Willis Group Holdings Limited
21,526,100 Shares 1
Common Stock
($0.000115 par value)
Form of Underwriting Agreement
New York, New York
_____, 2003
Banc of America Securities LLC
Credit Suisse First Boston LLC
J.P. Morgan Securities Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
Profit Sharing (Overseas), Limited Partnership, a limited
partnership formed pursuant to the laws of the Province of Alberta ("Overseas")
and Fisher Capital Corp. L.L.C., a Delaware limited liability company ("Fisher
Capital" and, together with Overseas, the "Selling Stockholders") propose to
sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 21,526,100 shares of Common Stock, par value $0.000115 per
share ("Common Stock"), of Willis Group Holdings Limited, a Bermuda company (the
"Company") (said shares to be sold by the Selling Stockholders being hereinafter
called the "Underwritten Securities"). The Selling Stockholders also propose to
grant to the Underwriters an option to purchase up to 2,152,610 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. In addition,
to the extent that there is not more than one Selling Stockholder
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1 Plus an option to purchase from the Selling Stockholder, up to 2,152,610
additional shares of Common Stock to cover over-allotments.
named in Schedule II, the term Selling Stockholder shall mean either the
singular or plural. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Except as otherwise specified or as
the context otherwise implies, where reference is made herein to information
contained, described, disclosed, included or set forth in, or omitted from, the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus, such reference shall be deemed to include the information
contained in the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be (the
"Incorporated Documents"); and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties of the Company and the
Selling Stockholders. (a) The Company represents and warrants to, and agrees
with, each Underwriter that:
(i) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the
Commission a registration statement (File No. 333-104439) on
Form S-3, including a related basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Prospectus, each of which
has previously been furnished to you. The Company will
next file with the Commission one of the following: (1)
after the Effective Date of such registration statement, a
final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment
to such registration statement (including the form of final
prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the
Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and
the Final Prospectus. As filed, such final prospectus
supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the
extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain
only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any
Preliminary Prospectus) as the
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Company has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(ii) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date
(a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with
the applicable requirements of the Act and the rules
thereunder; the Incorporated Documents, when they were filed,
complied in all material respects with the applicable
requirements of the Exchange Act and the rules thereunder; on
the Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not,
and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any settlement date, the Final Prospectus
(together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company
makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or
the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Selling
Stockholder or Underwriter through the Representatives
specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information is
that described as such in Section 8(c) hereof.
(iii) Each of the Company and its subsidiaries (other
than Sovereign Marine & General Insurance Company Limited and
its subsidiaries) has been duly organized and is validly
existing and in good standing under the laws of the
jurisdiction in which it is organized with requisite power and
authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business and is
in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure to be
so qualified would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), business or results
of operations of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect").
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(iv) All the outstanding common equity interests in
each of the Company's subsidiaries have been duly authorized
and validly issued and are fully paid and nonassessable, and,
except as otherwise set forth on Schedule III, all outstanding
common equity interests in each such subsidiary are owned by
the Company either directly or indirectly and, except as set
forth in the Final Prospectus, are owned free and clear of any
perfected security interest or any other security interests,
claims, liens or encumbrances.
(v) The Company's authorized equity capitalization is
as set forth in the Final Prospectus; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Final Prospectus; the outstanding
shares of Common Stock, including the Securities, have been
duly authorized and validly issued and are fully paid
and nonassessable; the Securities are duly listed, and
admitted and authorized for trading, on the New York Stock
Exchange; on the Closing Date the certificates for the
Underwritten Securities will be in valid and sufficient form;
in the event that Option Securities are purchased, on the
Closing Date or any settlement date, as applicable, the
certificates for such Option Securities will be in valid and
sufficient form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive
or other rights to subscribe for the Securities; and,
except as set forth in the Final Prospectus, no options,
warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(vi) The descriptions in the Final Prospectus
(exclusive of any supplement thereto) of statutes, and other
laws, rules and regulations, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present in all material respects the information that
is required to be described therein under the Act; and there
is no franchise, contract or other document of a character
required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required.
(vii) This Agreement has been duly authorized, executed
and delivered by the Company.
(viii) The Company is not and, after giving effect to
the offering and sale of the Securities as described in the
Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(ix) No consent, approval, authorization, filing,
order, registration or qualification of or with any court or
governmental agency or body is required in connection with the
transactions contemplated herein, except
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(1) that (i) the consent of the Bermuda Monetary
Authority (the "Authority") is required and has been
obtained for the sale and subsequent transferability of
the Securities; and (ii) the Final Prospectus is required to
be and has been filed with the Registrar of Companies in
Bermuda pursuant to Part III of the Companies Act 1981 of
Bermuda; (2) such as have been obtained under the Act; and
(3) such as may be required under the state securities laws
("Blue Sky laws") of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the
Final Prospectus.
(x) None of the execution and delivery of this
Agreement, the sale of the Securities, the consummation of any
other of the transactions herein contemplated or the
fulfillment of the terms hereof will conflict with, result in
a breach or violation of, or constitute a default under, or
result in the imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its
subsidiaries pursuant to (i) the Memorandum of Association or
Bye-laws of the Company or the charter or by-laws (or similar
organizational documents) of any of the Company's
subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan
agreement, partnership agreement, joint venture agreement or
other agreement or instrument to which the Company or
any of its subsidiaries is a party or is bound or to which
its or their properties or assets are subject (collectively,
"Contracts") or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties or assets,
except in the case of clauses (ii) and (iii) for such
conflicts, breaches, violations or defaults that would not,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xi) The consolidated historical financial statements
of the Company and its consolidated subsidiaries, and the
related notes thereto, included in the Final Prospectus and
the Registration Statement present fairly in all material
respects the consolidated financial condition, results of
operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form in all material
respects with the applicable accounting requirements of the
Act and have been prepared in conformity with United States
generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except
as otherwise noted therein). The selected financial data
set forth under the caption "Selected Historical
Consolidated Financial Data" and the summary financial data
set forth under the caption "Prospectus Supplement
Summary--Summary Consolidated Financial Data" each in the
Final Prospectus and Registration Statement fairly present
in all
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material respects, on the basis stated in the Final
Prospectus and the Registration Statement, the information
included therein.
