2,500,000 SHARES
RENAISSANCERE HOLDINGS LTD.
COMMON SHARES, PAR VALUE $1.00 PER SHARE
UNDERWRITING AGREEMENT
October 15, 2001
October 15, 2001
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York, 10080
Dear Sirs and Mesdames:
RENAISSANCERE HOLDINGS LTD., a company organized under the
laws of Bermuda (the "COMPANY"), proposes to sell to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ( "XXXXXXX XXXXX") an aggregate of 2,500,000 shares
of the common shares of the Company, par value $1.00 per share (the "SHARES").
The common shares, par value $1.00 per share, of the Company to be outstanding
after giving effect to the sale contemplated hereby are hereinafter referred to
as the "COMMON SHARES."
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement, including a prospectus,
relating to the Shares and has filed or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Shares pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). The registration statement, 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, is hereinafter
referred to as the "REGISTRATION STATEMENT." The term "BASIC PROSPECTUS" means
the prospectus included in the Registration Statement. The term "PROSPECTUS"
means the Basic Prospectus together with the Prospectus Supplement. All
references herein to the Registration Statement and the Prospectus shall include
documents incorporated therein by reference.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with Xxxxxxx Xxxxx that:
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (Registration Statement No. 333-70528) on Form
S-3, including a related basic prospectus, for registration under the
Act of the offering and sale of the Shares. 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. As promptly
as practicable, the Company will
file with the Commission a final prospectus supplement relating to the
Securities in accordance with Rules 415 and 424(b). The Registration
Statement, as of the date hereof, meets the requirements set forth in
Rule 415(a)(1)(x).
(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, (iii)
each document, if any, filed or to be filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in the Prospectus complied, or will comply when so filed,
in all material respects with the Exchange Act and all the applicable
rules and regulations of the Commission thereunder and (iv) 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 do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to Xxxxxxx Xxxxx furnished to the Company in writing by
Xxxxxxx Xxxxx expressly for use therein.
(c) The Company has been duly formed, and 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 its subsidiaries, taken as a whole.
(d) Each of Renaissance Reinsurance Ltd., Glencoe Insurance
Ltd., DeSoto Insurance Company, DeSoto Prime Insurance Company and
Nobel Insurance Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, 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
in each case that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each such subsidiary 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.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) The authorized capital shares of the Company conform as to
legal matters to the description thereof contained in the Prospectus.
(g) The Common Shares outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered against payment in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive or
similar rights.
(i) 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 applicable law or the memorandum
of association or bye-laws of the Company or any agreement or other
instrument binding upon the Company or any of its Subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, 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 its obligations under this Agreement, except such as may
have been obtained or as may be required by securities or Blue Sky laws
of the various states in connection with the sale of the Shares. As
used herein, "SUBSIDIARY" means Renaissance Reinsurance Ltd. and
Glencoe Insurance Ltd.
(j) 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 its 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).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party
or to which any of the properties of the Company or any of its
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.
(l) 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.
(m) The Company is not and, after giving effect to the 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.
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(n) The Company and its Subsidiaries (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 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, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(o) There are currently no costs or liabilities associated
with Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(p) Each of the Company and its Subsidiaries has filed all
reports, information statements and other documents with the insurance
regulatory authorities of its jurisdiction of incorporation and
domicile as are required to be filed pursuant to the insurance statutes
of such jurisdictions, including the statutes relating to companies
which control insurance companies, and the rules, regulations and
interpretations of the insurance regulatory authorities thereunder (the
"INSURANCE LAWS"), and has duly paid all taxes (including franchise
taxes and similar fees) it is required to have paid under the Insurance
Laws, except where the failure to file such statements or reports or
pay such taxes would not singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
and each of the Company and its subsidiaries maintains its books and
records in accordance with the Insurance Laws, except where the failure
to so maintain its books and records would not singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The financial statements of Renaissance
Reinsurance and Glencoe Insurance, from which certain ratios and other
statistical data filed as a part of the Registration Statement or
included or incorporated in the Prospectus have been derived, have for
each relevant period been prepared in conformity with accounting
practices required or permitted by applicable Insurance Laws of
Bermuda, to the extent applicable to such company, and such accounting
practices have been applied on a consistent basis throughout the
periods involved, except as may otherwise be indicated therein or in
the notes thereto.
