EXECUTION COPY
4,000,000 Shares
RenaissanceRe Holdings Ltd.
7.30% Series B Preference Shares
$25 Per Share
Underwriting Agreement
New York, New York
January 30, 2003
To the Representative
named in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
RenaissanceRe Holdings Ltd., a company organized under the
laws of Bermuda (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto the "Underwriters"), for whom you (the
"Representative") are acting as representative, the number of shares of 7.30%
Series B Preference Shares set forth in Schedule I hereto (the "Securities").
To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representative as used herein shall mean
you, as Underwriters, and the terms Representative and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the effective date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the effective date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(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 (the file number of which is set forth in
Schedule I hereto) on Form S-3 including a related basic prospectus,
for registration under the Act of the offering and sale of the
Securities. 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. The Company will next file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rules 415 and 424(b). The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) The Registration Statement did, when it became effective,
and will, at the time of the effectiveness of any post-effective
amendment thereto or any Rule 462(b) Registration Statement, and when
the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will comply in all material
respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; the Registration Statement did
not, when it became effective, and will not, on the Execution Time or
at the time of the effectiveness of any post-effective amendment
thereto or any Rule 462(b) Registration Statement, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit 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; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representative
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) Each of the Company and Renaissance Reinsurance Ltd.
("Renaissance Reinsurance"), Glencoe Insurance Ltd. ("Glencoe") and
DaVinci Reinsurance Ltd. ("DaVinci") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification except to the extent in each case
that failure to be so qualified or be in good standing would not have a
material adverse effect on (i) the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
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transactions in the ordinary course of business, or (ii) the ability of
the Company to consummate the transactions contemplated by this
Agreement (a "Material Adverse Effect").
(d) All the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable and, except as otherwise set forth in the
Final Prospectus, or the pledge of the redeemable preference shares of
Renaissance Investment Holdings Ltd. pursuant to the Reimbursement
Agreement among the Company, certain of its subsidiaries and the
lenders named therein, dated as of December 20, 2002, all outstanding
shares of capital stock of the subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security interest or any other security interests,
claims, liens or encumbrances.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Securities conform in all material respects to the
description thereof contained in the Final Prospectus.
(g) The Securities have been duly authorized and, when
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; and
the issuance of the Securities will not be subject to any preemptive or
similar rights.
(h) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the U.S. Investment Company Act of
1940, as amended.
(i) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except (i) filings required
under Rule 424(b) and under the Companies Act of 1981 of Bermuda and
(ii) as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final
Prospectus.
(j) Neither the execution and delivery by the Company of this
Agreement, the issue and sale of the Securities nor the consummation of
any other of the transactions herein contemplated, nor the fulfillment
of the terms hereof will conflict with, result in a breach or violation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or of Renaissance Reinsurance and Glencoe (the
"Subsidiaries") or of DaVinci pursuant to, (i) the charter, memorandum
of association or bye-laws of the Company, the Subsidiaries or DaVinci,
(ii) the terms of any material indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other material
agreement, obligation, condition, covenant or instrument to which the
Company, any of the Subsidiaries or DaVinci is a party or bound or to
which its or their
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property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or any of
its subsidiaries or any of its or their properties.
(k) 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 Registration Statement (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(l) No legal or governmental action, suit or proceedings by or
before any court or governmental agency, authority or body involving
the Company or the Subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that would reasonably
be expected to have a Material Adverse Effect, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto). There are no legal or governmental proceedings pending or
threatened to which the Company, any of its Subsidiaries or DaVinci is
a party or to which any of the properties of the Company, any of its
Subsidiaries or DaVinci is subject that are required to be described in
the Registration Statement or the Final 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
Final Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(m) Each of the Company, DaVinci and each of the Subsidiaries
owns or leases all such properties as are necessary to the conduct of
its operations as presently conducted.
(n) Neither the Company nor any Subsidiary nor DaVinci is in
violation or default of (i) any provision of its charter, memorandum of
association or bye-laws, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is
a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or such Subsidiary or DaVinci or
any of its properties, as applicable, except for such conflicts,
breaches, violations or impositions which, singly or in the aggregate,
would not have a Material Adverse Effect.
(o) The Company, the Subsidiaries and DaVinci possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, except where the failure to so
possess such licenses, certificates, permits and authorizations would
not, singly or in the aggregate, have a Material Adverse Effect, and
neither the Company nor any such Subsidiary nor DaVinci has received
any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
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finding, would have a Material Adverse Effect, except as set forth in
or contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(p) The Company, the Subsidiaries and DaVinci (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 non-compliance 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.
(q) 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.
(r) Each of the Company, its Subsidiaries and DaVinci 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, and each of the Company, its Subsidiaries and
DaVinci 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. The financial statements of the Subsidiaries and DaVinci, from
which certain ratios and other statistical data filed as a part of the
Registration Statement or included or incorporated in the Final
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.
(s) 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 Final
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 Insurance Commissioners to the
extent applicable to such company, and
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by the applicable Insurance Laws, 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.
(t) 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; 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 neither the Company nor any of
its subsidiaries has 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.
(u) Except as disclosed in the Final Prospectus, none of the
Company or any of the Subsidiaries or DaVinci has made any material
changes in its insurance reserving practices during the last two years.
(v) 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 Securities
registered pursuant to the Registration Statement.
(w) 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.
Any certificate signed by any officer of the Company and
delivered to the Representative or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby,
to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto, the number of Securities set forth opposite such
Underwriter's name in Schedule II hereto.
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The Company hereby agrees that, without the prior written
consent of the Representative, it will not, during the period ending 90 days
after the date of the Final 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 preference shares of the
Company or any securities convertible into or exercisable or exchangeable for
preference shares of the Company 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 preference shares of the Company, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of preference shares or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) transactions by any person other than the Company relating to
preference shares or other securities acquired in open market transactions after
the completion of the offering of the preference shares, or (C) in the cases of
natural persons, any disposition made among such persons' family members or
affiliates.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representative shall designate, which date and
time may be postponed by agreement between the Representative and the Company or
as provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representative
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representative of the purchase price thereof to
or upon the order of the Company by wire transfer payable in same-day funds to
an account specified by the Company. Certificates for the Securities 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.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus. The Company is further advised by you that the
Securities are to be offered to the public initially at $25.00 per share (the
"Public Offering Price") plus accrued dividends, if any, to the Closing Date and
to certain dealers selected by you at a price that represents a concession not
in excess of the amount set forth in Schedule I hereto under the Public Offering
Price, and that any Underwriter may allow, and such dealers may reallow, a
concession, not in excess of the amount set forth in Schedule I hereto, to any
Underwriter or to certain other dealers.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which
7
you reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed, and with
the Registrar of Companies in Bermuda, and will provide evidence
satisfactory to the Representative of such timely filing. The Company
will promptly advise the Representative: (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective; (2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission; (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective; (4) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Final Prospectus or for any additional information;
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose; and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its reasonable efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company will promptly: (1) notify the
Representative of such event; (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission
or effect such compliance; and (3) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representative and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Representative may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
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(e) The Company will use its best efforts, if necessary, to
qualify the Securities for sale under the laws of such jurisdictions as
the Representative may designate and to maintain such qualifications in
effect so long as required for the distribution of the Securities (not
to exceed one year from the date hereof), and the Company will pay any
fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to file a consent
to service of process or to file annual reports or to comply with any
other requirements in connection with such qualification deemed by the
Company to be unduly burdensome.
(f) The Company will endeavor, by the Closing Date, to obtain
authorization for listing of the Securities on the New York Stock
Exchange, subject only to official notice of issuance, if and as
specified in this Agreement.
(g) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representative agrees in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Company, to have furnished to the
Representative their opinion on matters of Bermuda law, dated the
Closing Date, and addressed to the Representative, to the effect that:
(i) Each of the Company, Renaissance Reinsurance,
Glencoe and DaVinci (together, the "Bermuda Companies") is
duly incorporated and existing
9
as an exempted company under the laws of Bermuda in good
standing (meaning solely that the relevant company has not
failed to make any filing with any Bermuda governmental
authority or to pay any Bermuda government fee or tax which
would make it liable to be struck off the Register of
Companies and thereby cease to exist under the laws of
Bermuda).
(ii) Each of the Bermuda Companies has the necessary
corporate power and authority to conduct its business as
described in the Final Prospectus being conducted by that
particular entity (without reference to or including any
particular subsidiary or other company) and to own, lease and
operate its properties as described in the Final Prospectus
(without regard in either case to documents incorporated by
reference in the Final Prospectus) and in "Item 1 - Business"
and "Item 2 - Properties" of the Company's Annual Report on
Form 10-K for the year ended December 31, 2001.
(iii) The Company has the necessary corporate power
and authority to enter into and perform its obligations under
this Agreement. The execution and delivery of this Agreement
by the Company and the performance by the Company of its
obligations hereunder will not violate the memorandum of
association or bye-laws of the Company, the Bermuda Companies
nor any applicable law, regulation, order or decree in
Bermuda.
(iv) The Securities 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 the Securities
will not be subject to any preemptive or similar rights.
(v) The Company has taken all corporate action
required to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly executed and
delivered by or on behalf of the Company, and constitutes a
valid and binding obligation of the Company in accordance with
its terms.
(vi) No order, consent, approval, license,
authorization or validation of or exemption by any government
or public body or authority of Bermuda or any subdivision
thereof is required to authorize or is required in connection
with the execution, delivery, performance and enforcement of
this Agreement, except such as have been duly obtained in
accordance with Bermuda law.
(vii) It is not necessary or desirable to ensure the
enforceability in Bermuda of this Agreement that they be
registered in any register kept by, or filed with, any
governmental authority or regulatory body in Bermuda.
(viii) This Agreement and the Securities will not be
subject to ad valorem stamp duty in Bermuda.
(ix) Based solely upon a search of the Cause Book of
the Supreme Court of Bermuda conducted on the Closing Date
(which would not reveal details of proceedings which have been
filed but not actually entered in the Cause Book
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at the time of the search conducted by such counsel), there
are no judgments against any of the Bermuda Companies, nor any
legal or governmental proceedings pending in Bermuda to which
any of the Bermuda Companies is subject.
(x) Based solely upon a review of a copy of its
certificate of registration issued pursuant to the Insurance
▇▇▇ ▇▇▇▇ of Bermuda, as amended (the "Insurance Act"),
Renaissance Reinsurance is duly registered in Bermuda to write
general insurance as a class 4 insurer in accordance with the
provisions of the Insurance Act, and to the best knowledge of
such counsel, such registration is in full force and effect
and no proceedings are pending or threatened seeking the
revocation or limitation thereof, except in any such cases
where the failure by Renaissance Reinsurance to be so licensed
or authorized would not (either individually or in the
aggregate) have a material adverse effect.
(xi) Based solely upon a review of a copy of its
certificate of registration issued pursuant to the Insurance
Act, Glencoe is duly registered in Bermuda to write general
insurance in Bermuda as a class 3 insurer in accordance with
the provisions of the Insurance Act, and to the best knowledge
of such counsel, such registration is in full force and effect
and no proceedings are pending or threatened seeking the
revocation or limitation thereof, except in any such cases
where the failure by Glencoe to be so licensed or authorized
would not (either individually or in the aggregate) have a
material adverse effect.
(xii) Based solely upon a review of a copy of its
certificate of registration issued pursuant to the Insurance
Act, DaVinci is duly registered in Bermuda to write general
insurance in Bermuda as a class 4 insurer in accordance with
the provisions of the Insurance Act, and to the best knowledge
of such counsel, such registration is in full force and effect
and no proceedings are pending or threatened seeking the
revocation or limitation thereof, except in any such cases
where the failure by DaVinci to be so licensed or authorized
would not (either individually or in the aggregate) have a
material adverse effect.
