdiction Agreement"), among the Company, St.
Xxxx and the Underwriters, the Units Underwriting Agreement and the Jurisdiction
Agreement, dated as of the date hereof (the "Units Jurisdiction Agreement" and
together with the Common Shares Jurisdiction Agreement, the "Jurisdiction
Agreements"), among the Company, Platinum Finance, St. Xxxx and the Units
Underwriters, has been duly authorized, executed and delivered by the Company;
(h) Except as described in the Prospectus, each of the Company and its
subsidiaries (i) was formed solely for the purpose of engaging in the
Transaction and the transactions contemplated hereby and by the Units
Underwriting Agreement and the Filed Agreements and operating the Business after
the First Time of Delivery and (ii) has not engaged in any business activities,
conducted any operations, entered into any agreements or contracts, incurred any
liabilities, or owned any assets or property, other than in connection with the
Transaction and the transactions contemplated hereby and by the Units
Underwriting Agreement and the Filed Agreements;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
conform in all material respects to the description of the capital stock
contained in the Prospectus; all of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and will be owned directly or indirectly by the
Company at the First Time of Delivery, free and clear of all liens,
encumbrances, equities or claims; except as described in the Prospectus under
the captions "Certain Relationships and Related Transactions-St. Xxxx
Investment-Formation and Separation Agreement-Pre-Emptive Rights," "Certain
Relationships and Related Transactions-St. Xxxx Investment-St. Xxxx Option
Agreement," "Certain Relationships and Related Transactions-The RenaissanceRe
Investment-Pre-Emptive Rights," "Certain Relationships and Related
Transactions-The RenaissanceRe Investment-RenaissanceRe Option Agreement" and
"Description of the Equity Security Units," the holders of outstanding shares of
capital stock of the
4
Company are not entitled to preemptive or other rights to acquire the Shares;
there are no outstanding securities convertible into or exchangeable for, or
warrants, rights or options to purchase from the Company, or obligations of the
Company to issue, Common Shares or any other class of capital stock of the
Company (except as set forth in the Prospectus under the captions "Management,"
"Certain Relationships and Related Transactions-St. Xxxx Investment-St. Xxxx
Option Agreement," "Certain Relationships and Related Transactions-The
RenaissanceRe Investment-RenaissanceRe Option Agreement," "Description of the
Equity Security Units" and "Underwriting"); there are no restrictions on
subsequent transfers of the Shares under the laws of Bermuda or the United
States (other than, pursuant to the securities laws of the United States, by
affiliates of the Company and other than as described in the Prospectus under
the caption "Description of Our Common Shares"); and no party has the right to
require the Company to register securities except as disclosed in the
Prospectus;
(j) All of (i) the Shares to be issued and sold by the Company to the
Underwriters hereunder, (ii) the St. Xxxx Private Offering Securities and (iii)
the RenRe Private Offering Securities have been duly authorized and, when issued
and delivered against payment therefor as provided herein, in the Formation and
Separation Agreement and in the RenRe Investment Agreement, respectively, will
be validly issued and fully paid and non-assessable and will conform in all
material respects to the description of the Common Shares contained in the
Prospectus;
(k) The issue and sale of the Shares, the St. Xxxx Private Offering
Securities, the RenRe Private Offering Securities and the Securities (as defined
in the Units Underwriting Agreement) by the Company, the compliance by the
Company with all of the provisions of this Agreement, the Units Underwriting
Agreement and the Jurisdiction Agreements, the compliance by Platinum Finance
with all of the provisions of the Units Underwriting Agreement and the Units
Jurisdiction Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or give
rise to a right of termination under (i) the memorandum of association or
bye-laws or other organizational document of the Company or any of its
subsidiaries, (ii) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its subsidiaries is
subject, or (iii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except, in the case of clause (ii) or
(iii), as would not, individually or in the aggregate, have a material adverse
effect on the consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries (taken as a whole) following
the First Time of Delivery, or affect the due authorization and valid issuance
of the Shares, St. Xxxx Private Offering Securities, the RenRe Private Offering
Securities or the Securities;
(l) Neither the Company nor any of its subsidiaries is in violation of its
memorandum of association or bye-laws or other organizational documents or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(m) The statements set forth in the Prospectus under the captions
"Business-Regulation," "St. Xxxx Investment, RenaissanceRe Investment and
Principal Shareholders," "Certain Relationships and Related Transactions,"
"Description of Our Common Shares," "Description of the Equity Security Units,"
"Certain Tax Considerations" and "Underwriting," insofar as they purport to
describe the
5
provisions of the laws and documents referred to therein, are true and complete
in all material respects;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, any of its subsidiaries
or the Business is a party or of which any property of the Company, any of its
subsidiaries or the Business is the subject which, if determined adversely to
the Company, any of its subsidiaries or the Business, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, or of the Business following the First Time of
Delivery; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(o) Each of the Filed Agreements when executed and delivered prior to the
First Time of Delivery will have been duly authorized, executed and delivered by
the Company or a subsidiary of the Company, as the case may be, and, assuming
that parties to the Filed Agreements other than the Company and its subsidiaries
have the power and authority to enter into and perform such agreements and that
such agreements have been duly authorized, executed and delivered by such
parties and constitute valid and binding agreements of such parties, will
constitute a valid and binding agreement of the Company and each of its
subsidiaries, as the case may be, enforceable against the Company and each of
its subsidiaries, in accordance with its terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium, or other
laws now or hereafter in effect affecting creditors' rights generally, (ii) the
enforceability thereof is subject to the general principles of equity (whether
such enforceability is considered in a proceeding in equity or at law), and
(iii) no representation or warranty is made with respect to the enforceability
of indemnification and contribution provisions relating to violations under the
Act contained in the Formation and Separation Agreement (as defined in Schedule
II hereto), the Registration Rights Agreement (as defined in Schedule II hereto)
and the Transfer Restrictions and Registration Rights Agreement (as defined in
Schedule II hereto);
(p) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any governmental agency
or body or any court is required to be obtained or made by the Company or any of
its subsidiaries for the issue and sale of the Shares, the St. Xxxx Private
Offering Securities, the RenRe Private Offering Securities and the Securities,
the consummation of the Transaction and the transactions contemplated by this
Agreement, the Units Underwriting Agreement, the Jurisdiction Agreements and the
Filed Agreements , except (i) the registration under the Act of the Shares and
the Securities and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of the Shares and the Units, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities, Blue Sky or insurance securities laws in connection with the
purchase and distribution of the Shares by the Underwriters and the Units by the
Units Underwriters under the Units Underwriting Agreement, (iii) the filing of
the Prospectus under the Bermuda Companies Act 1981 in connection with the issue
and sale of the Shares, (iv) such consents, approvals, authorizations,
registrations or qualifications as may be required and have been obtained from
the Bermuda Monetary Authority, (v) such consents, approvals, authorizations,
registrations or qualifications that have been obtained or made under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") or the Insurance
Laws (as defined below) of the State of Maryland, Bermuda and Ireland and (vi)
such consents, approvals, authorizations, registrations or qualifications the
failure of which to obtain or make would not, individually or in the aggregate
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole,
6
following the First Time of Delivery, or affect the due authorization and valid
issuance of the Shares, the St. Xxxx Private Offering Securities, the RenRe
Private Offering Securities or the Securities;
(q) The execution, delivery and performance of each of the Filed
Agreements by each of the parties thereto and the consummation of the
Transaction and the transactions therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give rise to a right of termination under (i) the
memorandum of association or bye-laws or other organizational document of the
Company or any of its subsidiaries, (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, except, in
the case of clause (ii) or (iii), as would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery, or affect
the due authorization and valid issuance of the Shares, the St. Xxxx Private
Offering Securities, the RenRe Private Offering Securities or the Securities;
(r) The Company is not and, after giving effect to the offering and sale
of the Shares, the St. Xxxx Private Offering Securities, the RenRe Private
Offering Securities and 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");
(s) Except as described in the Prospectus, each of the Company and its
subsidiaries is duly licensed as an insurance holding company or as an insurer
or reinsurer, as the case may be, under the insurance laws (including laws that
relate to companies that control insurance companies) and the rules, regulations
and interpretations of the insurance regulatory authorities thereunder
(collectively, "Insurance Laws"), of each jurisdiction in which the conduct of
its business as described in the Prospectus requires such licensing, except for
such jurisdictions in which the failure of the Company and its subsidiaries to
be so licensed would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position, shareholder's equity or
results of operations of the Company and its subsidiaries, taken as a whole,
following the First Time of Delivery. Each of the Company and its subsidiaries
has made all required filings under applicable holding company statutes or other
Insurance Laws in each jurisdiction where such filings are required, except for
such jurisdictions in which the failure to make such filings would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder's equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery. Except as described in the Prospectus, each of the Company and its
subsidiaries has all other necessary authorizations, approvals, orders,
consents, certificates, permits, registrations and qualifications of and from
all insurance regulatory authorities necessary to conduct their respective
businesses as described in the Prospectus and all of the foregoing are in full
force and effect, except where the failure to have such authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications or their failure to be in full force and effect would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder's equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery. None of the Company or any of its subsidiaries has received any
notification from any insurance regulatory authority or other governmental
authority in the United States, Bermuda, Ireland, the United Kingdom or
elsewhere to the effect that any additional authorization,
7
approval, order, consent, certificate, permit, registration or qualification is
needed to be obtained by either the Company or any of its subsidiaries; and no
insurance regulatory authority has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by the Company or any of its
subsidiaries;
(t) On or prior to the First Time of Delivery or immediately thereafter,
the Company and its subsidiaries will own or possess or will be licensed to use,
or will be able to acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, services marks and trade names that are
necessary for the Company and its subsidiaries to be able to conduct the
business of reinsurance in the manner and to the extent described in the
Prospectus, and none of the Company or any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing, except for those which, if determined adversely
to the Company or any of its subsidiaries, would not have a material adverse
effect on the consolidated financial position, shareholder's equity or results
of operations of the Company and its subsidiaries taken as a whole following the
First Time of Delivery;
(u) Each of the Company and its subsidiaries has filed all statutory
financial returns, reports, documents and other information required to be filed
pursuant to the applicable Insurance Laws of the United States and the various
states thereof, Bermuda, Ireland, the United Kingdom and each other jurisdiction
applicable thereto, and has duly paid all taxes (including franchise taxes and
similar fees) it is required to have paid under the applicable Insurance Laws of
the United States and the various states thereof, Bermuda, Ireland, the United
Kingdom and each other jurisdiction applicable thereto, except where the
failure, individually or in the aggregate, to file such return, report, document
or information or to pay such taxes would not have a material adverse effect on
the consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, following the
First Time of Delivery; and each of the Company and its subsidiaries maintains
its books and records in accordance with, and is otherwise in compliance with,
the applicable Insurance Laws of the United States and the various states
thereof, Bermuda, Ireland, the United Kingdom and each other jurisdiction
applicable thereto, except where the failure to so maintain its books and
records or be in compliance would not individually or in the aggregate have a
material adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole, following the First Time of Delivery;
(v) Any tax returns required to be filed by the Company or any of its
subsidiaries in any jurisdiction have been filed and any material taxes,
including any withholding taxes, excise taxes, penalties and interest,
assessments and fees and other charges due or claimed to be due from such
entities have been paid, other than any of those being contested in good faith
and for which adequate reserves have been provided or any of those currently
payable without penalty or interest;
(w) The Company and Platinum Bermuda have received from the Bermuda
Minister of Finance an assurance under The Exempted Undertakings Tax Protection
Act, 1966 of Bermuda to the effect set forth in the Prospectus under the caption
"Certain Tax Considerations-Taxation of the Company, Platinum US, Platinum UK,
Platinum Bermuda and Platinum Ireland-Bermuda," and the Company has not received
any notification to the effect (and is not otherwise aware) that such assurance
may be revoked or otherwise not honored by the Bermuda government;
(x) The Company and its subsidiaries have not taken, and have no plan or
intention to take, directly or indirectly, any action that would or would be
reasonably expected to cause or result in (i)
8
the Company and/or any Non-U.S. Subsidiary being treated as engaged in a trade
or business within the United States for purposes of the Internal Revenue Code
of 1986, as amended (the "Code"), (ii) the Company and/or any Non-U.S.
