Exhibit 1.1
11,580,080 Shares
AXIS CAPITAL HOLDINGS LIMITED
COMMON SHARES, PAR VALUE $0.0125 PER SHARE
UNDERWRITING AGREEMENT
May 9, 2005
May 9, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The shareholders (the "Selling Shareholders") of AXIS Capital
Holdings Limited, a Bermuda corporation (the "Company"), named in Schedule I
hereto, propose to sell to Xxxxxx Xxxxxxx & Co. Incorporated (the
"Underwriter"), an aggregate of 11,580,080 Common Shares, par value $0.0125 per
share, of the Company (the "Shares"), with each Selling Shareholder selling the
amount set forth opposite such Selling Shareholder's name under "Number of
Shares to Be Sold" in Schedule I hereto. The Common Shares, par value $0.0125
per share of the Company, including the Shares, are hereinafter referred to as
the "Common Stock."
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-118023) on Form S-3,
including a prospectus, relating to the Shares. The registration statement as
amended at the time it became effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"Securities Act"), is hereinafter referred to as the "Registration Statement";
any preliminary prospectus relating to the Shares included in the Registration
Statement or filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act (the "Securities Act
Regulations") being hereinafter called a "Preliminary Prospectus"; the final
prospectus relating to the Shares in the form filed pursuant to Rule 424(b)
under the Securities Act Regulations being hereinafter referred to as the
"Prospectus." Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the effective date of the Registration Statement
or the issue date of such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the effective date of the
Registration Statement, or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriter and each Selling
Shareholder that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein.
(c) Deloitte & Touche, whose report is included in the Prospectus, is
an independent certified public accountant with respect to the Company and
its consolidated subsidiaries within the meaning of the Securities Act and
the rules and regulations adopted by the Commission thereunder. The
financial statements of the Company and its consolidated subsidiaries
(including the related notes and supporting schedules) included in the
Registration Statement and the Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of
the entities purported to be shown thereby at the dates and for the
periods indicated and have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated and conform in all material respects with
the rules and regulations adopted by the Commission under the Securities
Act; and the supporting schedules included in the Registration Statement
present fairly in all materials respects the information required to be
stated therein.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing (including as an exempted company) under the
laws of the jurisdiction of its incorporation (good standing meaning that
it has not failed to make any required filing with any Bermuda
governmental authority or to pay any Bermuda governmental fee or tax which
would make it liable to be struck off the registrar of companies and
thereby cease to exist under the laws of Bermuda), has the corporate power
and authority to own, lease and operate its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing or operating of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each of AXIS Specialty Limited, AXIS Specialty Europe Limited,
AXIS Re Limited, AXIS Specialty Insurance Company, AXIS Reinsurance
Company, AXIS Surplus Insurance Company, AXIS Specialty U.S. Holdings,
Inc. and AXIS Specialty Holdings Ireland Limited (hereafter, the
"Designated Subsidiaries") has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation (good standing meaning, with respect to each of AXIS
Specialty Limited, AXIS Specialty Europe Limited, AXIS Re Limited and AXIS
Specialty Holdings Ireland Limited, that each has not failed to make any
required filing with any government authority of the jurisdiction of its
incorporation or to pay any government fee or tax in its jurisdiction of
incorporation which would make it liable to be struck off the register of
companies and thereby cease to exist under the laws of its jurisdiction of
incorporation), has the corporate power and authority to own, lease and
operate its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing (good standing meaning, with respect to each of AXIS Specialty
Limited, AXIS Specialty Europe Limited, AXIS Re Limited and AXIS Specialty
Holdings Ireland Limited, that each has not failed to make any required
filing with any government authority of the jurisdiction of its
incorporation or to pay any government fee or tax in its jurisdiction of
incorporation which would make it liable to be struck off the register of
companies and thereby cease to exist under the laws of its jurisdiction of
incorporation) in each jurisdiction in which the conduct of its business
or its ownership or leasing or operating of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares
of capital stock of each Designated Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable (non-assessable
meaning, with respect to each of AXIS Specialty Limited, AXIS Specialty
Europe Limited, AXIS Re Limited and AXIS Specialty Holdings Ireland
Limited, that no further sums are payable with respect to the holding of
such shares and the member shall not be bound by an alteration (unless it
agrees in writing to such alteration) in the memorandum of association or
the bye-laws or equivalent organizational documents of such Designated
Subsidiary after the date upon which it became a member if and so far as
the alteration requires such member to take or subscribe for additional
shares or in any way increases its liability to contribute to the share
capital of, or otherwise pay money to, such Designated Subsidiary) and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities, claims, preemptive rights or restrictions upon
voting or transfer except, in the case of restrictions on transfer, as
described in the Prospectus. Except for AXIS Specialty U.S. Services,
Inc., AXIS Specialty UK Limited, AXIS Specialty UK Holdings Limited and
Combined Specialty Group, Inc., each of which is immaterial and not a
"significant subsidiary" of the Company as that term is defined in Rule
1-02(w) of Regulation S-X of the rules and regulations of the Commission
under the Securities Act, the Designated Subsidiaries are the only
subsidiaries of the Company.
