Exhibit 1
15,200,000 SHARES
IPC HOLDINGS, LTD
COMMON SHARES, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
December [ ], 2001
December [ ], 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
IPC Holdings, Ltd., a Bermuda company (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS") 15,200,000 of its Common Shares, $.01 par value per share (the
"FIRM SHARES"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional 2,280,000 of its Common Shares, $.01
par value per share (the "ADDITIONAL SHARES"), if and to the extent that you, as
Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such common shares granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The Common Shares, $.01
par value per share, of the Company to be outstanding after giving effect to the
sales contemplated hereby are hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement, including a prospectus, relating to
the Shares on Form S-3, Registration No. 333-73828. The registration statement
as amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
and the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "PROSPECTUS"; provided, that all references to
the "Registration Statement" and the "Prospectus" shall be deemed to include all
documents incorporated therein by reference pursuant to the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), prior to the execution of this
Agreement. If the Company has filed an abbreviated registration statement to
register additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule
462 Registration Statement.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
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(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any 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, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iii) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph
1(b) do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein; and the documents incorporated by reference in
the Prospectus, at the time they were, or hereafter are, filed with the
Commission, complied and, at any time when a prospectus relating the
Shares is required to be delivered under the Securities Act in connection
with sales by any Underwriter or dealer, will comply as to form in all
material respects with the requirements of the Exchange Act and the rules
and regulations thereunder.
(c) The Company has been duly incorporated, is validly existing as a
company in good standing under the laws of Bermuda, 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 business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and the Subsidiaries (as defined below), taken as a whole.
(d) (i) IPCRe Limited (formerly International Property Catastrophe
Reinsurance Company, Ltd.), a Bermuda company ("IPCRE"), has been duly
incorporated, is validly existing as a company in good standing under the
laws of Bermuda, 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 business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries, taken as a
whole; all of the issued shares of capital of IPCRe have been duly and
validly authorized and issued, are fully paid and non-assessable and are
owned directly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(ii) IPCRe Europe Limited, an Irish company ("IPCRE EUROPE"
and, together with IPCRe, the "DESIGNATED SUBSIDIARIES"), has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of 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
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transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and the Subsidiaries, taken as a whole; all of the
issued shares of capital of IPCRe Europe have been fully paid and
non-assessable and are owned directly by IPCRe, free and clear of all
liens, encumbrances, equities or claims.
(iii) IPCRe Underwriting Services Limited, a Bermuda company
("IPCUSL" and, together with IPCRe and IPCRe Europe, the
"SUBSIDIARIES"), has been duly incorporated, is validly existing as
a company in good standing under the laws of Bermuda, 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 business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries, taken
as a whole; all of the issued shares of capital of IPCUSL have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear
of all liens, encumbrances, equities or claims.
(iv) Except as described in the Prospectus, there are no
material restrictions, whether direct or indirect, under any
provision of applicable law, under the memorandum of association or
bye-laws or other organizational document of any subsidiary of the
Company, under any agreement or other instrument binding upon the
Company or IPCRe or any of their properties, or under any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or IPCRe, on the ability of any
subsidiary of the Company: (i) to pay any dividends to the Company;
(ii) to make any other distribution on such subsidiary's capital
stock; (iii) to repay to the Company any loans or advances to such
subsidiary from the Company; or (iv) to transfer any of such
subsidiary's property or assets to the Company or any other
subsidiary of the Company.
(e) The Company and the Designated Subsidiaries do not own any real
property. Each of the Company and IPCRe has 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 IPC Re; and any real property and
buildings held under lease by the Company and IPCRe are held by them under
valid, subsisting and enforceable 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 IPC Re.
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(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) Neither the Company nor IPCRe is in violation of its memorandum
of association or bye-laws or other organizational document or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, lease or other agreement or
instrument to which it or either of them is a party or by which it or
either of them or their properties may be bound.
