EXECUTION COPY
XL CAPITAL LTD
EQUITY SECURITY UNITS
-------------
UNDERWRITING AGREEMENT
March 17, 2004
Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., and
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
as Representatives of the several
Underwriters named in the Pricing
Agreement hereinafter described
Ladies and Gentlemen:
From time to time XL Capital Ltd, a Cayman Islands exempted limited
company (the "Company"), proposes to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms named
in Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its Equity Security Units (the "Units"), with a
stated amount of $25, specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Units"). Each Unit will consist of
(a) a purchase contract pursuant to which the Company agrees to sell and the
holder agrees to buy Class A Ordinary Shares, par value $0.01 per share of the
Company ("Ordinary Shares") on May 15, 2007 (the "Purchase Contracts") and (b) a
1/40, or 2.5%, ownership interest in a senior note of the Company as identified
in the Pricing Agreement relating thereto (the "Underlying Notes") on the terms
set forth herein and in the Pricing Agreement. If specified in such Pricing
Agreement, the Company may grant to the Underwriters the right to purchase at
their election an additional number of Units, specified in such Pricing
Agreement as provided in Section 3 hereof (the "Optional Units"). The Firm Units
and the Optional Units, if any, which the Underwriters elect to purchase
pursuant to Section 3 hereof are herein collectively called the "Designated
Units".
The terms and rights of any particular issuance of Designated Units
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the agreement governing the Purchase Contracts (the "Purchase
Contract Agreement"), the indenture including the supplemental indenture
relating to the Underlying Notes (collectively, the "Indenture"), the Purchase
Contracts, the pledge
agreement (the "Pledge Agreement"), the Underlying Notes, and the remarketing
agreement (the "Remarketing Agreement"), each as identified in such Pricing
Agreement.
1. Particular sales of Designated Units may be made from time to time
to the Underwriters of such Units, for whom the firms designated as
representatives of the Underwriters of such Units in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Units or as an obligation of any
of the Underwriters to purchase any of the Units. The obligation of the Company
to issue and sell any of the Units and the obligation of any of the Underwriters
to purchase any of the Units shall be evidenced by the Pricing Agreement with
respect to the Designated Units specified therein. Each Pricing Agreement shall
specify the aggregate number of the Firm Units, the maximum number of Optional
Units, if any, the initial public offering price of such Firm and Optional Units
or the manner of determining such price, the purchase price to the Underwriters
of such Designated Units, the names of the Underwriters of such Designated
Units, the names of the Representatives of such Underwriters, the number of such
Designated Units to be purchased by each Underwriter and the commission, if any,
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Firm and Optional Units, if any, and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto) the terms of
the Underlying Notes and the Purchase Contracts of which the Designated Units
shall initially consist, interest rates, if any, and maturity of the Underlying
Notes, whether such Units or any of the securities of which the Designated Units
shall consist will be convertible at the option of the holder thereof, any
settlement rates or price(s), any redemption provisions and any sinking fund
requirements. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters, as of the date hereof, as of the date of the Pricing Agreement
with respect to any Designated Units and as of each Time of Delivery, that:
(a) The Company meets the requirements for use of Form S-3 under
the Act; and a registration statement on Form S-3 (File No 333-101288)
(the "Initial Registration Statement") in respect of the Units has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus included therein, to the Representatives for each of the
other Underwriters has been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated
by reference therein has heretofore been filed, or transmitted for
filing, with the Commission (other than the Company's Annual Report on
Form 10-K for the year ended December 31, 2003 incorporated by
reference into the Initial
2
Registration Statement and the prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act,
each in the form heretofore delivered to the Representatives); and no
stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) or Rule 424(b)
under the Act, including the related preliminary prospectus supplement
with respect to the Units), is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, at the time such part of the
Initial Registration Statement or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective
but excluding each Form T-1, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became effective and, as
amended, at the time each incorporated document was filed with the
Commission are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Units, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, including any
prospectus supplements thereto, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statement shall
be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Units in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement
3
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective
date, as of the date hereof and as of the date of execution of the