(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(h) The capitalization of the Company as of December 31, 2004
conforms in all material respects to the description thereof in the
Prospectus. All of the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) have been duly authorized
and are validly issued, fully paid and non-assessable and were not issued
in violation of any preemptive or similar rights.
(i) None of the execution and delivery by the Company of, or the
performance by the Company of its obligations under, this Agreement, nor
the consummation of the transactions contemplated hereby, will (i)
contravene or result in a breach or violation of, or constitute a default
under, (A) the charter, memorandum of association, bye-laws or other
governing documents of the Company or any of its subsidiaries, (B) any
provision of applicable law or any regulation, rule, judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary or any of their respective properties or (C)
any agreement, indenture or other instrument binding upon the Company or
any of its subsidiaries or to which the Company or any of its subsidiaries
is a party or to which any of their respective properties are subject, or
(ii) result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property of the Company or any of its subsidiaries,
except (other than with respect to clause (i)(A)) as would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole. Except for permits,
consents, approvals and similar authorizations required by the securities
or "Blue Sky" or insurance laws of certain jurisdictions in connection
with the offer and sale of the Shares and permits, consents, approvals and
authorizations which have been obtained, no permit, consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation of
the transactions contemplated by this Agreement.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement). Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt of
the Company and its subsidiaries, except in each case as described in the
Prospectus.
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that would reasonably be expected to
have, individually or in the aggregate, a material adverse effect on the
Company and its subsidiaries, taken as a whole, or that are required to be
described in the Registration Statement or the Prospectus and are not so
described, or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering and
sale of the Shares will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(n) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(o) On the date hereof and upon issuance of the Shares, each of the
Company and its Designated Subsidiaries is and will be solvent and able to
pay its liabilities as they become due.
(p) Each of the Company and its Designated Subsidiaries has (i) all
licenses, certificates, permits, authorizations, approvals, franchises and
other rights from, and has filed all reports, documents and other
information required to be filed pursuant to the applicable laws of
Bermuda, Ireland, the United Kingdom, Switzerland and the United States
(and any State thereof) and all other relevant jurisdictions as is
necessary to engage in the business currently conducted by it in the
manner described in the Prospectus (each, an "Authorization"), except
where the failure, individually or in the aggregate, to file such report,
document or information would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, (ii) fulfilled and
performed all obligations necessary to maintain each Authorization, except
where the failure to fulfill or perform such obligation, individually or
in the aggregate, would not have a material adverse effect on the Company
and its subsidiaries taken as a whole and (iii) no knowledge of any
pending or threatened action, suit, proceeding or investigation that would
reasonably be expected to result in the revocation, termination, material
adverse modification, material adverse impairment or suspension of any
Authorization. All such Authorizations are valid and in full force and
effect and the Company and the Designated Subsidiaries are in compliance
in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect thereto, except where the
failure to comply, individually or in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as
whole. Except as otherwise described in or contemplated by the Prospectus,
the Company has not received any order or decree from any insurance
regulatory agency or body impairing, restricting or prohibiting the
payment of dividends by any Designated Subsidiary to its parent and has
not otherwise agreed to any such impairment, restriction or prohibition.
(q) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the
Company and its subsidiaries are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(r) The Company has no knowledge of any threatened or pending
downgrading of any of its or its Designated Subsidiaries claims-paying
ability rating by A.M. Best Company, Inc. or Standard & Poor's Ratings
Service, a Division of The XxXxxx-Xxxx Companies, Inc., the only
"nationally recognized statistical rating organizations," as such term is
defined for purposes of Rule 463(g)(2) ability under the Securities Act,
which currently rate the claims-paying ability of the Company or any of
the Designated Subsidiaries.
(s) The Shares have been approved for listing on the New York Stock
Exchange.
(t) The Company and each of the Designated Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) Neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any material patents, patent rights, licenses, inventions,
copyrights, technology, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by
them, which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse affect on the
Company and its subsidiaries, taken as a whole.
(v) None of the Company or any of its Designated Subsidiaries (i) is
in violation of its charter, memorandum of association or bye-laws or
articles of association or other governing documents, (ii) is in default
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any agreement (including any
retrocessional or reinsurance treaty, contract or arrangement), indenture
or other instrument to which it is a party or by which it is bound or to
which any of its properties is subject, except for any such defaults that
would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or (iii) is
in violation of any insurance law, rule or regulation to which it or its
property is subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole. Except as disclosed in the
Prospectus, all retrocessional and reinsurance treaties, contracts and
arrangements to which any of the Company or its subsidiaries are a party
as the reinsured or insured are in full force and effect except where the
failure to be in full force and effect would not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. None of the Company or any of its
Designated Subsidiaries has received any notice or otherwise has knowledge
that any of the other parties to such retrocessional and reinsurance
treaties, contracts, agreements or arrangements intends not to perform, or
will be unable to perform, in any material respect such retrocessional or
reinsurance treaty, contract, agreement or arrangement, except where such
non-performance would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(w) None of the Company's subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company or from
making any other distribution on such subsidiary's capital stock, except
as described in or contemplated by the Prospectus.
(x) Neither the Underwriter nor any subsequent purchaser of the
Shares (other than any purchaser resident in Bermuda for Bermuda exchange
control purposes) is subject to any stamp duty, excise or similar tax
imposed in Bermuda in connection with the offering, sale or purchase of
the Shares.
(y) There are no currency exchange control laws or withholding taxes
of Bermuda that would be applicable to the payment of dividends on the
Shares by the Company (other than to residents of Bermuda for Bermuda
exchange control purposes).
(z) Any tax returns required to be filed in any jurisdiction by the
Company or any of its subsidiaries other than AXIS Reinsurance Company,
AXIS Surplus Insurance Company and AXIS Specialty Insurance Company
(collectively, the "U.S. Insurance Companies") have been accurately
prepared and timely filed and any taxes, including any withholding taxes,
excise taxes, sales taxes, use taxes, penalties and interest, assessments
and fees and other charges due or claimed to be due from such entities,
have been paid, other than any of those being contested in good faith and
for which adequate reserves have been provided or any of those currently
payable without penalty or interest and (ii) to the Company's knowledge,
any tax return required to be filed in any jurisdiction by any of the U.S.
Insurance Companies has been accurately prepared and timely filed and any
taxes, including any withholding taxes, excise taxes, sales taxes, use
taxes, penalties and interest, assessments and fees and other charges due
or claimed to be due from such entities have been paid, other than any of
those being contested in good faith and for which adequate reserves have
been provided or any of those currently payable without penalty or
interest, in either case except to the extent that the failure to so file
or pay would not result in a material adverse effect on the Company and
its subsidiaries, taken as a whole, and in either case other than those
tax returns that would be required to be filed or taxes that would be
payable by the Company or any of its subsidiaries if (A) any of them was
characterized as a "personal holding company" as defined in Section 542 of
the Code (as defined below), (B) any of them other than the U.S. Insurance
Companies, AXIS Specialty U.S. Holdings, Inc. or AXIS Specialty U.S.
Services, Inc. (collectively the "U.S. Subsidiaries") was characterized as
engaged in a U.S. trade or business, (C) any of them other than AXIS
Specialty UK Limited, AXIS Specialty UK Holdings Limited, AXIS Specialty
Europe Limited or AXIS Specialty Holdings Ireland Limited (the "U.K./Irish
Subsidiaries") was characterized as resident, managed and controlled or
carrying on a trade through a branch or agency in the United Kingdom or
(D) any of them other than AXIS Specialty Europe Limited, AXIS Re Limited
or AXIS Specialty Holdings Ireland Limited (the "Irish Subsidiaries") was
characterized as resident, managed and controlled or carrying on a trade
through a branch or agency in Ireland. No deficiency assessment with
respect to a proposed adjustment of the Company's or any of its
subsidiaries' taxes is pending or, to the Company's knowledge, threatened.
There is no material tax lien, whether imposed by any federal, state, or
other taxing authority, outstanding against the assets, properties or
business of the Company or any of its subsidiaries.
(aa) Based upon and subject to the assumptions and qualifications set
forth in the Prospectus under the heading "Material Tax Considerations,"
the Company does not believe: (i) that either the Company or any of its
subsidiaries currently should be, or upon the sale of the Shares herein
contemplated should be (A) treated as a "passive foreign investment
company" as defined in Section 1297(a) of the Internal Revenue Code of
1986, as amended (the "Code"), (B) characterized as a "personal holding
company" as defined in Section 542 of the Code, (C) except for the U.S.