(h) The authorized capital of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(j) The Shares have been duly authorized and, when issued, delivered
and paid for in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and, except for the
exercise by American International Group, Inc. ("AIG") of the option
granted to it pursuant to the Amended and Restated Option Agreement dated
March 13, 1996 between the Company and AIG concurrent with this offering
(the "AIG OPTION"), and the purchase of shares pursuant to the Purchase
Agreement between AIG and the Company dated November 19, 2001 (the
"PURCHASE AGREEMENT") as more fully described in the Prospectus under the
caption "Certain Relationships And Related Transactions--AIG Option and
Concurrent Purchase of Common Shares," the issuance of such Shares will
not be subject to any preemptive or similar rights. The form of
certificates for the Shares conforms to the requirements of the laws of
Bermuda and the Nasdaq National Market; and the Shares have been approved
for quotation on the Nasdaq National Market, subject to official notice of
issuance.
(k) The consolidated financial statements of the Company and its
consolidated subsidiaries (together with related notes) included in the
Registration Statement and Prospectus comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder and present fairly the
financial position of the Company as at the dates indicated and the
results of its operations and the statements of its cash flows for the
periods specified; such financial statements have been prepared in
conformity with United States generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
disclosed therein; and the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein. The consolidated balance sheets of the Company and its
subsidiaries as of December 31, 2000, 1999 and 1998 and the related
consolidated statements of income and comprehensive income, changes in
shareholders' equity and cash flows for the years ended December 31, 2000,
1999 and 1998 have been audited by Xxxxxx Xxxxxxxx. The selected financial
data set forth under the caption "Selected Consolidated Financial Data" in
the Prospectus and Registration Statement fairly present, on the basis
stated in the Prospectus and the Registration Statement, the information
included therein. All statutory financial statements of IPCRe where
required to be prepared in accordance with the insurance laws
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of Bermuda and the rules and regulations promulgated thereunder, from
which certain ratios and other statistical data contained in the
Registration Statement and the Prospectus have been derived, have for each
relevant period been prepared in conformity in all material respects with
the requirements of such insurance laws and such rules and regulations and
present fairly the information purported to be shown. Statutory financial
statements of IPCRe and IPCRe Europe are not required to be prepared
pursuant to the insurance laws of any jurisdiction other than Bermuda and
Ireland, respectively.
(l) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of: (i) applicable law, (ii) the memorandum
of association or bye-laws of the Company or either of the Designated
Subsidiaries, (iii) any agreement or other instrument binding upon the
Company or IPCRe except to the extent such contravention would not have a
material adverse effect on the Company and the Subsidiaries, taken as a
whole, or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or IPC Re, except to
the extent such contravention would not have a material adverse effect on
the Company and the Subsidiaries, taken as a whole; and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of obligations under this Agreement, except registrations and filings
under the Securities Act (as mentioned in Section 1(a)) and under the
Exchange Act, and such as may be required by the securities or Blue Sky or
insurance securities laws of the various states in connection with the
offer and sale of the Shares, as may be required in such jurisdictions
outside the U.S. where the Underwriters choose to market the Shares and
such as may be required and have been obtained from the Bermuda Monetary
Authority.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement). Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus: (i) neither the Company nor
IPCRe has incurred any material loss or interference with its own business
operations (excluding losses suffered by cedents covered by reinsurance
policies of IPC Re) 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, or any other liability or
obligation, direct or contingent, that is material to the Company and the
Subsidiaries, taken as a whole; and (ii) there has not been any material
change in the capital, shareholders' equity, statutory surplus or reserves
(including any such change in the loss and loss adjustment expense
reserves) of the Company or IPC Re.
(n) No relationship, direct or indirect, or agreement, arrangement
or understanding (including, without limitation, any voting agreement),
exists between or among the Company or either of the Designated
Subsidiaries and any other party, which is required by the Securities Act
to be described in the Registration Statement or the
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Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required.
(o) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company or either of the
Designated Subsidiaries is a party or to which any of the properties of
the Company or either of the Designated Subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(p) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(q) IPCRe is duly registered by the Bermuda Minister of Finance as a
Class 4 insurer under the Bermuda Insurance Xxx 0000, as amended, and any
applicable rules and regulations thereunder. IPCRe is not required to be
licensed or admitted as an insurer in, or otherwise to comply with 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, any jurisdiction other than Bermuda in order to conduct its
business as described in the Prospectus. IPCRe Europe operates as a
reinsurer under the laws of Ireland and is not required to be licensed
under such laws. IPCUSL is registered in Bermuda and licensed as an
insurance agent.
