EXECUTION COPY
PLATINUM UNDERWRITERS HOLDINGS, LTD.
COMMON SHARES
(par value $.01 per share)
UNDERWRITING AGREEMENT
June 25, 2004
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
St. Xxxx Fire and Marine Insurance Company, a Minnesota corporation ("Fire
and Marine"), which is a wholly-owned subsidiary of The St. Xxxx Travelers
Companies, Inc., a Minnesota corporation (formerly named The St. Xxxx Companies,
Inc.) ("St. Xxxx") and a shareholder of Platinum Underwriters Holdings, Ltd., a
Bermuda company (the "Company"), proposes, subject to the terms and conditions
stated herein, to sell to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (the "Underwriter") an aggregate of 6,000,000 Common Shares,
par value $.01 per share, of the Company (the "Shares").
The Company conducts its business through its wholly-owned direct or
indirect operating subsidiaries, Platinum Underwriters Reinsurance, Inc., a
Maryland corporation ("Platinum US"), Platinum Re (UK) Limited, a U.K. company
("Platinum UK"), and Platinum Underwriters Bermuda, Ltd., a Bermuda company
("Platinum Bermuda"). The Company owns Platinum US and Platinum UK through its
wholly-owned intermediate subsidiary, Platinum Regency Holdings, an Irish
company ("Platinum Ireland" and, together with Platinum UK and Platinum Bermuda,
the "Non-U.S. Subsidiaries"). Platinum US is owned directly by Platinum
Underwriters Finance, Inc., a Delaware corporation ("Platinum Finance"), which
is a wholly-owned subsidiary of Platinum Ireland.
1. The Company represents and warrants to, and agrees with, the
Underwriter that:
(a) A registration statement on Form S-3 as amended by any pre-effective
amendments thereto on or before the date hereof (File No. 333-113823) (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, have been declared effective by the Commission
in such form,
and 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 or document incorporated by reference therein has heretofore been
filed with the Commission (other than prospectuses filed pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Act, each in the form
heretofore delivered to you); and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission (the preliminary prospectus supplement, if any,
heretofore filed with the Commission, together with 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, any post-effective amendment thereto and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto and
(i) 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 and
(ii) the documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial Registration
Statement became 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"; promptly after the
execution and delivery of this Agreement, the Company will prepare and file a
final prospectus supplement in accordance with Rule 424(b) under the Act and the
Act and such final prospectus supplement in the form heretofore delivered to
you, together with the final prospectus included in the Registration Statement,
in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus"); any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act
as of the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; and any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Initial Registration Statement that is incorporated by reference in the
Registration Statement;
(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
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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 the Underwriter expressly for use therein or by St. Xxxx expressly
for use in the preparation of the answers therein to Item 7 of Form S-3;
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
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 the Underwriter expressly for use
therein;
(d) 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 the Underwriter expressly for use therein or by St. Xxxx
expressly for use in the preparation of the answers therein to Item 7 of Form
S-3;
(e) None of the Company or any of its subsidiaries has sustained since the
date of the last audited financial statements included, or incorporated by
reference, in the Prospectus 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 (other than upon
exercise of director or employee options in the ordinary course of business
pursuant to an employee benefit plan of the Company currently in existence) or
any of its subsidiaries 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, otherwise than
as set forth or contemplated in the Prospectus;
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(f) The Company and its subsidiaries have good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable (by and against the Company) 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;
(g) 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 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;
(h) 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 are validly issued,
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims; except
as described in the Prospectus under the captions "Related Party Transactions --
Transactions with St. Xxxx and Its Subsidiaries," "Related Party Transactions --
Transactions with RenaissanceRe and Its Subsidiaries" and "Description of Our
Share Capital," the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to acquire the Shares and
no party has the right to require the Company to register securities; 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
upon the exercise of the purchase contracts forming a part of the Company's
equity security units and as set forth in the Company's definitive proxy
statement on Schedule 14A for the 2004 Annual General Meeting of Shareholders
and in the Prospectus under the captions "Related Party Transactions --
Transactions with St. Xxxx and Its Subsidiaries," "Related Party Transactions --
Transactions with RenaissanceRe and Its Subsidiaries," and "Description of Our
Share Capital"); 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
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the United States, by affiliates of the Company and other than as described in
the Prospectus under the caption "Description of Our Share Capital");
(i) The sale of the Shares to be sold by Fire and Marine pursuant to and
in the manner contemplated by this Agreement and the compliance by the Company
with all of the provisions of this Agreement and the Jurisdiction Agreement,
dated as of the date hereof (the "Jurisdiction Agreement"), among the Company,
St. Xxxx, Fire and Marine, and the Underwriter, 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, other than, in the case
of clause (ii) or (iii), such conflicts, breaches, violations, defaults and
termination rights which (A) 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, (B) affect the due authorization and valid issuance of the Shares, or (C)
would not adversely affect the consummation of the transactions contemplated
hereunder;
(j) 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;
(k) The Company has all requisite corporate power and authority to enter
into this Agreement and the Jurisdiction Agreement; and each of this Agreement
and the Jurisdiction Agreement has been duly authorized, executed and delivered
by the Company;
(l) The statements set forth in the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 2003 under the caption "Business -- Our
Business -- Regulation," and in the Prospectus under the captions "Selling
Shareholder," "Related Party Transactions," "General Description of the Offered
Securities," "Description of Our Share Capital," "Certain Tax Considerations,"
and "Underwriting," insofar as they purport to describe the provisions of the
laws and documents referred to therein, are true and complete in all material
respects; 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 St. Xxxx expressly for
use in the preparation of the answers therein to Item 7 of Form S-3;
(m) 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
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effect on the consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(n) There is no contract, document or other agreement required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required by the Act; each description of a contract, document or other agreement
in the Registration Statement and the Prospectus accurately reflects in all
material respects the terms of the underlying contract, document or other
agreement; each contract, document or other agreement set forth on Schedule I
hereto (such listed contracts, documents and other agreements, collectively, the
"Filed Agreements") to which the Company or a subsidiary of the Company is a
party is in full force and effect and is valid and enforceable by and against
the Company or such subsidiary, 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 indemnification and
contribution provisions relating to violations under the Act contained in the
Formation and Separation Agreement (as defined in Schedule I hereto), the
Registration Rights Agreement (as defined in Schedule I hereto), and the
Transfer Restrictions and Registration Rights Agreement (as defined in Schedule
I hereto); neither the Company nor any of its subsidiaries, if a subsidiary is a
party, nor to the Company's knowledge, any other party is in default in the
observance or performance of any term or obligation to be performed by it under
any Filed Agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default;
(o) 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 sale of the Shares by Fire and Marine in the manner
contemplated by this Agreement and the consummation of the transactions
contemplated by this Agreement and the Jurisdiction Agreement, except (i) the
registration under the Act of the Shares, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities, Blue Sky or insurance securities laws in connection with the
purchase and distribution of the Shares by the Underwriter, (iii) the filing of
the Prospectus under the Bermuda Companies Act 1981 in connection with the 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, and (v) 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, or affect the due
authorization and valid issuance of the Shares;
(p) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company," as such term is defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act");
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(q) 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;
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; 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; none of the Company or
any of its subsidiaries has received any notification from any insurance
regulatory authority or other governmental authority in the United States,
Bermuda, Ireland, the United Kingdom or elsewhere to the effect that any
additional authorization, approval, order, consent, certificate, permit,
registration or qualification is needed to be obtained by either the Company or
any of its subsidiaries; and no insurance regulatory authority has issued any
order or decree impairing, restricting or prohibiting the payment of dividends
by the Company or any of its subsidiaries;
(r) The Company and its subsidiaries own or possess or are 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 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;
(s) 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
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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; 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;
(t) Any tax returns required to be filed by the Company or any of its
subsidiaries in any jurisdiction have been filed, except where the failure to
file such returns 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, 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;
(u) 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;
(v) The Company and its subsidiaries have not taken, and have no plan or
intention to take, directly or indirectly, any action that would or would be
reasonably expected to cause or result in (i) the Company and/or any Non-U.S.