Pricing Agreement with respect to such Designated Units as to the
Registration Statement and any amendment thereto and as of the
applicable filing date and as of the Time of Delivery as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements in the
Registration Statement not misleading and the statements in the
Prospectus, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Units through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Units;
(d) Neither the Company nor any of its Significant Subsidiaries
(as defined below) has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus which loss or interference would have a Material Adverse
Effect (as defined below), or would reasonably be expected to have a
prospective Material Adverse Effect; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other
than changes resulting from the exercise of stock options or the
conversions of warrants or capital stock which were outstanding as of
such date, or from the exercise of options granted after such date in
the ordinary course of business or from repurchases of capital stock)
or long-term debt of the Company or any of its Significant Subsidiaries
or any material adverse change, or any development that would
reasonably be expected to involve a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its Significant Subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as an exempted limited company in good standing under the laws of the
Cayman Islands, with full power and authority to own its properties and
conduct its business as described in the Prospectus and has been duly
qualified as a foreign company for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, except where such failure to be so qualified in any
such jurisdiction or to have any such power or authority would not have
a material adverse effect on the current or future condition (financial
or other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole or the
4
transactions contemplated by this Agreement (a "Material Adverse
Effect"); and each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
(f) The Company had, on December 31, 2003, an authorized
capitalization as set forth in the Prospectus under the caption
"Actual" under the heading "Capitalization", and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; the
Ordinary Shares issuable pursuant to the terms of the Purchase
Contracts (the "Underlying Shares") have been duly and validly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of such Purchase Contracts, will be duly
and validly issued, fully paid and non-assessable; the stockholders of
the Company have no preemptive or similar rights with respect to such
Underlying Shares and no shareholder consents are required in
connection with the Company's issuance and sale of Ordinary Shares to
be issued pursuant to the Purchase Contracts; and the Underlying Shares
will conform in all material respects to the description thereof
contained in the Prospectus as amended or supplemented with respect to
the Designated Units;
(g) This Agreement has been duly authorized, executed and
delivered by the Company, and each Pricing Agreement has been duly
authorized by and, on the date thereof, will be duly executed and
delivered by the Company;
(h) Prior to the execution and delivery of the Pricing Agreement
relating to the Designated Units, each of the Purchase Contract
Agreement and the Pledge Agreement referred to therein shall have been
duly authorized by the Company; and, at the First Time of Delivery,
will be duly executed and delivered by the Company, and will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and remedies and to general
equity principles; and each of the Purchase Contract Agreement and the
Pledge Agreement will conform in all material respects, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to the Designated Units;
(i) Prior to the execution and delivery of the Pricing Agreement
relating to the Designated Units, the Remarketing Agreement referred to
therein shall have been duly authorized by the Company; and, when duly
executed and delivered by the Company, will constitute a valid and
legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting
creditors' rights and remedies and to general equity principles; and
the Remarketing Agreement will conform in all material respects, to the
description thereof contained in the Prospectus as amended or
supplemented with respect to the Designated Units;
(j) Prior to the execution and delivery of the Pricing Agreement
relating to the Designated Units, the Purchase Contracts included in
such Designated Units shall have been duly and validly authorized by
the Company and, at the First Time of Delivery will be duly
5
executed, authenticated and delivered in accordance with the related
Purchase Contract Agreement and paid for in accordance with the terms
of this Agreement and the Pricing Agreement and will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and remedies and to general equity principles; the
issuance of the Purchase Contracts is not subject to any preemptive or
similar rights; and the Purchase Contracts will conform in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented with respect to the Designated Units;
(k) Prior to the execution and delivery of the Pricing Agreement
relating to the Designated Units, the Underlying Notes included in such
Designated Units shall have been duly and validly authorized, and, when
such Underlying Notes are issued and delivered, such Underlying Notes
will have been duly executed, authenticated and delivered and will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and remedies
and to general equity principles and entitled to the benefits provided
by the Indenture;