(r) The Company and IPCRe possess all consents, authorizations,
approvals, orders, licenses, certificates, or permits issued by any
regulatory agencies or bodies (collectively, "PERMITS") which are
necessary to conduct the business now operated by them as described in the
Prospectus, except where the failure to possess such Permits would not
have a material adverse effect on the Company and the Subsidiaries, taken
as a whole; all of such Permits are in full force and effect, except where
the failure to be in full force and effect would not have a material
adverse effect on the Company and the Subsidiaries, taken as a whole;
there is no pending or, to the knowledge of the Company, contemplated or
threatened action, suit, proceeding, investigation or event against or
involving the Company or IPCRe (and the Company knows of no reasonable
basis for any such action, suit, proceeding, investigation or event) that
could lead to the revocation, modification, termination, suspension or any
other material impairment of the rights of the holder of any such Permit
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business or operations
of the Company and the Subsidiaries, taken as a whole; neither the Company
nor IPCRe has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any
additional Permit from such authority, commission or body is needed to be
obtained by the Company or IPCRe or that the Company or IPCRe is not in
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compliance with any applicable Insurance Laws; and no insurance regulatory
agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of any dividends by the Company or IPCRe or the
continuation of the business of the Company or IPCRe as currently
conducted.
(s) Each of the Company and IPCRe has filed all reports, information
statements and other documents as required to be filed pursuant to Bermuda
law, and has duly paid all taxes (including franchise taxes and similar
fees) it is required to have paid under Bermuda law, except where the
failure to file such statements or reports or pay such taxes would not
have a material adverse effect on the condition, financial or otherwise,
or on the earnings, business or operations of the Company and the
Subsidiaries, taken as a whole; and each of the Company and IPCRe
maintains its books and records in accordance with the Insurance Law of
Bermuda, except where the failure to so maintain its books and records
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company and
the Subsidiaries, taken as a whole.
(t) Each of the Company and IPCRe is in compliance with the
applicable requirements of the Bermuda Insurance Xxx 0000, as amended, and
any applicable rules and regulations thereunder (collectively, the
"BERMUDA INSURANCE ACT"), except where the failure to comply would not
have a material adverse effect on the Company and the Subsidiaries, taken
as a whole; and, subject to the disclosures in the Prospectus, each of the
Company and IPCRe is in compliance with the insurance laws and regulations
of other jurisdictions which are applicable to the Company or IPCRe, as
the case may be, except where the failure to comply would not have a
material adverse effect on the Company and the Subsidiaries, taken as a
whole.
(u) All liability, casualty, directors and officers liability,
surety bonds and other similar insurance contracts that insure the
business, properties, operations or affairs of the Company and IPCRe or
affect or relate to the ownership, use or operations of the Company's or
IPCRe's assets or properties are in full force and effect and, to the
knowledge of the Company and IPCRe, are with financially sound and
reputable insurers and in accordance with normal industry practice.
(v) Neither the Underwriters nor any subsequent purchasers of the
Shares is subject to any stamp duty, excise or similar tax imposed in
Bermuda in connection with the offering, sale or purchase of the Shares.
(w) Any tax returns required to be filed by the Company or IPCRe in
any jurisdiction have been filed, and any material taxes, including any
withholding 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.
(x) The Company and IPCRe have received from the Bermuda Minister of
Finance an assurance under The Exempted Undertakings Tax Protection Act,
1966 of
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Bermuda to the effect set forth in the Prospectus under the caption
"Certain Tax Considerations -- Taxation of the Company and IPCRe --
Bermuda," and neither the Company nor IPCRe has received any notification
to the effect (or is otherwise aware) that such assurance may be revoked
or otherwise not honored by the Bermuda government.
(y) There are no currency exchange control laws or withholding
taxes, in each case of Bermuda, that would be applicable to the payment of
dividends: (i) on the Shares by the Company (other than to residents of
Bermuda for Bermuda exchange control purposes); or (ii) by IPCRe to the
Company.
(z) Except as described in the Prospectus, neither the Company nor
either of the Designated Subsidiaries has taken or will take, directly or
indirectly, any action designed to, or that might reasonably be expected
to, cause or result in the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement, and other
than as permitted by the Securities Act or the applicable rules and
regulations of the Commission thereunder, the Company and the Designated
Subsidiaries have not distributed and will not distribute, prior to the
later to occur of: (i) the Closing Date or the Option Closing Date; and
(ii) completion of the distribution of the Shares, any prospectus or other
offering material in connection with the offering and sale of the Shares.
(aa) Xxxxxx Xxxxxxxx, who certified the financial statements and
supporting schedules included in the Registration Statement, is the
independent public accountant with respect to the Company as required by
the Securities Act.
(bb) The Company and IPCRe maintains a system of internal accounting
controls sufficient to provide reasonable assurances that: (i)
transactions are executed in all material respects in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with United States generally accepted accounting principles and
with statutory accounting principles, as the case may be, and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(cc) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(dd) The Company and IPCRe (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
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respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not have a
material adverse effect on the Company and the Subsidiaries, taken as a
whole.
(ee) Except as described in the Prospectus under "Certain
Relationships And Related Party Transactions -- Registration Rights,"
there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(ff) The Company and IPCRe have not taken, directly or indirectly,
any action designed to or that would be reasonably expected to cause or
result in the Company and/or IPCRe being treated as: (i) engaged in a
trade or business within the United States for purposes of the Internal
Revenue Code of 1986, as amended (the "CODE"); or (ii) a passive foreign
investment company within the meaning of section 1297 of the Code.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $____ a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to 2,280,000
Additional Shares at the Purchase Price. If you, on behalf of the Underwriters,
elect to exercise such option, you shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined below) but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus: (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common
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Stock or any securities convertible into or exercisable or exchangeable for
Common Stock; or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the sale of the
Shares hereunder, (B) the issuance by the Company of shares of Common Stock upon
the exercise of an option outstanding under the Company's existing stock option
plan or the issuance of new options thereunder or any warrant or the conversion
of a security outstanding on the date hereof of which the Underwriters have been
advised in writing prior to the date hereof, or (C) the issuance and sale to AIG
of shares of Common Stock pursuant to the exercise by AIG of the AIG Option and
the Purchase Agreement between the Company and AIG dated November 19, 2001 (the
"PURCHASE AGREEMENT"), as such agreements are more fully described in the
Prospectus under the caption "Certain Relationships And Related Transactions --
AIG Option and Concurrent Purchase of Common Shares."
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of $______
a share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made
to the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on December [ ], 2001 [T+4] or
at such other time on the same or such other date, not later than December [ ],
2001 [5 business days after payment] as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "CLOSING
DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than January [ ], 2002 [8 business days after the
expiration of the green shoe option] as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "OPTION
CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
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5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than [_____] (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded to the
Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act, or A.M. Best Company, Inc.; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and the Subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a) above and to the
effect that: (i) the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending
before or threatened by the Commission; and (iii) the Company has complied
with all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion (which opinion may be rendered in reliance upon the appropriate
opinions of Xxxxxxx Xxxx & Xxxxxxx as to Bermuda law) of Xxxxxxxx &
Xxxxxxxx, U.S. counsel to the Company, dated the Closing Date, to the
effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
12
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of (A) United States Federal or
New York law (provided, however, that such counsel need express no
opinion with respect to United States Federal or state securities
laws, antifraud laws and fraudulent transfer laws), (B) to such
counsel's knowledge, any agreement or other instrument binding upon
the Company or IPCRe that is material to the Company and the
Subsidiaries, taken as a whole, or (C) to such counsel's knowledge,
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or IPCRe; and no consent,
approval, authorization or order of, or qualification with, any
United States Federal or New York governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the Securities
Act, the Exchange Act and the securities or Blue Sky laws or
insurance securities laws of New York;
(iii) a registration statement with respect to the Shares has
been declared effective under the Securities Act and the Shares have
been registered under the Exchange Act; and based upon oral
information from a representative of NASDAQ, the Shares have been
approved for quotation by the Nasdaq National Market;
(iv) to such counsel's knowledge, such counsel does not know
of any legal or governmental proceedings pending or threatened to
which the Company or IPCRe is a party or to which any of the
properties of the Company or IPCRe is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or of contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed or incorporated by reference as
required;
(v) to such counsel's knowledge, neither the Company nor IPCRe
has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any
license from such authority, commission or body is needed to be
obtained by the Company or IPCRe or that the Company or IPCRe is not
in compliance with any applicable Insurance Laws;
(vi) the discussion of United States tax matters set forth
under the heading "Certain Tax Considerations" in the Prospectus
accurately reflects such counsel's opinion as to such tax laws
(subject to the qualifications and assumptions set forth in such
discussion);
(vii) under the laws of the State of New York relating to
submission to jurisdiction, the Company has validly submitted to the
non-exclusive jurisdiction of any United States Federal or state
court in the Borough of Manhattan, the City of New York, State of
New York (a "NEW YORK COURT") has validly waived any objection to
the venue of a proceeding in any such New York Court and has
13
validly appointed CT Corporation System, as its authorized agent,
for the purpose and to the extent described in Section 10 of this
Agreement and assuming: (A) the validity of such actions under
Bermuda law; (B) the due authorization, execution and delivery of
this Agreement by or on behalf of the Underwriters; and (C) that the
Registration Statement and the Prospectus do not contain any
material misstatements or omissions;
(viii) the Company is not now, and after giving effect to the
offering and the sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended;
(ix) such counsel: (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included or
incorporated by reference therein as to which such counsel need not
express any opinion) comply as to form in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder; (B) has no reason to believe that (except for
financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective
contained any 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 (C) has no reason to
believe that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need
not express any belief) the Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(x) the statements in the Prospectus under the captions
"Management's Discussion And Analysis Of Financial Condition And
Results Of Operations" (only insofar as such statements constitute
summaries of the revolving credit facility agented by Bank One N.A.)
