EXHIBIT 1.1
October 31, 2005
Citigroup Global Markets Inc.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
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Dear Sirs and Mesdames:
IPC Holdings, Ltd., a Bermuda company (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") for whom you are acting as representatives (the
"MANAGERS") 10,479,000 of its common shares, $.01 par value per share (the "FIRM
SHARES"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional 1,048,000 of its common shares, $.01
par value per share (the "ADDITIONAL SHARES"), if and to the extent that you, as
Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such common shares granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "SHARES." The common shares, $.01
par value per share, of the Company to be issued and outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"COMMON STOCK."
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement, including a prospectus,
relating to the Shares on Form S-3, Registration No. 333-128905. The
registration statement as amended to the date of this Agreement is referred to
as the "REGISTRATION STATEMENT"; the prospectus included therein at the time the
Registration Statement became effective, is referred to as the "BASIC
PROSPECTUS"; the Basic Prospectus, as supplemented by the prospectus supplement
dated October 31, 2005 (the "PROSPECTUS SUPPLEMENT"), relating to the Shares, in
the form first used to confirm sales of the Shares is hereinafter referred to as
the "PROSPECTUS"; provided, that all references to the "Registration Statement"
and the "Prospectus" shall be deemed to include all documents incorporated
therein by reference pursuant to the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), prior to the execution of this Agreement. If the Company
has filed an abbreviated registration statement (the "RULE 462 REGISTRATION
STATEMENT") to register additional shares of Common Stock pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "SECURITIES ACT"), then
any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to
include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act; the Registration Statement has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; and the documents
incorporated by reference in the Prospectus, at the time they were, or
hereafter are, filed with the Commission, complied and, at any time
when a prospectus relating the Shares is required to be delivered under
the Securities Act in connection with sales by any Underwriter or
dealer, will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder.
(c) The Company has been duly incorporated, is validly
existing as an exempted company in good standing under the laws of
Bermuda, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and the Subsidiaries (as
defined below), taken as a whole.
(d) (i) IPCRe Limited (formerly International Property
Catastrophe Reinsurance Company, Ltd.), a Bermuda company ("IPCRe"),
has been duly incorporated, is validly existing as an exempted company
in good standing under the laws of Bermuda, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
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except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
the Subsidiaries, taken as a whole; all of the issued shares of capital
of IPCRe have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(ii) IPCRe Europe Limited, an Irish company ("IPCRe
EUROPE" and, together with IPCRe, the "DESIGNATED
SUBSIDIARIES"), has been duly incorporated, is validly
existing as a company in good standing under the laws of
Ireland, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries,
taken as a whole; all of the issued shares of capital of IPCRe
Europe have been fully paid and non-assessable and are owned
directly by IPCRe, free and clear of all liens, encumbrances,
equities or claims.
(iii) IPCRe Underwriting Services Limited, a Bermuda
company ("IPCUSL" and, together with IPCRe and IPCRe Europe,
the "SUBSIDIARIES"), has been duly incorporated, is validly
existing as a company in good standing under the laws of
Bermuda, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries,
taken as a whole; all of the issued shares of capital of
IPCUSL have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the
Company, free and clear of all liens, encumbrances, equities
or claims.
(iv) Except as described in the Prospectus, there are
no material restrictions, whether direct or indirect, under
any provision of applicable law, under the memorandum of
association or bye-laws or other organizational document of
any subsidiary of the Company, under any agreement or other
instrument binding upon the Company or IPCRe or any of their
properties, or under any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or IPCRe, on the ability of any subsidiary of the
Company: (i) to pay any dividends to the Company; (ii) to make
any other distribution on such subsidiary's capital stock;
(iii) to repay to the Company any loans or
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advances to such subsidiary from the Company; or (iv) to
transfer any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company.
(e) The Company and the Designated Subsidiaries do not own any
real property. Each of the Company and IPCRe has good and marketable
title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and IPCRe;
and any real property and buildings held under lease by the Company and
IPCRe are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such property
and buildings by the Company and IPCRe.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) Neither the Company nor IPCRe is in violation of its
memorandum of association or bye-laws or other organizational document
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any material contract,
lease or other agreement or instrument to which it or either of them is
a party or by which it or either of them or their properties may be
bound.
(h) The authorized capital of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) The common shares, $.01 par value per share, issued and
outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(j) The Shares have been duly authorized and, when issued,
delivered and paid for in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance
of such Shares will not be subject to any preemptive or similar rights.
The form of certificates for the Shares conforms to the requirements of
the laws of Bermuda and the Nasdaq National Market System; and the
Shares have been approved for quotation on the Nasdaq National Market
System, subject to official notice of issuance.
(k) The consolidated financial statements of the Company and
its consolidated subsidiaries (together with related notes) included in
the Registration Statement and Prospectus comply as to form in all
material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder and
present fairly the financial position of the Company
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as at the dates indicated and the results of its operations and the
statements of its cash flows for the periods specified; such financial
statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as disclosed therein; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein. The consolidated
balance sheets of the Company and its subsidiaries as of December 31,
2004, 2003 and 2002 and the related consolidated statements of income
and comprehensive income, changes in shareholders' equity and cash
flows for the years ended December 31, 2004, 2003 and 2002 have been
audited by KPMG. The selected financial data set forth under the
caption "Selected Consolidated Financial Data" in the Prospectus and
Registration Statement fairly present, on the basis stated in the
Prospectus and the Registration Statement, the information included
therein. All statutory financial statements of IPCRe where required to
be prepared in accordance with the insurance laws of Bermuda and the
rules and regulations promulgated thereunder, from which certain ratios
and other statistical data contained in the Registration Statement and
the Prospectus have been derived, have for each relevant period been
prepared in conformity in all material respects with the requirements
of such insurance laws and such rules and regulations and present
fairly the information purported to be shown. Statutory financial
statements of IPCRe and IPCRe Europe are not required to be prepared
pursuant to the insurance laws of any jurisdiction other than Bermuda
and Ireland, respectively.
(l) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of: (i) applicable law, (ii) the
memorandum of association or bye-laws of the Company or either of the
Designated Subsidiaries, (iii) any agreement or other instrument
binding upon the Company or IPCRe except to the extent such
contravention would not have a material adverse effect on (a) the
Company and the Subsidiaries, taken as a whole or (b) the Company's
ability to consummate the transactions contemplated by this Agreement,
or (iv) any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or IPCRe, except to the
extent such contravention would not have a material adverse effect on
(a) the Company and the Subsidiaries, taken as a whole or (b) the
Company's ability to consummate the transactions contemplated by this
Agreement; and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of obligations under this Agreement, except
registrations and filings under the Securities Act (as mentioned in
Section 1(a)) and under the Exchange Act, and such as may be required
by the securities or Blue Sky or insurance securities laws of the
various states in connection with the offer and sale of the Shares, as
may be required in such jurisdictions outside the U.S. where the
Underwriters choose to market the Shares and such as may be required
and have been obtained from the Bermuda Monetary Authority.
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(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus: (i) neither the Company
nor IPCRe has incurred any material loss or interference with its own
business operations (excluding losses suffered by cedents covered by
reinsurance policies of IPCRe) from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, or any other
liability or obligation, direct or contingent, that is material to the
Company and the Subsidiaries, taken as a whole; and (ii) there has not
been any material change in the capital, shareholders' equity,
statutory surplus or reserves (including any such change in the loss
and loss adjustment expense reserves) of the Company or IPCRe.
(n) No relationship, direct or indirect, or agreement,
arrangement or understanding (including, without limitation, any voting
agreement), exists between or among the Company or either of the
Designated Subsidiaries and any other party, which is required by the
Securities Act to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required.
(o) There are no legal or governmental proceedings pending or,
to the Company's knowledge, threatened to which the Company or either
of the Designated Subsidiaries is a party or to which any of the
properties of the Company or either of the Designated Subsidiaries is
subject that are required to be described in the Registration Statement
or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(p) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator of competent
jurisdiction involving the Company or its Designated Subsidiaries or to
the knowledge of the Company, or its or their property is pending or,
to the knowledge of the Company, threatened that (i) would reasonably
be expected to have a material adverse effect on the Company's ability
to consummate the transactions contemplated by this Agreement or (ii)
would reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of
the Company and its Subsidiaries, taken as a whole, except as set forth
in or contemplated in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
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(q) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(r) IPCRe is duly registered by the Bermuda Minister of
Finance as a Class 4 insurer under the Bermuda Insurance Act 1978, as
amended, and any applicable rules and regulations thereunder. IPCRe is
not required to be licensed or admitted as an insurer in, or otherwise
to comply with the insurance laws (including laws that relate to
companies that control insurance companies) and the rules, regulations
and interpretations of the insurance regulatory authorities thereunder
(collectively, "INSURANCE LAWS") of, any jurisdiction other than
Bermuda in order to conduct its business as described in the
Prospectus. IPCRe Europe operates as a reinsurer under the laws of
Ireland and is not required to be licensed under such laws. IPCUSL is
registered in Bermuda and licensed as an insurance agent.
(s) The Company and IPCRe possess all consents,
authorizations, approvals, orders, licenses, certificates, or permits
issued by any regulatory agencies or bodies (collectively, "PERMITS")
which are necessary to conduct the business now operated by them as
described in the Prospectus, except where the failure to possess such
Permits would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole; all of such Permits are in full force
and effect, except where the failure to be in full force and effect
would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole; there is no pending or, to the
knowledge of the Company, contemplated or threatened action, suit,
proceeding, investigation or event against or involving the Company or
IPCRe (and the Company knows of no reasonable basis for any such
action, suit, proceeding, investigation or event) that could lead to
the revocation, modification, termination, suspension or any other
material impairment of the rights of the holder of any such Permit
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
or operations of the Company and the Subsidiaries, taken as a whole;
neither the Company nor IPCRe has received any notification from any
insurance authority, commission or other insurance regulatory body to
the effect that any additional Permit from such authority, commission
or body is needed to be obtained by the Company or IPCRe or that the
Company or IPCRe is not in compliance with any applicable Insurance
Laws; and no insurance regulatory agency or body has issued any order
or decree impairing, restricting or prohibiting the payment of any
dividends by the Company or IPCRe or the continuation of the business
of the Company or IPCRe as currently conducted.