Subsidiaries, considered to be engaged in a trade or business within the
United States for purposes of section 864(b) of the Code, (D) except for
the U.K./Irish Subsidiaries, characterized as resident, managed or
controlled or carrying on a trade through a branch or agency in the United
Kingdom or (E) except for the Irish Subsidiaries, characterized as
resident, managed or controlled or carrying on a trade through a branch or
agency in Ireland; or (ii) that any person who owns shares of the Company
directly or indirectly through foreign entities should be treated as
owning (directly, indirectly through foreign entities or by attribution
pursuant to Section 958(b) of the Code) 10 percent or more of the total
voting power of the Company or any of its foreign subsidiaries.
(bb) AXIS Specialty Limited, AXIS Re Limited and AXIS Specialty
Europe Limited intend to operate in a manner that is intended to ensure
that the related person insurance income of each of AXIS Specialty
Limited, AXIS Re Limited or AXIS Specialty Europe Limited does not equal
or exceed 20% of each such company's gross insurance income for any
taxable year in the foreseeable future.
2. Representations and Warranties of the Selling Shareholders. The
Xxxxxx Entities (as defined in Section 6(e)) and the THL Entities (as defined
in Section 9(b)), severally and not jointly, represent and warrant to and agree
with the Underwriter and the Company that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
(b) Neither the execution and delivery by such Selling Shareholder
of, or the performance by such Selling Shareholder of its obligations
under, this Agreement nor the consummation of the transactions
contemplated hereby or thereby, will (i) contravene or result in a breach
or violation of, or constitute a default under, (A) the memorandum of
association, bye-laws or other governing documents of such Selling
Shareholder (if such Selling Shareholder is not a natural person), (B) any
provision of applicable law or any regulation, rule, judgment, order or
decree of any governmental body, agency or court having jurisdiction over
such Selling Shareholder or any of its properties or (C) any agreement,
indenture or other instrument binding upon such Selling Shareholder or to
which such Selling Shareholder is a party or to which any of its
properties are subject, or (ii) result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property of such Selling
Shareholder, except (other than with respect to clause (i)(A)) as would
not, individually or in the aggregate, have a material adverse effect on
the ability of such Selling Shareholder to consummate the transactions
contemplated hereby and thereby. Except for permits, consents, approvals
and similar authorizations required by the securities or "Blue Sky" or
insurance securities laws of certain jurisdictions in connection with the
offer and sale of the Shares and permits, consents, approvals and
authorizations which have been obtained, no permit, consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation by
such Selling Shareholder of the transactions contemplated by this
Agreement.
(c) Such Selling Shareholder is, and on the Closing Date will be, the
registered holder of a certificated security representing, and/or has and
will have a "security entitlement" within the meaning of Section
8-102(a)(7) of the New York Uniform Commercial Code (the "NYUCC") in
respect of, the Shares to be sold by such Selling Shareholder, free and
clear of all security interests, claims, liens, equities or other
encumbrances, and such Selling Shareholder's entry into this Agreement and
such Selling Shareholder's sale, transfer and delivery of the Shares to be
sold by such Selling Shareholder have been duly authorized by all
necessary organizational action, if any, and such Selling Shareholder has
the legal right and power to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by such Selling Shareholder or
a security entitlement in respect of such Shares. The Shares to be sold by
such Selling Shareholder are not subject to any preemptive or similar
rights, and such Selling Shareholder has all rights in and full power and
authority to transfer such Shares.
(d) Upon delivery in New York of any certificate or certificates
representing the Shares to be sold by such Selling Shareholder, properly
indorsed in blank by an effective indorsement, to either (i) Cede & Co.
("Cede") or such other nominee as may be designated by The Depository
Trust Company ("DTC") or (ii) the Underwriter purchasing such Shares, and
upon payment for such Shares as contemplated by this Agreement, Cede (or
such other nominee) or the Underwriter, as the case may be, will acquire
all of such Selling Shareholder's rights in such Shares that such Selling
Shareholder has or has the power to transfer, free of any adverse claim
within the meaning of Section 8-102(a)(1) of the NYUCC, provided that Cede
(or such other nominee) or the Underwriter, as the case may be, has no
notice of any adverse claim (within the meaning of Section 8-105 of the
NYUCC) to such Shares. Assuming the proper execution of an entitlement
order (within the meaning of Section 8-102(a)(8) of the NYUCC) given by
such Selling Shareholder to the securities intermediary (within the
meaning of Section 8-102(a)(14) of the NYUCC) maintaining the security
entitlement for such Selling Shareholder with respect to the Shares to be
sold by such Selling Shareholder, and assuming that as a result of the
execution of such order a security entitlement with respect to such Shares
is properly credited at a securities intermediary (within the meaning of
Section 8-102(a)(14) of the NYUCC) to the account of the Underwriter
purchasing such Shares, upon payment for such Shares as contemplated by
this Agreement, then no action based on an adverse claim within the
meaning of Section 8-102 of the NYUCC may be asserted against the
Underwriter with respect to such security entitlement to the extent that
(i) the Underwriter had no notice of such adverse claim within the meaning
of Section 8-105 of the NYUCC and (ii) the Underwriter is the entitlement
holder (within the meaning of Section 8-102(a)(8) of the NYUCC) with
respect to the securities account to which such security entitlement is
credited.