(l) The Indenture is substantially in the form filed as an exhibit
to the Registration Statement; the Indenture has been duly authorized
by the Company and duly qualified under the Trust Indenture Act and, at
the Time of Delivery for such Underlying Notes (as defined in Section 4
hereof), will be duly executed and delivered by the Company and will
constitute a valid and legally binding instrument, enforceable against
the Company in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and remedies and to general equity
principles; and the Indenture and such Underlying Notes will conform,
in all material respects, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the Designated
Units;
(m) Prior to the execution and delivery of the Pricing Agreement
relating to the Designated Units, the Firm Units and any Optional Units
shall have been duly and validly authorized, and, when the Firm Units
are issued and delivered pursuant to the related Purchase Contract
Agreement, this Agreement and the Pricing Agreement with respect to
such Designated Units and, in the case of any Optional Units, pursuant
to each option to purchase additional units (as described in Section 3
hereof) with respect to such Units, such Designated Units will be duly
and validly executed, authenticated and delivered and will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and remedies and to general
equity principles and entitled to the benefits provided by such
Purchase Contract Agreement; the Designated Units and the Underlying
Shares will be duly registered under the Exchange Act and will be
authorized for listing on the New York Stock Exchange subject to
official notice of issuance, in each case, prior to the First Time of
Delivery; and the Designated Units will
6
conform in all material respects to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Units;
(n) The issue and sale of the Units, the Underlying Notes and the
Underlying Shares, the execution and delivery of this Agreement and any
Pricing Agreement and the compliance by the Company with all of the
provisions of this Agreement, any Pricing Agreement, the Remarketing
Agreement, the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, the Purchase Contracts, the Units and each option to
purchase additional units (as described in Section 3 hereof), if any,
and the consummation of the transactions contemplated herein and
therein will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Articles of Association or the Memorandum of Association (or
similar organizational documents) of the Company or any of its
Significant Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body ("Governmental
Agency") having jurisdiction over the Company or any of its Significant
Subsidiaries or any of its properties except in each case (other than
with respect to such Articles of Association or Memorandum of
Association (or similar organizational documents)) for such conflicts,
violations, breaches or defaults which would not result in a Material
Adverse Effect;
(o) No consent, approval, authorization, order, filing,
registration or qualification of or with any such Governmental Agency
(a "Governmental Authorization") is required for the issue and sale by
the Company of the Units or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or
any option to purchase Optional Units, or the Indenture, or the
Remarketing Agreement, or the Purchase Contract Agreement, or the
Purchase Contracts, or the Pledge Agreement, except such as have been,
or will have been prior to each Time of Delivery (as defined in Section
4 hereof), obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Units by the Underwriters and
other filings, if any, required to be made under the New York Uniform
Commercial Code to perfect the Company's security interest as
contemplated by the Pledge Agreement and the filing of any registration
statements required in connection with the remarketing of the
Underlying Notes as contemplated by the Purchase Contract Agreement;
(p) All of the issued share capital of each Significant Subsidiary
of the Company which is a corporation has been duly and validly
authorized and issued, is fully paid and non-assessable and (except for
directors' qualifying shares) is owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
(for purposes of this agreement, "Subsidiary" means, as applied to any
person, any corporation, limited or general partnership, trust,
association or other business entity of which an aggregate of greater
than 50% of the outstanding Voting Shares of such person is, at any
time, directly or indirectly, owned by such person and/or one or more
subsidiaries of such person and "Significant Subsidiary" shall have the
meaning of "significant subsidiary" as set forth in Regulation S-X
under the Act; for purposes of the definition of " Subsidiary," "Voting
Shares" means, with
7
respect to any corporation, the capital stock having the general voting
power under ordinary circumstances to elect at least a majority of the
board of directors (irrespective of whether or not at the time stock of
any other class or classes shall have or might have voting power by
reason of the happening of any contingency));
(q) None of the transactions contemplated to be performed by the
Company by this Agreement (including, without limitation, the use of
the proceeds from the sale of the Designated Units) will violate or
result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(r) Prior to the date hereof, neither the Company nor, to the
Company's knowledge, any of its affiliates has taken any action which
is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the
price of any security of the Company in connection with the offering of
the Designated Units in violation of the Exchange Act;
(s) