EXHIBIT 1.1
EXECUTION COPY
6,450,000
ASPEN INSURANCE HOLDINGS LIMITED
ORDINARY SHARES
UNDERWRITING AGREEMENT
March 22, 2005
CREDIT SUISSE FIRST BOSTON LLC
DEUTSCHE BANK SECURITIES INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. The shareholders listed in Schedule A hereto (the
"SELLING SHAREHOLDERS") propose severally to sell an aggregate of 6,450,000
outstanding shares (the "FIRM SECURITIES") of the ordinary shares, par value
$.0015144558 per share (the "SECURITIES"), of Aspen Insurance Holdings Limited,
a Bermuda company (the "COMPANY"), and the Selling Shareholders also propose to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 870,000 additional outstanding shares (the "OPTIONAL SECURITIES") of
the Company's Securities as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "OFFERED SECURITIES". The
Selling Shareholders hereby agree with the Company and with the several
Underwriters named in Schedule B hereto (the "UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Shareholders.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-122571) relating to the
Offered Securities, including a prospectus (the "INITIAL REGISTRATION
STATEMENT") has been filed with the Securities and Exchange Commission
(the "COMMISSION") and has been declared effective under the Securities
Act of 1933 (the "ACT") and either (A) is not proposed to be amended or
(B) is proposed to be amended by amendment or post-effective amendment.
Either (A)
an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(B)")
under the Act (if available) and, if so filed, has become effective
upon filing pursuant to such Rule and the Offered Securities all have
been duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or
(B) such an additional registration statement is proposed to be filed
with the Commission pursuant to Rule 462(b) (if available) and will
become effective upon filing pursuant to such Rule and upon such filing
the Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(C)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all material incorporated by reference
therein and including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement (if any) pursuant to the General Instructions of
the Form on which it is filed, is hereinafter referred to as the
"INITIAL REGISTRATION STATEMENT". The additional registration statement
(if any), as amended at its Effective Time, including the contents of
the initial registration statement incorporated by reference therein,
is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT".
The Initial Registration Statement and the Additional Registration
Statement are hereinafter referred to collectively as the "REGISTRATION
STATEMENTS" and individually as a "REGISTRATION STATEMENT". The
prospectus included in each Registration Statement, as supplemented to
reflect the terms of the offering of the Offered Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(B)") under the Act, including all material
incorporated by reference in such prospectus is hereinafter referred to
as the "PROSPECTUS". Any preliminary prospectus included in a
Registration Statement or filed with
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the Commission pursuant to Rule 424(b), including all material
incorporated by reference in such preliminary prospectus, as
supplemented, is hereinafter referred to as a "PRELIMINARY PROSPECTUS".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) On the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission ("RULES AND REGULATIONS") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. On the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. At the time
of filing of the Preliminary Prospectus, the Preliminary Prospectus
conformed in all material respects to the requirements of the Act and
the Rules and Regulations and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. On the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b), each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The four
preceding sentences do not apply to statements in or omissions from a
Registration Statement, a Preliminary Prospectus or the Prospectus
based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business (exclusive of reinsurance
treaties and insurance policies covering third-party risks) from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in any Registration Statement and the Prospectus, there has not
been any material adverse change in the capital stock, the capital or
surplus or long-term debt of the Company or
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any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(iv) Neither the Company nor any of Aspen Insurance UK Limited
("ASPEN U.K."), Aspen Insurance Limited ("ASPEN BERMUDA") and Aspen
Specialty Insurance Company ("ASPEN U.S." and, together with Aspen U.K.
and Aspen Bermuda, the "DESIGNATED SUBSIDIARIES") hold title to any
real property; all of the leases, subleases and licenses under which
the Company or any of its Designated Subsidiaries holds real properties
described in the Prospectus are in full force and effect, and neither
the Company nor any Designated Subsidiary has any notice of any claim
of any sort that has been asserted by anyone adverse to the rights of
the Company or any Designated Subsidiary under any of the leases,
subleases or licenses mentioned above, or affecting or questioning the
rights of the Company or such Designated Subsidiary to the continued
possession of the leased, subleased or licensed premises under any such
lease or sublease, except where the failure to have such leases in full
force and effect or the failure to have any such notice of any such
claim would not, individually or in the aggregate, result in a material
adverse change in the condition, financial or otherwise, or in the
earnings, results of operations, business affairs, shareholders' equity
or business prospects of the Company and its subsidiaries, taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(v) The Company has been duly incorporated and is validly
existing as an exempted company in good standing under the laws of
Bermuda, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure
to so qualify would not result in a Material Adverse Effect; each of
the Designated Subsidiaries has been duly organized or incorporated and
is validly existing as a company or corporation in good standing
(including, in the case of Aspen Insurance Limited, as an exempted
company) under the laws of its jurisdiction of organization or
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign company or corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except where the
failure to so qualify would not result in a Material Adverse Effect;
and except for Aspen (UK) Holdings Limited ("ASPEN U.K. HOLDINGS"),
Aspen Insurance UK Services Limited ("ASPEN U.K. SERVICES"), Aspen U.S.
Holdings, Inc. ("ASPEN U.S. HOLDINGS"), Aspen Specialty Insurance
Management Inc. ("ASPEN SPECIALTY"), Aspen Insurance U.S. Services Inc.
("ASPEN U.S. SERVICES") and Aspen Re America, Inc. ("ASPEN RE
America"), none of which, other than Aspen U.K. Holdings, is a
"significant subsidiary" of the Company as that term is defined in Rule
1-02(w) of Regulation S-X of the Rules and Regulations, the Designated
Subsidiaries are the only subsidiaries of the Company.
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(vi) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company, including the Offered Securities, have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description of share capital contained in the Prospectus; and all
of the currently issued and outstanding 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, except as set forth in
the Prospectus, are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims; the holders
of outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights which have not been complied with; there
are no outstanding securities convertible into or exchangeable for, or
warrants, rights or options to purchase from the Company, or
obligations of the Company to issue, the Securities or any other class
of capital stock of the Company (except for the 3,781,120 options
issued to Wellington Underwriting plc ("WELLINGTON") and the 1,710,398
options issued to the Xxxxxxx Trust (Bermuda) Limited, as trustee,
which holds the securities for the members of Syndicate 2020 who are
not corporate members of Wellington, and options issued pursuant to the
Company's 2003 Share Incentive Plan); except as disclosed in the
Prospectus, there are no restrictions on subsequent transfers of the
Offered Securities under the laws of Bermuda, as long as they are
listed on the New York Stock Exchange, and of the United States; and
except as disclosed in the Prospectus, no party has the right to
require the Company to register securities.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) There are no currency exchange control laws or
withholding taxes, in each case of Bermuda or the United Kingdom (or
any political subdivision or taxing authority thereof) that would be
applicable to the payment of dividends (A) on the Offered Securities by
the Company (other than as may apply to residents of Bermuda for
Bermuda exchange control purposes) or (B) by any of the Company's
subsidiaries to the Company; the Bermuda Monetary Authority (the "BMA")
has designated the Company and Aspen Bermuda as non-resident for
exchange control purposes and has granted permission for the issue and
free transferability of the Offered Securities being offered pursuant
to the Registration Statement, as long as they are listed on the New
York Stock Exchange, to and among persons who are non-residents of
Bermuda for exchange control purposes (including permission for the
issue and free transferability of up to 20% of the Offered Securities
to and among persons who are residents of Bermuda for exchange control
purposes); such permission has not been revoked and is in full force
and effect, and the Company has no knowledge of any proceedings planned
or threatened for the revocation of such permission; the Company and
Aspen Bermuda are "exempted companies" under Bermuda law and have not
(V) acquired and do not hold any land for their respective business in
Bermuda, other than that held by way of lease or tenancy for terms of
not more than 50 years, without the express authorization of the
Bermuda Minister of Finance, (W) acquired and do not hold land by way
of lease or tenancy for terms of not
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more than 21 years in order to provide accommodation or
recreational facilities for their officers and employees, without the
express authority of the Bermuda Minister of Finance, (X) taken
mortgages on land in Bermuda to secure an amount in excess of $50,000,
without the consent of the Bermuda Minister of Finance, (Y) acquired
any bonds or debentures secured by any land in Bermuda, except bonds or
debentures issued by the government of Bermuda or a public authority of
Bermuda, or (Z) conducted their business in a manner that is prohibited
for "exempted companies" under Bermuda law; neither the Company nor
Aspen Bermuda has received notification from the BMA or any other
Bermuda governmental authority of proceedings relating to the
modification or revocation of its designation as non-resident for
exchange control purposes, its permission to transfer the Securities or
its status as an "exempted company".
(ix) The execution, delivery and performance of this
Agreement, the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, (A) the
certificate of incorporation, memorandum of association, articles of
association, bye-laws, by-laws or other organizational document, as
amended (any such document, a "CONSTITUTIONAL DOCUMENT"), as the case
may be, of the Company or any of its subsidiaries, (B) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, or (C) any statute or any order, rule or regulation of any
court or governmental agency or body, any stock exchange authority or
any other regulatory authority (hereinafter referred to as a
"GOVERNMENTAL AGENCY") having jurisdiction over the Company or any of
its subsidiaries or any of their properties, except, in the case of
clause (C), as would not, individually or in the aggregate, result in a
Material Adverse Effect.
(x) No consent, approval, authorization, order, registration
or qualification of or with any Governmental Agency (hereinafter
referred to as the "GOVERNMENTAL AUTHORIZATIONS") is required for the
consummation by the Company of the transactions contemplated hereby,
except (A) the registration under the Act of the Offered Securities,
(B) such Governmental Authorizations as have been duly obtained and are
in full force and effect and copies of which have been furnished to the
Representatives, (C) such Governmental Authorizations as may be
required under state securities laws, Blue Sky laws, insurance
securities laws or any laws of jurisdictions outside the United States
in connection with the purchase and distribution of the Offered
Securities by or for the account of the Underwriters, (D) the filing of
the Prospectus with the Registrar of Companies in Bermuda in accordance
with Bermuda law and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required and have been
obtained from the BMA.
(xi) Except as disclosed in the Prospectus, all retrocessional
and reinsurance treaties, contracts and arrangements that are filed as
exhibits to the Registration Statement
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are in full force and effect; neither the Company nor any of
the Designated Subsidiaries is (A) in violation of any of its
Constitutional Documents or (B) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement, or instrument to which it is a party or by
which it or any of its properties may be bound, except, in the case of
clause (B), for any such defaults or violations that would not,
individually or in the aggregate, result in a Material Adverse Effect
or as otherwise waived or consented to by the parties or shareholders
to which the Company or the Designated Subsidiaries owes any
obligations under such agreements or documents.
(xii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by
or on behalf of the Underwriters to Bermuda or any political
subdivision or taxing authority thereof or therein in connection with
(A) the sale and delivery of the Offered Securities to or for the
respective accounts of the Underwriters or (B) the sale and delivery
outside Bermuda by the Underwriters of the Offered Securities to the
initial purchasers thereof.
(xiii) The Company has no knowledge of any threatened or
pending downgrading of the rating accorded the debt securities of the
Company or the financial strength or claims-paying ability of the
Company or any of the Designated Subsidiaries by A.M. Best Company,
Inc., Standard & Poor's Ratings Service, a Division of The XxXxxx-Xxxx
Companies, Inc., or Xxxxx'x Investors Services, Inc. (collectively, the
"RATINGS AGENCIES" and, individually, a "RATING AGENCY"). The Ratings
Agencies are the only "nationally recognized statistical rating
organizations," as that term is defined by the Commission for purposes
of Rule 463(g)(2) under the Act, which currently rate the debt
securities of the Company or the financial strength or claims-paying
ability of the Company or any of the Designated Subsidiaries. None of
the Ratings Agencies and no other nationally recognized statistical
rating organization currently rates any other securities of the Company
or any securities of its subsidiaries.
(xiv) There are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, result in a
Material Adverse Effect; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by any Governmental
Agency or threatened by others.
(xv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(xvi) Each of the Designated Subsidiaries and Aspen Specialty
is duly licensed as an insurance brokerage company, insurer or
reinsurer, as the case may be, under the insurance laws and the rules,
regulations and interpretations of the insurance regulatory authorities
thereunder (collectively, "INSURANCE LAWS") of each jurisdiction in
which the
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conduct of its existing business as described in the
Prospectus requires such licensing, except for such jurisdictions in
which the failure to be so licensed would not, individually or in the
aggregate, result in a Material Adverse Effect; each of the Company,
the Designated Subsidiaries and Aspen Specialty has made all required
filings under applicable holding company statutes or other Insurance
Laws in each jurisdiction where such filings are required, except for
such jurisdictions in which the failure to make such filings would not,
individually or in the aggregate, result in a Material Adverse Effect;
except as described in the Prospectus, each of the Company, the
Designated Subsidiaries and Aspen Specialty has all other necessary
authorizations, approvals, orders, consents, certificates, licenses,
permits, registrations and qualifications of and from all insurance
regulatory authorities necessary to conduct their respective existing
businesses as described in the Prospectus and all of the foregoing are
in full force and effect, except where the failure to have such
authorizations, approvals, orders, consents, certificates, permits,
registrations or qualifications or their failure to be in full force
and effect would not, individually or in the aggregate, result in a
Material Adverse Effect; none of the Company, the Designated
Subsidiaries or Aspen Specialty has received any notification from any
insurance regulatory authority or other governmental authority in the
United States, Bermuda, the United Kingdom or elsewhere to the effect
that any additional authorization, approval, order, consent,
certificate, permit, registration or qualification is needed to be
obtained by either the Company, the Designated Subsidiaries or Aspen
Specialty to conduct its existing business as described in the
Prospectus; and except as otherwise described in the Prospectus, no
insurance regulatory authority has issued any order or decree
impairing, restricting or prohibiting the payment of dividends by the
Company or any of the Designated Subsidiaries.
(xvii) Each of the Company and the Designated Subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) access to assets
is permitted only in accordance with management's general or specific
authorization; and (D) assets as recorded are compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xviii) Each of the Company and the Designated Subsidiaries
has filed all statutory financial returns, reports, documents and other
information required to be filed pursuant to the applicable Insurance
Laws of the United States and the various states thereof, Bermuda, the
United Kingdom and each other jurisdiction applicable thereto, except
where the failure, individually or in the aggregate, to file such
return, report, document or information would not result in a Material
Adverse Effect; and each of the Company and the Designated Subsidiaries
maintains its books and records in accordance with, and is otherwise in
compliance with, the applicable Insurance Laws of the United States and
the various states thereof, Bermuda, the United Kingdom and each other
jurisdiction applicable thereto, except where the failure to so
maintain its books and
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records or be in compliance would not, individually or in the
aggregate, result in a Material Adverse Effect.
(xix) (A) Any tax returns required to be filed by the Company
or any of its subsidiaries, other than Aspen U.S., Aspen U.K. and Aspen
U.K. Services, in any jurisdiction have been accurately prepared and
timely filed and any taxes, including any withholding taxes, excise
taxes, franchise taxes and similar fees, sales taxes, use taxes,
penalties and interest, assessments and fees and other charges due or
claimed to be due from such entities have been paid, other than any of
those being contested in good faith and for which adequate reserves
have been provided or any of those currently payable without penalty or
interest and (B) to the Company's knowledge, any tax returns required
to be filed by Aspen U.S., Aspen U.K. and Aspen U.K. Services in any
jurisdiction have been accurately prepared and timely filed and any
taxes, including any withholding taxes, excise taxes, franchise taxes
and similar fees, sales taxes, use taxes, penalties and interest,
assessments and fees and other charges due or claimed to be due from
Aspen U.S. have been paid, other than any of those being contested in
good faith and for which adequate reserves have been provided or any of
those currently payable without penalty or interest, in either case (1)
except to the extent that the failure to so file or pay would not
result in a Material Adverse Effect and (2) other than those tax
returns that would be required to be filed or taxes that would be
payable by the Company or any of its subsidiaries if (a) any of them
was characterized as a "personal holding company" as defined in Section
542 of the Internal Revenue Code of 1986, as amended (the "CODE"), (b)
any of them other than Aspen Specialty, Aspen U.S., Aspen U.S.
Holdings, Aspen U.S. Services and Aspen Re America (collectively, the
"U.S. SUBSIDIARIES") was characterized as engaged in a U.S. trade or
business, and (c) any of them other than Aspen U.K., Aspen U.K.
Holdings and Aspen U.K. Services (collectively, the "U.K.
SUBSIDIARIES") was characterized as resident, managed and controlled or
carrying on a trade through a branch or agency in the United Kingdom;
no deficiency assessment with respect to a proposed adjustment of the
Company's or any of its subsidiaries' taxes is pending or, to the best
of the Company's knowledge, threatened; and there is no tax lien,
whether imposed by any federal, state, or other taxing authority,
outstanding against the assets, properties or business of the Company
or any of its subsidiaries, in either case, which would have a Material
Adverse Effect.
(xx) Each of the Company and Aspen Bermuda have received from
the Bermuda Minister of Finance an assurance under the Exempted
Undertakings Tax Protection Xxx 0000, as amended, of Bermuda to the
effect set forth in the Prospectus under the caption "Material Tax
Considerations--Taxation of Aspen Holdings and Subsidiaries--Bermuda,"
and the Company has not received any notification to the effect (and is
not otherwise aware) that such assurance may be revoked or otherwise
not honored by the Bermuda government.
(xxi) Based upon and subject to the assumptions and
qualifications set forth in the Prospectus under the caption "Material
Tax Considerations," the Company does not believe (A) that either the
Company or any of its subsidiaries currently should be, or upon
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the sale of the Offered Securities contemplated hereby should
be, (1) treated as a "passive foreign investment company" as defined in
Section 1297(a) of the Code, (2) characterized as a "personal holding
company" as defined in Section 542 of the Code, (3) except for the U.S.
Subsidiaries, considered to be engaged in a trade or business within
the United States for purposes of Section 864(b) of the Code (although
the Internal Revenue Service may be able to successfully assert that
Aspen U.K. has a U.S. trade or business and a U.S. permanent
establishment as a result of the binding authorities previously granted
to Wellington Underwriting Inc. by Aspen U.K. and likely will be able
to successfully assert that Aspen U.K. has a U.S. trade or business and
a permanent establishment as a result of the binding authorities
granted to Aspen Re America by Aspen U.K.), or (4) except for the U.K.
Subsidiaries, characterized as resident, managed or controlled or
carrying on a trade through a branch or agency in the United Kingdom or
(B) that any U.S. person who owns shares of the Company directly or
indirectly through foreign entities should be treated as owning
(directly, indirectly through foreign entities or by attribution
pursuant to Section 958(b) of the Code) 10% or more of the total voting
power of the Company or any of its foreign subsidiaries; and to the
best of the Company's knowledge, in the event that the Internal Revenue
Service were to be successful in asserting that Aspen U.K. has a U.S.
trade or business as a result of the binding authorities previously
granted to Wellington Underwriting Inc. and Aspen Re America by Aspen
U.K., it would not result in a Material Adverse Effect.
(xxii) Aspen U.K. and Aspen Bermuda intend to operate in a
manner that is intended to ensure that the related person insurance
income of either of Aspen U.K. or Aspen Bermuda does not equal or
exceed 20% of each such company's gross insurance income for any
taxable year in the foreseeable future.
(xxiii) The audited consolidated financial statements included
or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly, in all material respects, the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the
statement of operations, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
except as otherwise disclosed in the Registration Statement and
Prospectus, said consolidated financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States ("U.S. GAAP") applied on a consistent basis throughout
the periods involved; the supporting schedules included or incorporated
by reference in the Registration Statement present fairly, in all
material respects, in accordance with U.S. GAAP, the information
required to be stated therein; and the selected financial data and the
summary financial information included or incorporated by reference in
the Registration Statement and Prospectus present fairly, in all
material respects, the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement.
10
(xxiv) KPMG Audit plc, who has certified certain financial
statements of the Company and its subsidiaries, is an independent
public accountant as required by the Act and the rules and regulations
of the Commission thereunder.
(xxv) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and files reports with the
Commission on the Electronic Data Gathering, Analysis, and Retrieval
(XXXXX) system. Any documents filed with or furnished to the Commission
under the Exchange Act, when they were or are filed with or furnished
to the Commission, (A) conformed or will conform in all material
respects to the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder and (B)
did not or will not, as of their respective dates, contain an 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;
(xxvi) The Company and, to the knowledge of the Company, the
Company's directors and officers, in their capacities as such, are in
compliance with the currently applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002.
(xxvii) The Securities have been registered pursuant to
Section 12 of the Exchange Act and the outstanding Securities,
including the Offered Securities, have been listed on the New York
Stock Exchange. The Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Securities
under the Exchange Act or delisting the Securities from the New York
Stock Exchange, nor has the Company received any notification that the
Commission or the New York Stock Exchange is contemplating terminating
such registration or listing.
(b) Each Selling Shareholder, severally and not jointly, represents and
warrants to, and agrees with, the several Underwriters as to itself and
not as to any other Selling Shareholder that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(ii) The custody agreement (each, a "CUSTODY AGREEMENT" and,
together with the custody agreements of each other Selling Shareholder,
the "CUSTODY AGREEMENTS") and the power of attorney (a "POWER OF
ATTORNEY") of such Selling Shareholder have been duly authorized,
executed and delivered by such Selling Shareholder and constitute valid
and legally binding obligations of each such Selling Shareholder
enforceable in accordance with their terms, except as to rights to
indemnification thereunder, which may be limited by public policy, and
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(iii) The execution, delivery and performance by or on behalf
of such Selling Shareholder of this Agreement and the Custody Agreement
and the Power of Attorney of
11
such Selling Shareholder, the compliance by such Selling
Shareholder with all of the provisions of this Agreement and the
Custody Agreement and the Power of Attorney of such Selling Shareholder
and the consummation of the transactions contemplated hereby and
thereby, will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, (A)
the certificate of incorporation, memorandum of association, articles
of association, bye-laws, by-laws or other organizational document, as
the case may be, of such Selling Shareholder (if such Selling
Shareholder is not a natural person), (B) any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder is bound or to which any of the property or
assets of such Selling Shareholder is subject or (C) any statute or any
order, rule or regulation of any Governmental Agency having
jurisdiction over such Selling Shareholder or any of its properties. No
Governmental Authorization is required for the consummation by such
Selling Shareholder of the transactions contemplated hereby, except (A)
the registration under the Act of the Offered Securities, (B) such
Governmental Authorizations as have been duly obtained and are in full
force and effect and copies of which have been furnished to the
Representatives and (C) such Governmental Authorizations as may be
required under state securities laws, Blue Sky laws, insurance
securities laws or any laws of jurisdictions outside the United States
in connection with the purchase and distribution of the Offered
Securities by or for the account of the Underwriters.
(iv) Such Selling Shareholder has, or with respect to a
Selling Shareholder established in the Netherlands Antilles or the
Netherlands, one or more or all of the general partners of such Selling
Shareholder, as the case may be, has, and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Shareholder on such
Closing Date and full right, power and authority to enter into this
Agreement and the Custody Agreement and Power of Attorney of such
Selling Shareholder and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Shareholder on such
Closing Date hereunder; and upon the delivery of and payment for the
Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Shareholder on such Closing
Date.
(v) On the Effective Date of the Initial Registration
Statement, the Initial Registration Statement did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. On the Effective Date of the Additional
Registration Statement (if any), each Registration Statement did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required
to be stated therein or necessary to make the statement therein not
misleading. At the time of filing of the Preliminary Prospectus, the
Preliminary Prospectus did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. On the
date of this Agreement, the Initial Registration
12
Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement at the time of filing
of the Prospectus pursuant to Rule 424(b), did not include, or will not
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The four
preceding sentences apply only to the extent that any statements in or
omissions from a Registration Statement, the Prospectus or the
Preliminary Prospectus are based on written information furnished to
the Company by such Selling Shareholder specifically for use therein,
it being understood and agreed that the only such information furnished
by any Selling Shareholder is that described as such in Section 7(b)
hereof.
(vi) The sale of the Offered Securities by such Selling
Shareholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set
forth in the Prospectus or any supplement thereto.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Shareholder and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment.
(viii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Offered Securities being sold pursuant to
this Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Shareholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Shareholder, at
a purchase price of $24 per share, that number of Firm Securities (rounded up or
down, as determined by the Representatives in their discretion, in order to
avoid fractions) obtained by multiplying the number of Firm Securities set forth
opposite the name of such Selling Shareholder in Schedule A hereto by a fraction
the numerator of which is the number of Firm Securities set forth opposite the
name of such Underwriter in Schedule B hereto and the denominator of which is
the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities have been
placed in custody, for delivery under this Agreement and under Custody
Agreements made with Mellon Investor Services LLC, as custodian ("Custodian").
Each Selling Shareholder agrees that the shares represented by the certificates
held in custody for the Selling Shareholders under such Custody Agreements are
subject to the interests of the Underwriters hereunder, that the arrangements
made by the Selling Shareholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Shareholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Shareholder
13
or any such trustee or trustees should die, or if any other such event
should occur, or if any of such trusts should terminate, before the delivery of
the Offered Securities hereunder, certificates for the Offered Securities shall
be delivered by the Custodian in accordance with the terms and conditions of
this Agreement as if such death or other event or termination had not occurred,
regardless of whether or not the Custodian shall have received notice of such
death or other event or termination.
The Custodian will deliver the Firm Securities to the Representatives
through the facilities of The Depository Trust Company ("DTC"), for the
respective accounts of the Underwriters, against payment of the purchase price
in federal (same day) funds by official bank check or checks or wire transfer to
an account at a bank acceptable to the Representatives drawn to the order of the
Custodian at 9:30 a.m., New York City time, on March 29, 2005 or at such other
time not later than seven full business days thereafter as the Representatives
and the Custodian determine, such time being herein referred to as the "FIRST
CLOSING DATE". The certificates for the Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as the
Representatives request and will be made available for checking and packaging at
the office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the
Company and the Selling Shareholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Selling Shareholders listed in Schedule A
hereto as having agreed to sell Optional Securities agree, severally and not
jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is the number of shares set
forth opposite the names of such Selling Shareholders in Schedule A hereto under
the caption "Number of Optional Securities to be Sold" and the denominator of
which is the total number of Optional Securities (subject to adjustment by the
Representatives to eliminate fractions) set forth opposite the names of all
Selling Shareholders in Schedule A hereto. Such Optional Securities shall be
purchased from each Selling Shareholder for the account of each Underwriter in
the same proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by the Representatives to eliminate fractions) and may be purchased
by the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time not more
than 30 days subsequent to the date of the Prospectus and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Representatives to the Selling Shareholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written
14
notice of election to purchase Optional Securities is given. The
Custodian will deliver the Optional Securities being purchased on each Optional
Closing Date to the Representatives through the facilities of DTC, for the
respective accounts of the Underwriters, against payment of the purchase price
in federal (same day) funds by official bank check or checks or wire transfer to
an account at a bank acceptable to the Representatives drawn to the order of the
Custodian. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as the Representatives request upon reasonable notice
prior to such Optional Closing Date and will be made available for checking and
packaging at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at a reasonable
time in advance of such Optional Closing Date.
4. Offering by Underwriters.
(a) It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the
Prospectus.
(b) Each Underwriter represents, warrants and agrees that:
(i) It has not offered or sold, and, prior to the expiration
of the period of six months from the Closing Date for the offering of
the Offered Securities, will not offer or sell any Securities to
persons in the United Kingdom, except to those persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purpose of their businesses
or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; it has
complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (the "FSMA") with respect to
anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom; and it has only communicated or caused to
be communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within
the meaning of the FSMA) received by it in connection with the issue
and sale of the Securities in circumstances in which Section 21(1) of
the FSMA does not apply to the Company.
(ii) It is aware of the fact that no German selling prospectus
(Verkaufsprospekt) has been or will be published in respect of the sale
of the Offered Securities and that it will comply with the Securities
Selling Prospectus Act of the Federal Republic of Germany
(Wertpapier-Verkaufsprospektgesetz). In particular, each Underwriter
has undertakes not to engage in a public offering in the Federal
Republic of Germany with respect to any Securities otherwise than in
accordance with the Securities Selling Prospectus Act and any other act
replacing or supplementing the Securities Selling Prospectus Act and
all other applicable laws and regulations.
(iii) The Offered Securities are being offered and sold
outside the Republic of France and that, in connection with their
initial distribution, it has not offered or sold and will not offer or
sell, directly or indirectly, any Securities to the public in the
Republic of
15
France, and that it has not distributed and will not
distribute or cause to be distributed to the public in the Republic of
France the Prospectus or any other offering material relating to the
Securities, and that such offers, sales and distributions have been and
will be made in the Republic of France only to (a) qualified investors
(investisseurs qualifies) and/or (b) a restricted group of investors
(cercle restreint d'investisseurs), all as defined in Article L.411-2
of the Monetary and Financial Code and decret no. 98-880 dated 1st
October, 1998.
(iv) The Offered Securities may not be offered, sold,
transferred or delivered in or from the Netherlands as part of their
initial distribution or at any time thereafter, directly or indirectly,
other than to banks, pension funds, insurance companies, securities
firms, investment institutions, central governments, large
international and supranational institutions and other comparable
entities, including, among others, treasuries and finance companies of
large enterprises, which trade or invest in securities in the course of
a profession or trade. Individuals or legal entities who or which do
not trade or invest in securities in the course of their profession or
trade may not participate in the offering of the Offered Securities,
and the Prospectus or any other offering material relating to the
Offered Securities may not be considered an offer or the prospect of an
offer to sell or exchange the Offered Securities.
(v) The offering of the Offered Securities has not been
registered with the Commissione Nazionale per le Societa e la Borsa
("CONSOB") pursuant to Article 94, paragraph 1 of Legislative Decree
No. 58 of 24 February 1998, as amended ("LEGISLATIVE DECREE NO. 58").
Therefore, (i) the Offered Securities cannot be offered in Italy in a
solicitation to the public at large (sollecitazione all'investimento);
and (ii) the Offered Securities can only be offered in Italy to
"professional investors" (investitori professionali), as defined under
Article 31, paragraph 2, of CONSOB Regulation No. 11522 of 1 July 1998,
as amended, or pursuant to another exemption from the registration
requirement set forth by Article 94, paragraph 1 of Legislative Decree
No. 58. The offer and sale of the Offered Securities in Italy can in
any event be effected only in accordance with any applicable Italian
laws and regulations, including Legislative Decree No. 385 of 1
September 1993, and any other securities, tax and exchange control
regulations and any applicable requirement or limitation which may be
imposed by CONSOB or the Bank of Italy.
5. Certain Agreements of the Company, the Selling Shareholders and the
Underwriters.
(a) The Company agrees with the several Underwriters and the Selling
Shareholders that:
(i) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b) (as consented to by the
Representatives) within the time period specified in the applicable
subparagraph of such Rule. The Company will advise the Representatives
promptly of any such filing pursuant to Rule 424(b). If an additional
registration statement is necessary to register a portion of the
Offered Securities under the
16
Act but the Effective Time thereof has not occurred as of the
execution and delivery of this Agreement, the Company will file the
additional registration statement or, if the additional registration
statement has been filed, will file a post-effective amendment thereto
with the Commission pursuant to and in accordance with Rule 462(b) (if
available) on or prior to 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, on or prior to the time the Prospectus
is printed and distributed to any Underwriter, or will make such filing
at such later date as shall have been consented to by the
Representatives.
(ii) The Company will advise the Representatives promptly of
any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect any such amendment or
supplementation that shall be disapproved by the Representatives
promptly after reasonable notice thereof. The Company will also advise
the Representatives promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement), of any amendment or supplementation of a
Registration Statement or the Prospectus, of the institution by the
Commission of any stop order in respect of a Registration Statement, a
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose or of any request by the Commission for the amending
or supplementing of a Registration Statement or the Prospectus or for
additional information. In the event of the issuance of any such stop
order or any order suspending any such qualification, the Company will
promptly use its reasonable best efforts to obtain the withdrawal of
such order.
(iii) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company will promptly notify the Representatives of such event
and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither
the Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement (which need not
be audited) covering a period of at least 12 months beginning after the
Effective Date of the Initial Registration Statement (or, if later, the
Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of
the preceding sentence, "AVAILABILITY DATE" means the 45th day after
the end of the fourth fiscal quarter following the fiscal quarter that
includes such
17
Effective Date, except that, if such fourth fiscal quarter is
the last quarter of the Company's fiscal year, "AVAILABILITY DATE"
means the 90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related Preliminary Prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives
reasonably request. The Prospectus shall be so furnished on or prior to
10:00 A.M., New York time, on the business day following the delivery
of this Agreement. All other such documents shall be so furnished as
soon as available.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives reasonably designate and will continue such
qualifications in effect so long as required for the distribution;
provided, however, that, in connection therewith, the Company shall not
be required to qualify as a foreign company or corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified, or to file a general consent to service of process in any
jurisdiction, or to subject itself to material taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
(vii) For the period specified below (the "LOCK-UP PERIOD"),
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representatives, except
issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date hereof, any grants of
options under the Company's 2003 Share Incentive Plan and any issuances
of Securities pursuant to the exercise of such options. The initial
Lock-Up Period will commence on the date hereof and will continue and
include the date 90 days after the date hereof or such earlier date
that the Representatives consent to in writing.
(viii) The Company agrees to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including (A) the fees and disbursements of the Company's
counsel and the Company's accountants and the reasonable fees and
disbursements of counsel for the Selling Shareholders in connection
with the registration of the Offered Securities under the Securities
Act and all other fees or expenses in connection with the preparation
and filing of the Registration Statement, the Preliminary Prospectus,
the Prospectus and amendments and supplements to any of the foregoing,
including the costs of printing and distributing copies of all such
documents to the Underwriters and dealers, in the quantities specified
herein, (B) any filing fees and other
18
expenses (including the reasonable fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Representatives designate and the printing of memoranda relating
thereto, (C) the filing fee incident to the review by the National
Association of Securities Dealers, Inc. of the Offered Securities, (D)
the costs and charges of the Custodian, (E) the costs and charges of
appointing each agent for service of process pursuant to Section 14 of
this Agreement, (F) any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities, including the cost of any aircraft chartered in
connection with attending or hosting such meetings and (G) all
reasonable fees and disbursements of special counsel to each Selling
Shareholder, solely with respect to delivery of opinions required by
this Agreement. The provisions of this Section shall not supersede or
otherwise affect any agreement that the Company and the Selling
Shareholders may otherwise have for the allocation of such expenses
among themselves.
(b) Each Selling Shareholder agrees with the several Underwriters and
the Company that:
(i) Such Selling Shareholder will pay all expenses incident to
the performance of the obligations of such Selling Shareholder
hereunder for which provision is not otherwise made in this Section,
including any transfer or other taxes on the sale of the Offered
Securities to the Underwriters.
(ii) The Selling Shareholders will indemnify and hold harmless
the Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the sale of the Offered
Securities and on the execution and delivery of this Agreement. All
payments to be made by the Selling Shareholders hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the
Selling Shareholders are compelled by law to deduct or withhold such
taxes, duties or charges. In that event, the Selling Shareholders shall
pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction
had been made.
(c) The Underwriters agree with the Selling Shareholders and the
Company that, except as provided in this Section, Section 9 and the
provisions with respect to indemnity and contribution, the Underwriters
will pay all of their costs and expenses, including fees and
disbursements of their counsel, share transfer taxes payable on resale
of any of the Offered Securities by them and any advertising expenses
connected with any offers they may make.
(d) The Company and each Selling Shareholder acknowledge that this
Agreement has been entered into, and the transactions contemplated
hereby are being effected, pursuant to the Third Amended and Restated
Registration Rights Agreement dated as of November 14, 2003, among the
Company and each of the shareholders of the Company listed on Schedule
1 thereto (the "Registration Rights Agreement"). Each Selling
Shareholder agrees with the Company that,
19
for the purposes of the indemnification provisions of the Registration
Rights Agreement, such Selling Shareholder has furnished to the Company
for use in the Registration Statement, the Preliminary Prospectus and
the Prospectus the information that is described in Section 7(b) hereof
as having been furnished by such Selling Shareholder for use in the
Registration Statement, the Preliminary Prospectus and the Prospectus.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Shareholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Shareholders of their obligations hereunder and to the following additional
conditions precedent:
(a) On the date of the Prospectus (prior to the execution of this
Agreement), on the effective date of any additional registration or any
post-effective amendment to any Registration Statement, in each case, that is
filed subsequent to the date of this Agreement and on each Closing Date (in each
case, at 9:30 a.m., New York time, on such date), KPMG Audit Plc shall have
furnished to the Representatives a letter or letters, dated the respective date
of delivery thereof, in form and substance satisfactory to the Representatives.
(b) If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, the time the Prospectus is printed
and distributed to any Underwriter, or shall have occurred at such later date as
shall have been consented to by the Representatives. The Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company or the financial strength or claims-paying ability of
the Company or any of the Designated Subsidiaries by any Rating Agency or any
public announcement that any Rating Agency has any such rating under
surveillance or review (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S., U.K., Bermudian or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of a majority in interest of the Underwriters
including the
20
Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary market; (iv) any
material suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (v) or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (vi) any banking moratorium
declared by United States federal, New York, U.K. or Bermudian authorities;
(vii) a change or development involving a prospective change in Bermuda taxation
affecting the Company, the Securities or transfers thereof; (viii) any major
disruption of settlements of securities or clearance services in the United
States, United Kingdom or Bermuda or (ix) any attack on, outbreak or escalation
of hostilities or act of terrorism involving the United States, the United
Kingdom or Bermuda, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including the Representatives, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special United States
counsel for the Company in the form of Annex I hereto.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel for the Company in the
form of Annex II hereto.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of XxXxxxx, Xxxx, Xxxxxx & XxxXxx, X.X. counsel for the Company,
in the form of Annex III hereto.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxx Xxxxxx, General Counsel to Aspen Insurance UK Limited, in
the form of Annex IV hereto.
(h) The Representatives shall have received opinions, dated such
Closing Date, of Weil, Gotshal & Xxxxxx LLP, special United States counsel for
the Selling Shareholders, in the form of Annex V hereto.
(i) The Representatives shall have received an opinion, dated such
Closing Date, of Walkers, Cayman Islands counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(j) The Representatives shall have received an opinion, dated such
Closing Date, of Lovells, English counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(k) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxx Chance, English counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(l) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxx Chance, German counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
21
(m) The Representatives shall have received an opinion, dated such
Closing Date, of Ashurst, English counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(n) The Representatives shall have received an opinion, dated such
Closing Date, of XX Xxxxxx, German counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(o) The Representatives shall have received an opinion, dated such
Closing Date, of De Brauw Blackstone Westbroek N.V., Dutch and Netherlands
Antilles counsel for certain of the Selling Shareholders, in form and substance
satisfactory to the Representatives.
(p) The Representatives shall have received an opinion, dated such
Closing Date, of Weil, Gotshal & Xxxxxx LLP, United States counsel for certain
of the Selling Shareholders, in form and substance satisfactory to the
Representatives.
(q) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxxxx & May, English counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(r) The Representatives shall have received an opinion, dated such
Closing Date, of XX Xxxxxx, English counsel for certain of the Selling
Shareholders, in form and substance satisfactory to the Representatives.
(s) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel for certain of the
Selling Shareholders, in form and substance satisfactory to the Representatives.
(t) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel for certain of the
Selling Shareholders, in form and substance satisfactory to the Representatives.
(u) The Representatives shall have received an opinion, dated such
Closing Date, of Mourant du Feu & Jeune, Jersey counsel for certain of the
Selling Shareholders, in form and substance satisfactory to the Representatives.
(v) The Representatives shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the Registration Statements, the Prospectus and
other related matters as the Representatives may
22
require, and the Selling Shareholders 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.
(w) The Representatives shall have received a certificate or
certificates, dated such Closing Date, of the Chief Executive Officer and the
Chief Financial Officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) or Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, or any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(x) The Custodian shall have delivered to the Representatives a letter
stating that it will deliver to each Selling Shareholder a United States
Treasury Department Form 1099 (or other applicable form or statement specified
by the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
(y) The Selling Shareholders and the Company shall have provided the
Representatives with copies of such additional opinions, certificates, letters
and documents as the Representatives reasonably request.
(z) The Offered Securities shall be listed on the New York Stock
Exchange and the Company shall not have taken any action designed to, or likely
to, have the effect of delisting the Securities from the New York Stock
Exchange.
The Representatives may in their sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter and
its affiliates and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the
23
Prospectus, or any amendment or supplement thereto, or any related
Preliminary Prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; 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 an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) Each Selling Shareholder, severally as to itself and not jointly,
will indemnify and hold harmless each Underwriter, its partners, members,
directors, officers and its affiliates and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Act against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related Preliminary Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that such Selling Shareholder shall only be subject
to such liability to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission is based upon information provided in
writing by such Selling Shareholder expressly for use in the Registration
Statement, the Prospectus or the Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Selling Shareholder
consists of the information relating to such Selling Shareholder and any
affiliate or associate of such Selling Shareholder included under the caption
"Selling Shareholders"; provided, further, that, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any Preliminary Prospectus, the indemnity agreement contained in this subsection
(b) shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the Offered
Securities, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter in accordance with Section 5(a)(v) hereof and if the
Prospectus would have cured the defect giving rise to such losses, claims,
damages or liabilities; and provided, further, that the liability under this
subsection of each Selling Shareholder shall be limited to an amount equal to
the aggregate gross
24
proceeds after underwriting commissions and discounts, but before
expenses, to such Selling Shareholder from the sale of Securities sold by such
Selling Shareholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, and each Selling Shareholder against any
losses, claims, damages or liabilities to which the Company or such Selling
Shareholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related Preliminary Prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Shareholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting" and the information contained in the first, ninth and
eleventh paragraphs under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and
25
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party. No
indemnifying party shall be liable for any settlement of any proceeding without
its prior written consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested that an indemnifying party reimburse the indemnified party
for fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party 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 the indemnifying party of such request and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (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 (i)
above but also the relative fault of the Company and the Selling Shareholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (e). Notwithstanding
the provisions of this subsection (e), no Underwriter shall be required 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
26
(f) The obligations of the Company and the Selling Shareholders under
this Section shall be in addition to any liability which the Company and the
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Selling Shareholders
for the purchase of such Offered Securities by other persons, including any of
the Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives and the Selling Shareholders for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholders, except as
provided in Section 9; provided, however, that if such default occurs with
respect to Optional Securities after the First Closing Date, this Agreement will
not terminate as to the Firm Securities or any Optional Securities purchased
prior to such termination. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Shareholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Shareholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Shareholders, as
applicable, shall remain responsible for the expenses to be paid or reimbursed
by them pursuant to Section 5 and the respective obligations of the Company, the
Selling Shareholders, and the Underwriters pursuant to Section 7 shall remain in
effect, and, if any Offered Securities have been purchased hereunder, the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in
27
effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston LLC, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at the address set forth in the Registration Statement, Attention: Secretary,
or, if sent to the Selling Shareholders or any of them, will be mailed,
delivered or telegraphed and confirmed to the Custodian at 00 Xxxx Xxxxxx, 0xx
xxxxx, Xxx Xxxx, XX 00000; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
(in the case of a natural person) and successors and the officers and directors
and controlling persons referred to in Section 7, and no other person will have
any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated hereby, and any
action under this Agreement taken jointly by the Representatives will be binding
upon all the Underwriters. Xx. Xxxxxxx Xxxxxxx will act for the Selling
Shareholders in connection with such transactions, and any action under or in
respect of this Agreement taken by Xx. Xxxxxxx Xxxxxxx will be binding upon all
of the Selling Shareholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in any state or federal
court located in the Borough of Manhattan, The City of New York, New York (each
a "NEW YORK COURT"), (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any such proceeding and (iii) submits to the non-exclusive jurisdiction of such
New York Court in any such suit, action or proceeding. The Company has appointed
CT Corporation, New York, New York, as its authorized agent (the "COMPANY'S
AUTHORIZED AGENT") upon whom process may be served in any
28
such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. The
Company represents and warrants that the Company's Authorized Agent has agreed
to act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Company's Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company.