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(t) Each of the Company and IPCRe has filed all reports,
information statements and other documents as required to be filed
pursuant to Bermuda law, and has duly paid all taxes (including
franchise taxes and similar fees) it is required to have paid under
Bermuda law, except where the failure to file such statements or
reports or pay such taxes would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business or
operations of the Company and the Subsidiaries, taken as a whole; and
each of the Company and IPCRe maintains its books and records in
accordance with the Bermuda Insurance Act (as defined below), except
where the failure to so maintain its books and records would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business or operations of the Company and the
Subsidiaries, taken as a whole.
(u) IPCRe is in compliance with the applicable requirements of
the Bermuda Insurance Act 1978, as amended, and any applicable rules
and regulations thereunder (collectively, the "BERMUDA INSURANCE ACT"),
except where the failure to comply would not have a material adverse
effect on the Company and the Subsidiaries, taken as a whole; and,
subject to the disclosures in the Prospectus, each of the Company and
IPCRe is in compliance with the insurance laws and regulations of other
jurisdictions which are applicable to the Company or IPCRe, as the case
may be, except where the failure to comply would not have a material
adverse effect on the Company and the Subsidiaries, taken as a whole.
(v) All liability, casualty, directors and officers liability,
surety bonds and other similar insurance contracts that insure the
business, properties, operations or affairs of the Company and IPCRe or
affect or relate to the ownership, use or operations of the Company's
or IPCRe's assets or properties are in full force and effect and, to
the knowledge of the Company and IPCRe, are with financially sound and
reputable insurers and in accordance with normal industry practice.
(w) Neither the Underwriters nor any subsequent purchasers of
the Shares is subject to any stamp duty, excise or similar tax imposed
in Bermuda in connection with the offering, sale or purchase of the
Shares.
(x) Any tax returns required to be filed by the Company or
IPCRe in any jurisdiction have been filed, and any material taxes,
including any withholding taxes, penalties and interest, assessments
and fees and other charges due or claimed to be due from such entities
have been paid, other than any of those being contested in good faith
and for which adequate reserves have been provided or any of those
currently payable without penalty or interest.
(y) The Company and IPCRe have received from the Bermuda
Minister of Finance an assurance under The Exempted Undertakings Tax
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Protection Act, 1966 of Bermuda as described in the Prospectus under
the caption "Bermuda Taxation," and neither the Company nor IPCRe has
received any notification to the effect (or is otherwise aware) that
such assurance may be revoked or otherwise not honored by the Bermuda
government.
(z) There are no currency exchange control laws or withholding
taxes, in each case of Bermuda, that would be applicable to the payment
of dividends: (i) on the Shares by the Company (other than to residents
of Bermuda for Bermuda exchange control purposes); or (ii) by IPCRe to
the Company.
(aa) Neither the Company nor either of the Designated
Subsidiaries has taken or will take, directly or indirectly, any action
designed to, or that might reasonably be expected to, cause or result
in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares pursuant to
the distribution contemplated by this Agreement, and other than as
permitted by the Securities Act or the applicable rules and regulations
of the Commission thereunder, the Company and the Designated
Subsidiaries have not distributed and will not distribute, prior to the
later to occur of: (i) the Closing Date or the Option Closing Date (as
described below); and (ii) completion of the distribution of the
Shares, any prospectus or other offering material in connection with
the offering and sale of the Shares.
(bb) KPMG, who certified the financial statements and
supporting schedules included in the Registration Statement, is the
independent registered public accounting firm with respect to the
Company as required by the Securities Act.
(cc) The Company and IPCRe maintain "disclosure controls and
procedures" (as defined in Rule 13a-15(e) under the Exchange Act) and
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that: (i) transactions are executed in all
material respects in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States
generally accepted accounting principles and with statutory accounting
principles, as the case may be, and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(dd) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
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(ee) The Company and IPCRe (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not have a material adverse effect on the Company and
the Subsidiaries, taken as a whole.
(ff) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(gg) The Company and IPCRe have not taken, directly or
indirectly, any action designed to or that would be reasonably expected
to cause or result in the Company and/or IPCRe being treated as: (i)
engaged in a trade or business within the United States for purposes of
the Internal Revenue Code of 1986, as amended (the "CODE"); or (ii) a
Passive Foreign Investment Company within the meaning of Section 1297
of the Code (i) and the Company, to its knowledge, is not, and upon the
consummation of the transactions described hereby and the application
of the proceeds as described in the Registration Statement under the
Caption "Use of Proceeds" will not become, a Passive Foreign Investment
Company within the meaning of Section 1297 of the Code.
2. Agreements to Sell and Purchase. (a) The Company hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective numbers of Firm Shares set forth in Schedule I
hereto opposite its name at $26.25 a share (the "PURCHASE PRICE").