(xii) Except as disclosed in the Final Prospectus
(exclusive of any supplement thereto), there is (i) no action,
suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign,
now pending, or to the knowledge of the Company or any of its
subsidiaries threatened or contemplated, to which the Company
or any of its subsidiaries is or may be a party or to which
the business, property or assets of the Company or any of its
subsidiaries is or may be subject, (ii) to the Company's
knowledge, no statute, rule, regulation or order that has
been enacted, adopted or issued by any governmental agency
or that has been proposed by any governmental body, and (iii)
no injunction, restraining order or order of any nature by a
court of competent jurisdiction to which the Company or any
of its subsidiaries is or may be subject, that has been issued
and is outstanding that, in the case of clauses (i), (ii) or
(iii) above (x) would reasonably be expected to have a
Material Adverse Effect or (y) seeks to restrain, enjoin,
interfere with, or would reasonably be expected to
adversely affect in any material respect, the performance of
this Agreement or any of the transactions contemplated
by this Agreement; and the Company and each of its
subsidiaries has complied with any and all requests by any
securities authority in any jurisdiction for additional
information to be included in the Final Prospectus.
(xiii) None of the Company or its Subsidiaries is (i)
in violation of its charter or by-laws (or similar
organizational documents), (ii) in breach or violation of any
statute, judgment, decree, order, rule or regulation
applicable to the Company or its Subsidiaries or any of their
properties or assets or (iii) in breach or default in the
performance of any Contract, except, in the case of clauses
(i), (ii) and (iii) (and in the case of clause (i), only with
respect to the Subsidiaries) for any such violation, breach or
default that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(xiv) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to
certain audited consolidated financial statements included in
the Final Prospectus, are independent public accountants with
respect to the Company within the meaning of the Act and the
applicable rules and regulations thereunder. Ernst & Young,
who have certified certain financial statements and
financial statement schedules of Willis Corroon Group
Limited for all years prior to 1999 included in the Willis
Corroon Corporation Registration Statement on Form F-4
(File No. 333-74483) (the "Willis Corroon Corporation Form
F-4"), were at such time independent public accountants with
respect to
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Willis Corroon Group Limited within the meaning of the Act
and the applicable rules and regulations thereunder.
(xv) No stamp duty, stock exchange tax, value-added
tax, withholding or any other similar duty or tax is payable
in the United States, the United Kingdom, Bermuda or any other
jurisdiction in which either the Company or any of its
subsidiaries is organized or engaged in business for tax
purposes or, in each case, any political subdivision thereof
or any authority having power to tax, in connection with the
execution or delivery of this Agreement by the Company or the
sale or delivery of the Securities by the Selling
Stockholders to the Underwriters or the initial resales
thereof by the Underwriters in the manner contemplated by
this Agreement and the Final Prospectus.
(xvi) Each of the Company and its subsidiaries has
filed all necessary federal, state and foreign (including,
without limitation, United Kingdom and Bermuda) income and
franchise tax returns required to be filed to the date hereof,
except where the failure to so file such returns would not,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, and has paid all material
taxes shown as due thereon; and other than tax deficiencies
which the Company or any subsidiary is contesting in good
faith and for which the Company or such subsidiary has
provided adequate reserves, there is no tax deficiency that
has been asserted against the Company or any of the
subsidiaries that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(xvii) Each of the Company and its subsidiaries has
good and marketable title, free and clear of all liens,
claims, encumbrances and restrictions, to all property and
assets described in the Final Prospectus as being owned by it
and good title to all leasehold estates in the real property
described in the Final Prospectus as being leased by it
except for (i) liens for taxes not yet due and payable, (ii)
liens and encumbrances that are contemplated by the Senior
Credit Facility, (iii) liens, claims, encumbrances and
restrictions that do not materially interfere with the use
made and proposed to be made of such properties (including,
without limitation, purchase money mortgages), and (iv) to
the extent the failure to have such title or the existence
of such liens, claims, encumbrances and restrictions would
not reasonably be expected to have a Material Adverse Effect.
(xviii) Neither the Company nor any of its subsidiaries
is involved in any labor dispute nor, to the best of the
knowledge of the Company and its subsidiaries, is any labor
dispute threatened which, if such dispute were to occur, would
reasonably be expected to have a Material Adverse Effect.
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(xix) The Company and each of its subsidiaries
maintain insurance insuring against such losses and risks as
the Company reasonably believes is adequate to protect the
Company and each of its subsidiaries and their respective
businesses, except where the failure to maintain such
insurance would not reasonably be expected to have a Material
Adverse Effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in
all material respects; and there are no claims by the Company
or any of its subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or
defending under a reservation of rights clause that would
reasonably be expected to have a Material Adverse Effect; none
of the Company or its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the
Company nor any such subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue
its business at a cost that would not reasonably be expected
to have a Material Adverse Effect whether or not arising from
transactions in the ordinary course of business, except as
set forth in the Final Prospectus (exclusive of any
supplement thereto).
(xx) Under the current laws and regulations of Bermuda,
all dividends and other distributions declared and payable on
the Securities may be paid by the Company to the holder
thereof in United States dollars that may be freely
transferred out of Bermuda and all such payments made to
holders thereof who are non-residents of Bermuda will not be
subject to income, withholding or other taxes under the laws
or regulations of Bermuda and will otherwise be free of any
other tax, duty, withholding or deduction in Bermuda and
without the necessity of obtaining any governmental
authorization in Bermuda.