Subsidiary being treated as a passive foreign investment company within the
meaning of section 1297 of the Code, (iii) the Company and/or any Non-U.S.
Subsidiary being treated as a controlled foreign corporation within the meaning
of section 957 of the Code or (iv) any shareholder of the Company having
"related party insurance income" inclusions for U.S. federal income tax purposes
as a result of being a shareholder of the Company;
(y) No stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of the
Underwriters to Bermuda or any political subdivision or taxing authority thereof
or therein in connection with the sale and delivery by the Company of the Shares
to or for the respective accounts of the Underwriters or the sale and delivery
outside Bermuda by the Underwriters of the Shares to the initial purchasers
thereof; and no registration, documentary, recording, transfer or other similar
tax, fee or charge by any Bermuda government authority is payable in connection
with the execution, delivery, filing, registration or performance of this
Agreement;
(z) It is not necessary to register under the Act the St. Xxxx Private
Offering Securities or the RenRe Private Offering Securities, because the
issuance of such securities will be exempt from registration under the Act;
(aa) There are no currency exchange control laws or withholding taxes, in
each case of Bermuda, the United Kingdom or Ireland (or any political
subdivision or taxing authority thereof), that would be applicable to the
payment of dividends (i) on the Shares by the Company (other than as may apply
to residents of Bermuda for Bermuda exchange control purposes) or (ii) by any of
the Company's subsidiaries to the Company. The Bermuda Monetary Authority has
designated the Company and Platinum Bermuda as nonresident for exchange control
purposes and has granted permission for the issue and transfer of the Shares
(including permission for the issue or transfer of up to 20% of the Company's
shares in issue from time to time to persons resident in Bermuda for exchange
control purposes), subject to the condition that the Common Shares of the
Company shall be listed on the New York Stock Exchange (the "Exchange") or any
other appointed stock exchange. Such permission has not been revoked and is in
full force and effect, and the Company has no knowledge of any proceedings
planned or threatened for the revocation of such permission. The Company and
Platinum Bermuda are "exempted companies" under Bermuda law and have not (i)
acquired and do not hold any land in Bermuda, other than that held by way of
lease or tenancy for terms of not more than 21 years, without the express
authorization of the Bermuda legislature, (ii) taken mortgages on land in
Bermuda to secure an amount in excess of $50,000, without the consent of the
Bermuda Minister of Finance, (iii) acquired any bonds or debentures secured by
any land in Bermuda (other than certain types of Bermuda government securities),
or (iv) conducted their business in a manner that is prohibited for "exempted
companies" under Bermuda law. Neither the Company nor Platinum Bermuda has
received notification from the Bermuda Monetary Authority or any other Bermuda
governmental authority of proceedings relating to the modification or revocation
of its designation as nonresident for exchange control purposes, its permission
to issue and transfer the Shares, or its status as an "exempted company";
(bb) Under the Common Shares Jurisdiction Agreement, the Company has
validly and irrevocably submitted to the non-exclusive jurisdiction of any
United States Federal or State court in the Borough of Manhattan, the City of
New York, State of New York (a "New York Court") with respect to suits, actions
or proceedings brought by any Underwriter or by any person who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange
9
Act against the Company arising out of or in connection with violations of
United States federal securities laws relating to offers and sales of the
Shares, and has validly and irrevocably waived, to the fullest extent permitted
by law, any objections that it may now or hereafter have to the laying of venue
of any such suit, action or proceeding brought in any New York Court based on or
arising under this Agreement or any claims that any such suit, action or
proceeding brought in any New York Court has been brought in an inconvenient
forum; and, under the Common Shares Jurisdiction Agreement, the Company has duly
and irrevocably appointed CT Corporation System as its agent to receive service
of process with respect to actions arising out of or in connection with any such
suit, action or proceeding, and service of process on CT Corporation System
effected in the manner set forth in the Common Shares Jurisdiction Agreement
will be effective under the laws of Bermuda to confer personal jurisdiction over
the Company;
(cc) Immediately following the First Time of Delivery, St. Xxxx will have
transferred to the Company and its subsidiaries those assets, liabilities and
businesses that, together with the Filed Agreements, are necessary for the
Company and its subsidiaries to be able to conduct the Business in the manner
and to the extent described in the Prospectus;
(dd) The Company has not taken, directly or indirectly, any action that
has constituted or that was designed to or which has constituted or which might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of St.
Xxxx or the Company to facilitate the sale or resale of the Shares;
(ee) The historical financial statements and schedules of Predecessor (as
defined in the Prospectus) included in the Prospectus and the Registration
Statement (i) present fairly in all material respects the identifiable
underwriting assets and liabilities of The St. Xxxx Companies, Inc. Reinsurance
Underwriting Segment as of December 31, 2001, 2000 and 1999, and its
underwriting results and its identifiable underwriting cash flows for each of
the years in the three-year period ended December 31, 2001 in conformity with
accounting principles generally accepted in the United States of America, and
(ii) comply as to form in all material respects with the applicable accounting
requirements of the Act;
(ff) Immediately following the First Time of Delivery, the Company will
repurchase and cancel the Common Shares held by Codan Trust Company Limited, and
immediately following such repurchase and cancellation, St. Xxxx and the holders
of the Shares will be the only holders of issued and outstanding Common Shares;
and
(gg) KPMG, LLP, who have certified certain financial statements of the
Company, its subsidiaries and the Business, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
2. St. Xxxx represents and warrants to, and agrees with, each of the
Underwriters that:
(a) St. Xxxx has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota; and each
subsidiary of St. Xxxx that is a party to a Filed Agreement has been duly
incorporated and is validly existing as a corporation or a company in good
standing under the laws of its jurisdiction of organization, with corporate
power and authority to own its properties and conduct its business as described
in the Prospectus;
(b) Each of this Agreement, the Units Underwriting Agreement and the
Jurisdiction Agreements has been duly authorized, executed and delivered by
St. Xxxx;
10
(c) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental agency or
body having jurisdiction over St. Xxxx or any of its subsidiaries or any of
their properties required for the execution and delivery by St. Xxxx of this
Agreement, the Units Underwriting Agreement and the Jurisdiction Agreements to
be duly and validly authorized have been obtained or made and are in full force
and effect;
(d) The compliance by St. Xxxx with all applicable provisions of each of
this Agreement, the Units Underwriting Agreement and the Jurisdiction Agreements
and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a right of
termination under (i) the certificate of incorporation or bylaws of St. Xxxx,
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which St. Xxxx is a party or by which St. Xxxx is bound or to
which any of the properties or assets of St. Xxxx is subject, or (iii) any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over St. Xxxx or any of its properties, except, in the
case of clause (ii) or (iii), as would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of St. Xxxx and its subsidiaries,
taken as a whole, or of the Business;
(e) Each of the Filed Agreements when executed and delivered prior to the
First Time of Delivery will have been duly authorized, executed and delivered by
St. Xxxx or a subsidiary of St. Xxxx, as the case may be, and, assuming that
parties to the Filed Agreements other than St. Xxxx and its subsidiaries have
the power and authority to enter into and perform such agreements and that such
agreements have been duly authorized, executed and delivered by such parties and
constitute valid and binding agreements of such parties, will constitute a valid
and binding agreement of St. Xxxx and its subsidiaries, enforceable against St.
Xxxx and its subsidiaries, as the case may be, in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other laws now or hereafter in effect affecting
creditors' rights generally, (ii) the enforceability thereof is subject to the
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), and (iii) no representation or warranty is made
with respect to the enforceability of the indemnification and contribution
provisions relating to violations under the Act contained in the Formation and
Separation Agreement, the Registration Rights Agreement and the Transfer
Restrictions and Registration Rights Agreement;
(f) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any governmental agency
or body or any court is required to be obtained or made by St. Xxxx or any of
its subsidiaries for the consummation of the Transaction and the transactions
contemplated by this Agreement, the Units Underwriting Agreement, the
Jurisdiction Agreements and the Filed Agreements, except (i) such as have been
obtained or made under the Insurance Laws of the State of Maryland, Bermuda and
Ireland and (ii) such consents, approvals, authorizations, registrations or
qualifications the failure of which to obtain or make would not, individually or
in the aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of St. Xxxx and its
subsidiaries, taken as a whole, or of the Business;
(g) The execution, delivery and performance of each of the Filed
Agreements by St. Xxxx or any of its subsidiaries party thereto and the
consummation of the Transaction and the transactions therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a right of
termination under (i) the certificate of incorporation or bylaws or other
organizational documents of St. Xxxx or any of its subsidiaries, (ii) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which St.
11
Xxxx or any of its subsidiaries is a party or by which St. Xxxx or any of its
subsidiaries is bound or to which any of the properties or assets of St. Xxxx or
its subsidiaries is subject, or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
St. Xxxx, any of its subsidiaries, or any of their properties, except, in the
case of clause (ii) or (iii), as would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of St. Xxxx and its subsidiaries,
taken as a whole, or of the Business;
(h) The historical financial statements and schedules of Predecessor
included in the Prospectus and the Registration Statement present fairly in all
material respects the underwriting results of Predecessor as of the dates and
for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein);
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which St. Xxxx or any of its subsidiaries in
respect of the Business is a party or of which any property of St. Xxxx or any
of its subsidiaries in respect of the Business is the subject which, if
determined adversely to St. Xxxx or any of its subsidiaries in respect of the
Business, would individually or in the aggregate have a material adverse effect
on the consolidated financial position, shareholders' equity or results of
operations of St. Xxxx and its subsidiaries, taken as a whole, or of the
Business; and to St. Paul's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(j) St. Xxxx and its subsidiaries in respect of the Business has not
sustained since December 31, 2001, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
since December 31, 2001, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management or results of operations of St. Xxxx or any of its
subsidiaries in respect of the Business, otherwise than as set forth or
contemplated in the Prospectus;
(k) Under the Common Shares Jurisdiction Agreement, St. Xxxx has validly
and irrevocably submitted to the non-exclusive jurisdiction of any New York
Court with respect to suits, actions or proceedings arising out of or in
connection with violations of United States federal securities laws relating to
offers and sales of the Shares and has validly and irrevocably waived, to the
fullest extent permitted by law, any objections that it may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought in
any New York Court based on or arising under this Agreement or any claims that
any such suit, action or proceeding brought in any New York Court has been
brought in an inconvenient forum; and
(l) KPMG, LLP, who have certified certain financial statements of St.
Xxxx, its subsidiaries and the Business, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder.
3. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price per share of $................, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto and (b)
in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as
12
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in clause
(a) of this Section 3, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction, the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 4,506,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering sales of
shares in excess of the number of Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 5
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
4. (a) Upon the authorization by you of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for
sale upon the terms and conditions set forth in the Prospectus.
(b) Each Underwriter agrees that it will not offer, sell or deliver any of
the Shares in any jurisdiction outside the United States except under
circumstances that will result in compliance by the Company and the
several Underwriters with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase
and resale of the Shares in such jurisdictions. Each Underwriter
understands that no action has been taken to permit a public offering in
any jurisdiction outside the United States where action would be required
for such purpose. Each Underwriter agrees not to cause any advertisement
of the Shares to be published in any newspaper or periodical or posted in
any public place and not to issue any circular relating to the Shares,
except in any case with the Lead Representatives' express written consent
and then only at its own expense.
(c) Each Underwriter represents, warrants and agrees that: (i) it has not
offered or sold and, prior to the expiry of a period of six months from
the closing of the offering of the Common Shares, will not offer or sell
any Common Shares to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it has
only communicated or caused to be communicated and will only communicate
or cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any Common Shares in circumstances in which
section 21(1) of the FSMA does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Common Shares in, from
or otherwise involving the United Kingdom.