(e) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (ii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the representations and
warranties set forth in this paragraph 2(e) are limited to statements or
omissions made in reliance upon information relating to such Selling
Shareholder furnished to the Company in writing by such Selling
Shareholder expressly for use in the Registration Statement, the
Prospectus or any amendments or supplements thereto.
3. Agreements to Sell and Purchase. (a) Each Selling Shareholder
hereby agrees to sell to the Underwriter, and the Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from such Selling Shareholder
at $26.05 a share (the "Purchase Price") the Shares.
Each Selling Shareholder hereby agrees that, without the prior
written consent of the Underwriter, it will not, during the period ending 45
days after the date of the Prospectus, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The restrictions contained in the preceding paragraph shall not apply
to the Shares to be sold hereunder.
(b) The Underwriter represents, warrants and undertakes, that: (i) it
has not offered or sold and, prior to the expiry of a period of six months from
the Closing Date, will not offer or sell any Shares to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, as
amended; (ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of any Shares in circumstances in which
section 21(1) of the FSMA does not apply; and (iii) it has complied and will
comply with all applicable provisions of the FSMA with respect to anything done
by it in relation to the Shares in, from or otherwise involving the United
Kingdom.
4. Offering by the Underwriter. The Underwriter shall offer the
Shares for resale as set forth in the Prospectus.
5. Payment and Delivery. Payment for the Shares to be sold by the
Selling Shareholders shall be made to the Selling Shareholders in Federal or
other funds immediately available in New York City against delivery of the
Shares for the account of the Underwriter at 10:00 a.m., New York City time, on
May 13, 2005, or at such other time on the same or such other date, not later
than May 20, 2005, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Closing Date."
The Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The Shares shall be delivered to you on the
Closing Date for your account, with any transfer taxes payable in connection
with the transfer of the Shares to you duly paid by the Selling Shareholders,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriter's Obligations. The obligations of
the Selling Shareholders to sell the Shares to the Underwriter and the
obligation of the Underwriter to purchase and pay for the Shares on the Closing
Date are subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Closing Date, to the accuracy of
the representations and warranties on the part of the Selling Shareholders
contained herein as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
accuracy of the statements of the Selling Shareholders made in any certificates
pursuant to the provisions hereof, to the performance by each of the Company
and the Selling Shareholders of their respective obligations hereunder and to
the following additional conditions.
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
or any Designated Subsidiary's securities or in the Company's or any
Designated Subsidiary's 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 Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriter shall have received on the Closing Date (i) a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date and (ii) a certificate, dated the Closing Date and signed
by or on behalf of the Selling Shareholders, to the effect that the
representations and warranties of the Selling Shareholders contained in
this Agreement are true and correct as of the Closing Date and that the
Selling Shareholders have complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date. The officer signing and
delivering such certificate may rely upon the best of his or her knowledge
as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, outside counsel for
the Company, dated the Closing Date, substantially to the effect set forth
in Exhibit A hereto.
(d) The Underwriter shall have received on the Closing Date an
opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the
Company, dated the Closing Date, substantially to the effect set forth in
Exhibit B hereto.
(e) The Underwriter shall have received on the Closing Date (i) an
opinion of Xxxx Xxxxxxx & Xxxxxx LLP, special counsel for the Selling
Shareholders (other than Xxxxxx Investments Holdings, LLC, Xxxxxx
Investments Employees' Securities Company I LLC and Xxxxxx Investments
Employees' Securities Company II LLC, (collectively, the "Xxxxxx
Entities")) and (ii) an opinion of in-house counsel for the Xxxxxx
Entities, in each case dated the Closing Date, substantially to the effect
set forth in Exhibit C hereto.
(f) The Underwriter shall have received on the Closing Date opinions
of each of Xxxxxxx Xxx and Xxxxxxx Xxx Tax Advisers Limited, special Irish
counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibits D-1 and D-2 hereto.
(g) The Underwriter shall have received on the Closing Date two
opinions of LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P., special United States
counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibits E-1 and E-2 hereto.
(h) The Underwriter shall have received on the Closing Date an
opinion of Bar & Xxxxxx, special Swiss counsel for the Company, dated the
Closing Date, substantially to the effect set forth in Exhibit F hereto.
(i) The Underwriter shall have received on the Closing Date an
opinion of Xxxxx X. Xxxxxx, Esq., General Counsel for the Company, dated
the Closing Date, substantially to the effect set forth in Exhibit G
hereto.