(xxi) Each of the Company and its subsidiaries
possesses all licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made
all declarations and filings with, all appropriate federal,
state, local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals, presently required or necessary to own or lease, as
the case may be, and to operate their respective properties
and to carry on the business of the Company and its
subsidiaries as now conducted as set forth in the Final
Prospectus, the lack of which would, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect ("Permits"); each of the Company and its subsidiaries
has fulfilled and performed all of its obligations with
respect to such Permits and, to the best knowledge of the
Company, no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination
thereof or results in any other impairment of the rights of
the holder of any such Permit, except where the failure to
fulfill or perform such obligations or such impairment, would
not, individually or in the aggregate, reasonably
8
be expected to have a Material Adverse Effect; and none of
the Company or its subsidiaries has received any notice of
any proceeding relating to revocation or modification of any
such Permit except where such revocation or modification
would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xxii) Each of the Company and its subsidiaries
maintain a system of internal accounting controls sufficient
to provide reasonable assurance that transactions are recorded
as necessary to permit preparation of consolidated financial
statements in conformity with United States generally
accepted accounting principles. The Company maintains
disclosure controls and procedures (as such term is defined
in Rule 13a-14 under the Exchange Act) that are effective in
ensuring that information required to be disclosed by the
Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the rules and forms of
the Commission, including, without limitation, controls and
procedures designed to ensure that information required to
be disclosed by the Company in the reports that it files or
submits under the Exchange Act is accumulated and
communicated to the Company's management, including its
principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow timely
decisions regarding required disclosure.
(xxiii) The Company has not taken, directly or
indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(xxiv) Except as would not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect, to the knowledge of the Company and its
subsidiaries, the Company and its subsidiaries are in
compliance with all applicable existing federal, state, local
and foreign laws and regulations relating to the protection of
human health or the environment or imposing liability or
requiring standards of conduct concerning any Hazardous
Materials ("Environmental Laws"). The term "Hazardous
Material" means (a) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (b) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act, as
amended, (c) any petroleum or petroleum product, (d)
any polychlorinated biphenyl and (e) any pollutant or
contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the
meaning of any other Environmental Law. None of the
Company or its subsidiaries has received any written notice
and there is no pending or, to the best knowledge of the
Company and its subsidiaries, threatened action,
9
suit or proceeding before or by any court or governmental
agency or body alleging liability (including, without
limitation, alleged or potential liability for investigatory
costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or
penalties) of the Company or any of its subsidiaries arising
out of, based on or resulting from (i) the presence or release
into the environment of any Hazardous Material at any location
owned by the Company or any subsidiary of the Company, or
(ii) any violation or alleged violation of any Environmental
Law, in either case (x) which alleged or potential liability
would be required to be described in the Registration
Statement under the Act, or (y) which alleged or potential
liability would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(xxv) None of the Company or its subsidiaries has any
material liability for any prohibited transaction or funding
deficiency or any complete or partial withdrawal liability
with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), to which it makes or ever
has made a contribution and in which any employee of it is or
has ever been a participant. With respect to such plans,
each of the Company and its subsidiaries is in compliance in
all material respects with all applicable provisions of
ERISA. In addition, the Company has caused (i) all pension
schemes maintained by or for the benefit of any of its
subsidiaries organized under the laws of England and Wales
or any of its employees to be maintained and operated in
all material respects in accordance with all applicable laws
from time to time and (ii) all such pension schemes to
be funded in accordance with the governing provisions of such
schemes, except to the extent failure to do so would
not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(xxvi) The subsidiaries listed on Schedule IV attached
hereto are the only significant subsidiaries of the Company as
defined by Rule 1-02 of Regulation S-X (the "Subsidiaries").
(xxvii) The Company and each of its subsidiaries own or
possess adequate licenses or other rights to use all patents,
patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations,
copyrights, licenses and know-how (including, without
limitation, trade secrets and other unpatented and/or
unpatentable proprietary or confidential information,
systems or procedures) and copyrights necessary to conduct the
business described in the Final Prospectus, except where the
failure to own or possess or have the ability to acquire any
of the foregoing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and
none of the Company or its subsidiaries has received any
notice of infringement of or conflict with asserted rights of
others with respect to any patents, trademarks, service marks,
trade names or copyrights which, if such
10
assertion of infringement or conflict were sustained, would
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xxviii) None of the Company or its subsidiaries or its
or their properties or assets has any immunity from the
jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) under the laws
of the United States, the United Kingdom or Bermuda.
(xxix) To ensure the legality, validity,
enforceability and admissibility into evidence of each of
this Agreement, the Securities and any other document to be
furnished hereunder in Bermuda, it is not necessary that
this Agreement, the Securities or such other document be
filed or recorded with any court or other authority in
Bermuda or any stamp or similar tax be paid in Bermuda on or
in respect of this Agreement, the Securities or any such
other document except that (i) the consent of the Authority
is required for the sale and subsequent transferability
of the Securities and the Company has applied for such
consent; and (ii) the Final Prospectus is required to be and
has been filed with the Registrar of Companies in
Bermuda pursuant to Part III of the Companies Act 1981
of Bermuda.
(xxx) The Company has duly and irrevocably appointed
William P. Bowden, Jr., Willis Group Holdings Limited, 7
Hanover Square, New York, New York, 10004, as its agent to
receive service of process with respect to actions arising out
of or in connection with (i) this Agreement; and (ii)
violations of United States federal securities laws relating
to offers and sales of the Securities.
(xxxi) Under Bermuda law the Underwriters 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 to which they are a party or the transactions
contemplated hereby. It is not necessary under Bermuda law
that the Underwriters be authorised, licensed, qualified or
otherwise entitled to carry on business in Bermuda for their
execution, delivery, performance or enforcement of this
Agreement.
(xxxii) A final and conclusive judgment of a court
located outside Bermuda against the Company based upon this
Agreement (other than a court of jurisdiction to which The
Judgments (Reciprocal Enforcement) Act, 1958 applies, and it
does not apply to the federal and state courts of the Borough
of Manhattan in New York City) under which a sum of money
is payable (not being a 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
11
Court of Bermuda under the common law doctrine of obligation
by action on the debt evidenced by the judgment of such court
located outside Bermuda.