13
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as the Lead Representatives may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by or
on behalf of the Company to the Lead Representatives, through the
facilities of The Depository Trust Company ("DTC"), for the account of
such Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same-day) funds
to the account specified by the Company to the Lead Representatives at
least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the
Firm Shares, 9:30 a.m., New York City time, on ............., 2002 or such
other time and date as the Lead Representatives and the Company may agree
upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New
York time, on the date specified by the Lead Representatives in the
written notice given by the Lead Representatives of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
the Lead Representatives and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery," such time and date for delivery of the Optional Shares,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date for delivery is herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 9 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 9 hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 5, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
to advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
14
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or Prospectus or suspending any such qualification, promptly to
use its reasonable best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply in
all material respects with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction or become subject to taxation in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Shares and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
period to amend or supplement the Prospectus in order to comply with the
Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written
and electronic copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales
of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written
and electronic copies as you may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any Shares or Units or any securities of the Company that are
substantially similar to the Shares or Units, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Common Shares or any such substantially
similar securities (other than (i) the St. Xxxx Private Offering
Securities and the RenRe Private Offering Securities, (ii) the Units
issued pursuant to the Units Underwriting Agreement, and (iii) securities
issued pursuant to any director or
15
employee stock option or benefit plans existing on, or upon the conversion
or exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement), without the prior written consent of the Lead
Representatives;
(f) To make available to its shareholders all information as
required by the Exchange Act;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to
deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional non-confidential information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on the Exchange;
(j) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act;
(l) Prior to or contemporaneously with the First Time of Delivery,
use commercially reasonable efforts to consummate the Transaction; and
(m) Immediately upon receipt of payment for the Firm Shares, the
Company shall cause all of the Common Shares held by Codan Trust Company
Limited to be repurchased and cancelled.
7. St. Xxxx agrees with each of the Underwriters that, during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, it will not offer, sell, contract to sell or
otherwise dispose of any Common Shares or any securities of the Company that are
substantially similar to the Common Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive, Common Shares or any such substantially similar securities,
without the prior written consent of the Lead Representatives.
8. The Company and St. Xxxx covenant and agree with the several
Underwriters that the Company and St. Xxxx will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and
16
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 6(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey; (iv) all
fees and expenses in connection with listing the Shares on the Exchange; (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 10 and 13 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and St. Xxxx herein are, at and as of such Time of Delivery, true
and correct, the condition that the Company and St. Xxxx shall have performed
all of their respective obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 6(a) hereof; if the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by
10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions
(a draft of each such opinion is attached as Annex II(a) hereto), dated
such Time of Delivery in a form or forms acceptable to you, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to render such opinion or opinions;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Company, shall have furnished
to you their written opinion or opinions (a draft of such opinion or
opinions are attached as Annex II(b) hereto), dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) Assuming each of this Agreement, the Units Underwriting
Agreement and the Jurisdiction Agreements has been duly authorized,
executed and delivered by the Company under Bermuda law, each of this
Agreement, the Units Underwriting Agreement and the Jurisdiction
Agreements has been duly executed and delivered by the Company.
17
(ii) Each of this Agreement, the Units Underwriting Agreement
and the Jurisdiction Agreements has been duly authorized, executed
and delivered by St. Xxxx.
(iii) Platinum US has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Maryland,
with corporate power and authority to conduct its business as
described in the Prospectus.
(iv) All of the outstanding shares of Platinum US's common stock
have been duly authorized and validly issued and are fully paid and
non-assessable. Platinum Finance is the registered owner of 50,000
shares of Platinum US's common stock, and such shares constitute all
of the outstanding shares of Platinum US's capital stock.
(v) To such counsel's knowledge, the only agreements in which the
Company has agreed to register any securities are the Registration
Rights Agreement and the Transfer Restrictions and Registration Rights
Agreement.
(vi) Assuming that each of the Formation and Separation Agreement
and the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company under Bermuda law, the Formation
and Separation Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company, and
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles, except that such counsel expresses no
opinion as to the enforceability of any indemnification or
contribution provisions relating to violations under any federal or
state securities laws contained in the Formation and Separation
Agreement and the Registration Rights Agreement.
(vii) The Formation and Separation Agreement and the Registration
Rights Agreement have been duly authorized, executed and delivered by
St. Xxxx and constitute valid and legally binding obligations of St.
Xxxx enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, except that such
counsel expresses no opinion as to the enforceability of any
indemnification or contribution provisions relating to violations
under any federal or state securities laws contained in the Formation
and Separation Agreement and the Registration Rights Agreement.
(viii) Assuming that each of the Filed Agreements (other than the
Formation and Separation Agreement and the Registration Rights
Agreement) that is governed by New York law and to which the Company
is a party has been duly authorized, executed and delivered by the
Company under Bermuda law, each of such agreements has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(ix) Each of the Filed Agreements (other than the Formation and
Separation Agreement and the Registration Rights Agreement) that is
governed by New York law and to which St. Xxxx is a party, has been
duly authorized, executed and delivered by St. Xxxx and constitutes a
valid and legally binding obligation of St. Xxxx enforceable in
18
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(x) Platinum Finance has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to conduct its business as
described in the Prospectus.
(xi) All of the outstanding shares of Platinum Finance's common
stock have been duly authorized and validly issued and are fully paid
and non-assessable. Platinum Ireland is the registered owner of 100
shares of Platinum Finance's common stock, and such shares constitute
all of the outstanding shares of Platinum Finance's capital stock.
(xii) Each of the Filed Agreements that is governed by New York
law and to which Platinum Finance is a party has been duly authorized,
executed and delivered by Platinum Finance and constitutes a valid and
legally binding obligation of Platinum Finance enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(xiii) Each of the Units Underwriting Agreement and the Units
Jurisdiction Agreement has been duly authorized, executed and
delivered by Platinum Finance.
(xiv) Each of the Filed Agreements that is governed by New York
law and to which Platinum US is a party has been duly authorized,
executed and delivered by Platinum US and constitutes a valid and
legally binding obligation of Platinum US enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, except that such counsel expresses no opinion as to the
enforceability of any leases, sub-leases or assignments of leases or
other agreements relating to real property constituting a Filed
Agreement.
(xv) Each of the Filed Agreements that is governed by New York law
and to which St. Xxxx Fire and Marine Insurance Company, a Minnesota
corporation and a wholly owned subsidiary of St. Xxxx ("Fire and
Marine"), is a party, has been duly authorized, executed and delivered
by Fire and Marine and constitutes a valid and legally binding
obligation of Fire and Marine enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(xvi) No consent, approval, authorization or order of, or
qualification with, any United States federal or New York State
governmental body or agency is required for the issue and sale of the
Shares, the St. Xxxx Private Offering Securities, the RenRe Private
Offering Securities or the Units, except such as may be required by
the Act, the Exchange Act, the Trust Indenture Act and the securities
or Blue Sky laws of the State of New York.
(xvii) (a) The issuance by the Company of the Common Shares and
the Units, (b) the sale by the Company of the Common Shares to you
pursuant to the Underwriting Agreement and of the Units to the Units
Underwriters pursuant to the Units Underwriting Agreement, (c) the
performance by the Company of its obligations under the Underwriting
Agreement and the Units Underwriting Agreement, (d) the issuance by
the Company of
19
the St. Xxxx Private Offering Securities to St. Xxxx and (e) the
issuance by the Company of the RenRe Private Offering Securities to
RenRe will not (i) result in a default under or a breach of any of the
Filed Agreements that is governed by New York law and to which the
Company is a party, or (ii) violate any Federal law of the United
States or law of the State of New York or the Delaware Corporation Law
applicable to the Company; provided, however, that for purposes of
this paragraph (xvii), such counsel may express no opinion with
respect to Federal or state securities laws, other antifraud laws or
fraudulent transfer laws; and provided, further, that insofar as
performance by the Company of its obligations under such agreements is
concerned, such counsel expresses no opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(xviii) The execution, delivery and performance by Platinum US of
its obligations under each of the Filed Agreements to which it is a
party will not (a) violate Platinum US's certificate of incorporation
or by-laws, (b) result in a default under or breach of any of the
Filed Agreements to which it is a party, or (c) violate any Federal
law of the United States or law of the State of New York applicable to
Platinum US; provided, however, that, for the purposes of this
paragraph (xviii), such counsel expresses no opinion with respect to
Federal or state securities laws, other antifraud laws or fraudulent
transfer laws; provided, further, that insofar as performance by
Platinum US of its obligations under such agreements is concerned,
such counsel expresses no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights.
(xix) (a) The issuance by Platinum Finance of the Senior Notes in
accordance with the Indenture and the First Supplemental Indenture
relating to the Senior Notes, (b) the sale by Platinum Finance of the
Senior Notes to the Units Underwriters pursuant to the Units
Underwriting Agreement and (iii) the performance by Platinum Finance
of its obligations under the Units Underwriting Agreement will not (i)
violate Platinum Finance's certificate of incorporation or by-laws,
(ii) result in a default under or breach of any of the Filed
Agreements that is governed by New York law and to which it is a
party, or (iii) violate any Federal law of the United States or law of
the State of New York or the Delaware General Corporation Law
applicable to Platinum Finance; provided, however, that, for the
purposes of this paragraph (xix), such counsel expresses no opinion
with respect to Federal or state securities laws, other antifraud laws
or fraudulent transfer laws; provided, further, that insofar as
performance by Platinum Finance of its obligations under such
agreements is concerned, such counsel expresses no opinion as to
bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights.
(xx) The execution, delivery and performance by St. Xxxx of its
obligations under the Underwriting Agreement and the Units
Underwriting Agreement will not violate any Federal law of the United
States or law of the State of New York or the Delaware General
Corporation Law applicable to St. Xxxx; provided, however, that, for
the purposes of this paragraph (xx), such counsel expresses no opinion
with respect to Federal or state securities laws, other antifraud laws
or fraudulent transfer laws; and provided, further, that insofar as
performance by St. Xxxx of its obligations under such agreements is
concerned, we express no opinion as to bankruptcy, insolvency,
reorganization,
20
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
(xxi) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated October ___, 2002, approving
or acknowledging that no regulatory approval is required for, inter
alia, the transactions contemplated by the Filed Agreements to which
the Company or Platinum US is a party, and the issuance to Platinum US
by the New York State Insurance Department of a license to engage in
the reinsurance business, all statutory and regulatory consents,
authorizations, approvals and filings required to be obtained or made
by or on behalf of the Company and Platinum US under the insurance
laws of the State of Maryland and the insurance laws of the State of
New York to consummate the transactions contemplated by the Filed
Agreements to which the Company or Platinum US is a party, and in the
case of Platinum US, to conduct its business as described in the
Prospectus, have been obtained or made.
(xxii) Under the laws of the State of New York relating to
submission to jurisdiction, pursuant to the Common Shares Jurisdiction
Agreement, (i) each of the Company and St. Xxxx has validly and
irrevocably submitted to the non-exclusive jurisdiction of any New
York Court, and has validly and irrevocably waived any objection to
the venue of a proceeding in any such court, and (ii) the Company has
validly and irrevocably appointed CT Corporation System as its
authorized agent for the purpose and to the extent described in the
Common Shares Jurisdiction Agreement, and service of process effected
on such agent in the manner set forth therein will be effective to
confer valid personal jurisdiction over the Company, assuming, in each
of clauses (i) and (ii), (a) with respect to the Company only, the
validity of such actions under Bermuda law and (b) the due
authorization, execution and delivery of this Agreement by or on
behalf of the Underwriters.
(xxiii) Registration of the Company under the Investment
Company Act, is not required.
(xxiv) No registration of the Private Offering Securties under the
Act is required for the issuance and delivery of the Private Offering
Securities in the manner contemplated by the Formation and Separation
Agreement and the RenRe Investment Agreement, respectively; provided,
however, that such counsel may express no opinion as to when and under
what circumstances any Private Offering Securties may be reoffered or
resold.
(xxv) The statements made under the captions "Business-Our
Business-U.S. Regulation-U.S. Insurance Holding Company Regulation of
Platinum Holdings, Platinum Ireland and Platinum Finance" and "-- --
--State Insurance Regulation of Platinum US" in the Prospectus insofar
as they relate to summaries of the provisions of the insurance laws of
the State of Maryland therein described, are accurate, fair and
complete.
Such counsel shall also furnish to you its written opinion that the
Registration Statement, as of its effective date, and the Prospectus, as
of the date of the Prospectus, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder. Further,
nothing that came to such counsel's attention in the course of its review
has caused such counsel to believe that the Registration Statement, as of
its effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the
21
date of the Prospectus, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Also, nothing that has come to such counsel's
attention has caused such counsel to believe that the Prospectus, as of
the date and time of delivery of this letter, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel
shall state that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those made in the first and second
paragraphs set forth under the caption "St. Xxxx Investment, RenaissanceRe
Investment and Principal Shareholders" and except for those made under the
captions "Certain Relationships and Related Transactions," "Certain Tax
Considerations-Taxation of the Company, Platinum US, Platinum UK,
Platinum Bermuda and Platinum Ireland--United States Federal Income
Taxation," "Certain Tax Considerations-Taxation of Shareholders--United
States Taxation of U.S. and Non-U.S. Shareholders" and "Underwriting" in
the Prospectus insofar as they relate to provisions of documents or of
United States Federal tax law therein described.
Such counsel may state that its opinions are solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(d) Xxxxxxx, Xxxx & Xxxxxxx, outside Bermuda counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(c) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Each of the Company and Platinum Bermuda is a limited
liability company duly incorporated and existing under the laws of
Bermuda in good standing ("good standing" meaning solely that it has
not failed to make any filing with any Bermuda governmental authority
or to pay any Bermuda government fee or tax which would make it liable
to be struck off the Register of Companies and thereby cease to exist
under the laws of Bermuda).
(ii) Each of the Company and Platinum Bermuda has the power and
capacity to acquire by purchase or otherwise and hold, sell, dispose
of and deal in real property situated outside Bermuda and in personal
property of all kinds wheresoever situated.
(iii) The Company has the necessary corporate power and authority,
pursuant to its Memorandum of Association, to carry on its business as
described in the Registration Statement. Platinum Bermuda has the
necessary corporate power and authority, pursuant to its Memorandum of
Association, to carry on its business as described in the Registration
Statement, including its insurance and reinsurance business as
described in the Registration Statement, and was registered as a Class
4 insurer in terms of the Insurance Xxx 0000 effective [ ] 2002 and
subject to Platinum Bermuda being capitalized with US $[ ] is
authorized to carry on business in that capacity as described in the
Registration Statement subject to the provisions of the Insurance Act,
1978 and the regulations promulgated thereunder, and the conditions
set out in Schedule I to the Certificate of Registration, issued by
the Registrar of Companies to Platinum Bermuda, dated [ ] 2002. No
further approvals of the insurance regulatory, governmental or
22
administrative body or authority of Bermuda are required for the
conduct of such business by each of the Company and Platinum Bermuda
respectively.
(iv) Each of the Company and Platinum Bermuda has the necessary
corporate power and authority to enter into and perform its
obligations under the Documents (as defined in Annex II(c) hereto).
The execution and delivery of the Documents by the Company and
Platinum Bermuda and the performance by the Company and Platinum
Bermuda of their respective obligations thereunder including, but not
limited to, in the case of the Company, the issue and sale of the
Shares, the St. Xxxx Private Offering Securities and the RenRe Private
Offering Securities and the Units, and the performance of the
transactions contemplated by the Documents and the Registration
Statement, will not violate the memorandum of association or bye-laws
of the Company or of Platinum Bermuda nor any applicable law,
regulation, order or decree in Bermuda.
(v) Each of the Company and Platinum Bermuda has taken all
corporate action required to authorize its execution, delivery and
performance of the Documents. The Documents have been duly executed
and delivered by or on behalf of the Company or Platinum Bermuda, as
applicable, and constitute the valid, binding and enforceable
obligations of the Company or Platinum Bermuda, as applicable, in
accordance with the terms thereof.
(vi) The Company has taken all corporate action required to duly
authorise its execution and delivery to the SEC of the Registration
Statement.
(vii) No order, consent, approval, licence, authorisation or
validation of, registration with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof is
required to authorise or is required in connection with the execution,
delivery, performance and enforcement of the Documents, except such as
have been duly obtained in accordance with Bermuda law.
(viii)No order, consent, approval, license, authorization or
validation of, registration with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof is
required to authorize or is required in connection with the valid
issue and sale of the Shares, the St. Xxxx Private Offering
Securities, the RenRe Private Offering Securities and the Units,
except such as have been duly obtained in accordance with Bermuda law.
(ix) It is not necessary or desirable to ensure the enforceability
in Bermuda of the Documents that they be registered in any register
kept by, or filed with, any governmental authority or regulatory body
in Bermuda.
(x) The Company has an authorized share capitalization as
described in the Registration Statement. Upon payment in cash or in
kind by the Underwriters, the Units Underwriters, St. Xxxx and RenRe
for the Shares, the Units, the St. Xxxx Private Offering Securities,
and the RenRe Private Offering Securities, respectively, in accordance
with this Agreement, the Units Underwriting Agreement, the Formation
and Separation Agreement and the RenRe Investment Agreement
respectively, the Shares, Units, the St. Xxxx Private Offering
Securities and the RenRe Private Offering Securities will be duly
authorized and validly issued, fully paid and nonassessable
("nonassessable" meaning that no further sums are required to be paid
by the holders thereof in connection with the issue thereof).
23
(xi) Based solely on such counsel's review of the bye-laws of the
Company and the Register of Members of the Company, and except as
disclosed in the Prospectus under the captions "Certain Relationships
and Related Transactions - Agreements between Platinum and St. Xxxx -
Formation and Separation Agreement - Pre-Emptive Rights," "Certain
Relationships and Related Transactions - Agreements between Platinum
and St. Xxxx - St. Xxxx Option Agreement," "Certain Relationships and
Related Transactions - The RenaissanceRe Investment - Transfer
Restrictions, Registration Rights and Standstill Agreement -
Pre-Emptive Rights," "Certain Relationships and Related Transactions -
The Renaissance Investment - RenaissanceRe Option Agreement."
"Description of the Equity Security Units," "Management" and
"Underwriting," the Company has no (i) outstanding securities or other
obligations convertible into or exchangeable or exercisable for shares
in the authorized share capital of the Company, or (ii) outstanding
rights to subscribe for or purchase, or options for the purchase of,
or agreement providing for the issuance (contingent or otherwise) of,
or calls, commitments or claims of any character relating to, any
shares in the authorized share capital of the Company, or (iii)
securities convertible into or exchangeable or exercisable for any
shares in the authorized share capital of the Company, or (iv)
obligation (in the nature of the existence of a pre-emptive or similar
right) to offer the shares in the authorized share capital of the
Company to any shareholder of the Company prior to the sale of the
Shares, the St. Xxxx Private Offering Securities, the RenRe Private
Offering Securities or the Units.
(xii) Subject to the requirement that shares of the Company are
listed on the New York Stock Exchange or on another appointed stock
exchange (as defined in section 2(1) of the Companies Xxx 0000, the
Company has received permission under the Exchange Control Xxx 0000
(and Regulations made thereunder) from the Bermuda Monetary Authority
for: (i) the issue and subsequent free transferability of the
Company's shares, up to the amount of its authorised capital from time
to time, to and among persons non-resident of Bermuda for exchange
control purposes; (ii) the issue and subsequent free transferability
of up to 20% of the Company's shares in issue from time to time to
persons resident in Bermuda for exchange control purposes; and (iii)
the issue of options, warrants, depository receipts, rights, loan
notes and other securities of the Company and the subsequent free
transferability thereof.
(xiii)The Shares, the St. Xxxx Private Offering Securities, the
RenRe Private Offering Securities and the Issuable Common Shares
conform to the description of the Company's Common Shares found in the
Prospectus under the caption "Description of Our Common Shares".
(xiv) The issue and sale of the Shares, the St. Xxxx Private
Offering Securities, the RenRe Private Offering Securities and the
Units by the Company pursuant to the Documents will not constitute
unlawful financial assistance by the Company under Bermuda law.
(xv) The form of certificates for the Shares and the St. Xxxx
Investment Shares conforms to the requirements of Bermuda law.
(xvi) Based solely on such counsel's review of a certified copy of
the Register of Members of Platinum Bermuda dated [ ] 2002, all of the
issued common shares of Platinum Bermuda have been duly authorised and
validly issued, fully paid and non-
24
assessable (as such term is defined above) and are registered in the
name of the Company.
(xvii)Based solely on such counsel's review of a certified copy of
the Register of Members of the Company dated [ ] 2002, all of the
issued Common Shares of the Company have been duly authorised and
validly issued, fully paid and non-assessable (as such term is defined
above) and are registered in the name of Codan Trust Company Limited
(the "Purpose Trust").
(xviii) The Company has a contractual right to and has taken all
necessary corporate action other than the payment of the repurchase
price of US$120,000 to effect the repurchase of the Common Shares held
by the Purpose Trust and upon the receipt of the payment of the
repurchase price of US$120,000 by the Purpose Trust, the Company shall
be entitled, without any further action by the Company or the Purpose
Trust, to cancel the Common Shares held by the Purpose Trust by making
the appropriate entry in the Register of Members of the Company, and
thereafter the Purpose Trust will not have any rights as a member of
the Company.
(xix) The Documents will not be subject to ad valorem stamp duty
in Bermuda and no registration, documentary, recording, transfer or
other similar tax, fee or charge is payable in Bermuda in connection
with the execution, delivery, filing, registration or performance of
the Documents or the issue and delivery of the Shares, the Units, the
St. Xxxx Private Offering Securities and the RenRe Private Offering
Securities to the Underwriters, the Units Underwriter, St. Xxxx and
RenRe respectively, pursuant to this Agreement, the Units Underwriting
Agreement, the Formation and Separation Agreement and the RenRe
Investment Agreement, respectively.
(xx) Under current Bermuda law there is no Bermuda income tax,
withholding tax, capital gains tax, capital transfer tax, estate or
inheritance tax, payable by investors who are not resident in Bermuda
(or are deemed not to be resident in Bermuda for Bermuda exchange
purposes).
(xxi) The Company and Platinum Bermuda have received from the
Bermuda Minister of Finance an assurance under The Exempted
Undertakings Tax Protection Act 1966 of Bermuda to the effect that in
the event Bermuda enacts any legislation imposing tax computed on
profits or income, or computed on any capital asset, gain or
appreciation, or any tax in the nature of estate duty or inheritance
tax, then such tax will not apply to the Company and Platinum Bermuda
or to any of their operations or their shares, debentures or other
obligations, until March 28, 2016. This assurance will not prevent the
application of any tax or duty on persons ordinarily resident in
Bermuda or the application of any tax payable in accordance with the
provisions of The Land Tax Act 1967 of Bermuda or otherwise payable in
relation to any property leased to the Company or Platinum Bermuda.
(xxii)The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Pro Forma Financial Condition
and Underwriting Results - Liquidity and Capital Resources -
Restrictions on Dividend Payments from our Operating Subsidiaries -
Xxxxxxx," "Xxxxxxxx - Xxxxxxxxxx - Xxxxxxx," "Description of Our
Common Shares," "Certain Tax Considerations - Taxation of the Company,
Platinum US, Platinum UK, Platinum Bermuda and Platinum Ireland -
Bermuda," "Certain Tax Considerations -Taxation of Shareholders -
Bermuda Taxation," the fourth paragraph set
25
forth under the caption "Risk Factors - Risks Related to Our Common
Shares - There are limitations on the ownership, transfers and voting
rights of our Common Shares," and, the first and second paragraphs
under "Item 14. Indemnification of Directors and Officers" in Part II
of the Registration Statement insofar as such statements constitute
summaries of the legal matters referred to therein, fairly present the
information called for with respect to such legal matters and
documents and fairly summarize the matters referred to therein.
(xxiii) The Company can xxx and be sued in its own name under
the laws of Bermuda.