Subsidiary being treated as engaged in a trade or business within the United
States for purposes of the Internal Revenue Code of 1986, as amended (the
"Code"), (ii) the Company and/or any Non-U.S. Subsidiary being treated as a
passive foreign investment company within the meaning of section 1297 of the
Code, (iii) the Company and/or any Non-U.S. Subsidiary being treated as a
controlled foreign corporation within the meaning of section 957 of the Code or
(iv) any shareholder of the Company having "related party insurance income"
inclusions for U.S. federal income tax purposes as a result of being a
shareholder of the Company;
(w) 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
Underwriter to Bermuda or any political subdivision or taxing authority thereof
or therein in connection with the sale and delivery by Fire and Marine of the
Shares in the manner contemplated by this Agreement to the Underwriter or the
sale and delivery outside Bermuda by the Underwriter of the Shares to the
initial purchasers thereof; and no registration, documentary, recording,
transfer or other similar tax, fee or charge by any Bermuda
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government authority is payable in connection with the execution, delivery,
filing, registration or performance of this Agreement;
(x) 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 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). 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";
(y) Under the 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 the Underwriter or by any person who controls the Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange 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 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 Jurisdiction Agreement will be effective under the laws
of Bermuda to confer personal jurisdiction over the Company;
(z) 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 the
Company to facilitate the sale or resale of the Shares;
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(aa) The financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly in all material respects the financial position of the
Company and its subsidiaries on a consolidated basis as of the dates indicated
and the results of operations, stockholders' equity and cash flows of the
Company and its subsidiaries on a combined basis for the periods indicated; such
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States ("GAAP") applied on a consistent
basis throughout the periods involved; the financial statement schedules, if
any, included or incorporated by reference in the Registration Statement present
fairly in all material respects the information required to be stated therein;
the selected financial data included or incorporated by reference in the
Prospectus present fairly in all material respects the information shown therein
and have been compiled on a basis consistent in all material respects with that
of the audited financial statements included or incorporated by reference in the
Registration Statement, as the case may be; no other financial statements or
supporting schedules are required to be included or incorporated by reference in
the Registration Statement or the Prospectus;
(bb) The combined statements of underwriting results and identifiable
underwriting cash flows of St. Paul's Reinsurance Underwriting Segment
("Predecessor") incorporated by reference in the Prospectus and the Registration
Statement (i) present fairly in all material respects the underwriting results
and identifiable underwriting cash flows of Predecessor for the period from
January 1, 2002 through November 1, 2002 and for the year ended December 31,
2001; (ii) comply as to form in all material respects with the applicable
accounting requirements of the Act; and (iii) have been prepared in conformity
with GAAP applied on a consistent basis throughout the periods involved (except
as otherwise noted therein);
(cc) The selected financial information with respect to the results of
operations of Predecessor for the period ended November 1, 2002 and for each of
the years ended December 31, 2001, 2000 and 1999 included in the Prospectus (i)
present fairly in all material respects the financial position and results of
operations of Predecessor for the period ended November 1, 2002 and for each of
the years ended December 31, 2001, 2000 and 1999; and (ii) have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved (except as otherwise noted therein);
(dd) KPMG, LLP, who have certified certain financial statements of the
Company, are independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(ee) No relationship, direct or indirect, exists between or among any of
the Company or, to the knowledge of the Company, any affiliate (as such term is
defined in Rule 405 under the Act) of the Company on the one hand, and any
former or current director, officer, stockholder, broker, customer or supplier
of any of them, on the other hand, which is required by the Act or the rules and
regulations thereunder to be described in the Registration Statement or the
Prospectus which is not so described or is not described as required;
(ff) The Company and its consolidated subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in
10
accordance with management's authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
authorization; (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; (v) material information relating to the Company and
its consolidated subsidiaries is promptly made known to the officers responsible
for establishing and maintaining the system of internal accounting controls; and
(vi) any significant deficiencies or weaknesses in the design or operation of
internal accounting controls which could adversely affect the Company's ability
to record, process, summarize and report financial data, and any fraud whether
or not material that involves management or other employees who have a
significant role in internal controls, are adequately and promptly disclosed to
the Company's independent auditors and the audit committee of the Company's
board of directors;
(gg) The Company and its consolidated subsidiaries employ disclosure
controls and procedures that are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission's rules and forms, and is accumulated and
communicated to the Company's management, including its principal executive
officer or officers and principal financial officer or officers, as appropriate
to allow timely decisions regarding disclosure; and
(hh) There are no transactions, arrangements and other relationships
between and/or among the Company, and/or, to the knowledge of the Company, any
of its affiliates and any unconsolidated entity, including, but not limited to,
any structural finance, special purpose or limited purpose entity (each, an "Off
Balance Sheet Transaction") that could reasonably be expected to affect
materially the Company's liquidity or the availability of or requirements for
its capital resources, including those Off Balance Sheet Transactions described
in the Commission's Statement about Management's Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321;
FR-61), required to be described in the Prospectus which have not been described
as required.
2. St. Xxxx represents and warrants to, and agrees with, the Underwriter
and the Company 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, with all
requisite corporate power and authority to enter into this Agreement and the
Jurisdiction Agreement and to consummate the transactions contemplated herein
and therein;
(b) Each of this Agreement and the Jurisdiction Agreement has been duly
authorized, executed and delivered by each of St. Xxxx and Fire and Marine;
(c) Fire and Marine is a direct or indirect wholly-owned subsidiary of St.
Xxxx and has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Minnesota, with all requisite
corporate power and authority to enter into this Agreement and the Jurisdiction
Agreement and to consummate the transactions contemplated herein and therein;
11
(d) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the execution and delivery
by each of St. Xxxx and Fire and Marine of this Agreement and the Jurisdiction
Agreement, or for the sale and delivery of the Shares to be sold by Fire and
Marine; and each of St. Xxxx and Fire and Marine has full right, power and
authority to enter into this Agreement and the Jurisdiction Agreement and Fire
and Marine has full right, power and authority to sell, transfer and deliver the
Shares to be sold by Fire and Marine hereunder;
(e) The sale of the Shares to be sold by Fire and Marine hereunder and the
compliance by each of St. Xxxx and Fire and Marine with all of the provisions of
each of this Agreement and the 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
certificate of incorporation or bylaws of St. Xxxx or Fire and Marine, (ii) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which St. Xxxx or Fire and Marine is a party or by which St. Xxxx
or Fire and Marine is bound or to which any of the properties or assets of St.
Xxxx or Fire and Marine 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 Fire and Marine or any of their respective properties, other than,
in the case of clause (ii) or (iii), such conflicts, breaches, violations,
defaults and termination rights which (A) 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 Fire and Marine and its subsidiaries, taken
as a whole, (B) would not affect the due authorization and valid issuance of the
Shares or (C) would not adversely affect the consummation of the transactions
contemplated hereunder;
(f) Under the Jurisdiction Agreement, each of St. Xxxx and Fire and Marine
has validly and irrevocably submitted to the non-exclusive jurisdiction of any
New York Court with respect to suits, actions or proceedings brought by the
Underwriter or by any person who controls the Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act against St. Xxxx
or Fire and Marine 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 Jurisdiction Agreement, each of St. Xxxx and Fire and Marine 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 Jurisdiction Agreement will be effective
under the laws of Minnesota to confer personal jurisdiction over St. Xxxx and
Fire and Marine;
(g) Fire and Marine has valid title to the Shares to be sold hereunder,
and immediately prior to the Time of Delivery (as defined in Section 5 hereof),
Fire and Marine will have valid title to the Shares to be sold by Fire and
Marine hereunder, free and clear of all liens, encumbrances, equities or claims;
upon delivery of such Shares and payment therefor pursuant hereto, and assuming
the Underwriter purchases such Shares in accordance with the terms and
conditions of this
12
Agreement, valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the Underwriter; and St. Xxxx
will take all action necessary to cause Fire and Marine to transfer and deliver
the Shares to the Underwriter pursuant to the terms and conditions hereof;
(h) Each of St. Xxxx and Fire and Marine has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(i) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by St. Xxxx expressly for use
therein, such Preliminary Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading;
(j) Fire and Marine will deliver to you prior to or at the First Time of
Delivery (as hereinafter defined) a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof);
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of St. Xxxx, threatened against St. Xxxx or Fire and Marine, or any
injunction, restraining order or order of any nature by a court of competent
jurisdiction, arising out of or in connection with the consummation of the
transactions contemplated by this Agreement;
(l) St. Xxxx is not and, after giving effect to the offering and sale of
the Shares, will not be an "investment company", as such term is defined in the
Investment Company Act;
(m) The combined statements of underwriting results and identifiable
underwriting cash flows of Predecessor incorporated by reference in the
Prospectus and the Registration Statement (i) present fairly in all material
respects the underwriting results and identifiable underwriting cash flows of
Predecessor for the periods indicated, (ii) comply as to form in all material
respects with the applicable accounting requirements of the Act and (iii) have
been prepared in conformity with GAAP applied on a consistent basis throughout
the periods involved (except as otherwise noted therein);
(n) The selected financial information with respect to the results of
operations of Predecessor for the period ended November 1, 2002 and for each of
the years ended December 31, 2001, 2000 and 1999 included in the Prospectus (i)
present fairly in all material respects the financial position and results of
operations of Predecessor for the period ended November 1, 2002 and for each of
the years ended December 31, 2001, 2000 and 1999; and (ii) have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); and
13
(o) KMPG, LLP, who have certified certain financial statements of St. Xxxx
and its subsidiaries, 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, Fire and Marine
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
Fire and Marine, at a purchase price per share of $29.555, the Shares.
4. (a) Upon the authorization by you of the release of the Shares, the
Underwriter proposes to offer the Shares for sale upon the terms and conditions
set forth in the Prospectus.
(b) The 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 Underwriter
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. The 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. The 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 at its own expense.
(c) The 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.
5. (a) The Shares to be purchased by the Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Underwriter may request upon at least forty-eight hours' prior
notice to St. Xxxx and the Company, shall be delivered by or on behalf of St.
Xxxx to the Underwriter, through the facilities of The Depository Trust Company
("DTC"), for the account of the Underwriter, against payment by or on behalf of
the Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by St. Xxxx to the Underwriter at
least forty-eight hours in advance. The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on June 30, 2004 or such other
time and date as the Underwriter and St. Xxxx and the Company may agree upon in
writing. Such time and date for delivery of the Shares is herein called the
"Time of Delivery".
14
(b) The documents to be delivered at the 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 Underwriter
pursuant to Section 9 hereof, will be delivered at the offices of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx LLP Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), at the 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 the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. 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 the Underwriter:
(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 file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such qualification,
promptly to use its reasonable best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may request and to comply in all material respects
with such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the distribution
of the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or become subject to taxation in any
jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriter with written
15
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 or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish without charge to the
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 the 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 the Underwriter, to prepare and deliver to the 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 90 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 any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Common Shares or any
such substantially similar securities (other than securities issued pursuant to
any director or employee stock option or benefit plans existing on, or upon the
exercise, conversion or exchange of convertible or exchangeable securities or
options outstanding as of the date of this Agreement or upon the exercise of the
purchase contracts forming a part of the Company's equity security units
outstanding as of the date of this Agreement), or to file any registration
statement with the Commission under the Act relating to any such securities,
without the prior written consent of the Underwriter;
(f) To make available to its shareholders all information as required by
the Exchange Act;
(g) If not otherwise available on the Commission's Electronic Data
Gathering, Analysis and Retrieval System or similar system, during a period of
five years from the effective date of the Registration Statement, to furnish to
its shareholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries certified
by independent public accountants) and, as soon as practicable after the end of
each of the first three quarters of
16
each fiscal year (beginning with the fiscal quarter ending after the effective
date of the Registration Statement), consolidated summary financial information
of the Company and its subsidiaries for such quarter in reasonable detail;
(h) If not otherwise available on the Commission's Electronic Data
Gathering, Analysis and Retrieval System or similar system, 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
that is available without undue expense concerning the business and financial
condition of the Company as you may from time to time reasonably request in
writing (such financial statements to be prepared 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); provided
that the Company shall not be required to deliver any information that would
cause the Company to make a filing under Regulation FD as promulgated under the
Exchange Act;
(i) To use its best efforts to maintain the listing of the Shares on the
New York Stock Exchange (the "Exchange"); and
(j) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
7. Each of St. Xxxx and Fire and Marine agrees with the Underwriter 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, and it will
cause its direct and indirect subsidiaries not to, offer, sell, contract to sell
or otherwise dispose of (any of such actions, a "Transfer") 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
Underwriter, provided, however, that the restrictions of this Section 7 shall
not prohibit (i) any of St. Xxxx, Fire and Marine and their respective direct or
indirect subsidiaries from Transferring Common Shares or any such substantially
similar securities to each other, or (ii) Nuveen Investments, Inc., a Delaware
corporation and a majority-owned subsidiary of St. Xxxx ("Nuveen"), or any of
Nuveen's direct or indirect subsidiaries which are broker-dealers registered
with the Commission under Section 15(b) of the Exchange Act or investment
advisers registered pursuant to Section 203 of the Investment Advisers Act of
1940, as amended, whose activities in the ordinary course of business include
the purchase and sale of securities in the secondary market, from the ordinary
course Transfer of the Common Shares or any such substantially similar
securities that they acquire on behalf of their investment advisory clients in
the secondary market.
8. The Company, St. Xxxx and Fire and Marine covenant and agree with the
Underwriter that (a) the Company will pay or cause to be paid the following: (i)
the fees, disbursements and
17
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriter and dealers;
(ii) the cost of printing or producing 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
Underwriter in connection with such qualification and in connection with the
Blue Sky survey; (iv) the filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriter in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (v) the cost and charges of any transfer agent
or registrar; and (vi) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section and (b) St. Xxxx will pay or cause to be paid the fees and
disbursements of its own counsel, if any, and Fire and Marine will pay or cause
to be paid all underwriting discounts, commissions and transfer taxes, if any,
relating to the sale of the Shares the Underwriter hereunder. It is understood,
however, that, except as provided in this Section, and Sections 10 and 12
hereof, the Underwriter will pay all of its own costs and expenses, including
the fees of its counsel, stock transfer taxes on resale of any of the Shares by
it, and any advertising expenses connected with any offers it may make.
9. The obligations of the Underwriter hereunder, as to the Shares to be
delivered at the Time of Delivery, shall be subject, in its discretion, to the
condition that all representations and warranties and other statements of the
Company, St. Xxxx, and Fire and Marine herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company, St. Xxxx and Fire
and Marine 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 LLP, counsel for the
Underwriter, shall have furnished to you such written opinion or opinions, dated
the 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;
18
(c) Xxxxx Xxxxxxxxxx LLP, 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(a) hereto), dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Assuming each of this Agreement and the Jurisdiction Agreement
has been duly authorized, executed and delivered by the Company under
Bermuda law, each of this Agreement and the Jurisdiction Agreement has
been duly delivered by the Company under New York law.
(ii) Based solely on such counsel's review of the Certificate of
Good Standing of Platinum US issued by the State of Maryland, dated a date
which is not more than ten days before the date of such counsel's opinion
(with a telephonic confirmation dated the date of such counsel's opinion),
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.
(iii) 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; 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 and are registered in the name of the Company.
(iv) To such counsel's knowledge, the only agreements in which the
Company has agreed to register any securities are the Registration Rights
Agreement (as defined in Schedule I hereto) and the Transfer Restrictions,
Registration Rights and Standstill Agreement (as defined in Schedule I
hereto).
(v) Assuming that each of the Filed Agreements 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 and is binding on
the other party or parties thereto, each of such agreements has been duly
delivered by the Company under New York law 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 (other than
the indemnities provided for in the Registration Rights Agreement (as
defined in Schedule I hereto) and the Transfer Restrictions, Registration
Rights and Standstill Agreement (as defined in Schedule I hereto)).
(vi) Assuming that 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 under Maryland law and is binding on
the other party or parties thereto, each of such Filed Agreements
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 need not express any
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.
19
(vii) 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 sale of the Shares, except
such as may be required by the Act and the securities or Blue Sky laws of
the State of New York.
(viii) The sale by Fire and Marine of the Shares pursuant to and in
the manner contemplated by the Underwriting Agreement and the performance
by the Company of its obligations under the Underwriting Agreement 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 or
any subsidiary is a party, or (ii) violate any Federal law of the United
States or law of the State of New York applicable to the Company;
provided, however, that for purposes of this paragraph (viii), such
counsel need not express any 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 need not
express any opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
(ix) Assuming that the Jurisdiction Agreement has been duly
authorized, executed and delivered by the Company under Bermuda law and is
binding on the other party or parties thereto and assuming that the
Jurisdiction Agreement is not terminated, amended or modified in any way,
under the laws of the State of New York relating to submission to
jurisdiction, pursuant to the Jurisdiction Agreement, (A) the Company has
validly and irrevocably submitted to the non-exclusive jurisdiction of any
New York Court, and has validly and irrevocably waived, to the fullest
extent that it may effectively do so, any objection to the venue of a
proceeding in any such court, and (B) the Company has validly appointed CT
Corporation System as its authorized agent for the purpose and to the
extent described in the 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 (A) and (B), (1) the validity of such actions under Bermuda law
and (2) the due authorization, execution and delivery of this Agreement by
the Underwriter.
(x) The Company is not required to register as an "investment
company" under the Investment Company Act and the rules and regulations
promulgated thereunder.
(xi) The statements set forth in the Prospectus under the captions
"Related Party 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" insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are true and complete in all material respects.
Such counsel shall also furnish to you its written opinion that the
Registration Statement, as of its effective date, the Prospectus, as of
the date of the Prospectus, and each of the documents incorporated therein
by reference which were filed under the Exchange Act, as of their
respective dates (in each case, other than the financial statements and
related notes and schedules therein, as to which such counsel need express
no opinion), appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act or the Exchange Act, as
applicable and the applicable rules and regulations of the Commission
thereunder. Further, nothing came to such counsel's attention in the
course of its review that has caused such counsel to believe that the
Registration Statement, as of its effective date (other than the financial
statements and related notes and schedules therein, as to which such
counsel need express no opinion) 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 any of the Prospectus, as of the date of the Prospectus, and the
documents incorporated therein by reference which were filed under the
Exchange Act, as of
20
their respective dates (in each case, other than the financial statements
and related notes and schedules therein, as to which such counsel need
express no opinion) 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 has come to such counsel's
attention that has caused such counsel to believe that the Prospectus, as
of the date and time of delivery of such counsel's written opinion (other
than the financial statements and related notes and schedules therein, as
to which such counsel need express no opinion), 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. Furthermore,
such counsel does not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required
to be described in the Registration Statement or the Prospectus, which are
not filed or incorporated by reference or described as required. Such
counsel shall state that they do not assume any responsibility for the
accuracy or completeness of the statements contained in the Registration
Statement, the Prospectus or in any of the documents incorporated therein
by reference which were filed under the Exchange Act, except for those
made under the captions "Related Party 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 Underwriter 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(b) hereto), dated the 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"
21
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 Prospectus. Platinum Bermuda has the necessary corporate
power and authority, pursuant to its Memorandum of Association, to carry
on its business as described in the Prospectus, including its insurance
and reinsurance business as described in the Prospectus, and is registered
as a Class 4 insurer under the Insurance Xxx 0000 effective June 6, 2002
and is authorized to carry on business in that capacity as described in
the Prospectus subject to the provisions of the Insurance Xxx 0000 and the
regulations promulgated thereunder, and the conditions set out in Schedule
I to the Certificate of Registration, issued by the Bermuda Monetary
Authority to Platinum Bermuda, dated June 6, 2002. No further approvals of
the insurance regulatory, governmental or administrative body or authority
of Bermuda are required for the conduct of such business by each of the
Company and Platinum Bermuda respectively.
(iv) The Company has the necessary corporate power and authority to
enter into and perform its obligations under this Agreement and the
Jurisdiction Agreement. The execution and delivery of this Agreement and
the Jurisdiction Agreement by the Company and the performance by the
Company of its obligations thereunder including, but not limited to, the
performance of the transactions contemplated by the Prospectus, will not
violate the memorandum of association or bye-laws of the Company nor any
applicable law, regulation, order or decree in Bermuda.
(v) The Company has taken all corporate action required to authorize
its execution, delivery and performance of this Agreement and the
Jurisdiction Agreement. This Agreement and the Jurisdiction Agreement have
been duly executed and delivered by or on behalf of the Company and
constitute the valid, binding and enforceable obligation of the Company in
accordance with the terms thereof.
(vi) The Company has taken all corporate action required to duly
authorize its execution and delivery to the Commission of the Registration
Statement.
(vii) 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 execution, delivery,
performance and enforcement of this Agreement or the Jurisdiction
Agreement, 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-
22
division thereof is required to authorize or is required in connection
with the sale of the Shares by Fire and Marine, 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 this Agreement or the Jurisdiction Agreement that they be
registered in any register kept by, or filed with, any governmental
authority or regulatory body in Bermuda.
(x) Based solely on such counsel's review of a certified copy of the
Company's Memorandum of Association, the Company has an authorized share
capitalization as described in the Prospectus. Based solely on such
counsel's review of a certified copy of the Register of Members of the
Company prepared by the branch registrar of the Company (the "Register of
Members"), dated as of the date set forth in such counsel's opinion, all
of the issued share capital of the Company at the date of the Register of
Members, including the Shares, are 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).
(xi) Based solely on such counsel's review of the bye-laws of the
Company and the Register of Members, and subject to the disclosure in the
Company's definitive proxy statement on Schedule 14A for the 2004 Annual
Meeting of Shareholders and in the Prospectus under the captions "Related
Party Transactions -- Transactions with St. Xxxx and Its Subsidiaries,
"Related Party Transactions -- Transactions with RenaissanceRe and Its
Subsidiaries," "Description of Our Share Capital" and "Underwriting,"
(such counsel shall not have independently verified the facts presented in
such disclosures) 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.
(xii) Subject to the requirement that the Shares are listed on the
Exchange or on another appointed stock exchange (as defined in section
2(1) of the Companies Act 1981), 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
authorized 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.
23
(xiii) The Shares conform to the description of the Company's Common
Shares found in the Prospectus under the caption "Description of Our Share
Capital."
(xiv) The sale of the Shares by Fire and Marine pursuant to this
Agreement will not constitute unlawful financial assistance by the Company
under Bermuda law.
(xv) Based solely on such counsel's review of a certified copy of
the Register of Members of Platinum Bermuda dated as of the date set forth
in such opinion, all of the issued common shares of Platinum Bermuda have
been duly authorized and validly issued, fully paid and non-assessable (as
such term is defined above) and are registered in the name of the Company.
(xvi) Neither this Agreement nor the Jurisdiction Agreement will 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 this Agreement or the Jurisdiction
Agreement or the delivery of the Shares by Fire and Marine to the
Underwriter pursuant to this Agreement.
(xvii) Under current Bermuda law there is no Bermuda income tax,
withholding tax, capital gains tax, capital transfer tax, estate or
inheritance tax, payable by investors who are not resident in Bermuda (or
are deemed not to be resident in Bermuda for Bermuda exchange purposes).
(xviii) The Company and 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.
(xix) The statements in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2003 under the captions "Management's
Discussion and Analysis of Financial Condition and Results of Operations
-- Financial Condition, Liquidity and Capital Resources -- Liquidity
Requirements" and "Business -- Our Business -- Regulation -- Bermuda," and
in the Prospectus under the captions "Description of Our Share Capital,"
"Certain Tax Considerations -- Taxation of the Company, Platinum US,
Platinum UK, Platinum Bermuda and Platinum Ireland -- Bermuda" and
"Certain Tax Considerations -- Taxation of Shareholders -- Bermuda
Taxation," to the extent that they constitute statements of Bermuda law,
are accurate in all material respects.
(xx) The Company can xxx and be sued in its own name under the laws
of Bermuda.
24
(xxi) The choice of New York law as the governing law of this
Agreement and the Jurisdiction Agreement 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 Jurisdiction Agreement to the
non-exclusive jurisdiction of the New York Courts (as defined in the
Jurisdiction Agreement) is valid and binding upon the Company.
(xxii) The courts of Bermuda would recognize as a valid judgment, a
final and conclusive judgment in personam, obtained in the New York Courts
against the Company based upon this Agreement and the Jurisdiction
Agreement under which a sum of money is payable (other than a sum of money
payable in respect of multiple damages, taxes or other charges of a like
nature or in respect of a fine or other penalty) and would give a judgment
based thereon provided that (a) such courts had proper jurisdiction over
the parties subject to such judgment, (b) such courts did not contravene
the rules of natural justice of Bermuda, (c) such judgment was not
obtained by fraud, (d) the enforcement of the judgment would not be
contrary to the public policy of Bermuda, (e) no new admissible evidence
relevant to the action is submitted prior to the rendering of the judgment
by the courts of Bermuda and (f) there is due compliance in seeking
validation of such judgment with the correct procedures under the laws of
Bermuda.
(xxiii) Under Section 16 of the Companies Xxx 0000, the bye-laws of
the Company shall bind the Company and the members of the Company to the
same extent as if such bye-laws had been signed and sealed by each such
member, and contain covenants on the part of each such member to observe
all the provisions of the bye-laws of the Company, except, as provided in
Section 17 of the Companies Xxx 0000, no member of the Company shall be
bound by an alteration made in the bye-laws after the date on which he
became a member, if and so far as the alteration requires him to take or
subscribe for more shares than the number held by him at the date on which
the alteration is made, or in any way increases his liability as at that
date to contribute to the share capital of, or otherwise to pay money to,
the Company (unless the member agrees in writing, either before or after
the alteration is made, to be bound thereby).
(xxiv) Based solely on a search of the Register of Charges,
maintained by the Registrar of Companies pursuant to Section 55 of the
Companies Xxx 0000, conducted at the place identified in such opinion on
the date identified in such opinion, there are no registered charges
registered against the Company or Platinum Bermuda.
(xxv) Based solely upon a search of the Cause Book of the Supreme
Court of Bermuda conducted at the place identified in such opinion on the
date identified in such opinion, there are no judgments, nor legal or
governmental proceedings pending in Bermuda to which either of the Company
or Platinum Bermuda is a party.