(q) The statutory financial statements of the subsidiaries of
the Company that are United States insurance companies, from which
certain ratios and other statistical data filed as a part of the
Registration Statement or included or incorporated in the Prospectus
have been derived: (A) have for each relevant period been prepared in
conformity with statutory accounting practices required or permitted by
the National Association of
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Insurance Commissioners (the "NAIC") to the extent applicable to such
company, and by the insurance laws of their respective countries or
states of domicile, and the rules and regulations promulgated
thereunder, and such statutory accounting practices have been applied
on a consistent basis throughout the periods involved, except as may
otherwise be indicated therein or in the notes thereto; and (B) present
fairly the statutory financial position of the subsidiaries as at the
dates thereof, and the statutory basis results of operations of the
subsidiaries for the periods covered thereby.
(r) Except as disclosed in the Registration Statement, all
retrocessional and reinsurance treaties, contracts and arrangements to
which any of the subsidiaries is a party are in full force and effect
and none of the Company or any of its subsidiaries is in violation of,
or in default in the performance, observance or fulfillment of, any
obligation, agreement, covenant or condition contained therein, except
where the failure to be in full force and effect and except where any
such violation or default would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; none of the Company or any of its subsidiaries has received any
written notice from any of the other parties to such treaties,
contracts or agreements which are material to its business that such
other party intends not to perform in any material respect such treaty,
contract or agreement, and the Company and its subsidiaries have been
notified in writing that any of the parties to such treaties, contracts
or agreements will be unable to perform such treaty, contract,
agreement or arrangement, except where such non-performance would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(s) Except as disclosed in the Prospectus, none of the Company
or any of the Subsidiaries have made any material changes in their
insurance reserving practices during the last two years.
(t) Except as provided in the Investors' Rights Agreement
dated as of April 23, 2001, by and among the Company, PT Investments,
Inc. and the other parties identified therein, 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.
(u) The Company has complied with all applicable provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase 2,500,000 Shares from the Company at $93.01 a share (the
"PURCHASE PRICE").
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The Company hereby agrees that, without the prior written consent of
Xxxxxxx Xxxxx, 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 Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares 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 Shares, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of Common Shares upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof of which
Xxxxxxx Xxxxx has been advised in writing (C) transactions by any person other
than the Company relating to Common Shares or other securities acquired in open
market transactions after the completion of the offering of the Shares, (D) the
issuance of shares and employee stock options pursuant to the Company's employee
stock plans in effect on the date hereof; (E) the granting by the Company of any
options, deferred shares or other equity awards under the Company's stock
incentive plans, so long as such options do not vest and become exercisable or
such deferred share or other awards do not vest, in each case, in the absence of
extraordinary events or occurrences beyond the control of the grantee or
recipient, until after the expiration of the 90 day period; (F) the issuance by
the Company of its securities in connection with acquisitions of businesses or
portions thereof, provided the parties in any such acquisition agree in writing
to be bound by the foregoing restrictions; (G) the pledge of common shares by
employees of the Company to secure loans to purchase its securities; or (H) in
the cases of natural persons, any disposition made among such persons' family
members or affiliates. In addition, the Company agrees that, without the prior
written consent of Xxxxxxx Xxxxx, it will not, during the period ending 90 days
after the date of the Prospectus, make any demand for, or exercise any right
with respect to, the registration of any Common Shares or any security
convertible into or exercisable or exchangeable for Common Shares.
3. Terms of Public Offering. The Company is advised by you that Xxxxxxx
Xxxxx proposes to make a public offering 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 $94.30 a share (the "PUBLIC OFFERING
PRICE").
4. Payment and Delivery. Payment for the Shares to be sold shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Shares for the account of Xxxxxxx Xxxxx at 10:00
a.m., New York City time, on October 19, 2001. The time and date of such payment
are hereinafter referred to as the "CLOSING DATE."
Certificates for the 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. The certificates
evidencing the Shares shall be delivered to you on the Closing Date with any
transfer taxes payable in connection with the transfer of the Shares to Xxxxxxx
Xxxxx duly paid, against payment of the Purchase Price therefor.