(xxiv)The choice of the Foreign Laws (as defined in Annex II(c)
hereto) as the governing law of the Documents is a valid choice of law
and would be recognized and given effect to in any action brought
before a court of competent jurisdiction in Bermuda, except for those
laws (i) which such court considers to be procedural in nature, (ii)
which are revenue or penal laws or (iii) the application of which
would be inconsistent with public policy, as such term is interpreted
under the laws of Bermuda. The submission in the Documents to the
non-exclusive jurisdiction of the Foreign Courts (as defined in Annex
II(c) hereto) is valid and binding upon the Company.
(xxv) The courts of Bermuda would recognise as a valid judgment, a
final and conclusive judgment in personam obtained in the Foreign
Courts against the Company based upon the Documents under which a sum
of money is payable (other than a sum of money payable in respect of
multiple damages, taxes or other charges of a like nature or in
respect of a fine or other penalty) and would give a judgment based
thereon provided that (a) such courts had proper jurisdiction over the
parties subject to such judgment, (b) such courts did not contravene
the rules of natural justice of Bermuda, (c) such judgment was not
obtained by fraud, (d) the enforcement of the judgment would not be
contrary to the public policy of Bermuda, (e) no new admissible
evidence relevant to the action is submitted prior to the rendering of
the judgment by the courts of Bermuda and (f) there is due compliance
in seeking validation of such judgment with the correct procedures
under the laws of Bermuda.
(xxvi)Under Section 16 of the Companies Xxx 0000, the bye-laws of
the Company shall bind the Company and the members of the Company to
the same extent as if such bye-laws had been signed and sealed by each
such member, and contain covenants on the part of each such member to
observe all the provisions of the bye-laws of the Company, except, as
provided in Section 17 of the Companies Xxx 0000, no member of the
Company shall be bound by an alteration made in the bye-laws after the
date on which he became a member, if and so far as the alteration
requires him to take or subscribe for more shares than the number held
by him at the date on which the alteration is made, or in any way
increases his liability as at that date to contribute to the share
capital of, or otherwise to pay money to, the Company (unless the
member agrees in writing, either before or after the alteration is
made, to be bound thereby).
(xxvii) Based solely on a search of the Register of Charges,
maintained by the Registrar of Companies pursuant to Section 55 of the
Companies Xxx 0000, conducted at [ ] on [ ], there are no registered
charges registered against the Company or Platinum Bermuda.
26
(xxviii) Based solely upon a search of the Cause Book of the
Supreme Court of Bermuda conducted at [ ] on [ ], there are no
judgments, nor legal or governmental proceedings pending in Bermuda to
which either of the Company or Platinum Bermuda is a party.
(xxix)Neither the Underwriters, the Units Underwriters, St. Xxxx
nor RenRe will be deemed to be resident, domiciled or carrying on
business in Bermuda by reason only of the execution, performance and
enforcement of the Documents.
(xxx) Each of the Underwriters, the Units Underwriters, St. Xxxx
and RenRe has standing to bring an action or proceedings before the
appropriate courts in Bermuda for the enforcement of the Documents. It
is not necessary or advisable in order for any Underwriter, Units
Underwriter, St. Xxxx or RenRe to enforce its rights under the
Documents, including the exercise of remedies thereunder, that it be
licensed, qualified or otherwise entitled to carry on business in
Bermuda.
(xxxi)The Company and Platinum Bermuda have been designated as
non-resident for the purposes of the Exchange Control Act, 1972 and as
such are free to acquire, hold and sell foreign currency and
securities. No currency exchange control laws or withholding taxes of
Bermuda apply to the payment of dividends (a) on the Common Shares by
the Company or (b) by Platinum Bermuda to the Company, except in each
case as described in or contemplated by the Registration Statement;
and Platinum Bermuda is not currently prohibited by any Bermuda law or
governmental authority, directly or indirectly, from paying any
dividends to the Company, from making any other distributions on its
capital stock, from repaying to the Company any loans or advances to
it from the Company or from transferring any of its property or assets
to the Company, except as summarized in the Registration Statement.
(xxxii) Neither the Company nor Platinum Bermuda is entitled to
any immunity under the laws of Bermuda, whether characterized as
sovereign immunity or otherwise, from any legal proceedings to enforce
the Documents in respect of itself or its property.
(xxxiii) The procedure for the service of process on the Company
through C.T. Corporation System in New York, New York, United States
of America, acting as agent for the Company, as set out in Section
1(bb) of this Agreement and in the Jurisdiction Agreements, would be
effective, in so far as Bermuda law is concerned, to constitute valid
service of the proceedings on the Company.
(e) Xxxxxxxxx & May, outside U.K. counsel for the Company, shall have
furnished to you their written opinion or opinions (a draft of such
opinion or opinions attached as Annex II(d) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each of Platinum UK and St. Xxxx Reinsurance Company Limited,
a wholly-owned subsidiary of St. Xxxx ("St. Xxxx Re UK"), is a validly
existing limited liability company duly incorporated under the laws of
England and registered in England and has power and authority under
its Memorandum of Association to own leasehold property and conduct
its business as described in the Prospectus. St. Xxxx Management
Limited, a wholly-owned subsidiary of St. Xxxx ("SPML") is a validly
existing limited liability company duly incorporated under the laws of
England and registered in England.
27
(ii) Platinum Ireland is the duly registered holder of two
ordinary shares of one pound each in Platinum UK and such shares are
all of the issued shares of Platinum UK and all such shares have been
duly and validly authorized and issued.
(iii) Provided that each of the Underwriters complies with its
obligations under Sections 4(b) and 4(c) of this Agreement
(notwithstanding Section 9 of this Agreement), the issue and sale of
the Shares being delivered at each Time of Delivery in the manner
described in the Prospectus and of the St. Xxxx Investment Shares and
the RenRe Investment Shares, the grant of the St. Xxxx Investment
Option and the RenRe Investment Option, the issue and sale of the
Units pursuant to the Units Underwriting Agreement and the compliance
by the Company, Platinum Finance and St. Xxxx with all of the
provisions of this Agreement and the Units Underwriting Agreement, as
applicable, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in any violation
of the provisions of (i) the Memorandum or Articles of Association of
Platinum UK, St. Xxxx Re UK or SPML, or (ii) any statute or statutory
instrument of the United Kingdom, or (iii) any rule or regulation of
the Financial Services Authority set out in the Financial Services
Authority Handbook.
(iv) Each of the UK Agreements (as defined in Annex II(d) hereto)
to which Platinum UK is a party has been duly authorized and executed
by Platinum UK, and constitutes a valid and binding agreement of
Platinum UK enforceable against Platinum UK.
(v) Each of the UK Agreements to which St. Xxxx Re UK is a
party has been duly authorized and executed by St. Xxxx Re UK, and
constitutes a valid and binding agreement of St. Xxxx Re UK
enforceable against St. Xxxx Re UK.
(vi) Each of the UK Agreements to which SPML is a party has been
duly authorized and executed by SPML, and constitutes a valid and
binding agreement of SPML enforceable against SPML.
(vii) Assuming that each of the UK Agreements to which a person
other than Platinum UK, St. Xxxx Re UK or SPML is a party has been
duly authorized and executed by such person, each such UK Agreement
constitutes a valid and binding agreement of such person enforceable
against such person.
(viii)Except as provided in the Prospectus, neither Platinum UK,
St. Xxxx Re UK nor SPML is required to obtain any consent, approval,
authorization or order of, or make any filing with, the Financial
Services Authority or any other regulatory body in the United Kingdom
in order to perform their respective obligations under the UK
Agreements and, in the case of Platinum UK and except as provided in
the Prospectus, to conduct its business as described in the
Prospectus.
(ix) The execution, delivery and performance by Platinum UK of
each of the UK Agreements to which Platinum UK is a party and the
consummation of the transactions therein contemplated will not
conflict with or result in any violation of (i) the Memorandum or
Articles of Association of Platinum UK, or (ii) any statute or
statutory instrument of the United Kingdom, or (iii) any rule or
regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
(x) The execution, delivery and performance by St. Xxxx Re UK of
each of the UK Agreements to which St. Xxxx Re UK is a party and the
consummation of the
28
transactions therein contemplated will not conflict with or result in
any violation of (i) the Memorandum or Articles of Association of St.
Xxxx Re UK, or (ii) any statute or statutory instrument of the United
Kingdom, or (iii) any rule or regulation of the Financial Services
Authority set out in the Financial Services Authority Handbook.
(xi) The execution, delivery and performance by SPML of each of
the UK Agreements to which SPML is a party and the consummation of the
transactions therein contemplated will not conflict with or result in
any violation of (i) the Memorandum or Articles of Association of
SPML, or (ii) any statute or statutory instrument of the United
Kingdom, or (iii) any rule or regulation of the Financial Services
Authority set out in the Financial Services Authority Handbook.
(xii) The statements set forth in the Prospectus and listed in
Schedule 2 to Annex II(d) hereof, insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate and fair.
Such counsel shall also furnish to you its written opinion that the
discussions set forth under each of the headings "The United Kingdom" and
"United Kingdom Taxation" in the section entitled "Certain Tax
Considerations" in the Prospectus, insofar as they relate to United
Kingdom tax law and Inland Revenue practice, are a fair summary of the
material United Kingdom tax laws and Inland Revenue practices referred to
therein.
(f) A&L Goodbody, outside Irish counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(e) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Platinum Ireland has been duly incorporated under the laws of
Ireland. Based only on searches carried out in the Irish Companies
Office and the Central Office of the High Court on [ ], 2002 Platinum
Ireland is validly existing under the laws of Ireland and no steps
have been taken or are being taken to appoint a receiver, examiner or
liquidator over it or to wind it up and Platinum Ireland has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact its business in Ireland.
(ii) All of the issued shares of Platinum Ireland have been duly
and validly authorized and issued, are fully paid and are not subject
to calls for any additional payments. Ten thousand (10,000) shares
have been issued, nine thousand, nine hundred and ninety nine (9,999)
registered in the name of the Company and one registered in the name
of Platinum Bermuda. To the best of such counsel's knowledge, based on
a Certificate of Xxxxxx X. Xxxxxx, all the issued shares are free and
clear of all liens, encumbrances, equities or claims.
(iii) Based only on the Certificate of Xxxxxx X. Xxxxxx and
searches carried out in the Central Office of the High Court, such
counsel does not know of any legal or governmental proceedings pending
or threatened in Ireland to which Platinum Ireland is a party or to
which any of the properties of Platinum Ireland is subject.
(iv) Based on the Certificate of Xxxxxx X. Xxxxxx, there is no
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which Platinum Ireland is a party or by which
Platinum Ireland is bound or to which any of the property or assets of
Platinum Ireland is subject, nor is such counsel actually aware of any
such agreement referred to in this paragraph.
29
(v) Based only on the Certificate of Xxxxxx X. Xxxxxx, Platinum
Ireland is not in violation of its Certificate of Incorporation or its
Memorandum or Articles of Association.
(vi) Based only on the description of the Transaction in the
Prospectus, Platinum Ireland is not required under Irish law to obtain
any consent, approval, authorization or order of, or make any filling
with, any governmental agency or body or any court in Ireland to
conduct its business, pay any dividends or consummate the Transaction
and based only on the description thereof in the Prospectus, the
transactions contemplated by the Filed Agreements.
(vii) Based only on the description of the Transaction in the
Prospectus, the consummation of the Transaction and based only on the
description thereof in the Prospectus, the transactions contemplated
in the Filed Agreements will not result in any violation of the
Certificate of Incorporation or the Memorandum and Articles of
Association of Platinum Ireland, any Irish statute, any rule or
regulation of any governmental agency or body of Ireland having
general application, or based only on the Certificate of Xxxxxx X.
Xxxxxx and on searches in the Central Office of the High Court on [ ],
any order of any court of Ireland.
(viii)Based only on the descriptions in the Prospectus and the
Units Prospectus, the issue and sale of the Shares, the St. Xxxx
Private Offering Securities and the RenRe Private Offering Securities
being delivered at such Time of Delivery by the Company, the issue and
sale of the Units pursuant to the Units Underwriting Agreement and the
compliance by the Company, Platinum Finance and St. Xxxx with all of
the provisions of this Agreement and the Units Underwriting Agreement,
as applicable, and the consummation of the transactions herein and
therein contemplated will not result in any violation of the
Certificate of Incorporation or the Memorandum and Articles of
Association of Platinum Ireland, any Irish statute, any rule or
regulation of any governmental agency or body of Ireland having
general application or based only on the Certificate of Xxxxxx X.
