EXHIBIT 1.1
AMERICAN SAFETY INSURANCE HOLDINGS, LTD.
(a Bermuda company)
4,953,087 Common Shares
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
___________, 2006
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
American Safety Insurance Holdings, Ltd., a Bermuda company (the
"Company"), and the selling shareholders named in Schedule A hereto (each a
"Selling Shareholder," together the "Selling Shareholders"), confirm their
respective agreements with Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"), Xxxxxxx Xxxxx
& Associates, Inc. and BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx,
Inc. (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to (i) the sale by the Company and the Selling Shareholders, acting
severally and not jointly, and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of Common Shares, par value
$0.01 per share, of the Company ("Common Shares") set forth in Schedules A and B
hereto, aggregating 4,953,087 Common Shares, and (ii) the grant by the Selling
Shareholders to the Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of 742,963
additional Common Shares to cover overallotments, if any. The aforesaid
4,953,087 Common Shares to be purchased by the Underwriters (the "Initial
Securities") and all or any part of the 742,963 Common Shares subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities."
The Company and the Selling Shareholders understand that the Underwriters
propose to make a public offering of the Securities as soon as the Underwriters
deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-133557), including
the related preliminary prospectus, for the registration of the Securities under
the Securities Act of 1933, as amended (the "1933 Act"). Promptly after
execution and delivery of this Agreement, the Company shall prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations. Such registration statement has been declared effective by the
Commission and the Company has filed such post-effective amendments thereto as
may be required prior to the execution and
delivery of this Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement, including the
amendments thereto, the exhibits and any schedules thereto, at the time it
became effective, and including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) (the "Rule 430A Information"), is referred to
herein as the "Registration Statement;" and the final prospectus relating to the
offering of the Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Securities is
referred to herein as the "Prospectus;" provided, however, that if the Company
files a registration statement with the Commission pursuant to Rule 462(b)
("Rule 462(b)") of the 1933 Act Regulations (the "Rule 462(b) Registration
Statement"), then all references to "Registration Statement" shall also be
deemed to include the Rule 462(b) Registration Statement. A "preliminary
prospectus" shall be deemed to refer to any prospectus that omitted, as
applicable, the Rule 430A Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to Rule
424(b) prior to the initial delivery of the Prospectus to the Underwriters by
the Company. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, as of the Applicable
Time (as defined below), as of the Closing Time referred to in Section 2(c)
hereof, and as of each Date of Delivery (if any) referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto, or the use of the related preliminary prospectus, has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except with respect to information furnished to the
Company by or on behalf of the Underwriters expressly for use therein.
Neither the Prospectus nor any amendments or supplements thereto at the
time the Prospectus or any such amendment or supplement was issued and
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at the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
As of the Applicable Time, neither (x) any Issuer General Use Free
Writing Prospectus (as defined below) issued at or prior to the Applicable
Time and the Statutory Prospectus (as defined below) as of the Applicable
Time and the pricing information included on Schedule C hereto, all
considered together (collectively, the "General Disclosure Package"), nor
(y) any individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" means ____________ (Eastern time) on ___________,
2006 or such other time as agreed by the Company and KBW.
"Issuer General Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus (as defined in Rule 433 ("Rule 433") of the 1933 Act
Regulations) that is intended for general distribution to prospective
investors (other than a Bona Fide Electronic Road Show (as defined in Rule
433)), as evidenced by its being specified in Schedule D hereto.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus relating to the Securities that is not an Issuer
General Use Free Writing Prospectus.
"Statutory Prospectus" as of any time means the prospectus relating
to the Securities that is included in the Registration Statement
immediately prior to that time.
Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of
the Securities or until any earlier date that the Company notified or
notifies KBW as described in Section 3(a)(v), did not, does not and will
not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the
Prospectus and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of the Underwriters expressly for use therein. The parties hereto
acknowledge that the only information so furnished to the Company are the
statements set forth in the Prospectus in the third, fourth and fifth
sentences of the
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second paragraph, in the seventh paragraph (other than the seventh
sentence thereof) and in the tenth paragraph under the section entitled
"Underwriting."
Each preliminary prospectus (including the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto) complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) GAAP Financial Statements. The consolidated financial
statements included in the Registration Statement, the General Disclosure
Package or the Prospectus, together with the related schedules and notes,
present fairly, in all material respects, the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the
statements of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with United States
generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
GAAP the information required to be stated therein. The selected financial
data and the summary financial information included in the Prospectus
present fairly, in all material respects, the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement. The unaudited
interim consolidated financial statements included in the Registration
Statement, the General Disclosure Package or the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of Regulation S-X under the 1933 Act ("Regulation S-X").
(iv) SAP Financial Statements. The audited statutory financial
statements as of December 31, 2005, 2004 and 2003 of each of the Company's
domestic insurance company subsidiaries and American Safety Risk Retention
Group, Inc. ("American Safety RRG") have for each relevant period been
prepared in accordance with statutory accounting practices ("SAP")
prescribed or permitted by the National Association of Insurance
Commissioners and, with respect to each insurance subsidiary or American
Safety RRG, the appropriate insurance department of the state of domicile
of such entity, and SAP has been applied on a consistent basis throughout
the periods involved.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement, the
General Disclosure Package or the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of any of the Company, its direct or indirect subsidiaries or
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American Safety RRG (each, an "ASI Entity"), whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any ASI Entity, other
than those in the ordinary course of business, which are material with
respect to any ASI Entity, (C) there has not been any change in the
capital stock, long-term debt or short-term debt of any ASI Entity and (D)
no ASI Entity has purchased any of its outstanding capital stock,
declared, paid or otherwise made any dividend or distribution of any kind
on its capital stock or has been delinquent in the payment of principal or
interest on any outstanding debt obligations.
(vi) Good Standing of the ASI Entities. Each ASI Entity has been
duly organized and is validly existing as a company in good standing under
the laws of the jurisdiction of its organization and has full power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not,
singly or in the aggregate, result in a Material Adverse Effect.
(vii) Capitalization. The Company's authorized, issued and
outstanding capital stock is as disclosed in the Prospectus (except for
subsequent issuances, if any, pursuant to agreements or employee benefit
plans referred to in the Prospectus or pursuant to the exercise of options
referred to in the Prospectus). All of the issued shares of capital stock
of the Company, including the Securities to be sold by the Company and the
Selling Shareholders pursuant hereto when delivered against payment
therefor as contemplated hereby, have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the descriptions
thereof contained in the Prospectus, and the holders thereof will not be
subject to personal liability solely by reason of being such holders. None
of the issued shares of capital stock of any ASI Entity has been issued or
is owned or held in violation of any statutory or other preemptive rights
of shareholders, and no person or entity (including any holder of
outstanding shares of capital stock of the Company or its direct or
indirect subsidiaries or affiliates) has any statutory or other preemptive
or other rights to subscribe for any of the Securities. None of the
capital stock of any ASI Entity has been issued in violation of applicable
Bermuda or federal or state securities laws. The certificates representing
the Common Shares are in proper legal form under, and conform in all
respects to the requirements of, applicable Bermuda law and the New York
Stock Exchange. All of the issued shares of capital stock of each of the
Company's direct and indirect subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
beneficially by the Company or one of its subsidiaries, free and clear of
all liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting agreements, proxies, voting trusts,
equities or claims of any nature whatsoever (collectively,
"Encumbrances"), including, without limitation, any Encumbrance arising or
resulting from any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement of or entered into by any of the Company's direct
or indirect subsidiaries and the equity securities held in the investment
portfolios of any direct or indirect subsidiary of the Company (the
composition of which is not materially different from the disclosures in
the Prospectus as
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of specific dates). Except as disclosed in the Prospectus with respect to
its investment portfolio, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or
other association.
(viii) Other Agreements. Except as disclosed in the Prospectus,
there are no outstanding (A) securities or obligations of any ASI Entity
convertible into or exchangeable for any capital stock of the Company or
any of its direct or indirect subsidiaries or affiliates, (B) warrants,
rights or options to subscribe for or purchase from any ASI Entity any
such capital stock or any such convertible or exchangeable securities or
obligations or (C) obligations of any ASI Entity to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options. 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 1933 Act with respect to any Common
Shares owned or to be owned by such person or, requiring the Company to
include such Common Shares in the Common Shares registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
requiring the registration of any Common Shares pursuant to any other
registration statement filed by the Company under the 1933 Act. Neither
the filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives any security holder of
the Company any rights for or relating to the registration of any Common
Shares or any other capital stock of the Company, except such that have
been satisfied or waived.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
execution by the Underwriters, constitutes the valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws relating to or affecting
the enforcement of creditors' rights generally and to general equitable
principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable
securities laws or the public policy underlying such laws.
(x) Absence of Defaults and Conflicts. No ASI Entity is, or with the
giving of notice or lapse of time or both would be, in violation of its
Memorandum of Association or Bye-Laws (or comparable charter documents),
in default under any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or to which
any of its properties or assets are subject or in violation of, or in
default with respect to, any law, statute, rule, regulation, order,
judgment or decree, except for such defaults that would not, singularly or
in the aggregate, result in a Material Adverse Effect, and no ASI Entity
is required to take any action in order to avoid any such violation or
default. The sale of the Securities and the performance of this Agreement
and the consummation of the transactions herein contemplated will not
(with or without the giving of notice or the passage of time or both) (A)
conflict with or violate any term or provision of the Memorandum of
Association or Bye-Laws or comparable charter documents of any ASI Entity,
in each case as amended to date, (B) result in a
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breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which any ASI Entity is a party
or to which any of their respective properties or assets is subject, (C)
conflict with or violate any law, statute, rule or regulation or any
order, judgment or decree of any court or governmental agency or body
having jurisdiction over any ASI Entity or any of its properties or assets
or (D) result in a breach, termination or lapse of the corporate power and
authority of any ASI Entity to own or lease and operate its assets and
properties and conduct its business as described in the Prospectus (except
such contracts, breaches, defaults, liens, charges or encumbrances that
would not, singularly or in the aggregate, result in a Material Adverse
Effect).
(xi) Absence of Labor Dispute. No labor dispute with the employees
of any ASI Entity exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor disturbance
by the employees of any ASI Entity's principal suppliers, manufacturers,
customers or contractors, which, in either case, would reasonably be
expected to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which any ASI Entity is a party or to which any of the properties of any
ASI Entity is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
relationships, transactions, 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. Other than as disclosed in
the Prospectus, there is no litigation, arbitration, claim, proceeding
(formal or informal) or investigation (including without limitation, any
insurance or insurance holding company regulatory proceeding) pending or,
to the knowledge of the Company, threatened in which any ASI Entity is a
party which could result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or other
documents which are required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits
thereto which have not been so described or so filed as required in order
for the Registration Statement and the Prospectus to comply as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the Securities Exchange Act of 1934, as amended (the
"1934 Act") and the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations").
(xiv) Possession of Intellectual Property. Each ASI Entity owns or
possesses adequate rights to use all patents, patent applications,
trademarks, trademark registrations, trade names, service xxxx
registrations, copyrights and licenses necessary for the conduct of its
business or ownership of its properties, and no ASI Entity has received
notice of conflict with the asserted rights of others in respect thereof
which has not been resolved that, singularly or in the aggregate, would
reasonably be expected to result in a Material Adverse Effect.
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(xv) Absence of Manipulation. No ASI Entity or any of its officers
or directors has (A) taken, directly or indirectly, any action designed to
cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities or (B) since the filing of the Registration Statement, (I)
sold, bid for, purchased or paid anyone any compensation for soliciting
purchases of, the Securities or (II) paid or agreed to pay to any person
any compensation for soliciting another to purchase any other securities
of the Company.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except (A) such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and (B) such consents, approvals,
authorizations or qualifications as may be required and have been obtained
from the Bermuda Monetary Authority.
(xvii) Possession of Licenses and Permits. Each ASI Entity has
received all permits, licenses, authorizations, registrations,
qualifications and approvals (collectively, the "Permits") of governmental
or regulatory authorities (including, without limitation, all state and
insurance regulatory authorities) as may be required of it to own its
properties and conduct its business in the manner described in the
Prospectus, subject to such qualifications as may be set forth in the
Prospectus, except where the failure to possess the Permits would not have
a Material Adverse Effect; each ASI Entity has fulfilled and performed all
of its obligations with respect to such Permits, except where the failure
to so comply would not, singly or in the aggregate, result in a Material
Adverse Effect, and no event has occurred which allows or, after notice or
lapse of time or both, would allow revocation or termination thereof or
result in any other impairment of the rights of the holder of any such
Permit, subject in each case to such qualification as may be set forth in
the Prospectus, except where the impairment would not, singly or in the
aggregate, result in a Material Adverse Effect; and, except as described
in the Prospectus, such Permits contain no restriction that affects the
ability of any ASI Entity to conduct its business, except where the
restriction would not, singly or in the aggregate, result in a Material
Adverse Effect, and no state or federal insurance body has issued any
order or decree impairing, restricting or prohibiting the payment of
dividends to the Company by any other ASI Entity.
(xviii) Title to Property. Each ASI Entity has good and marketable
title in fee simple to all real property, if any, and good title to all
personal property owned by it, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and defects,
except such as are disclosed in the Prospectus or such as would not have a
Material Adverse Effect and do not interfere with the use made or proposed
to be made of such property by any ASI Entity; and any real property and
buildings held under lease by any ASI Entity are held under valid,
subsisting and enforceable leases, with such exceptions as are disclosed
in the Prospectus or would not have a Material
8
Adverse Effect and do not interfere with the use made or proposed to be
made of such property and buildings by any ASI Entity, and no ASI Entity
has any notice of any claim that has been asserted by anyone adverse to
the rights of any ASI Entity under any of the leases mentioned above, or
affecting or questioning the rights of any ASI Entity to the continued
possession of the leased premises under any such lease that could have a
Material Adverse Effect.
(xix) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) no ASI Entity is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (B) each ASI Entity has all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against any ASI Entity and (D) there are no events or circumstances that
would reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting any ASI Entity relating
to Hazardous Materials or any Environmental Laws.
(xx) Investment Company Act. No ASI Entity is an "investment
company" or a company "controlled" by an investment company as such terms
are defined in Sections 3(a) and 2(a)(9), respectively, of the Investment
Company Act of 1940, as amended (the "1940 Act"), and, if each ASI Entity
conducts its business as set forth in the Registration Statement and the
Prospectus, no ASI Entity will become an "investment company" or be
required to register under the 1940 Act.
(xxi) Accounting Controls. Each ASI Entity maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with the management's
general or specific authorizations, (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
GAAP and/or SAP, as applicable, and to maintain asset accountability, (C)
access to assets is permitted only in accordance with the management's
general or specific authorization, (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences and (E)
material information relating to it is made known to management.
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(xxii) Insurance Reserving Practices. Except as disclosed in the
Prospectus, no ASI Entity has made any material change in its insurance
reserving practices since the respective dates as of which information is
given in the most recent financial statements and statutory financial
statements.
(xxiii) Reinsurance and Retrocessional Arrangements. All reinsurance
and retrocessional treaties, contracts, agreements and arrangements to
which any ASI Entity is a party are in full force and effect and no ASI
Entity is in violation of, or in default in the performance, observance or
fulfillment of, any obligation, agreement, covenant or condition contained
therein, with such exceptions that would not, singularly or in the
aggregate, have a Material Adverse Effect; and no ASI Entity has received
any notice from any of the other parties to such treaties, contracts,
agreements or arrangements that such other party intends not to perform
thereunder and, to the best knowledge of any ASI Entity, none of the other
parties to such treaties, contracts, agreements or arrangements will be
unable to perform thereunder except to the extent adequately and properly
reserved for in the consolidated financial statements of the Company, with
such exceptions that would not, singularly or in the aggregate, have a
Material Adverse Effect.
(xxiv) No Undisclosed Liabilities. No ASI Entity has any liability,
whether known or unknown, whether asserted or unasserted, whether absolute
or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due, including any liability
for taxes (and there is no past or present fact, situation, circumstance,
condition or other basis for any present or future action, suit,
proceeding, hearing, charge, complaint, claim or demand against any ASI
Entity giving rise to any such liability), except (A) for liabilities set
forth in the financial statements and statutory financial statements,
respectively, (B) normal fluctuation in the amount of the liabilities
referred to in clause (A) above occurring in the ordinary course of
business of the ASI Entities since the date of the most recent balance
sheet included in the financial statements and statutory financial
statements, respectively, and (C) as may be specifically disclosed in
writing to the Underwriters.
(xxv) Insurance. Each ASI Entity has in place and effective such
policies of insurance, with limits of liability in such amounts, as are
normal and prudent in the ordinary scope of business similar to that of
such ASI Entity in the jurisdiction in which it conducts business. Each of
American Safety Casualty Insurance Company, American Safety Indemnity
Company, American Safety Risk Retention Group, Inc., American Safety
Reinsurance, Ltd. and American Safety Assurance Ltd. qualify as an
insurance company under Subchapter L of the Internal Revenue Code of 1986,
as amended (the "Code"). The purported insurance products sold by any of
the Company's direct or indirect subsidiaries are insurance contracts for
purposes of United States federal income tax law.
(xxvi) NSROs. Other than as disclosed in the Prospectus, the Company
has no knowledge of any threatened or pending downgrading of any of its or
any other ASI Entity's securities or financial strength or claims-paying
ability rating by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act.
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(xxvii) Statistical and Market-Related Data. Any statistical and
market-related data included in the Registration Statement and the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained any required
consents or approvals to the use of such data from such sources.
(xxviii) Regulatory Reporting. Each ASI Entity has filed all
statutory financial returns, reports, documents and other information
required to be filed pursuant to the applicable laws (including insurance
laws) of the United States and the various states thereof, Bermuda and
each other jurisdiction applicable thereto, except where the failure,
singly or in the aggregate, to file such return, report, document or
information would not reasonably be expected to result in a Material
Adverse Effect; and each ASI Entity maintains its books and records in
accordance with, and is otherwise in compliance with, the applicable laws
(including insurance laws) of the United States and the various states
thereof, Bermuda and each other jurisdiction applicable thereto, except
where the failure to so maintain its books and records or be in compliance
would not, singly or in the aggregate, result in a Material Adverse
Effect.
(xxix) Dividends. All dividends and other distributions declared and
payable on the shares of share capital of the Company may under the
current laws and regulations of Bermuda be paid in any currency other than
Bermuda dollars that may be freely transferred out of Bermuda, and all
such dividends and other distributions will not be subject to withholding
or other taxes under the laws and regulations of Bermuda and are otherwise
free and clear of any other tax, withholding or deduction in Bermuda and
without the necessity of obtaining any consent, approval, authorization,
registration or qualification of or with any governmental agency or body
or any court in Bermuda; and, other than as disclosed in the Registration
Statement and the Prospectus, no regulatory agency or body (including,
without limitation, any insurance regulatory authority) or other
governmental authority has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by any ASI Entity.
(xxx) Absence of Stamp or Transfer Taxes. No stamp or other issuance
or transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the Underwriters to Bermuda or
any political subdivision or taxing authority thereof or therein in
connection with (A) the sale and delivery by the Company of the Securities
to or for the respective accounts of the Underwriters or (B) the sale and
delivery outside Bermuda by the Underwriters of the Securities to the
initial purchasers thereof; and no registration, documentary, recording,
transfer or other similar tax, fee or charge by any Bermuda governmental
authority is payable in connection with the execution, delivery, filing,
registration or performance of this Agreement.
(xxxi) U.S. Tax Matters. Based upon and subject to the assumptions
and qualifications set forth in the Prospectus under the heading "Material
U.S. Federal Income Tax Consequences" and "Risk Factors," the Company has
no reason to believe that any ASI Entity is, and upon the sale of the
Securities herein contemplated will be, (A) a "passive foreign investment
company" as defined in Section 1297(a) of the Code, (B) a "controlled
foreign corporation" as defined in Section 957 of the Code, (C) except for
American Safety Casualty Insurance Company, American Safety Indemnity
11
Company, American Safety Insurance Services, Inc., Xxxxx Lighthouse
Properties Inc., American Safety Capital Trust, American Safety Capital
Trust II, American Safety Capital Trust III or American Safety Risk
Retention Group, Inc., considered to be engaged in a trade or business
within the United States for purposes of Section 864(b) of the Code or (D)
characterized as a "personal holding company" as defined in Section 542 of
the Code; and no ASI Entity has taken, or has a plan or intention to take,
directly or indirectly, any action that would or would be reasonably
expected to cause or result in any shareholder of the Company having
"related party insurance income" inclusions for U.S. federal income tax
purposes as a result of being a shareholder of the Company.
(xxxii) Tax Returns Filed and Taxes Paid. Each ASI Entity has timely
filed (taking into account any extension) all foreign, federal, state and
local tax returns that are required to be filed by it and has paid all
taxes shown as due on such returns, as well as all other taxes,
assessments and governmental charges that are due and payable; and no
material deficiency with respect to any such return has been assessed or
proposed.
(xxxiii) Bermuda Status. The Company and each of its Bermuda
subsidiaries has received from the Bermuda Minister of Finance an
assurance under the Exempted Undertakings Tax Protection Xxx 0000, as
amended, of Bermuda to the effect set forth in the Prospectus under the
caption "Certain Tax Considerations -- Certain Bermuda Tax Considerations
-- Taxation of American Safety Insurance and its Bermuda Subsidiaries,"
and neither the Company nor any of its Bermuda subsidiaries has received
any notification to the effect (and is not otherwise aware) that such
assurance may be revoked or otherwise not honored by the Bermuda
government; the Bermuda Monetary Authority has designated the Company as
non-resident for exchange control purposes and has granted permission for
the issue and transfer of the Common Shares, subject to the condition that
the Common Shares be listed on the New York Stock Exchange or any other
appointed stock exchange; such permission has not been revoked and is in
full force and effect, and the Company has no knowledge of any proceedings
planned or threatened for the revocation of such permission; the Company
is an "exempted company" under Bermuda law and has not conducted its
business in a manner that is prohibited for "exempted companies" under
Bermuda law; the Company has not received notification from the Bermuda
Monetary Authority or any other Bermuda governmental authority of
proceedings relating to the modification or revocation of its designation
as non-resident for exchange control purposes, its permission to issue and
transfer the Common Shares or its status as an "exempted company."
(xxxiv) Validity under Bermuda Law. It is not necessary under the
laws of Bermuda in order to enable any Underwriter to enforce its rights
under this Agreement to that it should be licensed, qualified or otherwise
entitled to carry on business in Bermuda; this Agreement is in proper
legal form under the laws of Bermuda for the enforcement thereof against
the Company; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement in Bermuda
that this Agreement be filed or recorded or enrolled with any court,
authority or agency in, or that any stamp, registration or similar taxes
or duties be paid to any court, authority or agency of Bermuda.
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(xxxvii) Waiver of Immunities. The Company and each of its Bermuda
subsidiaries and the Company's obligations under this Agreement is subject
to civil and commercial law and to suit and neither it nor any of its
properties, assets or revenues has any right of immunity, on the grounds
of sovereignty or otherwise, from any legal action, suit or proceeding,
from the giving of any relief in any thereof, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment
upon or prior to judgment, or attachment in aid of execution of judgment,
or from execution of a judgment, or other legal process or proceeding for
the giving of any relief or for the enforcement of judgment, in any
jurisdiction, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement.
(xxxviii) Enforceability of Judgments. Any final and conclusive
judgment for the payment of a fixed or readily calculable sum of money
(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) rendered by any court of the United States or any political
subdivision thereof or authority or agency therein having jurisdiction
under its own domestic laws in respect of any suit, action or proceeding
against the Company based upon this Agreement or the Common Shares or any
agreement or instrument entered into in connection therewith would be
declared enforceable against the Company by the courts of competent
jurisdiction in Bermuda without re-examination or review of the merits of
the cause of action in respect of which the original judgment was given,
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 and (E) there is due compliance with the correct
procedures under the laws of Bermuda.
(xxxix) Bermuda Ministry of Finance Assurance. The Company and each
of its Bermuda subsidiaries has received an assurance from the Bermuda
Ministry of Finance that in the event of there being enacted in Bermuda
any legislation imposing tax on profits or income or computed on any
capital asset, gain or appreciation, or any tax in the nature of estate
duty or inheritance tax, then the imposition of any such tax shall not be
applicable to it or any of its respective operations or its shares,
debentures or other obligations until March 28, 2016.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder represents and warrants to each Underwriter, as of the date
hereof, as of the Closing Time, and, if the Selling Shareholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with each Underwriter, as follows:
(i) Accurate Disclosure. Such Selling Shareholder has reviewed the
information (the "Selling Shareholder Information") regarding such Selling
Shareholder and the Securities being sold by such Selling Shareholder in
the Registration Statement, the General Disclosure Package (to the extent
such General Disclosure Package has been provided to the Selling
Shareholder by the Company prior to the date hereof) and the Prospectus,
including, but not limited to, the information in the Prospectus under
"Selling Shareholders" and "Principal Shareholders," and such information
set forth therein is complete and accurate in all material respects; and
such Selling
13
Shareholder is not prompted to sell the Securities to be sold by it
hereunder by any information concerning the Company or any direct or
indirect subsidiary of the Company which is not set forth in the General
Disclosure Package or the Prospectus.
(ii) Authorization of Power of Attorney and Custody Agreement. Such
Selling Shareholder has duly authorized, executed and delivered a power of
attorney and custody agreement (the "Power of Attorney and Custody
Agreement"), in the form heretofore delivered to the Underwriters,
appointing Xxxxxx X. Xxxxxx as such Selling Shareholder's true
attorney-in-fact (the "Attorney-in-Fact") with authority to execute,
deliver and perform this Agreement on behalf of such Selling Shareholder
and appointing SunTrust Bank, N.A., as custodian thereunder (the
"Custodian"). Certificates in negotiable form, endorsed in blank or
accompanied by blank stock powers duly executed, with signatures
appropriately guaranteed, representing the Securities to be sold by such
Selling Shareholder have been deposited with the Custodian pursuant to the
Power of Attorney and Custody Agreement for the purpose of delivery
pursuant to this Agreement. The Power of Attorney and Custody Agreement,
assuming due execution by the Attorney-in-Fact and the Custodian,
constitutes the valid and binding agreement of such Selling Shareholder,
enforceable against such Selling Shareholder in accordance with its terms.
(iii) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by such Selling Shareholder and,
assuming due execution by the Company and the Underwriters, constitutes
the valid and binding agreement of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with its terms.
(iv) Noncontravention. The execution and delivery of this Agreement
and the Power of Attorney and Custody Agreement and the sale and delivery
of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and therein and
compliance by such Selling Shareholder with its obligations hereunder and
thereunder do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of
or default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by such Selling
Shareholder or any property or assets of such Selling Shareholder pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other agreement or instrument to which
such Selling Shareholder is a party or by which such Selling Shareholder
may be bound, or to which any of the property or assets of such Selling
Shareholder is subject, nor will such action result in any violation of
the provisions of the charter or by-laws or other organizational
instrument of such Selling Shareholder or any applicable treaty, law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Selling Shareholder or any of its
properties.
(v) Valid Title. Such Selling Shareholder has, and at the Closing
Time will have, valid title to the Securities to be sold by it free and
clear of all security interests, claims, liens, equities or other
encumbrances and the requisite corporate power and
14
authority, and all authorization and approval required by law, to enter
into this Agreement and the Power of Attorney and Custody Agreement and to
sell, transfer and deliver the Securities to be sold by such Selling
Shareholder.
(vi) Absence of Manipulation. Such Selling Shareholder has not (A)
taken, directly or indirectly, any action designed to cause or result in,
or that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Common Shares or (B) since the
filing of the Registration Statement (1) sold, bid for, purchased or paid
anyone any compensation for soliciting purchases of, the Common Shares or
(2) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company, other than
pursuant to this Agreement.
(vii) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by such Selling Shareholder of
its obligations hereunder or under the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
to be sold by such Selling Shareholder hereunder or the consummation of
the transactions contemplated by this Agreement or the Power of Attorney
and Custody Agreement, except such as may have previously been made or
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(viii) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, such Selling Shareholder will not,
without the prior written consent of KBW, directly or indirectly (A)
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 or lend or otherwise transfer or dispose of,
directly or indirectly, any Common Shares or any securities convertible
into or exercisable or exchangeable for Common Shares or file, or cause to
be filed, any registration statement under the 1933 Act with respect to
any of the foregoing or (B) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Shares,
whether any such swap or transaction described in clause (A) or (B) above
is to be settled by delivery of Common Shares or other securities, in cash
or otherwise. The foregoing sentence shall not apply to the Securities to
be sold hereunder. Notwithstanding the foregoing, if (x) during the last
17 days of the 90-day restricted period the Company issues an earnings
release or notifies such Selling Shareholder in writing that material news
or a material event relating to the Company has occurred or (y) prior to
the expiration of the 90-day restricted period, the Company publicly
announces that it will release earnings results or notifies such Selling
Shareholder in writing that it has become aware that material news or a
material event will occur during the 16-day period beginning on the last
day of the 90-day restricted period, the restrictions imposed in this
clause (viii) shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the occurrence
of the material news or material event.
(ix) No Association with NASD. Except as previously disclosed in
writing to Xxxxxxxx Xxxxxxx LLP, counsel for the Company, and Sidley
Austin LLP, counsel for the
15
Underwriters, neither such Selling Shareholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, or is a person
associated with (within the meaning of Article I (dd) of the By-laws of
the National Association of Securities Dealers, Inc. (the "NASD")), any
member firm of the NASD.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of any Selling Shareholder as such and
delivered to the Underwriters or to counsel for the Underwriters pursuant to the
terms of this Agreement shall be deemed a representation and warranty by such
Selling Shareholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, agree to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company and each Selling
Shareholder, at the price per share set forth in Schedule E, that proportion of
the number of Initial Securities set forth in Schedule A opposite the name of
the Company or such Selling Shareholder, as the case may be, which the number of
Initial Securities set forth in Schedule B opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as KBW in its sole
discretion shall make to eliminate any sales or purchases of fractional
securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholders hereby grant an option to the Underwriters,
severally and not jointly, to purchase up to an additional 742,963 Common Shares
as set forth in Schedule A and at the price per share set forth in Schedule E,
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering overallotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by KBW to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (each, a "Date of
Delivery") shall be determined by KBW, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule B opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to
16
such adjustments as KBW in its discretion shall make to eliminate any sales or
purchases of fractional shares or odd lots.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Sidley
Austin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place
as shall be agreed upon by KBW and the Company and the Selling Shareholders, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company and the Selling Shareholders (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriters and
the Company, on each Date of Delivery as specified in the notice from
Underwriters to the Company.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Selling Shareholders, as the case may be, against delivery to
the Underwriters for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized the KBW, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial Securities
and the Option Securities, if any, which it has agreed to purchase. KBW,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as KBW may request at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the Underwriters in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Selling Shareholders.
(a) Covenants of the Company. The Company covenants with each Underwriter
as follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A and will notify the Underwriters immediately,
and confirm the notice in writing, (i) when
17
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes or
of any examination pursuant to Section 8(e) of the 1933 Act. The Company
will effect the filings required under Rule 424(b), in the manner and in
the time period required by Rule 424(b) (without reliance on Rule
424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make
every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
practicable moment.
(ii) Filing of Amendments and 1934 Act Documents. The Company will
give the Underwriters notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule
462(b)) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, and will furnish the Underwriters with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Underwriters or counsel for the Underwriters shall object. The
Company has given the Underwriters notice of any filings made pursuant to
the 1934 Act or 1934 Act Regulations within 48 hours prior to the
Applicable Time; the Company will give the Underwriters notice of its
intention to make any such filing from the Applicable Time to the Closing
Time and will furnish the Underwriters with copies of any such documents a
reasonable amount of time prior to such proposed filing, as the case may
be, and will not file or use any such document to which the Underwriters
or counsel for the Underwriters shall reasonably object.
(iii) Delivery of Registration Statements. The Company has furnished
or will deliver to the Underwriters and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith)
and signed copies of all consents and certificates of experts, and will
also deliver to the Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such
18
Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act, such number
of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission, subject to
Section 3(a)(ii), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement relating to the Securities or
included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances, prevailing at
that subsequent time, not misleading, the Company will promptly notify KBW
and will promptly amend or supplement, at its own expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(vi) Blue Sky Qualifications. The Company will use all reasonable
efforts, in cooperation with the Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such states
and other jurisdictions as the Underwriters may designate in writing and
to maintain such qualifications in effect for as long as may be required
to complete the distribution of the Securities contemplated hereby;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
19
(vii) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide to the Underwriters the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds."
(ix) Listing. The Company will use all reasonable efforts to effect
the listing of the Securities on the New York Stock Exchange.
(x) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, the Company will not, and will cause its
officers and directors and those of its direct and indirect subsidiaries
not to, without the prior written consent of KBW, directly or indirectly
(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 or lend or otherwise transfer or dispose of,
directly or indirectly, any Common Shares or any securities convertible
into or exercisable or exchangeable for Common Shares or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Shares, whether any
such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Shares or other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to
be sold hereunder, (B) any Common Shares issued upon the exercise of
options outstanding as of the date hereof that are referred to in the
Prospectus and (C) any Common Shares issued or options to purchase Common
Shares granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus which are not exercisable within such 90
days. Notwithstanding the foregoing, if (1) during the last 17 days of the
90-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs or (2)
prior to the expiration of the 90-day restricted period, the Company
announces that it will release earnings results or becomes aware that
material news or a material event will occur during the 16-day period
beginning on the last day of the 90-day restricted period, the
restrictions imposed in this clause (j) shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
(xi) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(xii) Issuer Free Writing Prospectuses. The Company represents and
agrees that it has not made and will not make, unless it obtains the prior
consent of the Underwriters, and each Underwriter represents and agrees
that, unless it obtains the prior
20
consent of the Company, any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a "free writing prospectus," as defined in Rule 405 of the 1933
Act, required to be filed with the Commission. Any such free writing
prospectus consented to by the Underwriters or by the Company and the
Underwriters, as the case may be, is hereinafter referred to as a
"Permitted Free Writing Prospectus." The Company represents that it has
treated or agrees that it will treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and has complied and will
comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. The Company agrees that it shall
provide the Selling Shareholders with a copy of any Permitted Free Writing
Prospectus.
(b) Covenant of the Selling Shareholders; Issuer Free Writing
Prospectuses. Each Selling Shareholder represents and agrees that it has not
made and will not make, unless it obtains the prior consent of the Company and
the Underwriters, any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a "free
writing prospectus," as defined in Rule 405 of the 1933 Act, whether or not
required to be filed with the Commission. Any such free writing prospectus
consented to by the Company and the Underwriters is hereinafter referred to as a
"Permitted Selling Shareholder Free Writing Prospectus." Each Selling
Shareholder represents that it has treated or agrees that it will treat each
Permitted Selling Shareholder Free Writing Prospectus as an Issuer Free Writing
Prospectus and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Selling Shareholder Free Writing Prospectus,
including timely filing with the Commission where required, legending and record
keeping. The Company agrees that it shall provide the Selling Shareholders with
a copy of any Permitted Free Writing Prospectus.
SECTION 4. Payment of Expenses.
(a) Company Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of their obligations under this Agreement,
including without limitation (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(a)(vi) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with the electronic
delivery of any of the foregoing by the Underwriters to investors, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the costs and expenses of the
Company relating to investor
21
presentations on any "road show" undertaken in connection with the marketing of
the Securities, 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, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, (x) the filing fees incident to, and the fees and
disbursements of counsel to the Underwriters in connection with, the review by
the NASD of the terms of the sale of the Securities and (xi) the fees and
expenses incurred in connection with the listing of the Securities on the New
York Stock Exchange.
(b) Expenses of the Selling Shareholders. Each of the Selling Shareholders
will pay all expenses incident to the performance of its respective obligations
under, and the consummation of the transactions with respect to the Securities
being sold by it as contemplated by this Agreement and the Power of Attorney and
Custody Agreement, including (i) any stamp duties, capital duties and stock
transfer taxes, if any, payable upon the sale of the Securities being sold by it
to the Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, (ii) its pro rata portion of the fees and
expenses, if any, of the Custodian and (iii) the fees and expenses of its
counsel and its other advisors.
(c) Expenses of the Underwriters. The Underwriters will pay their own
expenses, including the fees of their counsel (except as provided in Section
4(a)(v) hereof), public advertisement of the offering and their own marketing
and due diligence expenses.
(d) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5, Section 9(a)(i) or
(iii) or Section 11 hereof, the Company shall reimburse the Underwriters for all
of their actual accountable out-of-pocket expenses.
(e) Allocation of Expenses. The provisions of this Section 4 shall not
affect any agreement between the Company and the Selling Shareholders with
respect to the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and each Selling Shareholder
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder that are required to be
performed at or prior to Closing Time, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated, threatened or, to the knowledge of the Company, the Selling
Shareholders or the Underwriters, contemplated 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 counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in the manner and within the time frame
22
required by Rule 424(b) without reliance of Rule 424(b)(8) or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A.
(b) Opinions of Counsel for Company and American Safety RRG.
(i) At Closing Time, the Underwriters shall have received the
opinion, dated as of Closing Time, of Xxxxxxxx Xxxxxxx LLP, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit A-1
hereto.
(ii) At Closing Time, the Underwriters shall have received the
opinion, dated as of Closing Time, of Xxxx, Xxxxx & Xxxxxxx P.C., counsel
for American Safety RRG, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit A-2
hereto.
(iii) At Closing Time, the Underwriters shall have received the
opinion, dated as of Closing Time, of Xxxxxxx Xxxxxxxx Xxxxxx, special
Bermuda counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters to the effect set forth in
Exhibit A-3 hereto.
(c) Opinions of Counsel for the Selling Shareholders. At Closing Time, the
Underwriters shall have received the opinions, dated as of Closing Time, of Bose
XxXxxxxx & Xxxxx, LLP, Xxxxxxxx Xxxxxxx LLP and Lord, Bissell & Brook LLP, each
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of each such letter for each of the other
Underwriters to the effect set forth respectively in Exhibit X-0, X-0 and B-3
hereto.
(d) Opinion of Counsel for Underwriters. At Closing Time, the Underwriters
shall have received the opinion, dated as of Closing Time, of Sidley Austin LLP,
counsel for the Underwriters, together with signed or reproduced copies of such
opinion and letter for each of the other Underwriters in form and substance
reasonably satisfactory to the Underwriters.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus or the General Disclosure Package, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Underwriters shall have received a certificate of the Chief Executive
Officer and the Chief Financial Officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no
23
proceedings for that purpose have been instituted or are pending or, to their
knowledge, contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the Underwriters
shall have received a certificate of each Selling Shareholder, dated as of
Closing Time, to the effect that (i) the representations and warranties of each
Selling Shareholder contained in Section 1(b) hereof are true and correct in all
respects with the same force and effect as though expressly made at and as of
Closing Time and (ii) each Selling Shareholder has complied in all material
respects with all agreements and all conditions on its part to be performed
under this Agreement at or prior to Closing Time.