(b) On the basis of the representations and warranties
contained in this Agreement, and subject to its terms and conditions, the
Company agrees to sell to the Underwriters the Additional Shares, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 1,048,000 Additional Shares at the Purchase Price. If you, on behalf of
the Underwriters, elect to exercise such option, you shall so notify the Company
in writing not later than 30 days after the date of this Agreement, which notice
shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Such date
may be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor
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later than ten business days after the date of such notice. Additional Shares
may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
(c) The Company hereby agrees that, without the prior written
consent of Managers on behalf of the Underwriters, it will not, during the
period ending 60 days after the date of the Prospectus: (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock; or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise or (iii) file any registration statement with the Commission
relating to the offering of any shares of Common Stock or any securities
convertible into or exerciseable for Common Stock. The foregoing sentence shall
not apply to (A) the sale of the Shares hereunder, or (B) the issuance by the
Company of shares of Common Stock upon the exercise of an option outstanding
under the Company's existing stock option plan , the vesting of any restricted
stock unit outstanding under the Company's existing stock incentive plan or the
issuance of new options or restricted stock units thereunder or any warrant or
the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing prior to the date hereof or (C) the
concurrent sale of 3,341,000 common shares (plus up to an additional 334,000
common shares to the extent the over allotment option is exercised) to American
International Group, Inc.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after this Agreement has become effective as in
your judgment is advisable. The Company is further advised by you that the
Shares are to be offered to the public initially at $26.25 a share (the "PUBLIC
OFFERING PRICE") and to certain dealers selected by you at a price that
represents a concession not in excess of $0.6398 a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $0.10 a share, to any Underwriter or to
certain other dealers.
4. Payment and Delivery. (a) Payment for the Firm Shares shall
be made to the Company in Federal or other funds immediately available in New
York City against delivery of such Firm Shares for the respective accounts of
the several
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Underwriters at 10:00 a.m., New York City time, on November 4, 2005 or at such
other time on the same or such other date, as the Managers shall designate in
their sole discretion in writing. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
(b) Payment for any Additional Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, as the Managers shall designate in their sole discretion in writing. The
time and date of such payment are hereinafter referred to as the "OPTION CLOSING
DATE".
(c) Certificates for the Firm Shares and Additional Shares
shall be in definitive form and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date or the Option Closing Date, as the case may be.
The certificates evidencing the Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriters
duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject, in the discretion of the Underwriters, to the
condition that all representations and warranties and other statements of the
Company in this Agreement are, at and as of the date of this Agreement and the
Closing Date, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and to
the following conditions:
(a) The Prospectus as amended or supplemented in relation to
the Shares shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act and in accordance
with Section 6(b) hereof; no stop order suspending the effectiveness of
the Registration Statement shall have been issued or shall be pending
or, to the knowledge of the Company, shall be threatened by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Underwriter.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the
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possible change, in the rating accorded to the Company or any
of its Designated Subsidiaries or any of their securities by
any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and the Subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated
in the Prospectus.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a) and 5(b) above
and to the effect that: (i) the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date; and (ii) the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date
an opinion (which opinion may be rendered in reliance upon the
appropriate opinions of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ as to Bermuda law) of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Company, dated the Closing
Date, to the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not contravene any provision of (A) United
States Federal or New York law (provided, however, that such
counsel need express no opinion with respect to United States
Federal or state securities laws, antifraud laws and
fraudulent transfer laws), (B) to such counsel's knowledge,
any agreement or other instrument binding upon the Company or
IPCRe that is material to the Company and the Subsidiaries,
taken as a whole, or (C) to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or IPCRe; and no
consent, approval, authorization or order of, or qualification
with, any United States Federal or New York governmental body
or agency is required for the performance by the Company of
its obligations under this Agreement, except such as may be
required by the Securities Act, the
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Exchange Act and the securities or Blue Sky or insurance
securities laws of New York;
(iii) a registration statement with respect to the
Shares has been declared effective under the Securities Act
and the Shares have been registered under the Exchange Act;
and based upon oral information from a representative of
NASDAQ, the Shares have been approved for quotation by the
Nasdaq National Market System subject to official notice of
issuance;
(iv) to such counsel's knowledge, such counsel does
not know of any legal or governmental proceedings pending or
threatened to which the Company or IPCRe is a party or to
which any of the properties of the Company or IPCRe is subject
that are required to be described in the Registration
Statement or the Prospectus and are not so described or of
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed or incorporated by reference as required;
(v) to such counsel's knowledge, neither the Company
nor IPCRe has received any notification from any insurance
authority, commission or other insurance regulatory body to
the effect that any license from such authority, commission or
body is needed to be obtained by the Company or IPCRe or that
the Company or IPCRe is not in compliance with any applicable
Insurance Laws;
(vi) the discussion of United States tax matters set
forth under the headings "Certain United States Federal Tax
Considerations for Holders of Common Shares" and "Additional
U.S. Federal Tax Consideration" in the Prospectus fairly and
accurately reflects such counsel's opinion as to such tax laws
(subject to the qualifications and assumptions set forth in
such discussion);
(vii) under the laws of the State of New York
relating to submission to jurisdiction, the Company has
validly submitted to the non-exclusive jurisdiction of any
United States Federal or state court in the Borough of
Manhattan, the City of New York, State of New York (a "NEW
YORK COURT"), has validly waived any objection to the venue of
a proceeding in any such New York Court and has validly
appointed CT Corporation System, as its authorized agent, for
the purpose and to the extent described in Section 10 of this
Agreement and assuming: (A) the validity of such actions under
Bermuda law; and (B) the due authorization, execution and
delivery of this Agreement by or on behalf of the
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Underwriters; and (C) that the Registration Statement and the
Prospectus do not contain any material misstatements or
omissions;
(viii) the Company is not now, and after giving
effect to the offering and the sale of the Shares and the
application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(ix) such counsel: (A) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included or incorporated by reference therein as to which
such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder;
(B) has no reason to believe that (except for financial
statements and schedules and other financial and statistical
data as to which such counsel need not express any belief) the
Registration Statement or the Prospectus as of the date of the
Prospectus Supplement contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading; and (C) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief) the Prospectus as of the date of the Prospectus
Supplement or as of the Closing Date contained or contains any
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(x) the statements in the Prospectus under the
caption "Certain Relationships And Related Transactions"
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein; and the statements in the
Prospectus under the captions "Plan of Distribution" and
"Underwriting" insofar as such statements constitute a summary
of this Agreement fairly present the information called for
with respect to such document and fairly summarize the
documents referred to therein.
(xi) the documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act (other than the financial statements,
supporting schedules and other financial information included
or incorporated by reference therein, as to which no opinion
need to be rendered), at the time they were
-15-
filed (or at the time they were amended, if applicable) with
the Commission complied as to form in all material respects
with the requirements of the Exchange Act and the rules and
regulations thereunder; and
(xii) the issue and sale of the Shares, the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not
conflict with or constitute a breach of, or default under, the
Amended and Restated Administrative Services Agreement, the
Investment Management Agreement, the Investment Sub-Advisory
Agreement and the Custodial Agreement, all as described in the
Prospectus.
(e) The Underwriters shall have received on the Closing Date
an opinion (which opinion may be rendered in reliance on the
appropriate opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to New York law) of
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda counsel to the Company, dated
the Closing Date, to the effect that:
(i) each of the Company, IPCRe and IPCUSL has been
duly incorporated and is validly existing under the laws of
Bermuda in good standing (meaning solely that each company has
not failed to make any filing with any Bermuda governmental
authority or to pay any Bermuda government fee or tax which
would make it liable to be struck off the Register of
Companies and thereby cease to exist under the laws of
Bermuda);
(ii) the Company has the necessary corporate power
and authority to execute, deliver and perform its obligations
under this Agreement and the necessary corporate power to own
its property and conduct its business as described under the
caption "Business" in the Prospectus and under the caption
"Business" in the Company's annual report on Form 10-K for the
fiscal year ended December 31, 2004. The execution and
delivery of this Agreement by the Company and the performance
by the Company of its obligations thereunder will not violate
the memorandum of association or bye-laws of the Company nor
any applicable law, regulation, order or decree in Bermuda;
(iii) each of the Company, IPCRe and IPCUSL has
obtained all necessary licenses, authorizations and permits
from any government or public body or authority of Bermuda or
any sub-division thereof to conduct its business as described
under the caption "Business" in the Prospectus and under the
caption "Business" in the Company's annual report on Form 10-K
for the fiscal year ended December 31, 2004;
(iv) each of IPCRe and IPCUSL has the necessary
corporate power to own its property and conduct its business
as described under the
-16-
caption "Business" in the Prospectus and under the caption
"Business" in the Company's annual report on Form 10-K for the
fiscal year ended December 31, 2004;
(v) the Company has taken all corporate action
required to authorize its execution, delivery and performance
of this Agreement. This Agreement has been duly executed and
delivered by or on behalf of the Company, and constitutes the
valid and binding obligations of the Company, enforceable
against the Company in accordance with the terms thereof;
(vi) the authorised capital of the Company conforms,
as to matters of Bermuda law, to the description thereof
contained in the Registration Statement and the Prospectus in
all material respects;
(vii) based solely upon a review of a copy of the
register of members of the Company certified by the Secretary
of the Company on November 4, 2005 the issued share capital of
the Company consists of 48,369,892 Shares, each of which is
validly issued, fully paid and non-assessable;
(viii) when issued and paid for in accordance with
this Agreement, the Shares to be sold by the Company will be
duly authorized, validly issued, fully paid and non-assessable
and will not be subject to any statutory pre-emptive or
similar rights. The form of certificates for the Shares
conforms to the requirements of the laws of Bermuda;
(ix) based solely upon a review of a copy of the
register of members of IPCRe certified by the Secretary of
IPCRe on November 4, 2005, the issued share capital of IPCRe
consists of 1,250 common shares, par value $200 per share,
registered in the name of the Company, each of which is
validly issued, fully paid and non-assessable;
(x) based solely upon a review of a copy of the
register of members of IPCUSL certified by the Secretary of
IPCUSL on November 4, 2005, the issued share capital of IPCUSL
consists of 12,000 common shares, par value $1.00 per share,
registered in the name of the Company, each of which is
validly issued, fully paid and non-assessable;
(xi) no order, consent, approval, license,
authorization or validation of, filing with or exemption by
any government or public body or authority of Bermuda or any
sub-division thereof is required to authorize or is required
in connection with the execution, delivery, performance and
enforcement of this Agreement, except such as have been duly
obtained or filed in accordance with Bermuda law;
-17-
(xii) it is not necessary or desirable to ensure the
enforceability in Bermuda of this Agreement that it be
registered in any register kept by, or filed with, any
governmental authority or regulatory body in Bermuda. However,
to the extent that this Agreement creates a charge over assets
of the Company or IPCRe, it may be desirable to ensure the
priority in Bermuda of the charge that it be registered in the
Register of Charges in accordance with Section 55 of the
Companies Act 1981. On registration, to the extent that
Bermuda law governs the priority of a charge, such charge will
have priority in Bermuda over any unregistered charges, and
over any subsequently registered charges, in respect of the
assets which are the subject of the charge. A registration fee
of $490 will be payable in respect of the registration. While
there is no exhaustive definition of a charge under Bermuda
law, a charge normally has the following characteristics: (i)
it is a proprietary interest granted by way of security which
entitles the chargee to resort to the charged property only
for the purposes of satisfying some liability due to the
chargee (whether from the chargor or a third party); and (ii)
the chargor retains an equity of redemption to have the
property restored to him when the liability has been
discharged. However, as this Agreement is governed by New York
law, the question of whether it would possess these particular
characteristics would be determined under New York law;
(xiii) based solely upon a review of a copy of its
certificate of registration issued pursuant to the Bermuda
Insurance Act, IPCRe is duly registered in Bermuda as a class
4 insurer in accordance with the provisions of the Insurance
Act;
(xiv) the statements in the Prospectus under the
captions "Description of Common Shares and Preferred Shares We
May Offer", "Bermuda Taxation" and "Enforceability of Civil
Liabilities Under The United States Federal Securities Laws",
"Risk Factors" and in the Company's annual report on Form 10-K
for the fiscal year ended December 31, 2004 under the caption
"Bermuda - The Insurance Act of 1978, as amended, and Related
Regulations (the "INSURANCE ACT")" insofar as they purport to
describe the provisions of the laws of Bermuda referred to
therein, are correct in all material respects;
(xv) there is no income or other tax of Bermuda
imposed by withholding or otherwise on any payment to be made
to or by the Company pursuant to this Agreement. This
Agreement will not be subject to ad valorem stamp duty in
Bermuda and no registration, documentary, recording, transfer
or other similar tax, fee or charge is payable in Bermuda in
connection with the execution, delivery, filing, registration
or performance of this Agreement other than as stated in
paragraph (xii) hereof;
-18-
(xvi) the statements in the Prospectus under the
caption "Certain United States Federal Tax Considerations For
Holders of Common Shares" insofar as they purport to describe
the provisions of the laws of Bermuda referred to therein, are
correct in all material respects;
(xvii) the Company and IPCRe have each received from
the Bermuda Minister of Finance an assurance under The
Exempted Undertakings Tax Protection Act, 1966 as described in
the Prospectus under the caption "Bermuda Taxation";
(xviii) there is no income or other tax of Bermuda
imposed by withholding or otherwise on any dividend or
distribution to be made (i) by the Company to the holders of
the Shares; or (ii) by IPCRe or IPCUSL to the Company. The
Company has been designated as non-resident of Bermuda for the
purposes of the Exchange Control Act, 1972 and, as such, is
free to acquire, hold and sell foreign currency and securities
without restriction;
(xix) the choice of New York law as the governing law
of this Agreement is a valid choice of law and would be
recognized and given effect to in any action brought before a
court of competent jurisdiction in Bermuda, except for those
laws (i) which such court considers to be procedural in
nature, (ii) which are revenue or penal laws or (iii) the
application of which would be inconsistent with public policy,
as such term is interpreted under the laws of Bermuda. The
submission in this Agreement to the non-exclusive jurisdiction
of any New York Court is valid and binding upon the Company;
(xx) the courts of Bermuda would recognize as a valid
judgment, a final and conclusive judgment in personam obtained
in a New York Court against the Company based upon this
Agreement under which a sum of money is payable (other than a
sum of money payable in respect of multiple damages, taxes or
other charges of a like nature or in respect of a fine or
other penalty) and would give a judgment based thereon
provided that (a) such courts had proper jurisdiction over the
parties subject to such judgment, (b) such courts did not
contravene the rules of natural justice of Bermuda, (c) such
judgment was not obtained by fraud, (d) the enforcement of the
judgment would not be contrary to the public policy of
Bermuda, (e) no new admissible evidence relevant to the action
is submitted prior to the rendering of the judgment by the
courts of Bermuda and (f) there is due compliance with the
correct procedures under the laws of Bermuda;
(xxi) based solely upon a search of the Cause Book of
the Supreme Court of Bermuda conducted at approximately 9:30
am on
-19-
November 4, 2005 (which would not reveal details of
proceedings which have been filed but not actually entered in
the Cause Book at the time of our search), there are no
judgments against the Company, nor any legal or governmental
proceedings pending in Bermuda to which the Company is
subject; and
(xxii) based solely on a search of the Register of
Charges maintained by the Registrar of Companies pursuant to
Section 55 of the Companies Act 1981 conducted at
approximately 9:30 am on November 4, 2005 (which would not
reveal details of matters which have been lodged for
registration but not actually registered at the time of our
search), there are no charges registered on the assets of the
Company and two charges registered on the assets of the IPCRe.