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5. Conditions to Xxxxxxx Xxxxx'x Obligations. The obligation of Xxxxxxx
Xxxxx to purchase and pay for the Shares on the Closing Date are subject to the
following 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 any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; 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 its 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) Xxxxxxx Xxxxx 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)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that 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 certificates may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) Xxxxxxx Xxxxx shall have received on the Closing Date an
opinion of Xxxxxxx Xxxx & Xxxxxxx, counsel for the Company, dated the
Closing Date, substantially to the effect that:
(i) the Company has been duly formed and 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 its subsidiaries,
taken as a whole;
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(ii) each of the Subsidiaries and Top Layer
Reinsurance Ltd., has been duly incorporated, is validly
existing as a company in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus, 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 its
subsidiaries, taken as a whole;
(iii) the Common Shares outstanding prior to the
issuance of the Shares have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) the Shares have been duly authorized and, when
issued and delivered against payment in accordance with the
terms of this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights;
(v) all of the issued shares of capital stock of each
subsidiary of the Company 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;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) 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 applicable
law or the memorandum of association or bye-laws of the
Company;
(viii) the statements (A) in the Prospectus under the
captions "Description of Our Capital Shares - Common Shares"
and "Enforcement of Civil Liabilities under United States
Federal Securities Laws" and (B) in the Company's Annual
Report on Form 10-K for the year ended December 31, 2000,
under the caption "Business - Regulation" (excluding the
statements under the subcaption "United States and Other"),
insofar as such statements constitute summaries of the Bermuda
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
(ix) after due inquiry, such counsel does not know of
any Bermuda legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and
are not so described or of any Bermuda 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.
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(d) Xxxxxxx Xxxxx shall have received on the Closing Date an opinion of
Xxxxxxx Xxxx & Xxxxxxxxx, U.S. counsel for the Company, dated the Closing Date,
to the effect that:
(i) the authorized capital shares of the Company conforms as
to legal matters in all material respects to the description thereof
contained in the Prospectus;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not, to the best of such counsel's knowledge, contravene any
agreement or other instrument binding upon the Company or any of its
Subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any U.S. governmental body, agency or
court having jurisdiction over the Company or any Subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any U.S. governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except such as may
already have been obtained or as may be required by the securities or
Blue Sky laws of the various states in connection with the sale of the
Shares;
(iii) the statements (A) in the Prospectus under the captions
"Description of Our Capital Shares - Common Shares," "Certain Tax
Considerations" and "Underwriting" (with respect solely to the
description of this Agreement contained therein), (B) in the Company's
Annual Report on Form 10-K for the year ended December 31, 2000, under
the caption "Business - Regulation - United States and Other" and (C)
in the Registration Statement in Item 15, in each case insofar as such
statements constitute summaries of the U.S. 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 , in each case, in all
material respects;
(iv) after due inquiry, such counsel does not know of any U.S.
legal or governmental proceedings pending or threatened to which the
Company or any of its Subsidiaries is a party or to which any of the
properties of the Company or any of its Subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any U.S. 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;
(v) the Company is not and, after giving effect to the 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; and
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(vi) each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Registration Statement and the
Prospectus (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any opinion or belief) complied when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and the Registration
Statement and Prospectus (except for financial statements and schedules
and other financial and statistical data included therein as to which
such counsel need not express any opinion or belief) comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
Such counsel shall also state that it (A) 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 (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 Prospectus Supplement as of the date such opinion is delivered
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.
In rendering their opinions as aforesaid, Xxxxxxx Xxxx & Xxxxxxxxx may
rely, as to factual matters, on written certificates of the officers of
the Company and, as to matters of Bermuda law, on the opinion of
Xxxxxxx, Xxxx & Xxxxxxx, dated as of the Closing Date; provided that
(1) you are notified in advance of Xxxxxxx Xxxx & Gallagher's intention
to rely on the opinion of Xxxxxxx, Xxxx & Xxxxxxx, (2) such reliance is
expressly authorized by such opinion as delivered to you and (3)
Xxxxxxx Xxxx & Xxxxxxxxx shall state in their opinion that they believe
that they and Xxxxxxx Xxxxx are justified in relying on such opinion of
Xxxxxxx, Xxxx & Xxxxxxx.
(e) Xxxxxxx Xxxxx shall have received on the Closing Date an
opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for Xxxxxxx
Xxxxx, dated the Closing Date, in form and substance reasonably
acceptable to Xxxxxxx Xxxxx. In rendering those opinions, LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P. may rely, as to factual matters, on
written certificates of officers of the Company and, as to matters
governed by the laws of Bermuda, on the opinion of Xxxxxxx Xxxx &
Xxxxxxx.
With respect to the statement described in the paragraph immediately
following Section 5(d)(vi), Xxxxxxx Xxxx & Xxxxxxxxx may state that its
opinion and belief are based upon its participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto and documents incorporated by reference and
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review and discussion of the contents thereof, but are without independent
check or verification except as specified. With respect to any opinion
equivalent to that set forth in the paragraph immediately following
5(d)(vi) above, 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 (other than the documents incorporated by reference)
and review and discussion of the contents thereof (including the documents
incorporated by reference), but are without independent check or
verification except as specified.