Xxxxxx and on searches in the Central Office of the High Court on [ ],
2002, any order of any court of Ireland.
(ix) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Pro Forma Financial Condition
and Underwriting Results-Liquidity and Capital Resources-Restrictions
on Dividend Payments from our Operating Subsidiaries-Ireland,"
"Business-Regulation-Ireland Regulation" and "Certain Tax
Considerations-Taxation of the Company, Platinum US, Platinum UK,
Platinum Bermuda and Platinum Ireland-Ireland" insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the requirements of
Irish law with respect to such legal matters, documents and
proceedings and fairly summaries the matters referred to therein.
(x) Based only on the Certificate of Xxxxxx X. Xxxxxx, Platinum
Ireland has not received any notification from any insurance
regulatory authority or other governmental authority to the effect
that any authorization not already held by Platinum Ireland, approval,
order, consent, certificate, permit, registration or qualification is
needed to be obtained, to conduct its business as described in the
Prospectus or to pay any dividends.
(xi) Based only on the Certificate of Xxxxxx X. Xxxxxx and
searches carried out in the Irish Companies Office, Platinum Ireland
has filed all statutory financial returns, reports, documents and
other information required to be filed under Irish law and
30
Platinum Ireland maintains its books and registers required by the
Companies Acts 1963 to 2001 of Ireland in accordance with those Acts.
(g) Xxxxx X. Xxxxxxxx, Senior Vice President and Corporate Secretary
of St. Xxxx, shall have furnished to you his written opinion (a draft of
such opinion is attached as Annex II(f) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each of St. Xxxx and Fire and Marine has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Minnesota.
(ii) Fire and Marine has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction.
(iii) Each of this Agreement, the Units Underwriting Agreement
and the Jurisdiction Agreements has been duly authorized, executed
and delivered by St. Xxxx.
(iv) Assuming that each of the Filed Agreements that is governed
by a law other than Minnesota law or New York law and to which St.
Xxxx or Fire and Marine is a party has been duly executed and
delivered under the applicable law, each such Filed Agreement has been
duly authorized, executed and delivered by St. Xxxx or Fire and
Marine, as the case may be.
(v) Each of the Filed Agreements that is governed by New York
law and to which St. Xxxx is a party has been duly authorized,
executed and delivered by St. Xxxx.
(vi) Each of the Filed Agreements that is governed by Minnesota
law and to which Fire and Marine is a party has been duly authorized,
executed and delivered by Fire and Marine and constitutes a valid and
legally binding obligation of Fire and Marine enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(vii) Assuming that each of the Filed Agreements that is governed
by Minnesota law and to which Platinum US is a party has been duly
authorized, executed and delivered by Platinum US under the laws of
the State of Maryland, each such Filed Agreement has been duly
authorized, executed and delivered by Platinum US and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(viii)To such counsel's knowledge, there are no legal or
governmental proceedings pending to which St. Xxxx or Fire and Marine,
in each case in respect of the Business, is a party or of which the
Business is the subject, which, if determined adversely to St. Xxxx or
Fire and Marine, as the case may be, would individually or in the
aggregate (after giving effect to any applicable insurance,
reinsurance or reserves therefor) have a material adverse effect on
the consolidated financial position, shareholders' equity or results
of operations of Platinum and its subsidiaries taken as a
31
whole at the First Time of Delivery; and, to such counsel's knowledge,
no such proceedings are threatened by governmental authorities or by
others.
(ix) The compliance by St. Xxxx with the provisions of the Filed
Agreements to which St. Xxxx is a party and the consummation of the
transactions contemplated in such agreements will not (i) result in a
default under or breach of any agreement or instrument known to me to
which St. Xxxx is a party or by which St. Xxxx is bound or to which
any of the property or assets of St. Xxxx is subject, (ii) violate the
provisions of St. Paul's Restated Articles of Incorporation, as
amended, or By-laws, as amended, or (iii) violate any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over St. Xxxx or any
of its properties, provided that such counsel is expressing no opinion
under this clause (iii) with respect to the indemnification and
contribution provisions relating to federal and state securities laws
contained in the Formation and Separation Agreement and the
Registration Rights Agreement.
(x) The compliance by St. Xxxx with the provisions of each of this
Agreement, the Units Underwriting Agreement and the Jurisdiction
Agreements and the consummation of the transactions therein
contemplated will not (i) result in a default under or breach of any
agreement or instrument known to such counsel to which St. Xxxx is a
party or by which St. Xxxx is bound or to which any of the property or
assets of St. Xxxx is subject, or (ii) violate the provisions of St.
Paul's Restated Articles of Incorporation, as amended, or By-laws, as
amended.
(xi) The compliance by Fire and Marine with the provisions of the
Filed Agreements to which Fire and Marine is a party and the
consummation of the transactions therein contemplated will not (i)
result in a default under or breach of any agreement or instrument
known to such counsel to which Fire and Marine is a party or by which
Fire and Marine is bound or to which any of the property or assets of
Fire and Marine is subject, (ii) violate the provisions of the
Articles of Incorporation, as amended, or By-laws, as amended, of Fire
and Marine, or (iii) violate any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over Fire and Marine or any of its
properties.
(xii) Neither St. Xxxx nor Fire and Marine is in violation of its
Restated Articles of Incorporation, as amended, or its Articles of
Incorporation, as amended, respectively, or its By-laws, as amended,
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement or
instrument known to such counsel to which it is a party or by which it
or any of its properties is or may be bound, except where any such
default does not have or would not reasonably be expected to have a
material adverse effect on Platinum and its subsidiaries taken as a
whole.
(xiii)Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated October ___, 2002, approving
or acknowledging that no regulatory approval is required for, inter
alia, the transactions contemplated by the Filed Agreements to which
St. Xxxx or Fire and Marine is a party, and the issuance to Platinum
US by the New York State Insurance Department of a license to engage
in the reinsurance business, no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required for the consummation by St.
Xxxx
32
or Fire and Marine of the transactions contemplated by the
Underwriting Agreement or the Filed Agreements to which either is a
party, except the registration under the Act of the Common Shares, the
Purchase Contracts, the Senior Notes, the Guarantees and the Units and
under the Exchange Act of the Common Shares and the Units and the
qualification of the Indenture under the Trust Indenture Act, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under Maryland insurance laws and New York
insurance laws, which have been obtained, or such as may be required
under other state insurance laws or foreign laws or as may be required
by state securities or Blue Sky laws in connection with the purchase
and distribution of the Common Shares by the Underwriters and of the
Units by the Units Underwriters.
(xiv) All statutory and regulatory consents, authorizations,
approvals and filings required to be obtained or made by or on behalf
of St. Xxxx and Fire and Marine under the insurance laws of the State
of Minnesota to consummate the transactions contemplated by the Filed
Agreements to which St. Xxxx or Fire and Marine are a party have been
obtained or made.
(xv) To such counsel's knowledge, neither St. Xxxx nor Fire and
Marine has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any
license from such authority, commission or body is needed to be
obtained by St. Xxxx or Fire and Marine, in each case in respect of
the Business, or that St. Xxxx or Fire and Marine is not in compliance
with any applicable insurance laws, in each case in respect of the
Business, except where such failure to obtain such license or to be in
such compliance would not, individually or in the aggregate (after
giving effect to any applicable insurance, reinsurance or reserves
therefor), have a material adverse effect on the consolidated
financial position or shareholders' equity of Platinum and its
subsidiaries taken as a whole at the First Time of Delivery.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(h) Xxxxx Xxxx, Vice President-Corporate, Legal Services of St. Xxxx,
shall have furnished to you his written opinion (a draft of such opinion
is attached as Annex II (g) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that (all capitalized
terms used but not defined in the subparagraphs of this Section 9(h) have
the meanings specified in such opinion):
(i) Each of USF&G and Platinum US has been duly incorporated and
is an existing corporation in good standing under the laws of the
State of Maryland and, in the case of Platinum US, has corporate power
and authority to conduct its business as described in the Prospectus.
(ii)All of the issued shares of capital stock of Platinum US have
been duly authorized and validly issued, are fully paid and
non-assessable, and , immediately prior to the First Time of Delivery,
were owned by USF&G, free and clear of all liens, encumbrances,
equities or claims.
(iii) Each of the Filed Agreements to which Platinum US is a party
has been duly authorized, executed and delivered by Platinum US.
33
(iv)Each of the Filed Agreements that is governed by Maryland law
and to which Platinum US is a party constitutes a valid and legally
binding obligation of Platinum US enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(v) Assuming that each of the Filed Agreements that is governed by
Maryland law has been duly authorized, executed and delivered by each
party thereto (other than Platinum US) under the laws of jurisdiction
where such party is domiciled, each such Filed Agreement has been duly
authorized, executed and delivered by each party thereto and
constitutes a valid and legally binding obligation of such party
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
(vi)To such counsel's knowledge, there are no legal or
governmental proceedings pending to which USF&G or Platinum US is a
party, which, if determined adversely to USF&G or Platinum US, as the
case may be, would individually or in the aggregate (after giving
effect to any applicable insurance, reinsurance or reserves therefor)
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of Platinum and its
subsidiaries, taken as a whole, at the First Time of Delivery (as such
term is defined in this Agreement); and, to such counsel's knowledge,
no such proceedings are threatened by governmental authorities or by
others.
(vii) The compliance by Platinum US with the provisions of the
Filed Agreements to which Platinum US is a party and the consummation
of the transactions therein contemplated will not (i) result in a
default under or breach of any agreement or instrument known to such
counsel to which Platinum US is a party or by which Platinum US is
bound or to which any of the property or assets of Platinum US is
subject, (ii) violate the provisions of Platinum US's Articles of
Incorporation, as amended, or By-laws, as amended, or (iii) violate
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
Platinum US or any of their properties.
(viii) Neither USF&G nor Platinum US is in violation of its
articles of incorporation or by laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument known to such counsel to
which it is a party or by which it or any of its properties is or may
be bound, except where any such default does not have or would not
reasonably be expected to have a material adverse effect on Platinum
and its subsidiaries taken as a whole.
(ix)Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated October ___, 2002, approving
or acknowledging that no regulatory approval is required for, INTER
ALIA, the transactions contemplated by the Filed Agreements to which
Platinum US is a party, no statutory or regulatory consent,
authorization, approval or filing is required to be obtained or made
under the laws of Maryland in connection with such transactions or the
transactions contemplated by the Underwriting Agreement or the
Formation and Separation Agreement other than such as have been
34
obtained or made, and other than such as may be required under
Maryland securities or Blue Sky laws.
(x) Each of USF&G and Platinum US is, and, in the case of Platinum
US, will continue to be immediately following the First Time of
Delivery, a duly licensed insurance company under the insurance laws
of the State of Maryland.
(xi)To such counsel's knowledge, Platinum US has not received any
notification from any insurance authority, commission or other
insurance regulatory body to the effect that Platinum US is not in
compliance with any applicable insurance laws.
(xii) The statements made under the captions "Business-Our
Business-Regulation-U.S. Regulation-U.S. Insurance Holding Company
Regulation of Platinum Holdings, Platinum Ireland and Platinum
Finance" and "-- -- --State Insurance Regulation of Platinum US" in
the Prospectus insofar as they relate to summaries of provisions of
the insurance laws of the State of Maryland therein described are
accurate, fair and complete.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriters and may not be relied upon by any other person.