25
(xxvi) None of the Underwriter, St. Xxxx and Fire and Marine will be
deemed to be resident, domiciled or carrying on business in Bermuda by
reason only of the execution, performance and enforcement of this
Agreement or the Jurisdiction Agreement.
(xxvii) The Underwriter has standing to bring an action or
proceedings before the appropriate courts in Bermuda for the enforcement
of this Agreement or the Jurisdiction Agreement. It is not necessary or
advisable in order for the Underwriter to enforce its rights under this
Agreement or the Jurisdiction Agreement, including the exercise of
remedies thereunder, that it be licensed, qualified or otherwise entitled
to carry on business in Bermuda.
(xxviii) 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 Prospectus; 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 contemplated by the
Prospectus.
(xxix) 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 this
Agreement or the Jurisdiction Agreement in respect of itself or its
property.
(xxx) 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(y) of
this Agreement and in the Jurisdiction Agreement, would be effective, in
so far as Bermuda law is concerned, to constitute valid service of the
proceedings on the Company.
(e) Xxxxxxxxx & May, outside U.K. counsel for the Company, shall have
furnished to you their written opinion or opinions (a draft of such opinion or
opinions attached as Annex II(c) hereto), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Platinum UK is a validly existing limited liability company duly
incorporated under the laws of England and registered in England and has
power and authority under its Memorandum of Association to own leasehold
property and conduct its business as described in the Prospectus.
(ii) Platinum Ireland is the duly registered holder of one hundred
million (100,000,000) 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) The statements set forth in the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2003 under the caption
"Business--Our Business --
26
Regulation--U.K. Regulation," 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(d) hereto), dated the 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 the date identified in such
opinion 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 Xxxxxxx X.X. Xxxxxxxx, all the issued shares are free and clear of all
liens, encumbrances, equities or claims.
(iii) Based only on the Certificate of Xxxxxxx X.X. Xxxxxxxx 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 Xxxxxxx X.X. Xxxxxxxx, there is no
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Platinum Ireland is a party or by which Platinum
Ireland is bound or to which any of the property or assets of Platinum
Ireland is subject, nor is such counsel actually aware of any such
agreement referred to in this paragraph.
(v) Based only on the Certificate of Xxxxxxx X.X. Xxxxxxxx, Platinum
Ireland is not in violation of its Memorandum or Articles of Association.
(vi) Based only on the descriptions in the Prospectus, Platinum
Ireland is not required under Irish law to obtain any consent, approval,
authorization or order of, or make any filing with, any governmental
agency or body or any court in Ireland to conduct its business, pay any
dividends or consummate the transactions contemplated by the Underwriting
Agreement and the Jurisdiction Agreement.
27
(vii) Based only on the Certificate of Xxxxxxx X.X. Xxxxxxxx,
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 for Platinum Ireland to conduct its business as described in
the Prospectus or to pay any dividends.
(viii) Based only on the descriptions in the Prospectus, the sale of
the Shares by Fire and Marine and the compliance by the Company, St. Xxxx
and Fire and Marine with all of the provisions of this Agreement and the
Jurisdiction Agreement, as applicable, and the consummation of the
transactions herein and therein contemplated will not result in any
violation of 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 Xxxxxxx X.X. Xxxxxxxx and searches carried out in the
Central Office of the High Court on the date identified in such counsel's
opinion, any order of any court of Ireland.
(ix) The statements in the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2003 under the caption "Business -- Our
Business -- Regulation -- Ireland Regulation" and in the Prospectus under
the caption "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 summarize the matters referred to therein.
(x) Based only on the Certificate of Xxxxxxx X.X. Xxxxxxxx and
searches carried out in the Irish Companies Office, Platinum Ireland has
filed all statutory financial returns, reports, documents and other
information required to be filed under Irish law and Platinum Ireland
maintains its books and registers required by the Companies Acts 1963 to
2003 of Ireland in accordance with those Acts.
(g) Xxxxx X. Xxxxxxxx, Esq., 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(e) hereto), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) St. Xxxx has been duly incorporated and is an existing
corporation in the State of Minnesota, with corporate power and authority
to consummate the transactions contemplated herein.
(ii) Each of this Agreement and the Jurisdiction Agreement has been
duly authorized, executed and delivered by each of St. Xxxx and Fire and
Marine.
(iii) Fire and Marine is a direct or indirect wholly-owned
subsidiary of St. Xxxx and Fire and Marine and has been duly incorporated
and is an existing corporation in the State of Minnesota, with corporate
power and authority to consummate the transactions contemplated herein.
28
(iv) The sale of the Shares by Fire and Marine hereunder and the
compliance by each of St. Xxxx and Fire and Marine with the provisions of
each of this Agreement, and the Jurisdiction Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of the terms or
provisions of, or constitute a default under, or give rise to a right of
termination under, (i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
St. Xxxx or Fire and Marine is a party or by which St. Xxxx or Fire and
Marine is bound or to which any of the property or assets of St. Xxxx or
Fire and Marine is subject, (ii) the provisions of St. Paul's Restated
Articles of Incorporation, as amended, or By-laws, as amended, or the
provisions of the certificate of incorporation or by-laws of Fire and
Marine, or (iii) 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 Fire and Marine or the property of St. Xxxx
or Fire and Marine other than, in the case of clause (i) and (iii), such
conflicts, breaches, violations, defaults and termination rights which (A)
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 Fire and
Marine and its subsidiaries, taken as a whole, (B) would not affect the
due authorization and valid issuance of the Shares; or (C) would not
adversely affect the consummation of the transactions contemplated
hereunder.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement or the Jurisdiction Agreement
in connection with the sale of the Shares to be sold by Fire and Marine
hereunder, except such as have been obtained under the Act and such a may
be required under state securities law or Blue Sky laws in connection with
the purchase and distribution of such Shares by the Underwriter.
(vi) Immediately prior to the Time of Delivery, Fire and Marine, had
valid title to the Shares to be sold at the Time of Delivery, free and
clear of all liens, encumbrances, equities and claims, and full right,
power and authority to sell, assign, transfer and deliver the Shares to be
sold by Fire and Marine hereunder.
(vii) The delivery of such Shares will pass to the Underwriter all
rights that Fire and Marine has in such Shares, free of any adverse claims
as such term is used in Section 8-102 of the Uniform Commercial Code as
currently in effect in the State of New York.
Such counsel may state that his opinion is solely for the benefit of
the several Underwriter and may not be relied upon by any other person.
(h) Xxxxxxx X. Xxxxxxxxxxx, Executive Vice President, General Counsel and
Secretary of the Company, shall have furnished to you his written opinion (a
draft of such opinion is attached as Annex II(f) hereto), dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company 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
29
subject to no material liability or disability by reason of failure to be
so qualified in any such jurisdiction (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of officers of the
Company and of public officials, provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinions and certificates);
(ii) 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, taken
as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(iii) The sale by Fire and Marine of the Shares pursuant to and in
the manner contemplated by this Agreement and the compliance by the
Company with all of the provisions of this Agreement and the 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, any of the Filed Agreements or under
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel 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 property or assets of the Company or any
of its subsidiaries is subject, other than such conflicts, breaches,
violations, defaults and termination rights which (A) 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, (B)
would not affect the due authorization and valid issuance of the Shares;
or (C) would not adversely affect the consummation of the transactions
contemplated hereby;
(iv) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is (A) in violation of its bye-laws, its
memorandum of association, its certificate of incorporation or any of its
other organizational documents or (B) in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any of the Filed Agreements or in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, other than
such defaults which 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;
(v) Platinum US is duly licensed as an insurer or reinsurer, as the
case may be, under the Insurance Laws of each jurisdiction in which the
conduct of its business requires
30
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. Platinum US has made all
required filings under applicable 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. Platinum US has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications of and from all insurance regulatory
authorities necessary to conduct its business 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. To such counsel's knowledge, Platinum
US has not received any notification from any insurance regulatory
authority or other governmental authority in the United States, Ireland,
the United Kingdom, Bermuda or elsewhere to the effect that any additional
authorization, approval, order, consent, certificate, permit, registration
or qualification is needed to be obtained by Platinum US; and, to such
counsel's knowledge, no insurance regulatory authority has issued any
order or decree impairing, restricting or prohibiting the payment of
dividends by Platinum US to its parent;
(vi) Although such counsel does not assume any responsibility for
the accuracy or completeness of the statements contained in any of the
documents incorporated by reference in the Registration Statement which
were filed under the Exchange Act, such counsel has no reason to believe
that such documents, as of their respective dates (in each case, other
than the financial statements and related notes and schedules therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(vii) Although such counsel does not assume any responsibility for
the accuracy, or completeness of the statements contained in the
Registration Statement or the Prospectus, such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the date and time
of delivery of such Counsel's written opinion (other than the financial
statements and related notes and schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the date and time of
delivery of such Counsel's written opinion (other than the financial
31
statements and related notes and schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of the date and time of delivery of
such Counsel's written opinion, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such date and time (other than the financial statements
and related notes and schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
In giving such opinion, such counsel may state that with respect to
all matters of United States federal and New York law he has relied upon
the opinions of United States counsel for the Company delivered pursuant
to paragraph (c) of this Section 9.