(f) The Underwriters shall have received on the Closing Date
an opinion (which opinion may be rendered in reliance upon the
appropriate opinions of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ as to Bermuda law) of
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in Sections 5(d)(i), 5(d)(ix)
and 5(d)(x) (but only as to the statements in the Prospectus under
"Underwriting" insofar as such statements constitute summaries of this
Agreement) above.
With respect to Section 5(d)(ix) above, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their opinion and belief
are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified.
The opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇ described in Sections 5(d) and 5(e) above shall be rendered to
the Underwriters at the request of the Company and shall so state
therein.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG, independent registered public accounting
firm, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus; provided, that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements between you and certain officers
and directors of the Company, each substantially in the form of Exhibit
A-1 hereto and between you and AIG, substantially in the form of
Exhibit A-2 hereto relating
-20-
to sales and certain other dispositions of shares of Common Stock or
certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
(i) The Shares shall have been approved for quotation, subject
to official notice of issuance, on the Nasdaq National Market System.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company and the Designated Subsidiaries, the due
authorization and issuance of the Additional Shares and other matters related to
the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three signed copies of
the Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned
paragraph (c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or
-21-
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending December 31, 2006, that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified; (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon; (iii) the cost of printing or producing
any Blue Sky memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky memorandum; (iv) all filing fees and the reasonable
disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc.; (v) all fees and
expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to listing the Shares on the Nasdaq
National Market; (vi) document production charges and expenses
associated with printing this Agreement; (vii) the cost of printing
certificates representing the Shares; (viii) the costs and charges of
any transfer agent, registrar or depositary; (ix) the costs and
expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of
the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior
-22-
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road
show; and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 7 entitled "Indemnity and
Contribution", and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses
connected with any offers they may make.
(g) The Company will use its best efforts to obtain and
maintain the inclusion of the Shares on the Nasdaq National Market and
the registration of the Shares under the Exchange Act.
7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY")
-23-
shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate
in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless: (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel; or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such reasonable fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated in the case of parties indemnified pursuant to Section
7(a), and by the Company, in the case of parties indemnified pursuant
to Section 7(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and
does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified
party.
(d) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities: (i) in such proportion as is
appropriate to reflect the relative benefits received by such
indemnifying party or parties on the one hand and the indemnified party
or parties on the other hand from the offering of the Shares; or (ii)
if the allocation provided by clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to
-24-
reflect not only the relative benefits referred to in clause 7(d)(i)
above but also the relative fault of such indemnifying party or parties
on the one hand and of indemnified party or parties on the other hand
in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and
-25-
effect regardless of: (i) any termination of this Agreement; (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or any affiliate of any Underwriter or by
or on behalf of the Company, its officers or directors or any person
controlling the Company; and (iii) acceptance of and payment for any of
the Shares.
8. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if after the execution and delivery of
this Agreement and prior to the Closing Date: (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the Nasdaq National Market
System, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange
or the Chicago Board of Trade, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a material disruption in securities settlement, payment or clearance
services in the United States shall have occurred, (iv) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or in Bermuda by Bermuda authorities, or
(v) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse; and in the case of any of the events specified 8(a)(i)
through 8(a)(v), singly or together with any other event, makes it, in your
judgment, impracticable or inadvisable to proceed with the offer, sale, or
delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness; Defaulting Underwriters. (a) This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
(b) If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided, that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made
-26-
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. If, on the Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Additional
Shares to be purchased, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non- defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
(c) If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement (other than pursuant to the foregoing paragraphs of this Section
9), the Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Submission to Jurisdiction; Appointment of Agent for
Service. In further consideration of the agreement of the Underwriters herein
contained, the Company irrevocably agrees and covenants that any legal suit,
action or proceeding against the Company brought by any Underwriter or by any
person who controls such Underwriter within the meaning of either Section 15 of
the Securities Act of Section 20 of the Exchange Act (a "CONTROL PERSON")
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York Court, and irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, irrevocably waives any objection based on the absence of a necessary
or indispensable party in any such proceeding and irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company irrevocably waives any immunity to jurisdiction to which
it may otherwise be entitled or become entitled (including immunity to
pre-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of this Agreement or the transactions contemplated hereby
which is instituted in any New York Court, or in any Bermuda court. To the
extent permitted by law, Company hereby waives any objection to the enforcement
by any competent foreign court of any judgment validly obtained in any such
proceeding. The Company designates and appoints CT Corporation System in The
City of New York at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its respective
authorized agent (the "AUTHORIZED AGENT") upon which process may be
-27-
served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Underwriter or by any Control Person, expressly consents to the
non-exclusive jurisdiction of any such court in respect of any such action, and
waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointments shall be irrevocable. The Company represents
and warrants that the Authorized Agent has agreed to act as said agent for
service of process and the Company agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Company's Authorized Agent and written notice of such service
of process to it shall be deemed, in every respect, effective service of process
upon the Company. Notwithstanding the foregoing, any action based on this
Agreement or the transactions contemplated hereby may be instituted by any
Underwriter or any Control Person in any competent foreign court.
11. Judgment Currency. In respect of any judgment or order
given or made for any amount due hereunder that is expressed and paid in
currency (the "JUDGMENT CURRENCY") other than United States dollars, the party
against whom such judgment or order has been given or made (the "INDEMNITOR")
will indemnify each party in whose favor such judgment or order has been given
or made (the "INDEMNITEE") against any loss incurred by such Indemnitee as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which the Indemnitee is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Indemnitee. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and the Underwriters and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include any reasonable
premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
12. Arms Length. The Company acknowledges that in connection
with the offering of the Shares: (i) the Underwriters have acted at arms length,
are not agents of, and owe no fiduciary duties to, the Company or any other
person, (ii) the Underwriters owe the Company only those duties and obligations
set forth in this Agreement and (iii) the Underwriters may have interests that
differ from those of the Company. The Company waives to the full extent
permitted by applicable law any claims it may have against the Underwriters
arising from an alleged breach of fiduciary duty in connection with the offering
of the Shares.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
-28-
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
16. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Managers, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; and to the Global Capital Markets Syndicate Desk, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the Global
Capital Markets Syndicate Desk, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Global Capital Markets Syndicate
Desk or, if sent to the Company, will be mailed, delivered or telefaxed to
▇▇▇-▇▇▇-▇▇▇▇ and confirmed to it at ▇▇▇-▇▇▇-▇▇▇▇ , Attention: Corporate
Secretary.
-29-
Very truly yours,
IPC HOLDINGS, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
Accepted as of the date hereof:
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
-30-
SCHEDULE I
NUMBER OF
FIRM SHARES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
Citigroup Global Markets Inc. ........ 4,608,992
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .... 4,608,992
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ................. 482,153
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. ........ 482,153
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Inc. ............ 296,710
----------
Total .............. 10,479,000
==========
I-1
EXHIBIT A-1
[FORM OF OFFICER/DIRECTOR LOCK-UP]
[Date]
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that the Managers propose to enter
into an
Underwriting Agreement (the "
UNDERWRITING AGREEMENT") with IPC Holdings,
Ltd., a Bermuda company (the "COMPANY") providing for the public offering (the
"PUBLIC OFFERING") by the several Underwriters, (the "UNDERWRITERS"), of
__________ shares (the "SHARES") of the Common Shares, $.01 par value per share,
of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of the
Managers on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date hereof and ending 60 days after the date of the
final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. In addition, the undersigned agrees that,
without the prior written consent of the Managers on behalf of the Underwriters,
it will not, during the period commencing on the date hereof and ending 60 days
after the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's shares of Common Stock except in compliance with the foregoing
restrictions.
A-1-1
The undersigned understands that the Company and the
Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that
this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned's heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on
a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an
Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
---------------------------
(Name)
---------------------------
(Address)
A-1-2
EXHIBIT A-2
[FORM OF AIG LOCK-UP]
[Date]
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that the Managers propose to enter
into an
Underwriting Agreement (the "
UNDERWRITING AGREEMENT") with IPC Holdings,
Ltd., a Bermuda company (the "COMPANY") providing for the public offering (the
"PUBLIC OFFERING") by the several Underwriters (the "UNDERWRITERS"), of
__________ shares (the "SHARES") of the Common Shares, $.01 par value per share,
of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of the
Managers on behalf of the Underwriters, neither it nor any of its subsidiaries
will, during the period commencing on the date hereof and ending 60 days after
the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to sales to the extent necessary, in the judgment of the
undersigned, to prevent the undersigned from becoming a "United States 25%
Shareholder" (as defined in the Prospectus). In addition, the undersigned agrees
that, without the prior written consent of the Managers on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 60 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and
A-2-1
registrar against the transfer of the undersigned's shares of Common Stock
except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the
Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that
this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned's heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on
a number of factors, including market conditions. Any Public Offering will only
be made pursuant to an
Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
AMERICAN INTERNATIONAL GROUP, INC.
By:
-------------------------------
Name:
Title:
A-2-2