and "Certain Relationships And Related Transactions" in each case
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein; and the statements in the Prospectus under the
caption "Underwriters" insofar as such statements constitute a
summary of this Agreement fairly present the information called for
with respect to such document and fairly summarize the documents
referred to therein.
(xi) the documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Securities Act (other than
the financial statements, supporting schedules and other financial
information included or incorporated by reference therein, as to
which no opinion need to be rendered), at
14
the time they were filed (or at the time they were amended, if
applicable) with the Commission complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder;
(xii) the issuance and sale of 2,113,700 shares of Common
Stock by the Company to AIG pursuant to the Purchase Agreement and
the issuance by the Company of 2,775,000 shares of Common Stock
pursuant to the exercise by AIG of the AIG Option are exempt from
the registration requirements of Section 5 of the Securities Act;
and
(xiii) the issue and sale of the Shares, the execution,
delivery and performance of this Agreement and the consummation of
the transactions contemplated herein will not conflict with or
constitute a breach of, or default under, the Amended and Restated
Administrative Services Agreement, the Investment Management
Agreement, the Investment Sub-Advisory Agreement, the Custodial
Agreement, the Amended and Restated AIG Option Agreement or the
Registration Rights Agreement, all as described in the Prospectus.
(d) The Underwriters shall have received on the Closing Date an
opinion (which opinion may be rendered in reliance on the appropriate
opinions of Xxxxxxxx & Xxxxxxxx as to New York law) of Xxxxxxx Xxxx &
Xxxxxxx, special Bermuda counsel to the Company, dated the Closing Date,
to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a company in good standing (meaning that it has paid all
required Bermuda government fees and made all required Bermuda
government filings, the failure of which would make such company
liable to be struck off the register of companies in Bermuda) under
the laws of Bermuda, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and has all necessary permits of Bermuda government
authorities (including regulatory authorities), which remain in full
force and effect, necessary to conduct its business as described in
the Prospectus;
(ii) Each of ICPRe and IPCUSL has been duly incorporated, is
validly existing as a company in good standing (meaning that it has
paid all required Bermuda government fees and made all required
Bermuda government filings, the failure of which would make such
company liable to be struck off the register of companies in
Bermuda) under the laws of Bermuda and has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus assuming that it is carrying on such
business in compliance with the conditions set out in its
certificate of registration as an insurer issued by the Bermuda
Registrar of Companies;
(iii) the Company has taken all corporate action required to
authorize its due execution, delivery and performance of this
Agreement, and this Agreement has been duly authorized, executed and
delivered by the Company and
15
constitutes the valid and binding obligations of the Company
enforceable in accordance with the terms thereof;
(iv) the authorized share capital of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus;
(v) based solely on a certified copy of the register of
members and certificates of officers of the Company, all of the
issued shares of the Company have been duly authorized and validly
issued, fully paid and non-assessable (meaning that no further sums
are required to be paid by the holders thereof in connection with
the issue of such shares);
(vi) when issued and paid for in accordance with this
Agreement the Shares will be duly authorized and validly issued,
fully paid and non-assessable (meaning that no further sums are
required to be paid by the holders thereof in connection with the
issue of such Shares); and except as described in the Prospectus,
the issuance of the Shares will not be subject to any preemptive or
similar rights; and the form of certificates for the Shares conforms
to the requirements of the laws of Bermuda;
(vii) all of the issued shares of each of IPCRe and IPCUSL
have been duly and validly authorized and issued, are fully paid
and non-assessable (meaning that no further sums are required to be
paid by the holders thereof in connection with the issue of such
shares) and are registered solely in the name of the Company;
(viii) assuming that no selling or purchasing or other trade
or business or acts are conducted in or from within Bermuda or
elsewhere in connection with the public offering of shares in the
Company which would violate Bermuda laws pertaining to restrictions
on the activities in Bermuda of persons not being local companies or
entities or Bermudians and pertaining to Bermuda foreign exchange
control restrictions on non-Bermuda dollars and non-Bermuda dollar
investments by persons deemed to be resident for Bermuda exchange
control purposes, the issue and sale of the Shares, execution and
delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any
provision of, and will not result in the creation or imposition of
any lien, charge or encumbrance upon any property of the Company or
IPCRe under: (i) any applicable law, regulation, order or decree in
Bermuda; or (ii) the memorandum of association or bye-laws (or other
organizational document) of the Company; and no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency in Bermuda is required for the performance by the
Company of it obligations under this Agreement, except such as may
be required and have been obtained from the Bermuda Monetary
Authority;
16
(ix) based solely on the certificate of registration as an
insurer issued by the Bermuda Registrar of Companies, IPCRe is duly
registered as a Class 4 insurer and is subject to regulation and
supervision in Bermuda;
(x) there are no Bermuda statutes or Bermuda government rules,
regulations or orders which invalidate this Agreement or the Shares;
(xi) the consummation of the transactions contemplated by this
Agreement (including but not limited to any actions taken pursuant
to the indemnification and contribution provisions contained herein)
will not constitute unlawful financial assistance by the Company,
IPCRe or IPCUSL under Bermuda law;
(xii) all statements made in the Registration Statement and
Prospectus with respect to statutes, regulations, rules, treaties
and other laws of Bermuda (including, but not limited to, statements
made with respect to the Bermuda Insurance Act) and the statements
related to Bermuda or documents governed by Bermuda law made under
the headings "Description Of Our Common Shares", "Business --
Regulation", and "Enforceability Of Civil Liabilities Under The
United States Securities Laws" to the extent they constitute
statements of Bermuda law fairly and accurately present the
information set forth therein;
(xiii) neither the Underwriters nor any subsequent purchasers
of the Shares are (under present law) subject to any stamp duty,
excise or similar tax imposed in Bermuda in connection with the
offering, sale or purchase of the Shares;
(xiv) the discussion of tax matters relating to Bermuda set
forth under the heading "Certain Tax Considerations" in the
Prospectus, to the extent it constitutes statements of Bermuda law,
accurately reflects such counsel's opinion as to such tax laws
(subject to the qualifications and assumptions set forth in such
discussion);
(xv) the Company and IPCRe 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 and IPCRe -- Bermuda";
(xvi) there are no currency exchange control laws or
withholding taxes, in each case of Bermuda, that would be applicable
to the payment of dividends: (A) on the Shares by the Company (other
than to residents of Bermuda for Bermuda exchange control purposes)
or (B) by IPCRe or IPCUSL to the Company;
(xvii) to the extent Bermuda law is applicable, the Company
has validly submitted to the non-exclusive jurisdiction of any New
York Court, has validly waived any objection to the venue of a
proceeding in any such court and has validly appointed CT
Corporation System as its authorized agent, for the purpose
17
and to the extent described in Section 10 of this Agreement and
assuming: (A) the validity of such actions under New York law and
(B) the due authorization, execution and delivery of this Agreement
by or on behalf of the Underwriters;
(xviii) the choice of New York law as the law expressed to be
governing this Agreement will be recognized as the law governing
this Agreement and accordingly the courts of Bermuda should apply
New York law as the law expressed to be governing this Agreement,
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;
(xix) in order to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement, it is
not necessary that it be filed, recorded or enrolled with any public
authority, governmental agency or governmental department of Bermuda
(excluding, for the avoidance of doubt, a court in connection with
legal proceedings insofar as the enforceability and admissibility in
evidence are concerned), or that any stamp, registration or similar
tax or charge be paid in Bermuda, except for certain court fees in
connection with legal proceedings;
(xx) The Courts of Bermuda would recognize as a valid
judgment, a final and conclusive judgment in personam obtained in a
New York Court against the Company based upon this 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 with the correct procedures under the
laws of Bermuda;
(xxi) based solely on search of the Cause Book of the Supreme
Court of Bermuda (which would not reveal details of matters or
proceedings which have been filed but not actually entered in the
Cause Book), there are no judgments against the Company or IPCRe,
nor any legal or governmental proceedings pending in Bermuda to
which any of them is subject; and
(xxii) based solely on a search of the Register of Charges,
maintained by the Register of Companies pursuant to Section 55 of
the Companies Xxx 0000 (which would not reveal details of matters
which have been lodged for registration but not actually
registered), there are no registered charges against the Company or
IPCRe.
18
(e) The Underwriters shall have received on the Closing Date
an opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for
the Underwriters, dated the Closing Date, covering the matters
referred to in Sections 5(c)(i), 5(c)(ix) and 5(c)(x) (but only as
to the statements in the Prospectus under "Underwriters" insofar as
such statements constitute summaries of this Agreement) above.
With respect to Section 5(c)(ix) above, Xxxxxxxx & Xxxxxxxx
and LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified.
The opinions of Xxxxxxxx & Xxxxxxxx and Xxxxxxx Xxxx & Xxxxxxx
described in Sections 5(c) and 5(d) above shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from Xxxxxx Xxxxxxxx, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and
the Prospectus; provided, that the letter delivered on the Closing
Date shall use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements between you and Xxxxx Xxxxx,
Xxxxx X. Xxxxx, Xxxxx X. X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxxxxxxx and Xxxx X. Xxxxx, each substantially in the form of
Exhibit A-1 hereto, between you and AIG, substantially in the form
of Exhibit A-2 hereto, and between you and General Re Corporation,
substantially in the form of Exhibit A-3 hereto, relating to sales
and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
(h) The Shares shall have been approved for quotation, subject
to official notice of issuance, on the Nasdaq National Market.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company and the Designated Subsidiaries, the due authorization
and issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to
19
you in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this
Agreement and during the period mentioned paragraph (c) below, as
many copies of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus, as amended
or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending December 31, 2002, that
satisfies the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees
or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including
all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified; (ii) all costs and expenses
related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon;
(iii) the cost of printing or producing any Blue Sky memorandum
20
in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky memorandum; (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the
offering of the Shares by the National Association of Securities
Dealers, Inc.; (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to
listing the Shares on the Nasdaq National Market; (vi) the cost of
printing certificates representing the Shares; (vii) the costs and
charges of any transfer agent, registrar or depositary; (viii) the
costs and expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of
the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show; and (ix) all other costs
and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 7 entitled "Indemnity and Contribution", and the
last paragraph of Section 9 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Shares
by them and any advertising expenses connected with any offers they
may make.