(i) Funk & Xxxxxx, P.A., outside Maryland insurance regulatory counsel for
the Company, shall have furnished to you such written opinion or opinions (a
draft of such opinion or opinions are attached as Annex II(g) hereto) dated the
Time of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The summaries of the provisions of the insurance laws of the
State of Maryland made in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 under the caption "Business -- Our
Business -- Regulation -- U.S. Regulation" are true and complete in all
material respects. Such counsel may state that they do not assume any
responsibility for the accuracy or completeness of the statements made in
the Registration Statement, the Company's Report on From 10-K for the
fiscal year ended December 31, 2003, the Prospectus or any of the
documents incorporated therein by reference which were filed under the
Exchange Act, except for the summaries of the provisions of the insurance
laws of the State of Maryland made under the caption "Business -- Our
Business -- Regulation -- U.S. Regulation" in the Company's Annual Report
on From 10-K for the fiscal year ended December 31, 2003.
(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 the 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 the Time of Delivery is attached as Annex
I(b) hereto);
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree,
32
otherwise than as set forth or contemplated in the Prospectus, and (ii) since
the respective dates as of which information is given in the Prospectus, there
shall not have been any change in the capital stock, capital or surplus or
long-term debt of the Company (other than upon exercise of director or employee
options in the ordinary course of business pursuant to an employee plan of the
Company) or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Underwriter 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 the 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 Underwriter
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at the Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(n) The Shares to be sold at the Time of Delivery shall have been duly
listed on the Exchange;
(o) (i) The Company has obtained and delivered to the Underwriter executed
copies of an agreement from each of the Company's executive officers and
directors substantially to the effect set forth in Section 6(e) hereof in form
and substance satisfactory to you; and (ii) at the request of the Underwriter,
the Company has obtained and delivered to the Underwriter an executed copy of an
agreement from RenaissanceRe Holdings, Ltd., a Bermuda company, substantially to
the effect set forth in Section 6(e) hereof in form and substance satisfactory
to you, provided, however, that such
33
agreement shall be effective during the period beginning from the date hereof
and continuing to and including the date 180 days after the date of the
Prospectus.
(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
the 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 the Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
the Time of Delivery, as to the matters set forth in subsections (a) and (k) of
this Section 9 and as to such other matters as you may reasonably request;
(r) Fire and Marine shall have delivered to the Underwriter a certificate
described in Treasury Regulation section 1.1445-2(b)(2); and
(s) St. Xxxx shall have furnished or caused to be furnished to you at the
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 the Time of Delivery, as to the performance by St. Xxxx and Fire
and Marine of all of their respective obligations hereunder to be performed at
or prior to the Time of Delivery and as to such other matters as you may
reasonably request.
10. (a) The Company will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
the 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 the Underwriter for any legal or
other expenses reasonably incurred by the 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 the Underwriter
expressly for use therein.
(b) St. Xxxx will indemnify and hold harmless the Underwriter against any
losses, claims, damages or liabilities, joint or several, to which the
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
34
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 St. Xxxx or Fire and Marine expressly
for use therein; and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the aggregate liability of St. Xxxx pursuant to this subsection
(b) shall not exceed the total net proceeds received by Fire and Marine from the
sale of the Shares sold under this Agreement.
(c) The Underwriter will indemnify and hold harmless the Company and St.
Xxxx against any losses, claims, damages or liabilities to which the Company or
St. Xxxx, as the case may be, may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Underwriter 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.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve 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 of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel 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 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)
35
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.
(e) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company, St. Xxxx and Fire and Marine on the one hand and the
Underwriter 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 (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, St. Xxxx and Fire and Marine on the one hand and the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company, St. Xxxx and Fire and Marine on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by St. Xxxx and Fire and Marine,
bear to the difference between the gross proceeds received by the Underwriters
from the offering of the Shares and the total net proceeds (before deducting
expenses) received by St. Xxxx and Fire and Marine. 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, St. Xxxx or Fire
and Marine on the one hand or the Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, St. Xxxx, Fire and Marine and
the Underwriter agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(e) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (e), (i) the
Underwriter shall not 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 the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (ii)
St. Xxxx shall not be required to contribute any amount in excess of the total
net proceeds received by Fire and Marine from the sale of the Shares sold under
this Agreement. 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.
36
(f) The obligations of the Company, St. Xxxx and Fire and Marine under
this Section 10 shall be in addition to any liability which the Company, St.
Xxxx and Fire and Marine may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Underwriter
within the meaning of the Act; and the obligations of the Underwriter under this
Section 10 shall be in addition to any liability which the Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company, St. Xxxx and Fire and Marine (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. The respective indemnities, agreements, representations, warranties
and other statements of the Company, St. Xxxx, Fire and Marine and the
Underwriter, 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 the Underwriter, or any officer or director or
controlling person of the Underwriter, the Company, St. Xxxx or Fire and Marine,
or any officer or director or controlling person of the Company, St. Xxxx or
Fire and Marine, and shall survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to any of the
provisions hereof or if for any other reason any Shares are not delivered by or
on behalf of Fire and Marine as provided herein, St. Xxxx will reimburse the
Underwriter for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriter in
making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company, St. Xxxx and Fire and Marine shall then be under no
further liability to the Underwriter except as provided in Sections 8 and 10
hereof.
13. 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 St.
Xxxx and the Underwriter 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.
14. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriter shall be delivered or sent by mail, telex or
facsimile transmission to you at Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Capital Markets; 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 or to Fire and Marine shall
be delivered to The St. Xxxx Travelers Companies, Inc., 385
00
Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Secretary. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriter, the Company, St. Xxxx and Fire and Marine and, to the
extent provided in Sections 10 and 11 hereof, the officers and directors of the
Company, St. Xxxx and Fire and Marine and each person who controls the Company,
St. Xxxx, Fire and Marine or the 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 the Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
16. 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.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of laws rules
of such state.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
19. 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 Underwriter imposing any
limitation of any kind.
539907
[SIGNATURE PAGE FOLLOWS]
38
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,
this letter and such acceptance hereof shall constitute a binding agreement
among the Underwriter, the Company, St. Xxxx and Fire and Marine.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By: /s/ Xxxxxxx X. X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. X. Xxxxxxxx
Title: President and C.E.O.
THE ST. XXXX TRAVELERS COMPANIES, INC.
By: Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: Executive Vice President
Business Development
ST. XXXX FIRE AND MARINE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: Executive Vice President
Business Development
Accepted as of the date hereof:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
ANNEX I
FORM OF COMFORT LETTER
Pursuant to Section 9(i) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriter to the effect that:
(i) They are independent certified public accountants with respect
to the Company, Predecessor and their respective 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 or incorporated by reference in the Prospectus or the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, 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 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 for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the Underwriter;
(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 and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Underwriter; and on the basis of specified procedures including inquiries
of officials of the Company 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 Exchange Act and the related published
rules and regulations, nothing came to their attention that caused 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 Exchange 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 the
Company for the year ended December 31, 2003 and the period ended December
31, 2002 and with respect to the results of operations of Predecessor for
the period January 1, 2002 through November 1, 2002 and for the years
ended December 31, 2001, 2000 and 1999 included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where
A-1
applicable) in the audited consolidated financial statements for such
fiscal years and periods of the Company and such five fiscal years of
Predecessor as applicable, which were included or incorporated by
reference in the Annual Reports on Form 10-K for the Company or for
Predecessor, as applicable, for such fiscal years;
(v) 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 statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
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 condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q 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 or included in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference 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 or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(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 or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference 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
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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 shares (other than issuances of shares upon exercise of
options and share appreciation rights and upon conversions of
convertible securities, in each case which were outstanding on the
date of the latest balance sheet included or incorporated by
reference in the Prospectus), capital or surplus or any increase in
the consolidated debt obligations of the Company and its
subsidiaries, or any decreases in consolidated total assets or
shareholders' equity or other items specified by the Underwriter, or
any increases in any items specified by the Underwriter, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference 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
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or the total or per share
amounts of consolidated net income or other items specified by the
Underwriter, or any increases in any items specified by the
Underwriter, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Underwriter, 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
(vi) In addition to the examination referred to in their report(s)
included or incorporated by reference 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
Underwriter, which are derived from the general accounting records of the
Company, Predecessor and their respective subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Underwriter, or in documents incorporated by reference in
the Prospectus specified by the Underwriter, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company, Predecessor and their respective subsidiaries and
have found them to be in agreement.
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SCHEDULE I
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS HOLDINGS, LTD., A BERMUDA
COMPANY (THE "COMPANY"), IS A PARTY GOVERNING LAW
----------------------------------- -------------
- Formation and Separation Agreement, dated as of October 28, 2002
(the "Formation and Separation Agreement"), between the Company New York
and St. Xxxx (as defined herein).
- Master Services Agreement, dated November 1, 2002 (the "Master Services New York
Agreement"), as amended by that certain Letter Agreement dated June
30, between the Company and St. Xxxx.
- Registration Rights Agreement, dated November 1, 2002 (the "Registration New York
Rights Agreement"), between the Company and St. Xxxx.
- Option Agreement, dated November 1, 2002 (the "St. Xxxx Option New York
Agreement"), between the Company and St. Xxxx.
- Option Agreement, dated November 1, 2002 (the "Fire and Marine
Option Agreement"), between the Company, St. Xxxx and Fire New York
& Marine (as defined herein).
- Option Agreement, dated November 1, 2002 (the "St. Xxxx Re UK Option New York
Agreement"), between the Company, St. Xxxx and St. Xxxx Re UK (as
Defined herein.)
- Purchase Contract Agreement, dated as of November 1, 2002, between
the Company and JPMorgan Chase Bank, as Purchase Contract Agent. New York
- Indenture, dated October 10, 2002 (the "Base Indenture"), among the
Company, Platinum Finance (as defined herein) and JPMorgan
Chase Bank, as Trustee. New York
- First Supplemental Indenture, dated November 1, 2002 (the
"Supplemental Indenture"), among the Company, Platinum New York
Finance and JPMorgan Chase Bank as Trustee.
- Pledge Agreement, dated as of November 1, 2002 (the "Pledge
Agreement"), among the Company, State Street Bank and Trust Company, New York
as Collateral Agent, Custodial Agent and Securities
Intermediary, and JPMorgan Chase Bank, as Purchase Contract Agent.
- Investment Agreement, dated September 20, 2002, as amended (the
"RenRe Investment Agreement"), among the Company, St. Xxxx and New York
RenRe (as defined herein).
- Transfer Restrictions, Registration Rights and Standstill Agreement,
dated November 1, 2002 (the "Transfer Restrictions, Registration New York
Rights and Standstill Agreement"), between the Company and RenRe.
- Option Agreement, dated November 1, 2002 (the "RenRe Option New York
Agreement"), between the Company and RenRe.
- Services and Capacity Reservation Agreement, dated as of November 1, New York
2002 (the "Services and Capacity Reservation Agreement"), between
the Company and RenRe.
- Guaranty dated as of December 31, 2003 (the "US Guaranty") between the
Company, as Guarantor, and Platinum US (as defined herein). New York
- Guarantee dated as of December 31, 2003 (the "UK Guarantee") between the
Company, as Guarantor, and Platinum UK (as defined herein). England and Wales
A-4
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS FINANCE, INC., A DELAWARE CORPORATION
("PLATINUM FINANCE"), IS A PARTY GOVERNING LAW
- Base Indenture New York
- Supplemental Indenture New York
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS REINSURANCE INC., A MARYLAND
DOMICILED INSURANCE COMPANY ("PLATINUM US"), IS A PARTY GOVERNING LAW
- Employee Benefits and Compensation Matters Agreement, dated November 1,
2002 (the "Employee Matters Agreement"), between St. Xxxx New York
and Platinum US.
- Run-off Services Agreement, dated November 1, 2002 (the "US Run-Off
Services Agreement"), between Platinum US, Mountain Ridge (as New York
defined herein) and Fire & Marine.
- Underwriting Management Agreement, dated November 1, 2002 (the "US
Underwriting Agreement"), between Platinum US and Fire & New York
Marine.
- 100% Quota Share Retrocession Agreement (Traditional), dated November 1,
2002 (the "US Quota Share Traditional"), between Minnesota
Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-1),
dated as of the First Time of Delivery (the "US Quota Share Vermont
Non-Traditional D-1"), between Platinum US and Mountain Ridge.
- 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated
November 1, 2002 (the "US Quota Share Non-Traditional A"), Minnesota
between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-1),
dated November 1, 2002 (the "US Quota Share Non-Traditional Minnesota
B-1"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-2),
dated November 1, 2002 (the "US Quota Share Non-Traditional Minnesota
B-2"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - C), dated
November 1, 2002 (the "US Quota Share Non-Traditional C"), Minnesota
between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D
Stop Loss), dated as of the First Time of Delivery (the "US Quota Vermont
Share Non-Traditional D Stop Loss"), between Platinum US and
Mountain Ridge.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D Spread
Loss), dated November 1, 2002 (the "US Quota Share Minnesota
Non-Traditional D Spread Loss"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-3),
dated November 1, 2002 (the "US Quota Share Non-Traditional Minnesota
D-3"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-4),
dated November 1, 2002 (the "US Quota Share Non-Traditional Minnesota
D-4"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - E),
dated November 1, 2002 (the "US Quota Share Non-Traditional E"), Minnesota
between Platinum US and Fire & Marine.
A-5
- 100% Quota Share Retrocession Agreement (Traditional), dated
November 1, 2002 (the "UK Quota Share Traditional"), between England
Platinum US and St. Xxxx Re UK.
- 100% Quota Share Retrocession Agreement (Non-Traditional - A),
dated November 1, 2002 (the "UK Quota Share Non-Traditional A"), England
between Platinum US and St. Xxxx Re UK.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-1),
dated November 1, 2002 (the "UK Quota Share Non-Traditional England
B-1"), between Platinum US and St. Xxxx Re UK.
- Revised and Amended Trust Agreement, dated November 1, 2002, as
amended December 12, 2002 (the "Fire and Marine Trust Massachusetts
Agreement"), among Platinum US, Fire and Marine and the Trustee
Bank named therein.
- Revised and Amended Trust Agreement, dated as of November 1, 2002
and amended as of December 12, 2002 (the "Mountain Ridge Trust Massachusetts
Agreement"), among Platinum US, Mountain Ridge and the Trustee
Bank named therein.
- Discretionary Investment Advisory Agreement dated November 4, 2002,
between Platinum US and Alliance Capital Management L.P. New York
- Discretionary Investment Advisory Agreement dated November 4, 2002,
by and among Platinum US and Alliance Capital Management L.P. New York
- Trust Agreement effective as of January 1, 2003 (the "Bermuda Trust
Agreement") among Platinum Bermuda (as defined herein), Massachusetts
Platinum US and State Street Bank and Trust Company.
- Quota Share Retrocession Agreement (the "US/Bermuda Quota Share
Agreement") by and between Platinum Bermuda and Platinum US dated New York
as of May 13, 2003, as amended by that certain Addendum
dated as of December 31, 2003.
- Aggregate Excess of Loss Retrocession Agreement, dated June 11, 2003
(the "Excess of Loss Agreement"), between Platinum US and Vermont
Mountain Ridge.
- Commutation and Release Agreement, dated June 11, 2003 ("Commutation
and Release") between Platinum US and Mountain Ridge. New York
- Referral Agreement between Platinum US and Renaissance Underwriting
Managers Ltd. New York
- Novation and Transfer Agreement for the Multi-Line Excess of Loss
Reinsurance Agreement, dated September 16, 0000 (xxx "Xxxxxxxxx Xxx Xxxx
Mutual Multi-Line Novation Agreement"), among Platinum US, Fire &
Marine and Wisconsin Mutual Insurance Company, effective as of
January 1, 2003.
- Novation and Transfer Agreement for the Casualty Excess of Loss
Reinsurance Agreement, dated September 16, 2003 (the "Casualty New York
Novation Agreement"), among Platinum US, Fire & Marine and
Wisconsin Mutual Insurance Company, effective as of January 1, 2003.
- Novation and Transfer Agreement for the First Property Catastrophe
Excess of Loss Reinsurance Agreement, dated September 16, 2003 (the
"First Property Catastrophe Novation Agreement"), among New York
Platinum US, Fire & Marine and Wisconsin Mutual Insurance Company,
effective as of January 1, 2003.
A-6
- Novation and Transfer Agreement for the Second Property Catastrophe
Excess of Loss Reinsurance Agreement, dated September 16, New York
2003 (the "Second Property Catastrophe Novation Agreement"), among
Platinum US, Fire & Marine and Wisconsin Mutual Insurance Company,
effective as of January 1, 2003.
- Novation and Transfer Agreement for the Third Property Catastrophe
Excess of Loss Reinsurance Agreement, dated September 16, 2003 (the
"Third Property Catastrophe Novation Agreement"), among New York
Platinum US, Fire & Marine and Wisconsin Mutual Insurance Company,
effective as of January 1, 2003.