(i) Xxxxxxx Xxxxxxxxxxx, General Counsel of the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached
as Annex II(h) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(j) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, KPMG, LLP shall have furnished to you a letter or letters, dated
the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(k) (i)(A) Neither the Company nor any of its subsidiaries shall have
sustained since April 24, 2002, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (B) since April 24, 2002, there shall not have been any
change in the capital stock, capital or surplus or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general
35
affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (A) or (B), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(ii)(A) Neither St. Xxxx nor any of its subsidiaries in respect of
the Business shall have sustained since December 31, 2001, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (B) since
December 31, 2001, there shall not have been any change, or any
development involving a prospective change, in or affecting the general
affairs, management or results of operations of St. Xxxx and its
subsidiaries in respect of the Business, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (A) or (B), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(l) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or the Company's
financial strength or claims paying ability by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities or the Company's financial strength or claims
paying ability;
(m) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities in New York or London
declared by the relevant authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States or the United Kingdom; (iv) a change or development
involving a prospective change in Bermuda taxation affecting the Company
or the Shares or the transfer thereof; (v) the outbreak or escalation of
hostilities involving the United States, the United Kingdom or Bermuda or
the declaration by the United States, the United Kingdom or Bermuda of a
national emergency or war or (vi) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions in the
United States, the United Kingdom, Bermuda or elsewhere, if the effect of
any such event specified in clause (v) or (vi) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
(n) The Shares to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the Exchange;
(o) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from (i) each of the parties to whom any
St. Xxxx Private Offering Securities will be delivered at such Time of
Delivery, (ii) each of the parties to whom any RenRe Private
36
Offering Securities will be delivered at such Time of Delivery and (iii)
each of the Company's officers and directors, in each case, substantially
to the effect set forth in Section 6(e) hereof in form and substance
satisfactory to you;
(p) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(q) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (k)(i) of this Section 9 and as to such
other matters as you may reasonably request;
(r) St. Xxxx shall have furnished or caused to be furnished to you at
such Time of Delivery certificates of officers of St. Xxxx reasonably
satisfactory to you as to the accuracy of the representations and
warranties of St. Xxxx herein at and as of such Time of Delivery, as to
the performance by St. Xxxx of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsection (k)(ii) of this Section 9 and as to such other matters
as you may reasonably request;
(s) All conditions to the consummation of the Transaction, as set
forth in the Filed Agreements, shall have been satisfied or waived prior
to the First Time of Delivery; and
(t) The closing of the offering of the Units under the Units
Underwriting Agreement and the sale of the RenRe Private Offering
Securities pursuant to the RenRe Investment Agreement shall have occurred
simultaneously with the closing of the offering of Shares hereunder.
10. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Lead Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and St.
Xxxx against any losses, claims, damages or liabilities to which the Company or
St. Xxxx, as the case may be, may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or
37
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Lead
Representatives, expressly for use therein; and will reimburse the Company and
St. Xxxx for any legal or other expenses reasonably incurred by the Company or
St. Xxxx, as the case may be, in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party and St. Xxxx in
writing of the commencement thereof; but the omission so to notify the
indemnifying party and St. Xxxx shall not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party and St. Xxxx of the
commencement thereof, the indemnifying party (and, if it is reasonably likely
that St. Xxxx will be liable to make any payment pursuant to Section 10(e)
hereof, St. Xxxx at its own expense) shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party (and, if the indemnifying
party is the Company, St. Xxxx) shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company (which for purposes
of this subsection (d) shall include the fault of St. Xxxx) on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or
38
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company (which for purposes of this
subsection (d) shall be deemed to include, without limitation, the information
described in Schedule III hereto) on the one hand or the Underwriters on the
other and the Company's (which for purposes of this subsection (d) shall include
St. Paul's), on the one hand, and the Underwriter's, on the other, relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In the event that the Company fails to fulfill when due any of its
payment obligations under subsections (a) or (d) of this Section 10 because it
has not obtained the necessary funds from internal sources (due to insurance
regulatory or other legal restrictions) or external sources, St. Xxxx agrees to
make all such payments to the same extent as the Company is obligated to do so;
provided, however, that notwithstanding anything to the contrary in this Section
10, (i) St. Paul's aggregate liability to the Underwriters under this subsection
(e) and to the Units Underwriters under Section 10(e) of the Units Underwriting
Agreement, taken together, shall not exceed the excess of (I) $400 million over
(II) the sum of (x) any indemnification, contribution or reimbursement of
expense payments paid or payable by St. Xxxx to the Company pursuant to Section
10.02 of the Formation and Separation Agreement (including with respect to any
"Damages" owed by the Company to RenRe pursuant to Section 10.13 of the RenRe
Investment Agreement), (y) any amount paid or payable by St. Xxxx to RenRe in
connection with the RenRe Investment and/or (z) any damages or other amounts
paid or payable by St. Xxxx to investors purchasing Common Shares pursuant to
the Prospectus, and any amendment or supplement thereto, or Units pursuant to
the Units Prospectus, and any amendment or supplement thereto, and (ii) St.
Paul's obligation to make a payment under this subsection (e) shall arise only
in the event, and to the extent, that the related obligation of the Company to
make a payment to the Underwriters under subsections (a) and (d) of this Section
10 relates to the information described in Schedule III hereto and Schedule III
to the Units Underwriting Agreement. The Company, St. Xxxx and the Underwriters
understand that the identification of items
39
in Schedule III hereto is made solely for the purposes of defining St. Paul's
obligations to the Underwriters pursuant to this subsection (e) and for no other
purpose. St. Xxxx must advise the Lead Representatives in writing 60 days prior
to paying or agreeing to pay an amount pursuant to clauses (i)(II)(x) or (y) of
the second preceding sentence that would reduce St. Paul's remaining aggregate
potential liability to the Underwriters pursuant to clause (ii) to below $100
million. The Company, St. Xxxx and the Underwriters further understand that in
the event the Company is obligated under Section 10.02 of the Formation and
Separation Agreement to indemnify RenRe with respect to "Damages" pursuant to
Section 10.13 of the RenRe Investment Agreement arising out of "St. Xxxx
Information" or "Shared Information" (each as defined in the Formation and
Separation Agreement), (i) the payment by St. Xxxx to the Company of any amounts
so owing shall be segregated from other indemnification payments (if any) made
by St. Xxxx to the Company under Section 10.02 of the Formation and Separation
Agreement so that they may be available to RenRe (such segregated amounts not to
exceed $40 million), and (ii) no payments shall be made by St. Xxxx to any
"Company Registration Indemnitees" (as defined in the Formation and Separation
Agreement) or others that in the aggregate exceed $360 million prior to the
satisfaction by St. Xxxx of any obligation to indemnify the Company in order to
satisfy indemnification of any "Damages" prior to the termination (pursuant to
Section 10.06 of the Formation and Separation Agreement) of St. Paul's
obligation under Section 10.02 of the Formation and Separation Agreement.
(f) The obligations of the Company and St. Xxxx under this Section 10
shall be in addition to any liability which the Company and St. Xxxx xxx
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 10 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and St. Xxxx (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties reasonably satisfactory
to you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company
40
shall have the right to require each non-defaulting Underwriter to purchase the
number of shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 8 hereof and the
indemnity and contribution agreements in Section 10 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, St. Xxxx and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter, or any officer or director or controlling person of
any Underwriter, the Company or St. Xxxx, or any officer or director or
controlling person of the Company or St. Xxxx, and shall survive delivery of and
payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 8 and 10 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 8
and 10 hereof.
14. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in currency (the "judgment currency") other
than United States dollars, the party against whom such judgment or order has
been given or made will indemnify each party in whose favor such judgment or
order has been given or made (the "Indemnitee") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount of the
judgment currency actually received by such Indemnitee. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and the
Underwriters and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
41
15. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by the Lead Representatives on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives in care of (i)
Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department, (ii) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: _________, and (iii) Xxxxxxx Xxxxx Barney Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; and if to the
Company shall be delivered or sent by mail to the address of the Company set
forth in the Registration Statement, Attention: Secretary; and if to St. Xxxx
shall be delivered to The St. Xxxx Companies, Inc., 000 Xxxxxxxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 10(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
16. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and St. Xxxx and, to the extent provided in
Sections 10 and 12 hereof, the officers and directors of the Company and St.
Xxxx and each person who controls the Company, St. Xxxx or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
17. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS RULES
OF SUCH STATE.
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
20. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
[SIGNATURE PAGE FOLLOWS]
.
42
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and St. Xxxx. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:...................................
Name:
Title:
THE ST. XXXX COMPANIES, INC.
By:...................................
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
BY:...............................
(Xxxxxxx, Sachs & Co.)
BY:...............................
(Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated)
BY:...............................
(Xxxxxxx Xxxxx Barney Inc.)
On behalf of each of the Underwriters
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
Xxxxxxx, Xxxxx & Co...............................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................
Xxxxxxx Xxxxx Barney Inc..........................................
Banc of America Securities LLC....................................
Credit Suisse First Boston Corporation............................
X.X. Xxxxxx Securities Inc........................................
[NAMES OF OTHER UNDERWRITERS].....................................
1
SCHEDULE II
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS HOLDINGS, LTD., A BERMUDA COMPANY (THE "COMPANY"), IS A GOVERNING LAW
PARTY
- Formation and Separation Agreement, dated as of the date hereof (the New York
"FORMATION AND SEPARATION AGREEMENT"), between the Company and St. Xxxx (as defined herein).
- Master Services Agreement, dated as of the First Time of Delivery (the "MASTER SERVICES New York
AGREEMENT"), between the Company and St. Xxxx.
- Transitional Trademark License Agreement, dated as of the First Time of New York
Delivery (the "TRADEMARK LICENSE AGREEMENT"), between the Company and St. Xxxx.
- Registration Rights Agreement, dated as of the First Time of Delivery (the "REGISTRATION RIGHTS New York
AGREEMENT"), between the Company and St. Xxxx.
- Option Agreement, dated as of the First Time of Delivery (the "OPTION AGREEMENT"), between the New York
Company and St. Xxxx.
- Capital Support Agreement, dated as of ____________, 2002 (the "CAPITAL SUPPORT AGREEMENT"), New York
between the Company and Platinum US (as defined herein).
- Capital Support Agreement, dated as of _____________, 2002 (the "UK CAPITAL SUPPORT England
AGREEMENT"), between the Company and Platinum UK (as defined herein).
- 364-Day Credit Agreement, dated as of June 21, 2002, among the Company, the banks, financial New York
institutions and other institutional lenders listed on the signature pages thereof, JPMorgan
Chase Bank and Bank Of America, N.A., as syndication agents, Xxxxxxx Xxxxx Xxxxxx Inc., as lead
arranger, and Citibank, N.A., as agent for the lenders.
- Purchase Contract Agreement, dated as of ____________ (the "PURCHASE CONTRACT AGREEMENT"), New York
between the Company and _____________, as Purchase Contract Agent.
- Indenture, dated as of ____________, among the Company (the "BASE INDENTURE"), Platinum New York
Finance (as defined herein) and JPMorgan Chase Bank, as Trustee.
- First Supplemental Indenture, dated as of ____________ (the "SUPPLEMENTAL INDENTURE"), among New York
the Company, Platinum Finance and JPMorgan Chase Bank, as Trustee.
- Pledge Agreement, dated as of _______________ (the "PLEDGE AGREEMENT"), among the Company, New York
_________________, as Collateral Agent, Custodial Agent and Securities Intermediary, and
_________________, as Purchase Contract Agent.
- Investment Agreement, dated as of _________ (the "RENRE INVESTMENT AGREEMENT"), among the New York
Company, St. Xxxx and RenRe (as defined herein).
- Transfer Restrictions and Registration Rights Agreement, dated as of _________________ (the New York
"TRANSFER RESTRICTIONS AND REGISTRATION RIGHTS AGREEMENT"), between the Company and RenRe.
- Option Agreement, dated as of ____________ (the "RENRE OPTION New York
II-1
AGREEMENT"), between the Company and RenRe.
- Services and Capacity Reservation Agreement, dated as of __________ (the "SERVICES AND [New York]
CAPACITY RESERVATION AGREEMENT"), between
the Company and RenRe.
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS FINANCE, INC., A DELAWARE CORPORATION ("PLATINUM GOVERNING LAW
FINANCE"), IS A PARTY
- Base Indenture New York
- Supplemental Indeure New York
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS REINSURANCE INC., A MARYLAND DOMICILED INSURANCE COMPANY GOVERNING LAW
("PLATINUM US"), IS A PARTY
- Employee Benefits and Compensation Matters Agreement, dated as of the New York
First Time of Delivery (the "Employee Matters Agreement"),
between St. Xxxx and Platinum US.