Each Selling Shareholder irrevocably (i) agrees that any legal suit,
action or proceeding against such Selling Shareholder arising out of or based
upon this Agreement or the transactions contemplated hereby may be instituted in
any New York Court, (ii) waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding and (iii) submits to the non-exclusive jurisdiction of such New
York Court in any such suit, action or proceeding. Each Selling Shareholder has
appointed National Registered Agents, Inc., 875 Avenue of the Americas, Xxxxx
000, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (a "SHAREHOLDER'S
AUTHORIZED AGENT") upon whom process may be served in any such action arising
out of or based on this Agreement or the transactions contemplated hereby which
may be instituted in any New York Court, expressly consents to the jurisdiction
of any such court in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
Such appointment shall be irrevocable. Such Selling Shareholder represents and
warrants that its Shareholder's Authorized Agent has agreed to act as such agent
for service of process and agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon such Shareholder's Authorized Agent and written notice of such
service to such Selling Shareholder shall be deemed, in every respect, effective
service of process upon such Selling Shareholder.
In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "JUDGMENT CURRENCY")
other than United States dollars, the party against whom such judgment or order
has been given or made will indemnify each party in whose favor such judgment or
order has been given or made (the "INDEMNITEE") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount of
judgment currency actually received by the Indemnitee. The foregoing indemnity
shall constitute a separate and independent obligation of each of the Company,
the Selling Shareholder and the Underwriters and shall continue in full force
and effect notwithstanding any such judgment or order as aforesaid. The term
"RATE OF EXCHANGE" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
29
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Shareholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
............................................
BCP EXCALIBUR HOLDCO (CAYMAN) LIMITED
BOCP EXCALIBUR HOLDCO (CAYMAN) LIMITED
BFIP EXCALIBUR HODLCO (CAYMAN) LIMITED
BGE EXCALIBUR HOLDCO (CAYMAN) LIMITED
WELLINGTON UNDERWRITING PLC
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND UK NO. 1 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND UK NO. 2 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND UK NO. 3 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND UK NO. 4 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND UK NO. 5 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND UK NO. 6 LIMITED
PARTNERSHIP
30
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND US NO. 1 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND US NO. 2 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND US NO. 3 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND US NO. 4 LIMITED
PARTNERSHIP
CANDOVER PARTNERS LIMITED
AS GENERAL PARTNER FOR AND ON BEHALF OF
CANDOVER 2001 FUND US NO. 5 LIMITED
PARTNERSHIP
CANDOVER 2001 GMBH & CO. KG
REPRESENTED BY
DEUTSCHE CANDOVER
(MANAGING LIMITED PARTNER) GMBH
REPRESENTED BY
XXXXXXX XXXXX AS MANAGING DIRECTOR
CANDOVER INVESTMENTS PLC
CANDOVER (TRUSTEES) LIMITED
DLJ MERCHANT BANKING III, INC.
AS MANAGING GENERAL PARTNER FOR
AND ON BEHALF OF
DLJMB OVERSEAS PARTNERS III, C.V.
DLJ MERCHANT BANKING III, INC.
AS ADVISORY GENERAL PARTNER FOR
AND ON BEHALF OF
DLJ OFFSHORE PARTNERS III, C.V.
31
DLJ MERCHANT BANKING III, INC.
AS ADVISORY GENERAL PARTNER ON BEHALF OF
DLJ OFFSHORE PARTNERS III-1, C.V.
AND AS ATTORNEY-IN-FACT FOR
DLJ MERCHANT BANKING III, L.P.,
AS ASSOCIATE GENERAL PARTNER FOR AND
ON BEHALF OF
DLJ OFFSHORE PARTNERS III-1, C.V.
DLJ MERCHANT BANKING III, INC.
AS ADVISORY GENERAL PARTNER ON BEHALF OF
DLJ OFFSHORE PARTNERS III-2, C.V.
AND AS ATTORNEY-IN-FACT FOR
DLJ MERCHANT BANKING III, L.P.
AS ASSOCIATE GENERAL PARTNER FOR AND
ON BEHALF OF
DLJ OFFSHORE PARTNERS III-2, C.V.
DLJ MERCHANT BANKING III, INC.
GENERAL PARTNER OF
DLJ MERCHANT BANKING III, L.P.
AS MANAGING LIMITED PARTNER FOR AND
ON XXXXXX XX
XXXXX XXXXXXXX XXX XXXX & XX. XX
XXX MB GMBH
AS GENERAL PARTNER FOR AND ON XXXXXX XX
XXXXX XXXXXXXX XXX XXXX & XX. XX
XXX MERCHANT BANKING III, INC.
AS MANAGING GENERAL PARTNER FOR AND
ON BEHALF OF
MILLENNIUM PARTNERS II, L.P.
DLJ LBO PLANS MANAGEMENT
CORPORATION AS
MANAGING GENERAL PARTNER FOR AND ON
BEHALF OF
MBP III PLAN INVESTORS, L.P.
3I GROUP PLC
PHOENIX EQUITY PARTNERS LIMITED
IN ITS CAPACITY AS MANAGER FOR AND
ON BEHALF OF
PHOENIX EQUITY PARTNERS IV "A" L.P.
32
PHOENIX EQUITY PARTNERS LIMITED
IN ITS CAPACITY AS MANAGER FOR AND
ON BEHALF OF
PHOENIX EQUITY PARTNER IV "B" L.P.
PHOENIX EQUITY PARTNERS LIMITED
IN ITS CAPACITY AS MANAGER FOR AND ON BEHALF OF
PHOENIX EQUITY PARTNERS IV "C" L.P.
PHOENIX EQUITY PARTNERS LIMITED
AS ATTORNEY FOR
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
PHOENIX EQUITY PARTNERS LIMITED
IN ITS CAPACITY AS
MANAGER FOR AND ON
BEHALF OF PHOENIX
EQUITY PARTNERS III
AND IV EXECUTIVE
INVESTMENT PLAN L.P.