(g) Accountants' Comfort Letters. At the time of the execution of this
Agreement, the Underwriters shall have received from each of BDO Xxxxxxx, LLP
and KPMG LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letters. At Closing Time, the Underwriters shall
have received from each of BDO Xxxxxxx, LLP and KPMG LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished by such person pursuant to subsection (g) of this Section 5, except
that the specified date referred to shall be a date not more than three business
days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to official
notice of issuance.
(j) NASD Approval. The NASD shall have confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the Underwriters
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the persons listed on Schedule F hereto.
(l) Maintenance of Rating. Since the execution of this Agreement, there
shall not have been any decrease in the rating of any of the Company's or any of
its subsidiaries' securities or of the Company's or any of its subsidiaries'
financial strength or claims paying ability by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the 0000 Xxx) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not indicate
the direction of the possible change.
(m) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Selling Shareholders contained herein and the statements
in any certificates furnished by the Company, any subsidiary
24
of the Company and the Selling Shareholders pursuant hereto shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chief Executive Officer and the Chief Financial Officer
of the Company confirming that the certificate delivered at the Closing
Time pursuant to Section 5(e) hereof remains true and correct as of such
Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated such
Date of Delivery, of each Selling Shareholder confirming that the
certificate delivered at the Closing Time pursuant to Section 5(f) hereof
remains true and correct as of such Date of Delivery.
(iii) Opinions of Counsel for Company and American Safety RRG.
(A) The opinion of Xxxxxxxx Xxxxxxx LLP, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, to the same effect as the
opinion required by Section 5(b)(i) hereof.
(B) The opinion of Xxxx, Xxxxx & Xxxxxxx P.C., counsel for
American Safety RRG, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, to the same
effect as the opinion required by Section 5(b)(ii) hereof.
(C) The opinion of Xxxxxxx Xxxxxxxx Xxxxxx, special Bermuda
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, to the
same effect as the opinion required by Section 5(b)(iii) hereof.
(iv) Opinions of Counsel for the Selling Shareholders. The opinion
of Bose XxXxxxxx & Xxxxx, LLP, Xxxxxxxx Xxxxxxx LLP and Lord, Bissell &
Brook LLP, each in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinions required by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. The opinion of Sidley
Austin LLP, counsel for the Underwriters, each dated such Date of
Delivery, in form and substance reasonably satisfactory to the
Underwriters.
(vi) Bring-down Comfort Letters. A letter from each of BDO Xxxxxxx,
LLP and KPMG LLP, in form and substance satisfactory to the Underwriters
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the Underwriters by such person
pursuant to Section 5(g) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
25
(n) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
(o) Termination of Agreement. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Underwriters by notice to the Company and the Selling
Shareholders at any time at or prior to Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections 1,
6, 7, 8 and 16 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), its selling
agents and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto),
including the Rule 430A Information or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus or
the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission; provided that any such settlement is
effected with the written consent of the Company; and
26
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel selected by KBW pursuant
to Section 6(d) below), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Underwriters expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Indemnification of the Underwriters by the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, agrees to indemnify and hold
harmless each Underwriter, its Affiliates and selling agents and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 34 Act to the extent and in the manner set forth in
subsection (a) of this Section 6, but only with respect to the Selling
Shareholder Information as it pertains specifically to such Selling Shareholder.
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Shareholder and each person, if any, who controls such Selling Shareholder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus, any Issuer
Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Underwriter through the KBW expressly for
use therein.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) or
Section 6(b) above, counsel to the indemnified parties shall be selected by KBW,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company and the
27
Selling Shareholders. An indemnifying party may participate at its own expense
in the defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) 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.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section 6 shall not affect any agreement between the Company and the
Selling Shareholders with respect to indemnification. In addition, the
provisions of this Section 6 shall be in addition to any liability any
indemnifying party may have to any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the Selling Shareholders and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Shareholders on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether
28
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Shareholders or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just and 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 which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
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 Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company or any of the Selling Shareholders
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company or the Selling
Shareholders, as the case may be. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Schedule B
hereto and not joint.
The provisions of this Section 7 shall not affect any agreement between
the Company and the Selling Shareholders with respect to contribution. In
addition, the provisions of this Section 7 shall be in addition to any liability
any indemnifying party may have to any indemnified party.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto shall remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of any Underwriter or its Affiliates or selling agents, any person controlling
any
29
Underwriter, its officers or directors, any person controlling the Company or
any person controlling any Selling Shareholder and (ii) delivery of and payment
for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Company and the Selling Shareholders, at any time at or prior
to the Closing Time if there has been, subsequent to the execution and delivery
of this Agreement or since the respective dates as of which information is given
in the Prospectus or General Disclosure Package, (i) any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) any
material adverse change in the financial markets in the United States or other
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Underwriters, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, (iii) any
downgrading in the rating of any debt securities or preferred stock of the
Company by any nationally recognized statistical rating organization, or any
public announcement that any such organization has come under surveillance or
review of its rating of any debt securities or preferred stock of the Company
(other than an announcement with positive implications of a possible upgrading
of such rating), (iv) any suspension or material limitation of trading in any
securities of the Company by the Commission or on any exchange or in the
over-the-counter market, or of trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market, or any setting
of minimum or maximum prices or ranges for trading by any of said exchanges or
by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, (v) any banking
moratorium declared by U.S. federal, New York or Bermuda authorities or (vi) any
major disruption of settlements of securities or clearance services in the
United States.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8 and 16 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), KBW shall have the right, within 36 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, KBW shall not have completed such
arrangements within such 36-hour period, then:
(a) if the number of Defaulted Securities does not exceed one-eleventh of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be
30
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds one-eleventh of the
number of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either (i) the Underwriters or (ii) the Company and the
Selling Shareholders shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Default by a Selling Shareholder or the Company.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder is obligated to sell hereunder, and the remaining Selling
Shareholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of Securities to be sold by them hereunder to the total
number to be sold by all Selling Shareholders as set forth in Schedule A hereto,
then the Underwriters may by notice to the Company, either (i) terminate this
Agreement without any liability on the fault of any non-defaulting party except
that the provisions of Sections 1, 4, 6, 7, 8 and 16 shall remain in full force
and effect or (ii) elect to purchase the Securities which the non-defaulting
Selling Shareholders and the Company has agreed to sell hereunder. No action
taken pursuant to this Section 11 shall relieve such Selling Shareholder from
liability, if any, in respect of such default.
In the event of a default by such Selling Shareholder as referred to in
this Section 11, each of the Underwriters, the non-defaulting Selling
Shareholders and the Company shall have the right to postpone Closing Time or a
Date of Delivery for a period not exceeding seven days in order to effect any
required change in the Registration Statement or Prospectus or in any other
documents or arrangements.
(b) If the Company shall fail at Closing Time or at a Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any nondefaulting
party; provided, however, that the provisions of Sections 1, 4, 6, 7, 8 and 16
shall remain in full force and effect. No action taken
31
pursuant to this Section 11 shall relieve the Company from liability, if any, in
respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this
Agreement, immediately upon commencement of discussions with respect to the
transactions contemplated hereby, the Company (and each employee, representative
or other agent of the Company) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
or other tax analyses) that are provided to the Company relating to such tax
treatment and tax structure. For purposes of the foregoing, the term "tax
treatment" is the purported or claimed federal income tax treatment of the
transactions contemplated hereby, and the term "tax structure" includes any fact
that may be relevant to understanding the purported or claimed federal income
tax treatment of the transactions contemplated hereby.
SECTION 13. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to them at Xxxxx, Xxxxxxxx & Xxxxx, Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxxxxx Xxxxxxxx,
General Counsel (with a copy to Sidley Austin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxxx X. Xxxxxxx); notices to the Company or the
Selling Shareholders shall be directed to it at 0000 Xxx Xxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, attention of Xxxxxxx Xxxx, Chief Financial Officer (with
a copy to Xxxxxxxx Xxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000, attention of X. Xxxxxxxx Xxxxxxxxx, Jr.).
SECTION 14. No Advisory or Fiduciary Relationship. Each of the Company and
the Selling Shareholders acknowledges and agrees that (a) the purchase and sale
of the Securities pursuant to this Agreement, including the determination of the
public offering price of the Securities and any related discounts and
commissions, is an arm's-length commercial transaction between the Company and
the Selling Shareholders, on the one hand, and the several Underwriters, on the
other hand, (b) in connection with the offering contemplated hereby and the
process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company or any
Selling Shareholder, or its respective stockholders, creditors, employees or any
other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company or any Selling Shareholder with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company or any Selling Shareholder on other matters) and no Underwriter has
any obligation to the Company or any Selling Shareholder with respect to the
offering contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company or the Selling Shareholders and (e) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company and each of the Selling
Shareholders has consulted its own respective legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
32
SECTION 15. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters, the Company and the Selling Shareholders and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Shareholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 16. Judgment Currency. In respect of any judgment or order given
or made for any amount due hereunder that is expressed and paid in a currency
(the "judgment currency") other than United States dollars, the Company shall
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (a) 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 (b) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
on the date the judgment currency is actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF LAW THAT WOULD DEFER TO LAWS OF ANOTHER JURISDICTION.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT
AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 20. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Shareholders a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters, the Company and the Selling
Shareholders in accordance with its terms.
Very truly yours,
AMERICAN SAFETY INSURANCE HOLDINGS LTD.
By
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President -- Planning and Treasurer
SELLING SHAREHOLDERS
By
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact for each of the Selling
Shareholders
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
BB&T CAPITAL MARKETS, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
By: XXXXX, XXXXXXXX & XXXXX, INC.