- Run-Off Services Agreement, dated as of the First Time of Delivery (the New York
"US RUN-OFF SERVICES AGREEMENT"), between Platinum US and Fire
& Marine (as defined herein).
- Underwriting Management Agreement, dated as of the First Time of New York
Delivery (the "US UNDERWRITING AGREEMENT"), between Platinum
US and Fire & Marine.
- Capital Support Agreement New York
- Assignment and Assumption Agreement, dated as of the First Time of [not specified]
Delivery (the "FLORIDA LEASE ASSIGNMENT AGREEMENT"), between
Metropolitan Life Insurance Company, Platinum US and St. Xxxx Re, Inc.
(as defined herein).
- Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "ILLINOIS LEASE [not specified]
ASSIGNMENT AGREEMENT"), between WHCHC Real Estate Limited Partnership, St. Xxxx Re, Inc. and
Platinum US.
- Sub Lease Agreement, dated as of the First Time of Delivery (the "SUB New York
LEASE AGREEMENT"), between Platinum US and St. Xxxx Re, Inc.
- 100% Quota Share Retrocession Agreement (Traditional), dated as of the Minnesota
First Time of Delivery (the "US QUOTA SHARE TRADITIONAL"),
between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-1), dated Vermont
as of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL D-1"), between Platinum US and Mountain Ridge (as
defined herein).
- 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated as Minnesota
of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL A"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated Minnesota
as of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL B-1"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-2), dated Minnesota
as of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL B-2"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - C), dated as Minnesota
of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL C"), between Platinum US and Fire & Marine.
II-2
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-2), dated Vermont
as of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL D-2"), between Platinum US and Mountain Ridge.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D Stop Vermont
Loss), dated as of the First Time of Delivery (the "US QUOTA
SHARE NON-TRADITIONAL D STOP LOSS"), between Platinum US and Mountain
Ridge.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D Spread Minnesota
Loss), dated as of the First Time of Delivery (the "US QUOTA
SHARE NON-TRADITIONAL D SPREAD LOSS"), between Platinum US and Fire &
Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-3), dated Minnesota
as of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL D-3"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-4), dated Minnesota
as of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL D-4"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - E), dated as Minnesota
of the First Time of Delivery (the "US QUOTA SHARE
NON-TRADITIONAL E"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Traditional), dated as of the England
First Time of Delivery (the "UK QUOTA SHARE TRADITIONAL"),
between Platinum US and St. Xxxx Re UK (as defined herein).
- 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated as England
of the First Time of Delivery (the "UK QUOTA SHARE
NON-TRADITIONAL A"), between Platinum US and St. Xxxx Re UK.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated England
as of the First Time of Delivery (the "UK QUOTA SHARE
NON-TRADITIONAL B-1"), between Platinum US and St. Xxxx Re UK.
- Trust Agreement, dated as of the First Time of Delivery (the "FIRE AND Maryland
MARINE TRUST AGREEMENT"), among Platinum US, Fire and Marine
and [Name of Trustee Bank].
- Trust Agreement, dated as of the First Time of Delivery (the "MOUNTAIN Maryland
RIDGE TRUST AGREEMENT"), among Platinum US, Mountain Ridge and
[Name of Trustee Bank].
- Trust Agreement, dated as of the First Time of Delivery (the "ST. XXXX RE UK TRUST AGREEMENT"), Maryland
among Platinum US, St. Xxxx Re UK and [Name of Trustee Bank].
FILED AGREEMENTS TO WHICH PLATINUM RE (UK) LIMITED, A LIMITED LIABILITY COMPANY GOVERNING LAW
INCORPORATED UNDER THE LAWS OF ENGLAND ("PLATINUM UK"), IS A PARTY
- U.K. Master Services Agreement, dated as of the First Time of Delivery England
(the "UK MASTER SERVICES AGREEMENT"), between St. Xxxx Re UK
and Platinum UK.
- U.K. Run-off Services Agreement, dated as of the First Time of Delivery England
(the "UK RUN-OFF SERVICES AGREEMENT"), between St. Xxxx Re UK
and Platinum UK.
- U.K. Underwriting Agency and Underwriting Management Agreement, dated England
as of the First Time of Delivery (the "UK UNDERWRITING
AGREEMENT"), between
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Platinum UK and St. Xxxx Re UK.
- U.K. Business Transfer Agreement, dated as of the First Time of Delivery (the "UK BUSINESS England
TRANSFER AGREEMENT"), between Platinum UK, St. Xxxx Re UK and St. Xxxx Management Limited.
- UK Capital Support Agreement England
- [(UK Lease)]
FILED AGREEMENTS TO WHICH THE ST. XXXX COMPANIES INC., A MINNESOTA CORPORATION ("ST. XXXX"), IS A PARTY GOVERNING LAW
- Formation and Separation Agreement New York
- Employee Matters Agreement New York
- Master Services Agreement New York
- Trademark License Agreement New York
- Registration Rights Agreement New York
- Option Agreement New York
- RenRe Investment Agreement New York
FILED AGREEMENTS TO WHICH ST. XXXX FIRE AND MARINE INSURANCE COMPANY, A MINNESOTA DOMICILED INSURANCE GOVERNING LAW
COMPANY ("FIRE & MARINE"), IS A PARTY
- US Run-Off Services Agreement New York
- US Underwriting Agreement New York
- US Quota Share Traditional Minnesota
- US Quota Share Non-Traditional A Minnesota
- US Quota Share Non-Traditional B-1 Minnesota
- US Quota Share Non-Traditional B-2 Minnesota
- US Quota Share Non-Traditional C Minnesota
- US Quota Share Non-Traditional D Spread Loss Minnesota
- US Quota Share Non-Traditional D-3 Minnesota
- US Quota Share Non-Traditional D-4 Minnesota
- US Quota Share Non-Traditional E Minnesota
- Fire and Marine Trust Agreement Maryland
FILED AGREEMENTS TO WHICH MOUNTAIN RIDGE INSURANCE COMPANY, A VERMONT DOMICILED INSURANCE COMPANY GOVERNING LAW
("MOUNTAIN RIDGE"), IS A PARTY
- US Quota Share Non-Traditional D-1 Vermont
- US Quota Share Non-Traditional D-2 Vermont
- US Quota Share Non-Traditional D Stop Loss Vermont
- Mountain Ridge Trust Agreement Maryland
FILED AGREEMENTS TO WHICH ST. XXXX REINSURANCE COMPANY LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED GOVERNING LAW
UNDER THE LAWS OF ENGLAND ("ST. XXXX RE UK"), IS A PARTY
- UK Quota Share Traditional England
- UK Quota Share Non-Traditional A England
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- UK Quota Share Non-Traditional X-0 Xxxxxxx
- XX Xxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxx
- XX Run-Off Services Agreement England
- UK Underwriting Agreement England
- UK Business Transfer Agreement England
- St. Paul Re UK Trust Agreement Maryland
- Inter-company Asset Transfer Agreement, dated as of the First Time of Delivery, between St. Xxxx Xxxxxxx
Re UK and SPML (as defined herein) (the "UK Inter-Company Asset
Transfer Agreement").
- Letter agreement, dated as of the First Time of Delivery, between St. Xxxx Re UK and SPML England
regarding services to be provided under the UK Master Services Agreement
("UK Letter Agreement").
- [UK Lease]
FILED AGREEMENTS TO WHICH ST. XXXX RE, INC., A NEW YORK CORPORATION, IS A PARTY GOVERNING LAW
- Florida Lease Assignment Agreement [not specified]
- Illinois Lease Assignment Agreement [not specified]
- Sub Lease Agreement New York
FILED AGREEMENTS TO WHICH ST. XXXX MANAGEMENT LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER GOVERNING LAW
THE LAWS OF ENGLAND ("SPML"), IS A PARTY
- UK Inter-company Asset Transfer Agreement England
- UK Letter Agreement England
- UK Business Transfer Agreement England
FILED AGREEMENTS TO WHICH RENAISSANCERE HOLDINGS, LTD., A BERMUDA COMPANY ("RENRE"), IS A PARTY GOVERNING LAW
- RenRe Investment Agreement New York
- Transfer Restrictions and Registration Rights Agreement New York
- RenRe Option Agreement New York
- Services and Capacity Reservation Agreement [New York]
II-5
SCHEDULE III
1. In any Preliminary Prospectus or the Prospectus, or any amendment or
supplement thereto, the following information:
- All information (including both text and tables) in the following
sections: "Pro Forma Financial Information," "Management's
Discussion and Analysis of Pro Forma Financial Condition and
Underwriting Results," "St. Xxxx Investment and Principal
Shareholders" and "The Predecessor Business";
- All information (including both text and tables) in the "Prospectus
Summary" section under the captions "-Background and the Transferred
Business," "-St. Paul's Share Ownership," "-Selected Pro Forma
Consolidated Financial Information and Operating Data";
- The information set forth in each table in the "Business" section under
the captions "Our Business-Our Lines of Business" and "Our
Business-Marketing";
- All text of the second paragraph in the "Business" section under the
caption "Our Business-Marketing";
- All information (including both text and tables) on pages ;
- The following phrases and sentences:
o "At January 1, 2001, St. Xxxx Re had approximately 398
employees" and "from a total of 398 employees who were employed
by St. Xxxx Re as of January 1, 2001";
o "The number of underwriting offices was reduced by St. Xxxx Re
from ten at January 1, 2001 to five as of March 31, 2002";
o "With respect to January 2002 renewals, St. Xxxx Re experienced
substantial rate increases, generally ranging from 20% to 50%
depending on the line of business";
o "Commencing January 2002, St. Xxxx Re has maintained normal
maximum program limits of $5 million on risk programs, $6
million on casualty clash programs and $20 million on property
catastrophe programs"; and
o "St. Xxxx Re has conducted authorized reinsurance activities in
the U.S. and London for many years, and has been well
established as a lead underwriter in excess casualty, property
catastrophe and certain other classes of reinsurance".
2. In the Registration Statement, or any amendment or supplement thereto,
the following information:
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- In Part II, all information (including both text and tables) set forth
under the captions "Financial Statement Schedules of
Predecessor-Schedule III-Supplementary Insurance Information,"
"Financial Statement Schedules of Predecessor-Schedule IV-Reinsurance,"
and "Financial Statement Schedules of Predecessor-Schedule V-Valuation
and Qualifying Accounts".
III-2
ANNEX I
Pursuant to Section 9(i) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations thereunder; and,
if applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company and Predecessor (as such term is defined in the
Prospectus) for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been separately furnished to
the representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the
[unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows] included in the
Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives and on the basis of specified
procedures including inquiries of officials of the Company and St. Xxxx
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements referred
to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations, nothing came to their attention
that cause them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with respect to [the
consolidated results of operations and financial position] of Predecessor
for the five most recent fiscal years included in the Prospectus agrees
with the corresponding amounts (after restatements where applicable) in
the audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the St. Paul's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial
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statements and other information referred to below, a reading of the
latest available interim financial statements of St. Xxxx, the Company and
their respective subsidiaries, inspection of the minute books of St. Xxxx,
the Company and their respective subsidiaries since the date of the latest
audited financial statements included in the Prospectus, inquiries of
officials of St. Xxxx, the Company and their respective subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the [unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows] included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii)
any material modifications should be made to the [unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows] included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included
in the Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for
the audited consolidated financial statements included in the
Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest financial statements included in the
Prospectus) or the capital or surplus, or any increase in the
consolidated long-term debt of the Company and its subsidiaries,
or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
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(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified procedures,
not constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived
from the general accounting records of St. Xxxx, the Company and their
respective subsidiaries, which appear in the Prospectus, or in Part II of,
or in exhibits and schedules to, the Registration Statement specified by
the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of St.
Xxxx, the Company and their respective subsidiaries and have found them to
be in agreement.
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