(xiii) The statements (A) in the Final Prospectus
under the caption "Description of Series B Preference Shares,"
in the Basic Prospectus under the captions "Description of Our
Capital Shares" (excluding the statements under the sub
captions: "Common Shares," "Conversion Rights," and
"Supermajority Requirements for Certain Amendments") and
"Enforcement of Civil Liabilities under United States Federal
Securities Laws," (B) in the Company's Annual Report on Form
10-K for the year ended December 31, 2001, under the caption
"Business - Regulation" (excluding the statements under the
subcaption "United States and Other," "NAIC Ratios,"
"Codification of Statutory Accounting Principles," "Risk Based
Capital" and "The ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act"), and (C) in "Item
15 - Indemnification of Officers and Directors" of the
Registration Statement, in each case insofar as such
statements constitute summaries of the Bermuda legal matters,
documents or proceedings referred to therein, fairly
11
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein.
(xiv) The choice of the laws of the State of New York
as the governing law of this Agreement is a valid choice of
law and would be recognized and given effect to in any action
brought before a court of competent jurisdiction in Bermuda,
except for those laws (i) which such court considers to be
procedural in nature, (ii) which are revenue or penal laws or
(iii) the application of which would be inconsistent with
public policy, as such term is interpreted under the laws of
Bermuda. The submission in this Agreement to the non-exclusive
jurisdiction of the Foreign Courts is valid and binding upon
the Company.
(xv) The courts of Bermuda would recognize as a valid
judgment, a final and conclusive judgment in personam obtained
in the United States Federal or New York State Courts sitting
in the Borough of Manhattan, State of New York 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.
(xvi) Based solely on a review of a copy of the
Register of Members of the Company and of the certificate of
the Secretary of the Company certifying that the Company has
received for each share of the Company in issue money or
money's worth with a value in each case equal to the par value
of such share or, if greater, the subscription price for each
share, all of the issued and outstanding shares of the Company
have been duly authorized, 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
thereof).
(xvii) Based solely on a review of a copy of the
Register of Members of Renaissance Reinsurance, of a copy of
the Register of Members of Glencoe, of a copy of the Register
of Members of DaVinciRe Holdings Ltd. ("DaVinci Holdings"), of
a copy of the Register of Members of DaVinci and of the
certificates of appropriate officers of Renaissance
Reinsurance, Glencoe, DaVinci Holdings and of DaVinci as to
the amount paid up on the shares of each company, all of the
issued and outstanding shares of Renaissance Reinsurance, of
Glencoe, of DaVinci Holdings and of DaVinci have been duly
authorized, 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 thereof). Based
solely on a review of a copy of the Register of Members of
Renaissance Reinsurance and a
12
copy of the Register of Members of Glencoe, all of the shares
of Renaissance Reinsurance and a majority of the shares of
Glencoe are registered in the name of the Company. Based
solely on a review of a copy of the Register of Members of
DaVinci Holdings and of a copy of the Register of Members of
DaVinci, all of the Class A shares of DaVinci Holdings and all
of the Class A shares of DaVinci are registered in the name of
the Company.
As to matters of fact, such counsel may rely, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, U.S. counsel for the Company, to have furnished to the
Representative their opinion, dated the Closing Date and addressed to
the Representative, to the effect that:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement is in effect, and, to the
knowledge of such counsel, no proceedings for such purpose are
pending before or threatened by the Commission; the Final
Prospectus was filed with the Commission pursuant to Rule
424(b) of the Act on the date specified therein; any required
filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); and to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Final
Prospectus (other than the financial statements and other
financial information contained therein, as to which such
counsel need express no opinions) comply as to form in all
material respects with the applicable requirements of the Act
and the rules thereunder;
(ii) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(iii) 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
applicable statute, 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, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein, except such as may be
required under the blue
13
sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and in the Final
Prospectus and such other approvals (specified in such
opinion) as have been obtained;
(iv) To the knowledge of such counsel, there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements included or
incorporated by reference in (A) the Final Prospectus under
the heading "Description of Our Capital Shares - Preference
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, 2001, under the caption "Business
- Regulation - United States and Other," "NAIC Ratios,"
"Codification of Statutory Accounting Principles," "Risk Based
Capital" and the first paragraph under "The ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act" and (C) Item 15 of the Registration Statement, in each
case insofar as such statements summarize U.S. legal matters,
agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings;
(v) 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 Final
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 Final
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required; and
(vi) Each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Registration
Statement and the Final 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 the Final 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
14
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 data as to which such counsel need not
express any belief) the Final Prospectus 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 such opinion, such counsel may rely as to matters
involving the application of Bermuda law, to the extent they deem
proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇, dated as of the Closing Date; provided that (1) you are
notified in advance of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇'▇ intention to rely on
the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, (2) such reliance is expressly
authorized by such opinion as delivered to the Underwriters and (3)
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ shall state in their opinion that they believe
that they and the Underwriters are justified in relying on such opinion
of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇. As to matters of fact, such counsel may
rely, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Representative shall have received from LeBoeuf, Lamb,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representative,
with respect to the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion or opinions, LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, 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
opinions of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇.