(xxxiii) Approximately 6,750,000 of the 8,100,000
currently outstanding shares of Common Stock held by
directors, officers and other employees (including former
employees) of the Company or its subsidiaries, and all shares
of Common Stock that will be issued pursuant to any employee
stock option plan, stock ownership plan, stock purchase plan,
dividend reinvestment plan or other employee or director
benefit plan (other than the shares held pursuant to the 2001
Share Purchase and Option Plan, Employee Stock Purchase Plan
and Sharesave Plan) of the Company to, or that will be issued
upon the exercise of options by, such directors, officers or
other employees of the Company or its subsidiaries (the
"Management Shares") are subject to the provisions of various
Management and Employee Shareholders' and Subscription
Agreements (the "Management Registration Rights Agreement"),
true and complete copies of which have been provided to
the Representatives prior to the date of this Agreement;
pursuant to the Management Registration Rights Agreement,
no officer or other employee is permitted to sell, transfer,
assign, pledge or hypothecate its shares of Common
Stock prior to the sixth anniversary of the date such officer
or other employee purchased shares (except that he may
sell his shares under an effective registration statement or
pursuant to sale participation rights at the time Overseas
sells its shares; it being understood that the Company
intends to release from the Management Transfer Restrictions
(as defined below), effective thirty days after the date of
this Agreement, such portion of his shares as is equal to the
number of shares he would have been permitted to include in
the Registration Statement, pursuant to the Management
Registration Rights Agreement), and, in any event, prior to
the 90th day following the sale of the Securities as
contemplated hereby, in each case without the prior written
consent of the Company (the "Management Transfer
Restrictions"); and prior to the date of this Agreement the
shares of Common Stock held by Overseas and Fisher Capital,
together with the Management Shares beneficially owned as of
the date of this Agreement, comprise 44.1% of the issued
Common Stock.
Any certificate signed by any officer of the Company
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
(b) Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, each Underwriter that:
12
(i) Such Selling Stockholder is the record owner of
the Securities to be sold by it hereunder free and clear of
all liens, encumbrances, equities and claims and has duly
endorsed such Securities in blank.
(ii) Such Selling Stockholder has not taken, directly
or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(iii) No consent, approval, authorization, filing,
order, registration or qualification of or with any court or
governmental agency or body is required for the sale of the
Securities by such Selling Stockholder, except (1) that (i)
the consent of the Authority is required and has been obtained
for the sale and subsequent transferability of the Securities;
and (ii) the Final Prospectus is required to be and has been
filed with the Registrar of Companies in Bermuda pursuant to
Part III of the Companies Act 1981 of Bermuda; (2) such as
have been obtained under the Act; and (3) such as may be
required under the Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated
herein and in the Final Prospectus.
(iv) Neither the sale of the Securities being sold by
such Selling Stockholder nor the fulfillment of the terms
hereof by such Selling Stockholder will conflict with, result
in a breach or violation of, or constitute a default under any
law or, if applicable, the charter or by-laws of such Selling
Stockholder or the terms of any indenture or other agreement
or instrument to which such Selling Stockholder or, if
applicable, any of its subsidiaries, is a party or bound, or
any judgment, order or decree applicable to such Selling
Stockholder or, if applicable, any of its subsidiaries, of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over such Selling
Stockholder or, if applicable, any of its subsidiaries.
(v) The sale of Securities by such Selling Stockholder
pursuant hereto is not prompted by any information concerning
the Company or any of its subsidiaries which is not set forth
in the Final Prospectus or any supplement thereto.
(vi) In respect of any statements in or omissions from
the Registration Statement or the Final Prospectus or any
supplements thereto, in each case made in reliance upon and
in conformity with information furnished in writing to the
Company by such Selling Stockholder specifically for use in
connection with the preparation thereof, such statements
comply in all material respects with the applicable
requirements of the Act and the rules thereunder; and on the
Effective Date, at the Execution Time, on the date of any
filing of the Final
13
Prospectus pursuant to Rule 424(b) and on the Closing Date
and any settlement date, such statements did not or will not
contain any untrue statement of a material fact or omit
to state any material fact required to be stated
therein or necessary in order to make the statements
therein not misleading.
Any certificate signed by any Selling Stockholder and, if
applicable, any officer of any Selling Stockholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, each
Selling Stockholder agrees to sell to the several Underwriters the amount of
Underwritten Securities set forth opposite such Selling Stockholder's name in
Schedule II hereto, and each Underwriter agrees, severally and not jointly, to
purchase from each Selling Stockholder, at a purchase price of $29.915 per
share, such selling Stockholder's proportionate share of the amount of the
Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Selling Stockholders
hereby grant an option to the several Underwriters to purchase, severally and
not jointly, up to 2,152,610 Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the Final Prospectus upon written or telegraphic notice by
the Representatives to the Selling Stockholders setting forth the number of
shares of the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The maximum number of Option
Securities which each Selling Stockholder agrees to sell is set forth in
Schedule II hereto. In the event that the Underwriters exercise less than their
full over-allotment option, the number of Option Securities to be sold by each
Selling Stockholder listed in Schedule II shall be, as nearly as practicable,
in the same proportion as the maximum number of Option Securities to be sold by
each Selling Stockholder and the number of Option Securities to be sold.
The number of Option Securities to be purchased by each Underwriter shall be
the same percentage of the total number of shares of the Option Securities to
be purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 10:00 AM, New York
City time, on May 6, 2003, or at such time on
14
such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Selling Stockholders or as
provided in Section 9 hereof (such date and time of delivery and payment for
the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the aggregate purchase price of the Securities being
sold by each of the Selling Stockholders to or upon the order of such Selling
Stockholder by wire transfer payable in same-day funds to an account specified
by such Selling Stockholder. Delivery of the Underwritten Securities and the
Option Securities shall be made through the facilities of The Depository Trust
Company unless the Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters
of the Securities to be purchased by them from such Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved
in further transfers.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Selling
Stockholders will deliver the Option Securities (at the expense of the Company)
to the Representatives, at Eleven Madison Avenue, New York, New York 10010, on
the date specified by the Representatives (which shall be within three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of each of
the Selling Stockholders by wire transfer payable in same-day funds to an
account specified by such Selling Stockholder. If settlement for the Option
Securities occurs after the Closing Date, the Company and the Selling
Stockholders will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Final Prospectus.
5. Agreements. (a) The Company agrees with the several
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time, and any amendment thereof, to become effective. Prior
to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has
furnished you a copy for
15
your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the
Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective,
(2) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when,
prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed
or become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement
to the Final Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for
that purpose and (6) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company will
(1) promptly notify the Representatives of any such event,
(2) as soon as practicable, prepare and file with the
Commission, subject to the second sentence of paragraph
(a)(i) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such
compliance; and (3) thereafter, promptly supply any
supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will
16
satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives
and counsel for the Underwriters signed copies of the
Registration Statement (including exhibits thereto) and to
each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Prospectus and the
Final Prospectus and any supplement thereto as the
Representatives may reasonably request.
(v) The Company will cooperate with you and counsel
for the Underwriters in connection with the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may designate and will maintain such
qualifications in effect so long as required for the
distribution of the Securities; 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 service of process in
suits, other than those arising out of the offering or sale of
the Securities, or taxation in any jurisdiction where it is
not now so subject.
(vi) The Company will not, without the prior written
consent of Banc of America Securities LLC, Credit Suisse First
Boston LLC and J.P. Morgan Securities Inc., (1) offer, sell,
contract to sell, pledge, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of
the Company or any person in privity with the Company or any
affiliate of the Company), directly or indirectly, or
establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any shares of Common Stock or
any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; (2) publicly
announce an intention to effect any such transaction; or (3)
amend, waive or fail to enforce the Management Transfer
Restrictions in respect of the Management Shares (except that
after the expiration of 30 days from the date of this
Agreement the Company may waive such Management Transfer
Restrictions with respect to up to an aggregate of
approximately 2,165,000 shares of Common Stock); in the case
of clauses (1), (2), or (3) for a period of 90 days after
the date of this Agreement; provided, however, that the
Company may (w) issue and sell Common Stock and options
pursuant to any employee stock option plan, stock ownership
stock purchase plan, dividend reinvestment plan or other
employee or director benefit plan of the Company existing on
the date hereof and described in the Final Prospectus (upon
the terms of such plan as described in the Final Prospectus),
(x) issue Common Stock issuable upon the exercise of options
outstanding on the date hereof pursuant to
17
any such plans, (y) issue Common Stock as consideration in
connection with the acquisition by the Company or any of its
subsidiaries of any person (including broker teams) or assets
and, in connection therewith, file a registration statement
with the Commission, provided that in the case of this clause
(y), such registration statement does not become effective
prior to the expiration of the 90 day period set forth
above and each recipient of such Common Stock agrees to sign
a lock-up letter having restrictions similar to those
set forth in Section 5(b)(i) hereof for the remainder of such
90 day period and (z) file one or more shelf registration
statements with the Commission relating to shares of Common
Stock to be offered in the future, provided that no offers or
sales of shares registered pursuant to such shelf registration
statements may be made prior to the expiration of the 90 day
period set forth above.
(vii) The Company will not take, directly or
indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(viii) The Company agrees to pay the costs and
expenses relating to the following matters: (1) the
preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus,
the Final Prospectus, and each amendment or supplement to any
of them; (2) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Final Prospectus,
and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (3) the preparation,
printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or
transfer taxes in connection with the original sale by the
Selling Stockholders to the Underwriters of the Securities;
(4) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements
or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (5) the
registration of the Securities under the Exchange Act and the
listing of the Securities on the New York Stock Exchange;
(6) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees
and expenses of one counsel for the Underwriters relating to
such registration and qualification); (7) any filings required
to be made with the National Association of Securities
Dealers, Inc. (including filing fees and the reasonable fees
and expenses of one counsel for the Underwriters relating to
such filings); (8) one-half of the aircraft costs; and all
other transportation and other expenses incurred by or on
behalf of Company
18
representatives in connection with presentations to prospective
purchasers of the Securities; (9) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company and the
Selling Stockholders, as previously agreed; and (10) all other
costs and expenses incurred by the Company that are incidental
to the performance by the Company or the Selling Stockholders
of their obligations hereunder.
(b) Each Selling Stockholder agrees with the several
Underwriters that:
(i) Such Selling Stockholder will not, without the
prior written consent of Banc of America Securities LLC,
Credit Suisse First Boston LLC and J.P. Morgan Securities
Inc., offer, sell, contract to sell, pledge or otherwise
dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by
such Selling Stockholder or any affiliate of such Selling
Stockholder or any person in privity with such Selling
Stockholder or any affiliate of such Selling Stockholder),
directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act
with respect to, any shares of capital stock of the Company
or any securities convertible into or exercisable or
exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period
of 90 days after the date of the Underwriting Agreement,
other than shares of Common Stock (i) disposed of as bona
fide gifts approved by Banc of America Securities LLC, Credit
Suisse First Boston LLC and J.P. Morgan Securities Inc.,
(ii) transferred by such Selling Stockholder to its affiliates
who agree to be bound by the terms hereof and (iii)
transferred by such Selling Stockholder to bona fide family
members or trusts who agree to be bound by the terms hereof.
Notwithstanding the foregoing, nothing in this clause (i)
shall prohibit such Selling Stockholder from filing (or
participating in the filing of) one or more shelf registration
statements with the Commission relating to shares of capital
stock of the Company to be offered in the future, provided
that no offers or sales of shares registered pursuant to such
shelf registration statements may be made prior to the
expiration of the 90 day period set forth above.