The opinions of Xxxxxxx Xxxx & Xxxxxxx and Xxxxxxx Xxxx & Xxxxxxxxx
described in Sections 5(c) and 5(d) above shall be rendered to Xxxxxxx
Xxxxx at the request of the Company and shall so state therein.
(f) Xxxxxxx Xxxxx shall have received, on or before the Closing Date,
a letter dated the date hereof and a letter dated the Closing Date, each in
form and substance satisfactory to the Xxxxxxx Xxxxx, from Xxxxx & Xxxxx
LLP, 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 or incorporated by reference into the Registration
Statement and the Prospectus; provided, however, that the letter dated the
Closing date shall use a "cut-off date" not earlier than the date hereof.
(g) Xxxxxxx Xxxxx shall have received, on or before the Closing Date,
the "lock-up" agreements, each substantially in the form of Exhibit A
hereto, between Xxxxxxx Xxxxx and each of Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxx, Xxxxx X. Xxxxxx and Xxxx X. Xxxxxx relating to sales and certain
other dispositions of Common Shares or certain other securities, which
shall be in full force and effect on the Closing Date.
(h) Xxxxxxx Xxxxx shall have received, at or before the Closing Date,
confirmation that the Shares have been approved for listing on the New York
Stock Exchange, subject only to official notice of issuance, if and as
specified in this Agreement.
6. Covenants of the Company. In further consideration of the agreements of
Xxxxxxx Xxxxx herein contained, the Company covenants with Xxxxxxx Xxxxx as
follows:
(a) To furnish to you, without charge, 4 signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the Closing Date, as many
copies of the Prospectus and any supplements and amendments thereto or to
the Registration Statement as you may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Exchange Act that are deemed to be incorporated by
reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement
11
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 sale of the
Shares as in the opinion of counsel for Xxxxxxx Xxxxx 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 reasonable
opinion of counsel for Xxxxxxx Xxxxx, 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
Xxxxxxx Xxxxx and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you 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 sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably request
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(e) To timely file such reports pursuant to the Exchange Act in order
to make generally available to its securityholders as soon as practicable
an earnings statement that satisfies the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission thereunder.
(f) To endeavor, by the Closing Date, to obtain approval for listing
of the Shares on the New York Stock Exchange, subject only to official
notice of issuance, if and as specified in this Agreement.
7. Expenses. Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company agrees 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, the Company's accountants 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 Xxxxxxx Xxxxx and the dealers, in
the quantities hereinabove specified, (ii) all costs and expenses related to
printing the certificates representing the shares and the transfer and delivery
of the Shares to Xxxxxxx Xxxxx, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky memorandum in
connection with the sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for sale under state
securities laws as provided in Section
12
6(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for Xxxxxxx Xxxxx in connection with such qualification and in
connection with the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to Xxxxxxx Xxxxx
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 incident to listing the Shares on the New York Stock Exchange, and (vi)
the costs and charges of any transfer agent, registrar or depositary. It is
understood, however, that except as provided in this Section, Section 8 entitled
"Indemnity and Contribution," and the last paragraph of Section 10 below,
Xxxxxxx Xxxxx will pay all of its costs and expenses, including fees and
disbursements of its counsel, stock transfer taxes payable on resale of any of
the Shares by it and any advertising expenses connected with any offers it may
make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold
harmless Xxxxxxx Xxxxx and each person, if any, who controls Xxxxxxx Xxxxx
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 Xxxxxxx Xxxxx furnished to the Company in writing
by you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of Xxxxxxx Xxxxx , or any person controlling Xxxxxxx Xxxxx, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of Xxxxxxx Xxxxx to the person asserting any losses, claims,
damages or liabilities, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 6(a) hereof.
(b) Xxxxxxx Xxxxx agrees to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who sign the Registration
Statement and 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
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, but only with
reference
13
to information relating to Xxxxxxx Xxxxx furnished to the Company in writing by
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 9(a) or 9(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 (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for Xxxxxxx Xxxxx and all persons, if any, who
control Xxxxxxx Xxxxx within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and (ii) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for Xxxxxxx Xxxxx and such control persons of
Xxxxxxx Xxxxx, such firm shall be designated in writing by Xxxxxxx Xxxxx. In the
case of any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. 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. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. 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.