With respect to the statement described in the paragraph
immediately following Section 6(c)(vi), ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ may
state that its opinion and belief are based upon its participation in
the preparation of the Registration Statement and the Final Prospectus
and any amendments or supplements thereto and documents incorporated by
reference and 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 6(c)(vi) above, LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
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.
(e) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that
15
the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened;
(iii) the Securities are rated, as of the date
thereof, at least Baa2 by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") and BBB by Standard & Poor's Rating Services; and
(iv) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no Material Adverse Effect or change or development
reasonably likely to result in a Material Adverse Effect,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst & Young
LLP to have furnished to the Representative, at the Execution Time and
at the Closing Date, letters (which may refer to letters previously
delivered to the Representative), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
reasonably satisfactory to the Representative, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and 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 Final Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof. References to the Final Prospectus in
this paragraph (f) include any supplement thereto at the date of the
letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material
16
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
below "A3" by Moody's or any notice given by Moody's or any other
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representative a certificate of the Company, signed by
the Chairman of the Board or the President or the principal financial
or accounting officer of the Company, dated the Closing Date, in form
and substance reasonably satisfactory to the Representative, regarding
the percentage of the Company's gross and net written premiums written
by certain subsidiaries of the Company.
(j) Prior to the Closing Date, the Company shall have
furnished to the Representative confirmation that the Securities have
been authorized for listing on the New York Stock Exchange, subject
only to official notice of issuance, if and as specified in this
Agreement.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representative on demand for all out-of-pocket expenses
(including reasonable fees
17
and disbursements of counsel) that shall have been reasonably incurred by them
in connection with the proposed purchase and sale of the Securities.
(a) Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representative specifically for inclusion therein;
provided, further, that with respect to any untrue statement or
omission of material fact made in any Preliminary Final Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to
the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished
copies of the Final Prospectus to the Representative, (x) delivery of
the Final Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in
the Preliminary Final Prospectus was corrected in the Final Prospectus
and (z) there was not sent or given to such person, at or prior to the
written confirmation of the sale of such securities to such person, a
copy of the Final Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(a) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representative
specifically for inclusion in the
18
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter
may otherwise have.
(b) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above to the extent it did not otherwise learn of
such action and is not materially prejudiced as a result thereof and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) 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 or (ii) the indemnifying
party shall authorize the indemnified party to employ separate counsel
at the expense of the indemnifying party; provided, however, that 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 all Underwriters and all persons, if
any, who control any Underwriter within the meaning of the Act or the
Exchange Act and (ii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company and all
persons, if any, who control the Company within the meaning of the Act
or the Exchange Act. An indemnifying party will not, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(c) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to
19
which the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that
notwithstanding the provisions of this Section 8, no Underwriter shall
be required (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) to contribute
any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on
the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase;
20
provided, however, that if the aggregate number of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representative shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time there shall have been (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, (ii) a
suspension or material limitation in trading in any of the Company's securities
on the New York Stock Exchange, (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities, (iv) an
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, or (v) the
occurrence of any other calamity or crisis, if the effect of such event
specified in clause (iv) or (v), in the sole judgment of the Representative,
makes it impracticable or inadvisable to proceed with the public offering or
delivery of the Securities on the terms and in the manner contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representative, will be
mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. General Counsel
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, and with
a copy to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.; or, if sent to the
Company, will be mailed, delivered or telefaxed to the Company's Chief Financial
Officer (fax no: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Chief Financial Officer, with
a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, Esq.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, and controlling
21
persons referred to in Section 8 hereof, and no other person will have any right
or obligation hereunder. No purchaser of Securities from the Underwriters shall
be deemed to be a successor by reason merely of such purchase.