(ii) Such Selling Stockholder will not take, directly
or indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(iii) Such Selling Stockholder will advise you
promptly, and if requested by you, will confirm such advice in
writing, so long as delivery of a prospectus relating to the
Securities by an underwriter or dealer may
19
be required under the Act, of any change in information in the
Registration Statement or the Final Prospectus relating to
such Selling Stockholder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on
the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City
time on such date or (ii) 9:30 AM on the Business Day following the
day on which the public offering price was determined,
if such determination occurred after 3:00 PM New York City time on
such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed
in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have requested and caused Simpson
Thacher & Bartlett, U.S. counsel for the Company, to have furnished to
the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, in the form set forth on Annex A
hereto.
(c) Overseas shall have requested and caused each of Simpson
Thacher & Bartlett, U.S. counsel for Overseas, and Gowling Lafleur
Henderson LLP, Canadian counsel for Overseas, to have furnished to the
Representatives their opinion, each dated the Closing Date and
addressed to the Representatives in the form set forth on Annex A
hereto (in the case of the opinion of Simpson Thacher & Bartlett) and
in the form set forth on Annex B hereto (in the case of the opinion of
Gowling Lafleur Henderson LLP).
(d) Fisher Capital shall have requested and caused Simpson
Thacher & Bartlett, counsel for Fisher Capital, to have furnished to
the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, in the form set forth on
Annex B hereto.
20
(e) The Company shall have requested and caused Appleby
Spurling & Kempe, Bermuda counsel for the Company, to have furnished
to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, in the form set forth on
Annex C hereto.
(f) Oliver Goodinge, Esq., the Company's Assistant General
Counsel, shall have furnished to the Representatives his
opinion, dated the Closing Date and addressed to the
Representatives, in the form set forth on Annex D hereto.
(g) William P. Bowden, Jr., the Company's General Counsel,
shall have furnished to the Representatives his opinion, dated the
Closing Date and addressed to the Representatives, in the form
set forth on Annex E hereto.
(h) The Representatives shall have received from Cravath,
Swaine & Moore LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the
Representatives, with respect to the sale of the Securities,
the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and
each Selling Stockholder shall have furnished to such counsel
such documents as they request for the purpose of enabling
them to pass upon such matters.
(i) The Company shall have furnished to the Representatives
a certificate of the Company, signed by Thomas Colraine and
William P. Bowden, Jr., Esq., dated the Closing Date, to the
effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any
supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of
any supplement thereto), there has been no event or
development that has had, or that would reasonably be
expected to have, a Material Adverse Effect.
(j) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by its principal financial or
accounting officer, general partner or managing member, dated the
Closing Date, to the effect that the representations and warranties
of such Selling Stockholder in this Agreement are true and correct
21
in all material respects on and as of the Closing Date to the same
effect as if made on the Closing Date.
(k) The Company shall have requested and caused Deloitte &
Touche LLP to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters, dated respectively as
of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act
and the applicable rules and regulations adopted by the
Commission thereunder, and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and audit
committee of the Company and the Subsidiaries and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 2002, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects
with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to registration statements on
Form S-3; and said unaudited financial statements
are not in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to
December 31, 2002, there were any changes, at a
specified date not more than five days prior to the
date of the letter and excluding any charge for
performance-based stock options booked after
December 31, 2002, in the total long-term debt of the
Company and its subsidiaries or capital stock of the
Company or decreases in the total stockholders' equity
of the Company as compared with the
22
amounts shown on the December 31, 2002
consolidated balance sheet included in the
Registration Statement and the Final Prospectus, or
for the period from January 1, 2003 to such specified
date, excluding the charge force performance-based
stock options, there were any decreases, as compared
with the corresponding period in the preceding year,
in total revenues, net income, operating income or
basic and diluted net earnings per share, except in
all instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated
by reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
(4) the unaudited income statement and balance
sheet data included in the Final Prospectus under the
heading "Prospectus Supplement Summary - Recent
Financial Results" do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included in the Registration Statement
and the Final Prospectus; and
(iii) they have performed certain other
specified procedures as a result of which they determined
that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial
or statistical information derived from the general
accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus
that has previously been identified to you agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (k)
include any supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have
been (i) any change or decrease specified in the letter or letters
referred to in paragraph (k) of this Section 6 or (ii) any change, or
any development that can be expected to have a material adverse effect
on the
23
condition (financial or otherwise), business or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in the Final Prospectus (exclusive of
any supplement thereto) the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(m) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
customary information, certificates and documents as the
Representatives may reasonably request.
(n) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of debt securities of the Company or
any of its subsidiaries by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act) 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.
(o) The Company shall have furnished to the
Representatives, in each case effective as of the Execution Time, a
letter substantially in the form of Exhibit A hereto (each a
"Lock-up Letter") and addressed to the Representatives from each
person listed on Schedule V.
(p) Prior to the Closing Date, the Company shall have
obtained the consent and approval of the Authority for the sale and
subsequent transferability of the Securities.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company and
the Selling Stockholders in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore LLP, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York,
10019-7475 on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
because of any refusal, inability
24
or failure on the part of the Company or any Selling Stockholder to perform
any agreement herein or comply with any provision hereof other than by reason
of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Credit Suisse First Boston LLC on
demand accompanied by reasonable supporting documentation for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. If the Company is required to make any payments to
the Underwriters under this Section 7 because of any Selling Stockholder's
refusal, inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, such Selling Stockholder shall reimburse
the Company on demand for all amounts so paid.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other foreign,
federal, state or statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise outof or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein, it being understood and
agreed that the only such information is that described in Section 8(c) hereof;
provided, further, that with respect to any untrue statement or omission of
material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall be determined by a court of competent jurisdiction by final and
non-appealable judgment that (i) the Company had previously furnished copies of
the Final Prospectus to the Representatives, (ii) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Final Prospectus and (iii) such loss, claim, damage or
liability results from the fact that there was not sent or given to such person
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of
25
the Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Selling Stockholder severally and not jointly agrees
to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
the Company or any Underwriter within the meaning of either the Act or the
Exchange Act and each other Selling Stockholder, if any, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for inclusion in the documents referred
to in the foregoing indemnity; and such indemnity will be limited to an amount
equal to the aggregate gross proceeds, net of the underwriting discounts,
received by such Selling Stockholder from the sale of the Securities to the
Underwriters. This indemnity agreement will be in addition to any liability
which any Selling Stockholder may otherwise have. Each Underwriter acknowledges
that the name of each Selling Stockholder and the number of securities each
Selling Stockholder is offering constitute the only information furnished in
writing by or on behalf of each of the Selling Stockholders for inclusion in
any Preliminary Prospectus of the Final Prospectus.