14
(d) To the extent the indemnification provided for in Section 8(a) or 8(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 the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand from the sale of the Shares or (ii) if the allocation provided by
clause 8(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
8(d)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the 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 Xxxxxxx Xxxxx on the other hand in connection with the sale of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the sale of the Shares (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by Xxxxxxx Xxxxx,
in each case as described 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and Xxxxxxx Xxxxx agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 8(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 8, Xxxxxxx Xxxxx shall not be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that Xxxxxxx Xxxxx 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 8 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 8
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 Xxxxxxx Xxxxx or any person
15
controlling Xxxxxxx Xxxxx, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Shares.
9. 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., (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 of competent
jurisdiction 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 9(a)(i) through 9(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.
10. Effectiveness. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If this Agreement shall be terminated by Xxxxxxx Xxxxx 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, the
Company will reimburse Xxxxxxx Xxxxx for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by Xxxxxxx
Xxxxx in connection with this Agreement or the offering contemplated hereunder.
11. 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.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Consent to Jurisdiction. With respect to any suit, action or proceeding
against it arising out of or relating to this Agreement, the Company irrevocably
submits to the non-exclusive jurisdiction of the courts of the State of New York
and the United States District Courts in each case located in the Borough of
Manhattan, City and State of New York. In addition, each such party irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of such suit, action or proceeding brought in any such court and irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
For purposes of any such suit, action or proceeding brought in any of the
foregoing courts, the Company agrees to maintain an agent for service of process
in the Borough of Manhattan, City and State of New York, at all times while any
Securities shall be outstanding, and for that purpose the Company hereby
irrevocably designates Corporation Service Company,
16
to receive for and on its behalf service of process, at 0 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, or such other address as to which the
Company shall notify Xxxxxxx Xxxxx in writing. In the event that any such agent
for service of process resigns or ceases to serve as the agent of any such party
hereunder, the Company agrees to give notice as provided in Section 15 herein of
the name and address of any new agent for service of process with respect to it
appointed hereunder.
If, despite the foregoing, in any such suit, action or proceeding brought
in any of the aforesaid courts, there is for any reason no such agent for
service of process of the Company available to be served, then to the extent
that service of process by mail shall then be permitted by applicable law, the
Company further irrevocably consents to the service of process on it in any such
suit, action or proceeding in any such court by the mailing thereof by
registered or certified mail, postage prepaid, to it at its address given in or
pursuant to Section 14 hereof.
Nothing herein contained shall preclude any party from effecting service of
process in any lawful manner or from bringing any suit, action or proceeding in
respect of this Agreement in any other state, country or place.
14. Notices. Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Company, to at Xxxxxxxxxxx Xxxxx,
0-00 Xxxx Xxxxxxxx, Xxxxxxxx XX 00 Bermuda, telephone (000) 000-0000, attention:
Chief Financial Officer; with a copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxx X. X'Xxxxxxxx, Esq.; and (ii)
if to you, 4 World Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx, 00000, telephone (212)
000-0000, attention of Syndicate Department; or in any case to such other
address as the person to be notified may have requested in writing.
17
15. 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.
Very truly yours,
RENAISSANCERE HOLDINGS LTD.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and Chief
Financial Officer
Accepted as of the date hereof:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. (Xxxx) Xxxxxxxxx
-----------------------------------
Authorized Signatory
EXHIBIT A
FORM OF LOCK-UP LETTER
____________ 2001
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York, 10080
Dear Sirs and Mesdames:
The undersigned understands that RenaissanceRe Holdings Ltd., a Bermuda
company (the "COMPANY"), may sell up to 2,500,000 shares (the "SHARES") of the
common shares, par value $1.00 per share, of the Company (the "COMMON SHARES")
through Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "UNDERWRITER")
in a firm commitment underwriting (a "PUBLIC OFFERING").
To induce the Underwriter to continue its efforts in connection with the
Public Offering, the undersigned hereby agrees that, without the prior written
consent of the Underwriter, it 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 Common Shares or any
securities convertible into or exercisable or exchangeable for Common Shares, 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 the Common Shares,
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 (a) the sale of any Shares
to the Underwriter pursuant to the Underwriting Agreement, (b) transactions
relating to shares of Common Shares or other securities acquired in open market
transactions after the completion of the Public Offering, (c) the issuance of
shares and employee stock options pursuant to the Company's employee stock plans
in effect on the date hereof, (d) the pledge of common shares by employees of
the Company to secure loans to purchase its securities or (e) in the case of
natural persons, any disposition made among such persons' family members or
affiliates. In addition, the undersigned agrees that, without the prior written
consent of the Underwriter, 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
Common Shares or any security convertible into or exercisable or exchangeable
for Common Shares.
Whether or not the Public Offering actually occurs depends on
a number of factors, including market conditions.
Very truly yours,
_________________________
(Name)
_________________________