13. Applicable Law; Consent to Jurisdiction. (a) This
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed within the
State of New York.
(b) 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, the
Company 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.
(c) 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 ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, c/o ▇▇. ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, as its agent to receive on
its behalf service of process (with a copy of all such service of
process to be delivered to RenaissanceRe Holdings Ltd., Renaissance
House, ▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Chief
Financial Officer) brought against it with respect to any such
proceeding in any such court in the Borough of Manhattan, City and
State of New York, such service being hereby acknowledged by the
Company to be effective and binding service on it in every respect
whether or not the Company shall then be doing or shall have at any
time done business in New York. In the event that such agent for
service of process resigns or ceases to serve as the agent of the
Company, the Company agrees to give notice as provided in Section 12
herein of the name and address of any new agent for service of process
with respect to it appointed hereunder.
(d) 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 12 hereof.
(e) 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.
22
14. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the U.S. Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
effective date of such Registration Statement, including any
Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Bermuda.
"Commission" shall mean the U.S. Securities and Exchange
Commission.
"Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be.
"Rule 415", "Rule 424", and "Rule 462" refer to such rules
under the Act.
23
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
24
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
RENAISSANCERE HOLDINGS LTD.
By: ______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: __________________________
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated January 30, 2003
Registration Statement No. 333-83308
Representative(s): ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Title, Purchase Price and Description of Securities:
Title: 7.30% Series B Preference Shares
Amount: 4,000,000 shares
Purchase price: $24.2125 per share
Liquidation preference: $25.00 per share, plus accrued and unpaid
dividends to the date fixed for distribution
Dealer concession: $0.50 per share
Reallowance concession: $0.30 per share
Sinking fund provisions: None
Redemption provisions: Callable beginning in five years
Other provisions: As described in the Final Prospectus
Closing Date, Time and Location: February 4, 2003 at 10:00 a.m. at the offices
of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SCHEDULE II
NUMBER OF SECURITIES
UNDERWRITERS TO BE PURCHASED
------------ --------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 845,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 845,000
Wachovia Securities, Inc. 845,000
Banc of America Securities LLC 300,000
Deutsche Bank Securities Inc. 300,000
Quick & ▇▇▇▇▇▇, Inc. 300,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 25,000
ABN Amro Incorporated 25,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 25,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. 25,000
CIBC World Markets Corp. 25,000
Fahenstock & Co. Inc. 25,000
Fox ▇▇▇▇ ▇▇▇▇▇▇ Inc. 25,000
H&R Block Financial Advisors, Inc. 25,000
HSBC Securities (USA) Inc. 25,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. 25,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 25,000
Prudential Securities Incorporated 25,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 25,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. 25,000
TD Securities (USA) Inc. 25,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 25,000
▇▇▇▇▇ Fargo ▇▇▇ ▇▇▇▇▇▇, LLC 25,000
Advest, Inc. 10,000
BB&T Capital Markets, a Division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇ 10,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 10,000
▇▇▇▇▇▇▇▇▇ & Company LLC 10,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Incorporated 10,000
J.J.B ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. 10,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. 10,000
McDonald Investments Inc. 10,000
Mesirow Financial, Inc. 10,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 10,000
▇▇▇▇ ▇▇▇▇ & Co. LLC 10,000
Southwest Securities, Inc. 10,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 10,000
Wedbush ▇▇▇▇▇▇ Securities, Inc. 10,000
---------
TOTAL SHARES 4,000,000
=========