PHOENIX EQUITY PARTNERS LIMITED
IN ITS CAPACITY AS ADMINISTRATOR FOR AND
ON BEHALF OF
THE PHOENIX EQUITY PARTNERS IV
CO-INVESTMENT PLAN
XXXXXXX TRUST (BERMUDA) LIMITED
SOLELY AS TRUSTEE OF THE PART A TRUST
FUND OF THE NAMES TRUST
MONTPELIER REINSURANCE LTD.
MOURANT & CO. TRUSTEES LIMITED
IN ITS CAPACITY AS TRUSTEE OF
CANDOVER 2001 EMPLOYEE BENEFIT TRUST
By......................................
Xxxxxxx Xxxxxxx
Attorney-in-Fact
...........................................
ASPEN INSURANCE HOLDINGS LIMITED
By.....................................
Xxxxxx Xxxxxx
Chief Financial Officer
33
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON LLC
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
CREDIT SUISSE FIRST BOSTON LLC
By............................
Xxxxxxx X. Xxxxxx
Director
DEUTSCHE BANK SECURITIES INC.
By.............................
Xxxx Xxxxxxx
Managing Director
34
SCHEDULE A
Number of
Number of Optional
Firm Securities Securities
Selling Shareholder to be Sold to be Sold
------------------- ---------- ----------
BCP Excalibur Holdco (Cayman) Limited 1,550,171 232,496
BOCP Excalibur Holdco (Cayman) Limited 293,224 43,978
BFIP Excalibur Holdco (Cayman) Limited 117,664 17,647
BGE Excalibur Holdco (Cayman) Limited 71,094 10,663
Wellington Underwriting plc 1,271,346 190,702
Candover 2001 Fund UK No.1 Limited Partnership 96,980 14,547
Candover 2001 Fund UK No.2 Limited Partnership 41,250 6,187
Candover 2001 Fund UK No.3 Limited Partnership 132,119 19,818
Candover 2001 Fund UK No.4 Limited Partnership 13,057 1,959
Candover 2001 Fund UK No.5 Limited Partnership 9,199 1,380
Candover 2001 Fund UK No.6 Limited Partnership 71,667 10,750
Candover 2001 Fund US No.1 Limited Partnership 125,234 18,785
Candover 2001 Fund US No.2 Limited Partnership 78,938 11,841
Candover 2001 Fund US No.3 Limited Partnership 44,504 6,676
Candover 2001 Fund US No.4 Limited Partnership 12,607 1,891
Candover 2001 Fund US No.5 Limited Partnership 52,675 7,901
Candover 2001 GmbH & Co. KG 17,360 2,604
Candover Investments plc 88,393 13,259
Candover (Trustees) Limited 4,021 603
DLJMB Overseas Partners III, C.V. 625,977 93,897
DLJ Offshore Partners III, C.V. 43,091 6,464
DLJ Offshore Partners III-1, C.V. 11,059 1,659
DLJ Offshore Partners III-2, C.V. 7,877 1,182
DLJMB Partners III GmbH & Co. KG 5,226 784
Millenium Partners II, L.P. 3,583 537
MBP III Plan Investors, L.P. 93,373 14,006
3i Group plc 338,651 50,798
Phoenix Equity Partners IV "A" L.P. 306,483 22,266
Phoenix Equity Partners IV "B" L.P. 247,381 17,973
Phoenix Equity Partners IV "C" L.P. 95,104 6,909
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 46,112 3,350
Phoenix Equity Partners III and IV Executive Investment Plan L.P. 2,153 156
The Phoenix Equity Partners IV Co-Investment Plan 1,969 143
Xxxxxxx Trust (Bermuda) Limited 387,175 14,696
Montpelier Reinsurance Ltd. 141,104 21,166
Mourant & Co. Trustees Limited, as trustee of the Candover 2001
Candover 2001 Employee Benefit Trust 2,179 327
----------------- --------------------
Total......................................... 6,450,000 870,000
================= ====================
SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
Credit Suisse First Boston LLC............. 2,580,000
Deutsche Bank Securities Inc............... 1,290,000
Xxxxxx Xxxxxxx & Co. Incorporated.......... 1,290,000
Xxxxxxx, Sachs & Co........................ 645,000
Xxxxxxx & Partners Securities, LLC......... 215,000
Xxx-Xxxx, Xxxxxx, Inc...................... 215,000
Keefe, Bruyette, & Xxxxx, Inc.............. 215,000
----------
Total........... 6,450,000
==========
SCHEDULE C
1. Third Amended and Restated Registration Rights Agreement
dated as of November 14, 2003 among the Company and each of the Persons
listed on Schedule 1 thereto
2. Three-Year Credit Agreement dated as of August 26, 2003 among the
Company, Barclays Bank plc and the Lenders named therein, as amended by
the First Amendment dated January 22, 2004, the Second Amendment dated
May 17, 2004, the Third Amendment dated August 2, 2004 and the Fourth
Amendment dated August 9, 2004
3. 364-Day Day Credit Agreement dated as of August 26, 2003 among the
Company, Barclays Bank plc and the Lenders named therein, as amended by
First Amendment dated January 22, 2004, the Second Amendment dated May
17, 2004, the Third Amendment dated August 2, 2004, the Fourth
Amendment dated August 9, 2004 and the Fifth Amendment dated August 25,
2004
4. Indenture dated as of August 16, 2004 between Aspen Insurance Holdings
Limited, as issuer, and Deutsche Bank Trust Company Americas, as trustee
5. First Supplemental Indenture dated as of August 16, 2004 by and between Aspen
Insurance Holdings Limited, as issuer, and Deutsche Bank Trust Company
Americas, as trustee
6. Exchange and Registration Rights Agreement dated August 16, 2004 among the
Company, Deutsche Bank Securities Inc. and Xxxxxxx Sachs & Co. as
Representatives of the Purchasers named in Schedule I thereto
SCHEDULE D
1. Amended and Restated Shareholders' Agreement dated as of September 30, 2003
among the Company and each of the Persons listed on Schedule A thereto
2. Service Agreement dated September 24, 2004 among Xxxxxxxxxxx X'Xxxx, Aspen
Insurance U.K. Services Limited and the Company
3. Service Agreement dated September 24, 2004 among Xxxxx Xxxxxx, Aspen
Insurance U.K. Services Limited and the Company
4. Service Agreement dated March 10, 2005 between Xxxxx Xxx and Aspen Insurance
UK Services Limited
5. Quota Share Agreement dated October 21, 2003 between Syndicate 3030 and Aspen
Insurance UK Limited reflecting the slip agreement entered into on
June 12, 2002 therein
6. Qualifying Quota Share Agreement dated April 15, 2003 between Wellington
Underwriting, Syndicate 2020 and Aspen Insurance UK Limited
7. Amended and Restated Instrument Constituting Options to Subscribe for Shares
in Aspen Insurance Holdings Limited dated as of December 2, 2003
Annex I
Form of Opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special
United States counsel for the Company
Annex II
Form of Opinion of Xxxxxxx Xxxxxxxx Xxxxxx, Bermuda counsel for the Company
Annex III
Form of Opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
English counsel for the Company
Annex IV
Form of Opinion of Xxxxx Xxxxxx, General Counsel of
Aspen Insurance UK Limited
Annex V
Form of Opinion of Weil, Gotshal & Xxxxxx LLP, special United States
counsel for the Selling Shareholders