(c) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act and each
Selling Stockholder, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company and each Selling Stockholder acknowledge that the statements set forth
in the last paragraph of the cover page regarding delivery of the Securities
and, under the heading "Underwriting", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the third
paragraph, (iii) the ninth, tenth and eleventh paragraphs related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and (iv) the sixteenth paragraph relating to electronic
prospectuses and the Final Prospectus, constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Final Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any
26
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party' expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of an
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company, each of the Selling
Stockholders and the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company, each of the Selling Stockholders and one or
more of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company, by each of the Selling
Stockholders and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall (i) any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company, each of the Selling
Stockholders and the Underwriters shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, of each of the Selling Stockholders and of the
Underwriters in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable
27
considerations. Benefits received by the Company and/or by each of the
Selling Stockholders shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by such Selling Stockholder,
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company, such Selling
Stockholder or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, each of the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the aggregate gross proceeds, net of
underwriting discounts, received by such Selling Stockholder from the sale of
the Securities to the Underwriters. The Company and the Selling Stockholders may
agree, as among themselves and without limiting the rights of the Underwriters
under this Agreement, as to the respective amounts of such liability for which
they each shall be responsible.
(g) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any failure or alleged failure by the
Company to comply with the terms of the Consortium Registration Rights
Agreement, the Profit Sharing Registration Rights Agreement or the Management
Registration Rights Agreement in connection with the transactions contemplated
by this Agreement.
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter
28
or Underwriters hereunder and such failure to purchase shall constitute a
default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter, the Selling Stockholders or the Company. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company, the Selling Stockholders and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company and the Selling Stockholders prior to delivery of and payment for the
Securities, if (a) at any time subsequent to the execution and delivery of this
Agreement and prior to such time (i) trading in the Company's Common Stock shall
have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States or the United Kingdom of a
national emergency or war, or other calamity or crisis that is material and
adverse and (b) in the case of any of the events specified in clauses 10(a)(i)
through 10(a)(iii), the effect of such event, singly or together with any other
such event, makes it, in the judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers, of each Selling Stockholder and of the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Selling Stockholder or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
29
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Credit Suisse First Boston LLC
Transaction Advisory Group (fax no.: (212) 325-4296) and confirmed to Credit
Suisse First Boston LLC, at Eleven Madison Avenue, New York, New York 10010,
Attention: Transaction Advisory Group; if sent to the Company, will be mailed,
delivered or telefaxed to 44(0)20 7481 7183 and confirmed to it at Ten Trinity
Square, London, England, EC3P 3AX, Attention: Corporate Secretary; or if sent
to the Selling Stockholders, will be mailed, delivered or telefaxed to each of
the addresses or telefax numbers set forth in Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York. The Company
and each Selling Stockholder hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in New York City in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a)(i) above contained in the Registration Statement at the
Effective Date including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Consortium" shall mean Axa Insurance UK plc, Axa General
Insurance Group plc, Royal & Sun Alliance Insurance Group plc, The Chubb
Corporation, The
30
Hartford Financial Services Group, Inc., Travelers Casualty
and Surety Company and The Tokio Marine and Fire Insurance Co., Limited.
"Consortium Registration Rights Agreement" shall mean the
Registration Rights Agreement dated July 21, 1998, among the Company and the
Consortium, as amended prior to the date of this Agreement.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus.
"Management Registration Rights Agreement" shall mean the
Management and Employee Shareholders' and Subscription Agreements dated
December 18, 1998, May 7, 1999, December 20, 1999, July 6, 2000, July 13, 2000,
October 5, 2000, October 15, 2000, December 29, 2000 and January 19, 2001
among TA I Limited, Mourant & Co. Trustees Limited and certain management
members of TA I Limited and its subsidiaries, as amended prior to the date of
this Agreement.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Profit Sharing Registration Rights Agreement" shall mean the
Registration Rights Agreement dated December 18, 1998 between TA I Limited and
Overseas, as amended prior to the date of this Agreement.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a)(i) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
31
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section
1(a)(i) hereof.
"Senior Credit Facility" shall mean the Credit Agreement,
dated as of July 22, 1998, and amended and restated as of February 19, 1999 and
amended as of January 1, 2001, among Willis Corroon Corporation, as borrower,
Willis Corroon Group Limited and Trinity Acquisition plc, as guarantors, the
Lenders thereunder and JPMorgan Chase Bank (as successor to the Chase Manhattan
Bank), as administrative agent and collateral agent.
32
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
WILLIS GROUP HOLDINGS LIMITED
by
-----------------------------------
Name:
Title:
PROFIT SHARING (OVERSEAS), LIMITED
PARTNERSHIP,
by KKR 1996 FUND (OVERSEAS),
LIMITED PARTNERSHIP, its
general partner
by KKR ASSOCIATES II (1996),
LIMITED PARTNERSHIP, its
general partner,
by KKR 1996 OVERSEAS, LIMITED,
its general partner,
by
------------------------------------
Name:
Title:
FISHER CAPITAL CORP. L.L.C.
by
-------------------------------------
Name:
Title:
33
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Banc of America Securities LLC
Credit Suisse First Boston LLC
J.P. Morgan Securities Inc.
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
Morgan Stanley & Co.
Incorporated UBS Warburg LLC
by Credit Suisse First Boston LLC
by
------------------------------------
Name:
Title:
For itself and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
34
SCHEDULE I
Number of Underwritten
Underwriters Securities to be Purchased
- ------------ --------------------------
Banc of America Securities LLC......................................3,401,125
Credit Suisse First Boston LLC......................................3,401,125
J.P. Morgan Securities Inc..........................................3,401,125
Citigroup Global Markets Inc. ......................................2,125,702
Merrill Lynch, Pierce, Fenner & Smith Incorporated..................2,125,702
Morgan Stanley & Co. Incorporated...................................1,275,420
UBS Warburg LLC.....................................................1,275,420
Cochran, Caronia Securities LLC.......................................645,783
Dowling & Partners Securities, LLC....................................645,783
Fox-Pitt, Kelton Inc..................................................645,783
Janney Montgomery Scott LLC...........................................645,783
Keefe, Bruyette & Woods, Inc..........................................645,783
Neuberger Berman, LLC.................................................645,783
Sandler O'Neill & Partners, L.P.......................................645,783
-----------
Total: ............................................................21,526,100
===========
35
SCHEDULE II
Maximum Number
Number of Underwritten of Option
Selling Stockholders: Securities to be Sold Securities to be Sold
-------------------- ---------------------- -----------------------
Profit Sharing (Overseas), Limited Partnership 21,387,008 2,138,701
Ugland House
P.O. Box 309
George Town, Grand Cayman
Cayman Islands, B.W.I.
Fax: (212) 750-0003
Fisher Capital Corp. L.L.C. 139,092 13,909
8 Clarke Drive
Cranbury, NJ 08512
Fax: (609) 409-1235
Total:................................ 21,526,100 2,152,610
========== =========
36
SCHEDULE III
Company Name Percentage Owned
- ------------ ----------------
BERAG Beratungsgesellschaft fur betriebliche 51
Altersversorgung und Vergutung GmbH
C Wuppesahl Finanzversicherungsmakler GmbH 74.5
HEIM-CONCEPT Versicherungsmakler GmbH 52
Venture Reinsurance Limited 90
Willis SA 60
Willis Faber Chile Corresdores de Reaseguro Limitada 99
Willis Correa Insurance Services S.A. 80
Willis Colombia Corresdores de Seguros S.A. 51
Willis Kft 80
Willis Italia Holding S.r.l. 66.67
Willis Italia S.p.A 66.67
Willis RE Italia S.p.A 66.67
Willis Agente de Seguros y Fianzas, S.A. de C.V. 51
Rontarca-Prima Consultores C.A. 51
Rontarca Prima, Willis, C.A. 51
Plan Administrativo Rontarca Salud, C.A. 51
Asesor Auto 911, C.A. 51
C.A. Prima 51
Willis New Zealand Limited 99
Willis AS 50.1
Willis Polska S.A. 70
Willis South Africa Pty Limited 70
Bolgey Holding S.A. 60
Willis Iberia Correduria de Seguros Y Reaseguros SA 50.76
Willis Corretores de Seguros SA 50.76
Willis ANDAL Correduria de Seguros y Reaseguros SA 50.76
Willis AB 80.34
Willis EB AB 74.72
Willis i Orebro AB 80.34
UlfoRenee Forsakring AB 80.34
Kombro Risk Management 80.34
Kombro Forsakringsmaklare AB 80.34
37
SCHEDULE IV
Significant Subsidiaries:
Willis Group Limited
Willis Limited
Willis North America Inc.
Willis Faber Limited
38
SCHEDULE V
1. Joseph J. Plumeri, Chairman, Chief Executive Officer and Director
2. Henry R. Kravis, Director
3. George R. Roberts, Director
4. Perry Golkin, Director
5. Todd A. Fisher, Director
6. Scott C. Nuttall, Director
7. James R. Fisher, Director
8. Senator William Bradley, Director
9. Douglas B. Roberts, Director
10. Paul M. Hazen, Director
11. Frederick Arnold, Group Executive Vice President, Strategic Development
12. William P. Bowden, Jr., Group General Counsel
13. Richard J. S. Bucknall, Group Chief Operating Officer
14. Thomas Colraine, Group Chief Financial Officer
15. Janet Coolick, Group Chief Administrative Officer
16. Patrick Lucas, Executive Vice President; Managing Partner of Gras Savoye
17. Stephen G. Maycock, Group Human Resources Director
18. Joseph M. McSweeny, Chairman of Willis Risk Solutions--North America
19. Grahame J. Millwater, Chief Operating Officer of Global Markets
20. John M. Pelly, Chairman and Chief Executive Officer of Willis Re.
21. James A. Ratcliffe, Chief Executive of Global Specialties
22. Michael J. Sicard, Chief Operating Officer, Willis North America
23. Sarah J. Turvill, Chief Executive Officer of International operations
(excluding United Kingdom and North America)
39
24. Mario Vitale, Chief Executive Officer of Willis North America
40
[Letterhead of Company Shareholder]
Willis Group Holding Limited
Public Offering of Common Stock
April __, 2003
Banc of America Securities LLC
Credit Suisse First Boston LLC
J.P. Morgan Securities Inc.
As Representatives of the several Underwriters,
c/o J.P. Morgan Securities Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between Willis
Group Holdings Limited (the "Company"), certain selling stockholders and you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, par value $0.000115 per share (the
"Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of Banc of America Securities LLC, Credit Suisse First Boston
LLC and J.P. Morgan Securities Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement, other than shares of Common Stock disposed of as
bona fide gifts approved by Banc of America Securities LLC, Credit Suisse First
Boston LLC and J.P. Morgan Securities Inc.
Annex E
Notwithstanding the foregoing, it is agreed that the following
transfers are not subject to the restrictions set forth in this letter and may
be made without the consent of Banc of America Securities LLC, Credit Suisse
First Boston LLC and J.P. Morgan Securities Inc.:
(1) transfers by the undersigned to its affiliates who agree
to be bound by the terms hereof; and
(2) transfers by the undersigned to bona fide family members
or trusts who agree to be bound by the terms hereof.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
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[Signature of Company Shareholder]
[Name and address of Company
Shareholder]