(j) The Underwriter shall have received on the Closing Date (i) an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter,
and (ii) a letter from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriter, dated the Closing Date, covering the matters referred to in
paragraph 2 and the last paragraph of Exhibit A.
(k) The Underwriter shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriter,
from Deloitte & Touche, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
With respect to Section 6(e) above, counsel to the Selling
Shareholders may rely upon with respect to factual matters and to the extent
such counsel deems appropriate, upon the representations of the Selling
Shareholders contained herein and in other documents and instruments; provided
that copies of any such other documents and instruments shall be delivered to
you and shall be in form and substance satisfactory to your counsel.
The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxxxxx
Xxxx & Pearman, Weil, Gotshal & Xxxxxx LLP, in-house counsel to the Xxxxxx
Entities, Xxxxxxx Xxx, Xxxxxxx Xxx Tax Advisers Limited, LeBoeuf, Lamb, Xxxxxx
& XxxXxx L.L.P., Bar & Xxxxxx and Xxxxx X. Xxxxxx, Esq. described in Sections
6(c), 6(d) 6(e), 6(f), 6(g), 6(h) and 6(i) above shall be rendered to the
Underwriter at the request of the Company or the Selling Shareholders, as the
case may be, and shall so state therein.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriter herein contained, the Company covenants with the
Underwriter as follows:
(a) To furnish to you, without charge, one signed copy of the
Registration Statement and all amendments thereto (including exhibits
thereto) and to furnish to you in New York City, without charge, prior to
10:00 a.m. New York City time on the second business day next succeeding
the date of this Agreement and during the period mentioned in Section 7(c)
below, as many copies of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriter
the Prospectus is required by law to be delivered in connection with sales
by the Underwriter or a dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriter, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriter and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided, that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to material taxation
or service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending December 31, 2005 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees
to pay or cause to be paid: (i) the fees, disbursements and expenses of the
counsel for the Company in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and amendments and supplements to any of the
foregoing, excluding all printing costs associated therewith and the mailing
and delivering of copies thereof to the Underwriter and dealers, in the
quantities hereinabove specified, (ii) one half of the fees, disbursements and
expenses of the Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act, (iii) the costs and charges of
any transfer agent, registrar or depository and (iv) all other costs and
expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. Whether or
not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Selling Shareholders, jointly and severally, agree
to pay or cause to be paid: (i) the fees, disbursements and expenses of the
counsel for the Selling Shareholders in connection with the registration and
delivery of the Shares under the Securities Act and all printing costs
associated with the Prospectus and amendments and supplements to any of the
foregoing and the mailing and delivering of copies thereof to the Underwriter
and dealers, in the quantities hereinabove specified, (ii) one half of the
fees, disbursements and expenses of the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act,
(iii) all costs and expenses related to the transfer and delivery of the Shares
to the Underwriter, including any transfer or other taxes payable thereon, (iv)
the cost of printing or producing any Blue Sky or Legal Investment memorandum
in connection with the offer and sale of the Shares under state securities laws
and all expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 7(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriter in connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (v) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriter incurred in
connection with the review and qualification of the offering of the Shares by
the National Association of Securities Dealers, Inc. (such fees and
disbursements of counsel, together with fees and disbursements of counsel
pursuant to clause (iii) above, not to exceed $30,000), (vi) the document
production charges and expenses associated with printing this Agreement and
(vii) all other costs and expenses incident to the performance of the
obligations of the Selling Shareholders hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution", the
last paragraph of Section 11 below and Section 14(d), the Underwriter will pay
all of its costs and expenses, including fees and disbursements of its counsel,
stock transfer taxes payable on resale of any of the Shares by it and any
advertising expenses connected with any offers it may make.
9. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless the Underwriter, each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of the Underwriter within
the meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Preliminary Prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless the failure to send
or give such Prospectus is the result of noncompliance by the Company with
Section 7(a) hereof.