By
------------------------------
Authorized Signatory
34
SCHEDULE A
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ------------------------
American Safety Insurance Holdings Ltd. 4,013,761 0
SELLING SHAREHOLDERS:
Xxxxxxxx Associates, L.P. 595,614 48,413
Xxxxxxxxx X. Xxxxxxxx 0 422,689
Vertecs Corporation 55,836 44,164
Xxxxx R.E., Ltd. 150,760 119,245
Xxxxx Construction 30,710 24,290
Xxxxxxx X. Xxxxx 38,278 30,276
Xxxxxx X. Xxxxx 25,137 19,882
Xxxxxx X. Xxxxx 14,173 11,211
Xxxxx X. Xxxxx 13,815 10,927
Xxxxxx X. Xxxxx, Xx. 9,269 7,331
Xxxx X. Xxxxx 3,707 2,932
Xxxxxx X. Xxxxx, Xx. 2,027 1,603
--------- -------
Total 4,953,087 742,963
========= =======
Sch. A-1
SCHEDULE B
Number of Number of
Initial Option
Name of Underwriter Securities Securities
-------------------------------------------- ---------- ----------
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ..............
Xxxxxxx Xxxxx & Associates, Inc. ...........
BB&T Capital Markets,
a division of Xxxxx & Xxxxxxxxxxxx, Inc. ...
Total 4,953,087
Sch. B-1
SCHEDULE C
DESCRIPTION OF PRICING TERMS
Sch. C-1
SCHEDULE D
LIST OF ISSUER GENERAL USE FREE WRITING PROSPECTUSES
1. Preliminary Prospectus, dated May [ ], 2006, relating to the Securities.
Sch. D-1
SCHEDULE E
AMERICAN SAFETY INSURANCE HOLDINGS, LTD.
4,953,087 Common Shares
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $______.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $_____, being an amount equal to the initial
public offering price set forth above less $____ per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch. E-1
SCHEDULE F
LIST OF PERSONS SUBJECT TO LOCK-UP
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Sch. F-1
EXHIBIT A-1
FORM OF OPINION OF XXXXXXXX XXXXXXX LLP,
COUNSEL FOR THE COMPANY
(i) Each of American Safety Holdings Corp., American Safety Casualty
Insurance Company, American Safety Insurance Services, Inc. and American Safety
Indemnity Company (the "United States Subsidiaries") is validly existing as a
company in good standing under the laws of the jurisdiction of its organization
and has full power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(ii) Each of the United States Subsidiaries is qualified as a foreign
corporation to transact business and is in good standing in the states listed in
Annex I to this opinion.
(iii) None of the issued shares of capital stock of the United States
Subsidiaries has been issued or is owned or held in violation of any statutory
or other preemptive rights of shareholders, and no person or entity (including
any holder of outstanding shares of capital stock of the United States
Subsidiaries) has any statutory or other preemptive or other rights to subscribe
for any of the Securities.
(iv) The certificates representing the Common Shares conform in all
respects to the requirements of the New York Stock Exchange.
(v) All of the issued shares of capital stock of each of the United States
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company or one of its
subsidiaries. To such counsel's knowledge, other than the subsidiaries listed on
Exhibit 21.1 to the Registration Statement and the equity securities held in the
investment portfolios of the Company and such subsidiaries, the Company does not
own, directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association.
(vi) Such counsel was advised orally by the Staff of the Commission that
the Registration Statement, including any Rule 462(b) Registration Statement,
has been declared effective under the 1933 Act and that no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted by the Commission; and, to such counsel's knowledge, no
proceedings for that purpose have been threatened by the Commission.
(vii) Any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b)
(without reference to Rule 424(b)(8)); and any required filing of each Issuer
Free Writing Prospectus pursuant to Rule 433 known to such counsel has been made
in the manner and within the time period required by Rule 433(d).
Exh. A-1-1
(viii) The Registration Statement, including any Rule 462(b) Registration
Statement and the Rule 430A Information, the Prospectus and each amendment or
supplement to the Registration Statement and Prospectus, as of their respective
effective or issue dates (other than the financial statements, related notes and
supporting schedules included therein or omitted therefrom, and statistical
information, as to which such counsel need express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(ix) To the knowledge of such counsel, other than as disclosed in or
contemplated by the Prospectus, there is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation pending or, to the knowledge of
such counsel, threatened, in which the Company or any of its direct or indirect
subsidiaries or affiliates is a party or of which any of their respective
properties or assets is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
result in a Material Adverse Effect; and, to the knowledge of such counsel,
neither the Company nor any of its direct or indirect subsidiaries or affiliates
is in violation of, or in default with respect to, any federal or state law,
statute, rule, regulation, order, judgment or decree, except as such as do not
and will not individually or in the aggregate result in a Material Adverse
Effect, nor is the Company or any of its direct or indirect subsidiaries or
affiliates required to take any action in order to avoid any such violation or
default under federal or state law.
(x) The statements in the Prospectus under "Risk Factors -- Risk Factors
Relating to Taxation," "Business -- Regulatory Environment -- U.S. Regulation,
-- Insurance Regulation Generally and -- Regulation of Our Non-Subsidiary
Affiliate," "Description of the Common Shares," "Shares Eligible for Future
Sale" and "Certain Tax Considerations -- Certain U.S. Federal Tax
Considerations" have been reviewed by such counsel, and insofar as they refer to
statements of federal or state law, descriptions of federal or state statutes,
licenses, rules or regulations or legal conclusions, are correct in all material
respects.
(xi) All descriptions in the Registration Statement of Filed Documents are
accurate in all material respects; and, to the best of such counsel's knowledge,
there are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed as exhibits
thereto. "Filed Documents" means any contract, indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument filed as an
exhibit to the Company's Form 10-K for the year ended December 31, 2005 or any
subsequent filing by the Company with the Commission.
(xii) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any federal or state court
or governmental or regulatory agency or body is required for the sale of the
Securities or the consummation of the transactions contemplated by this
Agreement, except such as have been or will have been obtained and are or will
be in effect.
Exh. A-1-2
(xiii) The sale of the Securities being sold at the Closing Time and the
performance of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or violate any provision of the charter or
by-laws laws of any United States Subsidiary, in each case as amended to date,
or any existing federal or state law, statute, rule or regulation, or conflict
with or (with or without the giving of notice or the passage of time or both)
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any Filed Document to which any ASI Entity is a
party or to which any properties or assets of an ASI Entity is subject, or, to
the knowledge of such counsel, conflict with or violate any order, judgment or
decree of any federal or state court or governmental agency or body having
jurisdiction over any ASI Entity or any properties or assets of an ASI Entity.
(xiv) To such counsel's knowledge, 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 1933 Act with
respect to any securities of the Company owned or to be owned by such person,
requiring the Company to include such securities in the securities registered
pursuant to the Registration Statement (or any such right has been effectively
waived) or requiring the registration of any securities pursuant to any other
registration statement filed by the Company under the 1933 Act.
(xv) No ASI Entity is an "investment company" or a company "controlled" by
an investment company as such terms are defined in Sections 3(a) and 2(a)(9),
respectively, of the 1940 Act and, if each ASI Entity conducts its business as
set forth in the Registration Statement and the Prospectus (including the
application of the net proceeds of the public offering as described under the
section entitled "Use of Proceeds" in the Registration Statement and the
Prospectus), no ASI Entity will become an "investment company" or be required to
register under the 1940 Act.
Such counsel shall also state that they have participated in the
preparation of the Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company and representatives of and
counsel to the Underwriters at which the contents of the Registration Statement,
the Prospectus and related matters were discussed and nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information (except for financial statements and schedules and other financial
data included or omitted therefrom, as to which such counsel need make no
statement), at the time such Registration Statement or any such amendment became
effective, contained an 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 or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom, as to which such counsel
need make no statement), at the time the Prospectus was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an 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
Exh. A-1-3
which they were made, not misleading. In addition, such counsel shall state that
nothing has come to such counsel's attention that would lead such counsel to
believe that the General Disclosure Package, other than the financial statements
and schedules and other financial data included therein or omitted therefrom, as
to which such counsel need make no statement, as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading. With respect to
statements contained in the General Disclosure Package, any statement contained
in any of the constituent documents shall be deemed to be modified or superseded
to the extent that any information contained in subsequent constituent documents
modifies or replaces such statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Bermuda, upon the opinion of Xxxxxxx
Xxxxxxxx Xxxxxx, special Bermuda counsel for the Company (which opinion shall be
dated and furnished to the Underwriters at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion), provided that
such counsel shall state in such counsel's opinion that such counsel believes
that such counsel and the Underwriters are justified in relying upon such
opinion, and (B) as to matters of fact (but not as to legal conclusions), to the
extent such counsel deems proper, on certificates of responsible officers of the
Company and public officials. Copies of such certificates shall be furnished to
counsel for the Underwriters. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
Exh. X-0-0
XXXXXXX X-0
FORM OF OPINION OF XXXX, XXXXX & XXXXXXX P.C.,
COUNSEL TO AMERICAN SAFETY RRG
(i) American Safety RRG is validly existing under the laws of the State of
Vermont and has the necessary corporate capacity to own, lease and operate its
properties and to conduct its business as described in the Prospectus. Based
solely upon the Vermont Secretary of State's Certificate of Good Standing and
the Vermont Department of Banking, Insurance, Securities and Health Care
Administration's Certificate of Good Standing, American Safety RRG is in good
standing in the State of Vermont.
(ii) None of the issued shares of capital stock of American Safety RRG has
been issued in violation of any statutory or other preemptive rights of
shareholders. No holder of outstanding shares of capital stock of American
Safety RRG, by virtue of such status as an American Safety RRG shareholder, has
any statutory or other preemptive rights to subscribe for any of the securities
of the Company. To the extent that such preemptive rights may arise from
contractual rights, our opinion is based solely on a review of the Articles of
Incorporation and Bylaws of American Safety RRG, and we express no opinion
regarding any other potential contractual rights.