- Novation and Transfer Agreement for the Casualty Clash Excess of Loss
reinsurance contract among Platinum US, Fire & Marine and New York
Crusader Insurance Company, effective as of January 1, 2003 (the
"Casualty Clash Novation Agreement").
- Novation and Transfer Agreement for the Property Clash Excess of
Loss reinsurance contract among Platinum US, Fire & Marine and New York
Crusader Insurance Company, effective as of January 1, 2003 (the
"Property Clash Novation Agreement").
- Novation and Transfer Agreement for the Multi Line Excess of Loss
reinsurance contract among Platinum US, St. Xxxx Fire & Marine Insurance
Company and Crusader Insurance Company, effective as New York
of January 1, 2003 (the "Crusader Multi-Line Novation Agreement").
- Indexed Warranty Excess of Loss Reinsurance Contract, effective
June 11, 2003, between Renaissance Reinsurance Ltd. And Platinum Bermuda
US.
- Combined Catastrophe Excess of Loss Reinsurance Contract effective
January 1, 2003 for the Alfa Insurance Group.
- Addendum No. 6 to the Interests and Liabilities Agreement with respect
to the Combined Catastrophe Excess of Loss Reinsurance
Contract between members of the Alfa Insurance Group, Fire & Marine
and Platinum US (the "Alfa Addendum").
- US Guaranty New York
- Excess of Loss Retrocession Agreement dated as of April 15, 2004
between Platinum UK and Platinum US (the "Excess of Loss England
Retrocession Agreement").
- Novation and Transfer Agreement for the Property Catastrophe Excess
of Loss Reinsurance Agreement, dated February 19, 2004, among New York
Platinum US, Fire & Marine and Germantown Mutual Insurance Company,
effective as of January 1, 2003 (the "Property Catastrophe
Novation Agreement").
- Novation and Transfer Agreement for the Workers' Compensation and
Employer's Liability Excess of Loss Reinsurance Agreement, New York
dated February 19, 2004, among Platinum US, Fire & Marine and
Germantown Mutual Insurance Company, effective as of January 1, 2003
(the "Workers'Compensation Excess of Loss Novation Agreement").
- Novation and Transfer Agreement for the Property Per Risk Excess of New York
Loss
A-7
Reinsurance Agreement, dated February 19, 2004, among
Platinum US, Fire & Marine and Germantown Mutual Insurance Company,
effective as of January 1, 2003 (the "Property Per Risk
Novation Agreement").
- Novation and Transfer Agreement for the Casualty Excess of Loss
Reinsurance Agreement, dated February 19, 2004, among Platinum New York
US, Fire & Marine and Germantown Mutual Insurance Company,
effective as of January 1, 2003 (the "Germantown Casualty Novation
Agreement").
- Property Catastrophe Excess of Loss Reinsurance Contract dated
September 10, 2003 between the Glencoe Group of Companies and New York
Platinum US (15% participation)
- Property Catastrophe Excess of Loss Reinsurance Contract dated
September 10, 2003 between the Glencoe Group of Companies and New York
Platinum US (5% participation).
FILED AGREEMENTS TO WHICH PLATINUM RE (UK) LIMITED, A LIMITED LIABILITY COMPANY
INCORPORATED UNDER THE LAWS OF ENGLAND ("PLATINUM UK"), IS A PARTY GOVERNING LAW
- U.K. Master Services Agreement, dated November 1, 2002 (the "UK
Master Services Agreement"), as amended by that certain Addendum England
dated December 10, 2003, between St. Xxxx Re UK and Platinum
UK.
- U.K. Run-off Services Agreement, dated November 1, 2002 (the "UK
Run-Off Services Agreement"), between St. Xxxx Re UK and England
Platinum UK.
- U.K. Underwriting Agency and Underwriting Management Agreement,
dated November 1, 2002 (the "UK Underwriting Agreement"), between England
Platinum UK and St. Xxxx Re UK.
- U.K. Business Transfer Agreement, dated November 1, 2002 (the "UK
Business Transfer Agreement"), between Platinum UK, St. Xxxx Re England
UK and St. Xxxx Management Limited.
- Quota Share Retrocession Agreement dated November 26, 2002 (the "
UK/Bermuda Quota Share Agreement"), between Platinum Bermuda and Massachusetts
Platinum UK.
- Security Agreement dated as of November 26, 2002 (the "Security
Agreement"), between Platinum Bermuda and Platinum UK. Massachusetts
- Control Agreement dated as of November 26, 2002 (the "Control Agreement"),
by and among Platinum Bermuda, Platinum UK and State Street Bank New York
and Trust Company.
- Alliance Capital Management L.P. Discretionary Investment Advisory
Agreement dated as of November 26, 2002 (the "Investment
Advisory Agreement"), with Platinum Bermuda and Platinum UK.
- UK Guarantee England and Wales
- Excess of Loss Retrocession Agreement England
- Addendum No. 1 effective January 1, 2004, to the Security Agreement
dated as of November 26, 2002, between Platinum Bermuda and
Platinum UK (the "Security Agreement Addendum").
- Quota Share Retrocession Agreement dated as of March 27,2003 between
Platinum UK and Platinum Bermuda (the "UK/Bermuda Quota England
Share Agreement II").
A-8
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS BERMUDA, LTD., A BERMUDA COMPANY
"PLATINUM BERMUDA"), IS A PARTY GOVERNING LAW
- Bermuda Trust Agreement Massachusetts
- US/Bermuda Quota Share Agreement New York
- UK/Bermuda Quota Share Agreement Massachusetts
- Security Agreement Massachusetts
- Control Agreement Massachusetts
- Investment Advisory Agreement New York
- Referral Agreement between Platinum Bermuda and Renaissance
Underwriting Managers Ltd. Bermuda
- Security Agreement Addendum
- UK/Bermuda Quota Share Agreement II England
- Quota Share Agreement Addendum No. 1
- Quota Share Agreement Addendum No. 2
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
- Registration Rights Agreement New York
- St. Xxxx Option Agreement New York
- Fire and Marine Option Agreement New York
- St. Xxxx Re UK Option Agreement New York
- RenRe Investment Agreement New York
FILED AGREEMENTS TO WHICH ST. XXXX FIRE AND MARINE INSURANCE COMPANY, A MINNESOTA
DOMICILED INSURANCE COMPANY ("FIRE & MARINE"), IS A PARTY GOVERNING LAW
- 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
A-9
- 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
- Fire and Marine Option Agreement New York
- Wisconsin Mutual Multi-Line Novation Agreement New York
- Casualty Novation Agreement New York
- First Property Catastrophe Novation Agreement New York
- Second Property Catastrophe Novation Agreement New York
- Third Property Catastrophe Novation Agreement New York
- Casualty Clash Novation Agreement New York
- Property Clash Novation Agreement New York
- Crusader Multi-Line Novation Agreement New York
- Alfa Addendum
- Property Catastrophe Novation Agreement New York
- Workers' Compensation Excess of Loss Novation Agreement New York
- Property Per Risk Novation Agreement New York
- Germantown Casualty Novation Agreement New York
FILED AGREEMENTS TO WHICH MOUNTAIN RIDGE INSURANCE COMPANY, A VERMONT DOMICILED INSURANCE
COMPANY ("MOUNTAIN RIDGE"), IS A PARTY GOVERNING LAW
- US Quota Share Non-Traditional D-1 Vermont
- US Quota Share Non-Traditional D Stop Loss Vermont
- Mountain Ridge Trust Agreement Maryland
- Excess of Loss Agreement Vermont
- Commutation and Release New York
FILED AGREEMENTS TO WHICH ST. XXXX REINSURANCE COMPANY LIMITED, A LIMITED LIABILITY
COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND ("ST. XXXX RE UK"), IS A PARTY GOVERNING LAW
- UK Quota Share Traditional England
- UK Quota Share Non-Traditional A England
- 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
- Intra-Group Asset Transfer Agreement, dated as of November 1, 2002,
between St. Xxxx Re UK and SPML (as defined herein) (the "UK England
Inter-Company Asset Transfer Agreement").
- Letter agreement, dated as of November 1, 2002, between St. Xxxx
Re UK and SPML regarding services to be provided under the UK England
Master Services Agreement ("UK Letter Agreement").
- St. Xxxx Re UK Option Agreement New York
A-10
FILED AGREEMENTS TO WHICH ST. XXXX MANAGEMENT LIMITED, A LIMITED LIABILITY COMPANY
INCORPORATED UNDER THE LAWS OF ENGLAND ("SPML"), IS A PARTY GOVERNING LAW
- 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
A-11