(b) The Xxxxxx Entities and the other Selling Shareholders,
(collectively, the "THL Entities"), agree to indemnify and hold harmless the
Underwriter, each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each affiliate of the Underwriter within the meaning of Rule
405 under the Securities Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any Preliminary Prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to any
Xxxxxx Entity or any THL Entity furnished in writing by or on behalf of the
Xxxxxx Entities and the THL Entities, respectively, expressly for use in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendments or supplements thereto; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless the failure to send
or give such Prospectus is the result of noncompliance by the Company with
Section 7(a) hereof. The liability of any Xxxxxx Entity or any THL Entity under
the indemnity agreement contained in this paragraph shall be limited to an
amount equal to the aggregate Purchase Price of the Shares sold by the Xxxxxx
Entities and the THL Entities, respectively, under this Agreement. The
indemnification provided in this Section 9(b) as among the Xxxxxx Entities and
as among the THL Entities shall be joint and several. The indemnification
provided in this Section 9(b) as between the Xxxxxx Entities or any of them, on
the one hand, and the THL Entities or any of them, on the other hand, shall be
several and not joint.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, the Selling Shareholders, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Shareholders within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any Preliminary Prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to information relating to the Underwriter furnished to the Company
in writing by the Underwriter expressly for use in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendments or supplements
thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (i) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Underwriter and all
persons, if any, who control the Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act or who are
affiliates of the Underwriter within the meaning of Rule 405 under the
Securities Act, (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section and (iii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Selling Shareholders and all persons, if any, who control the Selling
Shareholders within the meaning of either such Section, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriter and its control persons and affiliates, such
firm shall be designated in writing by the Underwriter. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Selling Shareholders and such control
persons of the Selling Shareholders, such firm shall be designated in writing
by the Selling Shareholders. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the sale of the Shares or
(ii) if the allocation provided by clause 9(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriter on the other hand in connection with the sale of
the Shares shall be deemed to be in the same respective proportions as the net
proceeds from the sale of the Shares (before deducting expenses) received by
the Company and the Selling Shareholders and the total discounts and
commissions received by the Underwriter in any resale of the Shares bear to the
aggregate offering price of the Shares in such resale. The relative fault of
the Company, the Selling Shareholders and the Underwriter shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The liability of the Xxxxxx Entities and the THL Entities under the
contribution agreement contained in this paragraph shall be limited to an
amount equal to the aggregate Purchase Price of the Shares sold by the Xxxxxx
Entities and the THL Entities, respectively, under this Agreement.
(f) The Company, the Selling Shareholders and the Underwriter agree
that it would not be just or equitable if contribution pursuant to this Section
9 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
Section 9(e). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 9, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Shares resold by it exceeds the amount of any
damages that the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of the Underwriter,
any person controlling the Underwriter or any affiliate of the Underwriter, the
Selling Shareholders or any person controlling the Selling Shareholders, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
10. Termination. The Underwriter may terminate this Agreement by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market,
(ii) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State or Bermuda authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in
financial markets, or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the
terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Default. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
(a) If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriter for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriter in connection with this Agreement or the offering contemplated
hereunder.
(b) If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Selling Shareholders to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Selling Shareholders shall be unable to perform their
obligations under the Agreement, the Selling Shareholders, jointly and
severally, will reimburse the Underwriter for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriter in connection with this Agreement or the offering contemplated
thereby.
12. Successors and Assigns. This Agreement shall be binding upon and
inure solely to the benefit of, the Underwriter, the Company and the Selling
Shareholders, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from the Underwriter shall be deemed a successor
or assign solely by reason of such purchase.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
14. Applicable Law; Submission to Jurisdiction; Appointment of Agent
for Service; Judgment Currency.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
(b) The Company and the Selling Shareholders irrevocably
submit to the non-exclusive jurisdiction of any New York State or
United States Federal court sitting in The City of New York over any
suit, action or proceeding arising out of or relating to this
Agreement, the Prospectus, the Registration Statement or the offering
of the Shares. The Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. To
the extent the Company has or hereafter may acquire any immunity from
the jurisdiction of any court or from any legal process with respect
to itself or its property, it irrevocably waives, to the fullest
extent permitted by law, such immunity in respect of any such suit,
action or proceeding.
(c) The Company and the Selling Shareholders hereby
irrevocably appoint CT Corporation System, with offices at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, as its agent for service of process in any
suit, action or proceeding described in the preceding paragraph. The
Company and the Selling Shareholders agree that service of process in
any such suit, action or proceeding may be made upon it at the office
of their agent. The Company and the Selling Shareholders waive, to the
fullest extent permitted by law, any other requirements of or
objections to personal jurisdiction with respect thereto. The Company
and each Selling Shareholder represent and warrant that its agent has
agreed to act as agent for service of process, and each agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in
full force and effect.
(d) In respect of any judgment or order given or made for any
amount due hereunder that is expressed and paid in currency (the
"judgment currency") other than United States dollars, the party
against whom such judgment or order has been given or made will
indemnify each party in whose favor such judgment or order has been
given or made (the "Indemnitee") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into
the judgment currency for the purpose of such judgment or order and
(ii) the rate of exchange at which the Indemnitee is able to purchase
United States dollars with the amount of the judgment currency
actually received by such Indemnitee. The foregoing indemnity shall
constitute a separate and independent obligation of the Company, the
Selling Shareholders and the Underwriter and shall continue in full
force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any reasonable
premiums and costs of exchange payable in connection with the purchase
of or conversion into United States dollars.
15. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
AXIS CAPITAL HOLDINGS LIMITED
By: /s/ Xxxxxx Xxxx
---------------------------------------
Name: Xxxxxx Xxxx
Title: Chief Financial Officer
XXXXXX X. XXX (ALTERNATIVE) FUND V,
L.P.
By: THL Advisors (Alternative) V, L.P. its
general partner
By: Xxxxxx X. Xxx Advisors (Alternative) V
Limited, LDC, its general partner
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: Principal Managing Director
XXXXXX X. XXX (ALTERNATIVE) PARALLEL
FUND V, L.P.
By: THL Advisors (Alternative) V, L.P. its
general partner
By: Xxxxxx X. Xxx Advisors (Alternative) V
Limited, LDC, its general partner
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: Principal Managing Director
XXXXXX X. XXX (ALTERNATIVE) CAYMAN FUND V,
L.P.
By: THL Advisors (Alternative) V, L.P. its
general partner
By: Xxxxxx X. Xxx Advisors (Alternative) V
Limited, LDC, its general partner
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: Principal Managing Director
XXXXXX X. XXX INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp, its
general partner
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: President
U.S. BANK, N.A., not individually but
solely as trustee for the 1997
Xxxxxx X. Xxx Nominee Trust dated
August 18, 1997
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Xxxx X. Xxxxx, Vice President
XXXXXX INVESTMENT HOLDINGS, LLC
By: Xxxxxx Investments, LLC, its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
XXXXXX INVESTMENTS EMPLOYEES'
SECURITIES COMPANY I LLC
By: Xxxxxx Investment Holdings, LLC, its
Managing Member
By: Xxxxxx Investments, LLC, its Managing
Member
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
XXXXXX INVESTMENTS EMPLOYEES'
SECURITIES COMPANY II LLC
By: Xxxxxx Investment Holdings, LLC, its
Managing Member
By: Xxxxxx Investments, LLC, its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
SCHEDULE I
Number of Shares
Selling Shareholder To Be Sold
------------------- ----------
Xxxxxx X. Xxx (Alternative) Fund V, L.P........................ 8,923,805
Xxxxxx X. Xxx (Alternative) Parallel Fund V, L.P............... 2,315,368
Xxxxxx X. Xxx (Alternative) Cayman Fund V, L.P................. 122,966
Xxxxxx X. Xxx Investors Limited Partnership.................... 17,629
U.S. Bank, N.A. (successor to State Street Bank and Trust
Company), not personally, but solely as Trustee under
the 1997 Xxxxxx X. Xxx Nominee Trust........................... 17,160
Xxxxxx Investment Holdings, LLC................................ 69,716
Xxxxxx Investments Employees' Securities Company I LLC......... 59,928
Xxxxxx Investments Employees' Securities Company II LLC........ 53,508
----------
Total 11,580,080
==========
EXHIBIT A
[FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP]
EXHIBIT B
[FORM OF OPINION OF XXXXXXX XXXX & XXXXXXX]
EXHIBIT C
[FORM OF OPINION OF WEIL, GOTSHAL & XXXXXX LLP/IN-HOUSE COUNSEL
TO THE XXXXXX ENTITIES]
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Selling Shareholders.
2. Assuming that the Underwriter acquires the Shares being sold to it
by the Selling Shareholders pursuant to the Agreement without notice of an
adverse claim thereto, upon (a) the delivery to the Underwriter of such Shares
and (b) the payment therefor in accordance with the terms of the Agreement, the
Underwriter will acquire such Shares free of any adverse claim. For purposes of
this paragraph, the terms "delivery," "control," "adverse claim" and "notice of
an adverse claim" have the respective meanings ascribed thereto in Sections
8-301, 8-106, 8-102(a)(i) and 8-105 of the Uniform Commercial Code in effect in
the State of New York (the "UCC").
3. Each Selling Shareholder has the legal right and power, and all
authorization and approval required by law, to enter into the Underwriting
Agreement and to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder or a security entitlement in respect of such Shares.
[For matters of Cayman law, an opinion of counsel to the Selling
Shareholders will be obtained in form and substance satisfactory to the
Underwriter.]
EXHIBIT D
[FORMS OF OPINIONS OF XXXXXXX XXX AND
XXXXXXX XXX TAX ADVISERS LIMITED]
EXHIBIT E
[FORM OF OPINION OF LEBOEUF, LAMB, XXXXXX & XXXXXX L.L.P.]
EXHIBIT F
[FORM OF OPINION OF BAR & XXXXXX]
EXHIBIT G
[FORM OF OPINION OF XXXXX X. XXXXXX, ESQ.]