(iii) The sale of the securities of the Company being sold at closing and
the performance of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or violate any provision of the
Articles of Incorporation or Bylaws of American Safety RRG, as amended to date.
Exh. X-0-0
XXXXXXX X-0
FORM OF OPINION OF XXXXXXX XXXXXXXX XXXXXX,
SPECIAL BERMUDA COUNSEL TO THE COMPANY
(i) The Company and each of American Safety Assurance Ltd and American
Safety Reinsurance Ltd (the "Bermuda Subsidiaries") is an exempted company
incorporated with limited liability and existing under the laws of Bermuda. The
Company and each of the Bermuda Subsidiaries possesses the capacity to xxx and
be sued in its own name and is in good standing under the laws of Bermuda.
(ii) The Company has all requisite corporate power and authority to enter
into, execute, deliver, and perform its obligations under this Agreement and to
take all action as may be necessary to complete the transactions contemplated
thereby.
(iii) The execution, delivery and performance by the Company of this
Agreement and the transactions contemplated thereby have been duly authorized by
all necessary corporate action on the part of the Company.
(iv) This Agreement when duly executed by the Company shall constitute
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its terms.
(v) All necessary action required to be taken by the Company pursuant to
Bermuda law has been taken by or on behalf of the Company and subject to
paragraph (x) all the necessary authorisations and approvals of governmental
authorities in Bermuda have been duly obtained for the issue by the Company of
the Securities.
(vi) Under general principles of the laws of Bermuda, shareholders of the
Company have no personal liability (i) exceeding the amount, if any, unpaid on
the Common Shares in respect of which he is liable as a present or past member
or (ii) for debts or obligations of the Company.
(vii) The Company's authorized, issued and outstanding share capital is as
disclosed in the Prospectus and all of the issued share capital of the Company
has been duly authorized, validly issued, are fully paid and non-assessable and
conform to the descriptions thereof in the Prospectus. When duly issued and paid
for pursuant to the Registration Statement and in accordance with this Agreement
and the Unanimous Written Consent adopted by the Board of Directors of the
Company effective 24 November 2005, the Securities will be validly issued, fully
paid, non-assessable shares of the Company.
(viii) None of the issued share capital of the Company or the Bermuda
Subsidiaries has been issued or is owned or held in violation of any statutory
or other preemptive rights of shareholders, and no person or entity (including
any holder of outstanding share capital of the Company or the Bermuda
Subsidiaries) has any statutory or other preemptive or other rights to subscribe
for any shares in the Company or the Bermuda Subsidiaries.
Exh. A-3-1
(ix) All the issued share capital of each of the Bermuda Subsidiaries have
been dully authorized and validly issued, are fully paid and non-assessable and
are owned by the Company or one of its subsidiaries.
(x) Subject as otherwise provided in this opinion, no consent, licence or
authorization of, filing with, or other act by or in respect of, any
governmental authority or court of Bermuda is required to be obtained by the
Company in connection with the execution, delivery or performance by the Company
of this Agreement or to ensure the legality, validity, admissibility into
evidence or enforceability as to the Company, of this Agreement, except that the
Registration Statement has been filed with the Registrar of Companies pursuant
to the requirements of Part III of the Companies Xxx 0000 of Bermuda.
(xi) The execution, delivery and performance by the Company of this
Agreement and the transactions contemplated thereby and the issue of the
Securities do not and will not violate, conflict with or constitute a default
under (i) any requirement of any law or any regulation of Bermuda, (ii) any
order of any Bermuda court or governmental or (iii) the Company's Certificate of
Incorporation, Memorandum of Association or Bye-Laws.
(xii) The transactions contemplated by this Agreement are not subject to
any currency deposit or reserve requirements in Bermuda. The Company has been
designated as "non-resident" for the purposes of the Exchange Control Act 1972
of Bermuda and regulations made thereunder and there is no restriction or
requirement of Bermuda binding on the Company which limits the availability or
transfer of foreign exchange (i.e. monies denominated in currencies other than
Bermuda dollars) for the purposes of the performance by the Company of its
obligations under this Agreement.
(xiii) Under Bermuda law, the Underwriters and the Selling Shareholders or
their agent will not be deemed to be resident, domiciled, carrying on any
commercial activity in Bermuda or subject to any taxation in Bermuda by reason
only of the entry into, performance or enforcement of this Agreement or the
transactions contemplated thereby. It is not necessary under Bermuda law that
the Underwriters or the Selling Shareholders or their agent be authorized,
qualified or otherwise entitled to carry on business in Bermuda for their
execution, delivery, performance or enforcement of this Agreement.
(xiv) The choice of the laws of the State of New York as the proper law to
govern this Agreement is a valid choice of law under Bermuda law and such choice
of law would be recognized, upheld and applied by the courts of Bermuda as the
proper law of this Agreement in proceedings brought before them in relation to
this Agreement, provided that (i) the point is specifically pleaded; (ii) such
choice of law is valid and binding under the laws of the State of New York; and
(iii) recognition would not be contrary to public policy as that term is
understood under Bermuda law.
(xv) A final and conclusive judgment of a competent foreign court against
the Company based upon this Agreement (other than a court of jurisdiction to
which The Judgements (Reciprocal Enforcement) Act, 1958 applies, and it does not
apply to the courts of the State of New York), under which a sum of money is
payable (not being a
Exh. A-3-2
sum payable in respect of taxes or other charges of a like nature, in respect of
a fine or other penalty, or in respect of multiple damages as defined in The
Protection of Trading Interests Act 1981) may be the subject of enforcement
proceedings in the Supreme Court of Bermuda under the common law doctrine of
obligation by action on the debt evidenced by the foreign court's judgment. A
final opinion as to the availability of this remedy should be sought when the
facts surrounding the foreign court's judgment are known, but, on general
principles, such counsel would expect such proceedings to be successful provided
that (A) the court which gave the judgment was competent to hear the action in
accordance with private international law principles as applied in Bermuda; and
(B) the judgment is not contrary to public policy in Bermuda, has not been
obtained by fraud or in proceedings contrary to natural justice and is not based
on an error in Bermuda law. Enforcement of such a judgment against assets in
Bermuda may involve the conversion of the judgment debt into Bermuda dollars,
but the Bermuda Monetary Authority has indicated that its present policy is to
give the consents necessary to enable recovery in the currency of the
obligation.
(xvi) No stamp duty or similar or other tax or duty is payable in Bermuda
on the enforcement of a foreign judgment. Court fees will be payable in
connection with proceedings for enforcement.
(xvii) According to the records maintained in the Register of Companies at
the office of the Registrar of Companies in respect of the Company, the current
address of the registered office of the Company and each of the Bermuda
Subsidiaries is Canon's Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx.
(xviii) Neither the Company nor any of the Bermuda Subsidiaries' assets or
property enjoys, under Bermuda law, immunity on the grounds of sovereignty from
any legal or other proceedings whatsoever or from enforcement, execution or
attachment in respect of its obligations under the Underwriting Agreement.
(xix) Based solely upon the entries and filings shown in respect of the
Company (A) on the file of the Company maintained in the Register of Companies
at the office of the Registrar of Companies and (B) shown in the Supreme Court
of Bermuda Causes Book maintained at the Registry of the Supreme Court of
Bermuda in Xxxxxxxx, Bermuda, (1) no litigation, arbitration or administrative
or other proceeding of or before any arbitrator or governmental authority of
Bermuda is pending against or affecting the Company and each of the Bermuda
Subsidiaries or against or affecting any of its properties, rights, revenues or
assets and (2) no notice to the Registrar of Companies of the passing of a
resolution of members or creditors to wind up or the appointment of a liquidator
or receiver has been given. No petition to wind up the Company and each of the
Bermuda Subsidiaries or application to reorganise its affairs pursuant to a
Scheme of Arrangement or application for the appointment of a receiver has been
filed with the Supreme Court of Bermuda.
(xx) The Company and each of the Bermuda Subsidiaries has received an
assurance from the Ministry of Finance granting an exemption, until 28 March
2016, from the imposition of tax under any applicable Bermuda law computed on
profits,
Exh. A-3-3
dividends and other distributions declared and payable on the shares of the
Company or income or computed on any capital asset, gain or appreciation, or any
tax in the nature of estate duty or inheritance tax, provided that such
exemption shall not prevent the application of any such tax or duty to such
persons as are ordinarily resident in Bermuda and shall not prevent the
application of any tax payable in accordance with the provisions of the Land Tax
Xxx 0000 or otherwise payable in relation to land in Bermuda leased to the
Company. There are, no Bermuda taxes, stamp or documentary taxes, duties or
similar charges now due, or which could in the future become due, in connection
with the execution, delivery, performance or enforcement of the Underwriting
Agreement or the transactions contemplated thereby, or in connection with the
admissibility in evidence thereof and the Company is not required by any Bermuda
law or regulation to make any deductions or withholdings in Bermuda from any
payment it may make thereunder.
(xxi) The statements in the Prospectus under "Business -- Regulatory
Environment -- Bermuda Regulation," "Description of the Common Shares," "Certain
Bermuda Law Considerations," "Certain Tax Considerations -- Certain Bermuda Tax
Considerations" and "Enforcement of Civil Liabilities Under U.S. Federal
Securities Laws and Other Matters" insofar as they purport to describe the
provisions of the laws of Bermuda referred to therein or the Company's
Memorandum of Association or Bye-Laws, are accurate and correct in all material
respects..
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials. Copies
of such certificates shall be furnished to counsel for the Underwriters.
Exh. X-0-0
XXXXXXX X-0
FORM OF OPINION OF BOSE, XXXXXXXX & XXXXX, LLP
COUNSEL TO CERTAIN OF THE SELLING SHAREHOLDERS
(i) No consent, approval, authorization, order or declaration of or from,
or registration, qualification or filing with, any federal or state court or
governmental or regulatory agency or body (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
consents, approvals, authorizations, orders, declarations, registrations,
qualifications or filings as may be necessary under state securities laws, as to
which we express no opinion) is required to be obtained by the Principal Selling
Shareholders for the performance by them of their respective obligations under
this Agreement or the Power of Attorney and Custody Agreement or in connection
with the offer, sale or delivery of the Securities. "Principal Selling
Shareholders" means the Selling Shareholders other than Vertecs Corporation.
(ii) The Power of Attorney and Custody Agreement has been duly authorized,
executed and delivered by each Principal Selling Shareholder and is enforceable
against the Principal Selling Shareholders in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency, reorganization
and moratorium laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles.
(iii) This Agreement has been duly authorized, executed and delivered by
each Principal Selling Shareholder and is enforceable against the Principal
Selling Shareholders in accordance with its terms, subject, as to enforcement,
to applicable bankruptcy, insolvency, reorganization and moratorium laws and
other laws relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles and except as the enforceability
of rights to indemnity and contribution under this Agreement may be limited
under applicable federal or state securities laws or the public policy
underlying such laws.
(iv) The sale of the Securities being sold at the Closing Time and the
performance of this Agreement and the Power of Attorney and Custody Agreement
and the consummation of the transactions herein and therein contemplated by the
Principal Selling Shareholders have been duly authorized by all necessary action
on the part of the Principal Selling Shareholders and will not conflict with or
violate any provision of the charter or by-laws of any of the Principal Selling
Shareholders, in each case as amended to date.
(v) Each of the Principal Selling Shareholders has valid title to, or a
valid security entitlement in respect of, the Securities to be sold by such
Principal Selling Shareholder free and clear of all security interests, claims,
liens, equities and other encumbrances, and each of the Principal Selling
Shareholders has the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the Power of Attorney and
Custody Agreement and to sell, transfer and deliver the Securities.
Such counsel shall also state that they have reviewed the Registration
Statement and the Prospectus and nothing has come to such counsel's attention
that would lead such
Xxx. X-0-0
counsel to believe that the Registration Statement or any amendment thereto,
including the Rule 430A Information (except for financial statements, notes
thereto and schedules and other financial data included or omitted therefrom, as
to which such counsel need make no statement), at the time such Registration
Statement or any such amendment became effective, contained an 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 or that the
Prospectus or any amendment or supplement thereto (except for financial
statements, notes thereto and schedules and other financial data included
therein or omitted therefrom, as to which such counsel need make no statement),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or includes
an 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. In addition, such
counsel shall state that nothing has come to such counsel's attention that would
lead such counsel to believe that the General Disclosure Package, other than the
financial statements, notes thereto and schedules and other financial data
included therein or omitted therefrom, as to which such counsel need make no
statement, as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading. With respect to statements contained in the General
Disclosure Package, any statement contained in any of the constituent documents
shall be deemed to be modified or superseded to the extent that any information
contained in subsequent constituent documents modifies or replaces such
statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Bermuda, upon the opinion of Xxxxxxx
Xxxxxxxx Xxxxxx, special Bermuda counsel for the Company (which opinion shall be
dated and furnished to the Underwriters at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion), provided that
such counsel shall state in such counsel's opinion that such counsel believes
that such counsel and the Underwriters are justified in relying upon such
opinion, and (B) as to matters of fact (but not as to legal conclusions), to the
extent such counsel deems proper, on certificates of responsible officers of the
Company and public officials. Copies of such certificates shall be furnished to
counsel for the Underwriters. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
Exh. B-1-2
EXHIBIT B-2
FORM OF OPINION OF XXXXXXXX XXXXXXX LLP,
COUNSEL TO CERTAIN OF THE SELLING SHAREHOLDERS
(i) No consent, approval, authorization, order or declaration of or from,
or registration, qualification or filing with, any federal or state court or
governmental or regulatory agency or body (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
consents, approvals, authorizations, orders, declarations, registrations,
qualifications or filings as may be necessary under state securities laws, as to
which we express no opinion) is required to be obtained by the Selected Selling
Shareholders for the performance by them of their respective obligations under
this Agreement or the Power of Attorney and Custody Agreement or in connection
with the offer, sale or delivery of the Securities. "Selected Selling
Shareholders" means the Selling Shareholders other than Xxxxxxxx Associates and
Xxxxxxxxx X. Xxxxxxxx.
(ii) The Power of Attorney and Custody Agreement has been duly authorized,
executed and delivered by each Selected Selling Shareholder and is enforceable
against the Selected Selling Shareholders in accordance with its terms, subject,
as to enforcement, to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles.
(iii) This Agreement has been duly authorized, executed and delivered by
each Selected Selling Shareholder.
Exh. B-2-1
EXHIBIT B-3
FORM OF OPINION OF LORD, BISSELL & BROOK, LLP
COUNSEL TO VERTECS CORPORATION
(i) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any federal or state court
or governmental or regulatory agency or body (other than the issuance of the
order of the Commission declaring the Registration Statement effective and such
consents, approvals, authorizations, orders, declarations, registrations,
qualifications or filings as may be necessary under state securities laws, as to
which we express no opinion) is required to be obtained by Vertecs Corporation
for the performance by it of its obligations under this Agreement or the Power
of Attorney and Custody Agreement or in connection with the offer, sale or
delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by Vertecs Corporation and is enforceable
against Vertecs Corporation in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles.
(iii) This Agreement has been duly authorized, executed and delivered
by Vertecs Corporation and is enforceable against Vertecs Corporation in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating to or
affecting the enforcement of creditors' rights generally and to general
equitable principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable federal or
state securities laws or the public policy underlying such laws.
(iv) The sale of the Securities being sold at the Closing Time and the
performance of this Agreement and the Power of Attorney and Custody Agreement
and the consummation of the transactions herein and therein contemplated by
Vertecs Corporation have been duly authorized by all necessary action on the
part of Vertecs Corporation and will not conflict with or violate any provision
of the charter or by-laws of Vertecs Corporation, as amended to date.
(v) Vertecs Corporation has valid title to, or a valid security
entitlement in respect of, the Securities to be sold by it free and clear of all
security interests, claims, liens, equities and other encumbrances, and Vertecs
Corporation has the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the Power of Attorney and
Custody Agreement and to sell, transfer and deliver the Securities to be sold by
it.
Such counsel shall also state that they have reviewed the Registration
Statement and the Prospectus and nothing has come to such counsel's attention
that would lead such counsel to believe that the Registration Statement or any
amendment thereto, including
Xxx. X-0-0
the Rule 430A Information (except for financial statements, notes thereto and
schedules and other financial data included or omitted therefrom, as to which
such counsel need make no statement), at the time such Registration Statement or
any such amendment became effective, contained an 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 or that the Prospectus
or any amendment or supplement thereto (except for financial statements, notes
thereto and schedules and other financial data included therein or omitted
therefrom, as to which such counsel need make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an 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. In addition, such counsel shall state that nothing
has come to such counsel's attention that would lead such counsel to believe
that the General Disclosure Package, other than the financial statements, notes
thereto and schedules and other financial data included therein or omitted
therefrom, as to which such counsel need make no statement, as of the Applicable
Time, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading. With respect to
statements contained in the General Disclosure Package, any statement contained
in any of the constituent documents shall be deemed to be modified or superseded
to the extent that any information contained in subsequent constituent documents
modifies or replaces such statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Bermuda, upon the opinion of Xxxxxxx
Xxxxxxxx Xxxxxx, special Bermuda counsel for the Company (which opinion shall be
dated and furnished to the Underwriters at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion), provided that
such counsel shall state in such counsel's opinion that such counsel believes
that such counsel and the Underwriters are justified in relying upon such
opinion, and (B) as to matters of fact (but not as to legal conclusions), to the
extent such counsel deems proper, on certificates of responsible officers of the
Company and public officials. Copies of such certificates shall be furnished to
counsel for the Underwriters. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
Exh. B-3-2
EXHIBIT C
FORM OF LOCK-UP AGREEMENT
______________, 2006
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by American Safety Insurance Holdings, Ltd.
Ladies and Gentlemen:
The undersigned, a [shareholder and/or an officer and/or a director] of
American Safety Insurance Holdings, Ltd., a Bermuda company (the "Company"),
understands that Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"), Xxxxxxx Xxxxx &
Associates, Inc. and BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx,
Inc., propose to enter into an Underwriting Agreement (the "Underwriting
Agreement") with the Company and the selling shareholders named therein
providing for the public offering of shares (the "Securities") of the Company's
Common Shares, par value $0.01 per share (the "Common Shares"). In recognition
of the benefit that such an offering will confer upon the undersigned as a
[shareholder and/or an officer and/or director] of the Company, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
Underwriting Agreement that, during a period of 90 days from the date of the
Underwriting Agreement, the undersigned will not, without the prior written
consent of KBW, directly or indirectly (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 or lend or otherwise
transfer or dispose of, directly or indirectly, any Common Shares or any
securities convertible into or exercisable or exchangeable for Common Shares or
file, or cause to be filed, any registration statement under the Securities Act
of 1933, as amended, with respect to any of the foregoing (it being understood
that nothing herein shall prohibit an officer or director of the Company from
participating in the filing by the Company of a registration statement where
such filing is permitted by Section 3(a)(x) of the Underwriting Agreement) or
(ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Shares, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Shares or other securities, in cash or otherwise.
Notwithstanding the foregoing, if (1) during the last 17 days of the
90-day restricted period the Company issues an earnings release or notifies the
undersigned in writing that material news or a material event relating to the
Company has occurred or (2) prior to the expiration of the 90-day restricted
period, the Company announces that it will release earnings results or notifies
the undersigned in writing that it has become aware
Exh. C-1
aware that material news or a material event will occur during the 16-day period
beginning on the last day of the 90-day restricted period, the restrictions
imposed in this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
Very truly yours,
Signature:
---------------------------
Print Name:
---------------------------
Exh. C-2