(g) The Company will use its best efforts to obtain and
maintain the inclusion of the Shares on the Nasdaq National Market
and the registration of the Shares under the Exchange Act.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and
21
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless: (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel; or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such reasonable
fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in
the case of parties indemnified pursuant to Section 7(a), and by the
Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a)
or 7(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities: (i) in such proportion as is appropriate to
reflect the relative benefits received by such indemnifying party or
parties on the one hand and the
22
indemnified party or parties on the other hand from the offering of the
Shares; or (ii) if the allocation provided by clause 7(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 7(d)(i) above
but also the relative fault of such indemnifying party or parties on the
one hand and of indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of: (i) any termination of this Agreement;
(ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
23
Company, its officers or directors or any person controlling the Company;
and (iii) acceptance of and payment for any of the Shares.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if: (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or in Bermuda by Bermuda authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse; and (b) in the case of any of the events specified in clauses 8(a)(i)
through 8(a)(iv), such event, singly or together with any other such event,
makes it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided, that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-
24
defaulting Underwriters would have been obligated to purchase in the absence of
such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement (other than pursuant to the foregoing paragraphs of this Section 9),
the Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Submission to Jurisdiction; Appointment of Agent for Service. In
further consideration of the agreement of the Underwriters herein contained, the
Company irrevocably agrees and covenants that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act of Section 20 of the Exchange Act (a "CONTROL PERSON") arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any New York Court, and irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any such proceeding,
irrevocably waives any objection based on the absence of a necessary or
indispensable party in any such proceeding and irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company irrevocably waives any immunity to jurisdiction to which
it may otherwise be entitled or become entitled (including immunity to
pre-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of this Agreement or the transactions contemplated hereby
which is instituted in any New York Court, or in any Bermuda court. To the
extent permitted by law, Company hereby waives any objection to the enforcement
by any competent foreign court of any judgment validly obtained in any such
proceeding. The Company designates and appoints CT Corporation System in The
City of New York at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, as its respective
authorized agent (the "AUTHORIZED Agent") upon which process may be served in
any such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any Control Person, expressly consents to the non-exclusive
jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointments shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as said agent for service
of process and the Company agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Company's Authorized Agent and written notice of such service
of process to it shall be deemed, in every respect, effective service of process
upon the Company. Notwithstanding the foregoing, any action based on this
Agreement or the transactions contemplated hereby may be instituted by any
Underwriter or any Control Person in any competent foreign court.
11. Judgment Currency. 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")
25
other than United States dollars, the party against whom such judgment or order
has been given or made (the "INDEMNITOR") will indemnify each party in whose
favor such judgment or order has been given or made (the "INDEMNITEE") against
any loss incurred by such Indemnitee as a result of any variation as between (i)
the rate of exchange at which the United States dollar amount is converted into
the judgment currency for the purpose of such judgment or order and (ii) the
rate of exchange at which the Indemnitee is able to purchase United States
dollars with the amount of the judgment currency actually received by such
Indemnitee. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and the Underwriters and shall continue in full force
and effect notwithstanding any such judgment or order as aforesaid. The term
"rate of exchange" shall include any reasonable premiums and costs of exchange
payable in connection with the purchase of or conversion into United States
dollars.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
26
Very truly yours,
IPC HOLDINGS, LTD.
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
27
SCHEDULE I
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxx-Xxxx, Xxxxxx Inc.
Xxxxxxx & Partners Securities LLC
Xxxxxx, Xxxxx Xxxxx, Incorporated
---------------
Total........... ===============
EXHIBIT A-1
[FORM OF OFFICER/DIRECTOR LOCK-UP]
________________, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with IPC Holdings, Ltd., a Bermuda company (the
"COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS"), of
15,200,000 shares (the "SHARES") of the Common Shares, $.01 par value per share,
of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending 90 days after the date of the
final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. In addition, the undersigned agrees that,
without the prior written consent of Xxxxxx Xxxxxxx on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters
are relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The
undersigned further understands that this Lock-Up Agreement is irrevocable and
shall be binding upon the undersigned's heirs, legal representatives, successors
and assigns.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
------------------------------
(Name)
------------------------------
(Address)
EXHIBIT A-2
[FORM OF AIG LOCK-UP]
________________, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with IPC Holdings, Ltd., a Bermuda company (the
"COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS"), of
15,200,000 shares (the "SHARES") of the Common Shares, $.01 par value per share,
of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, neither it nor any of its subsidiaries
will, during the period commencing on the date hereof and ending 90 days after
the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to sales to the extent necessary, in the judgment of the
undersigned, to prevent the undersigned from becoming a "United States 25%
Shareholder" (as defined in the Prospectus). In addition, the undersigned agrees
that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the
Company's transfer agent and registrar against the transfer of the undersigned's
shares of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters
are relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
AMERICAN INTERNATIONAL GROUP, INC.
By: ___________________________________
Name:
Title:
EXHIBIT A-3
[FORM OF GEN RE LOCK-UP]
________________, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with IPC Holdings, Ltd., a Bermuda company (the
"COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS"), of
15,200,000 shares (the "SHARES") of the Common Shares, $.01 par value per share,
of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, neither it nor its affiliates will,
during the period commencing on the date hereof and ending 90 days after the
date of the final prospectus relating to the Public Offering (the "PROSPECTUS"),
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (2) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of the undersigned's shares of Common Stock except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters
are relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
GENERAL RE CORPORATION
By: ___________________________________
Name:
Title:
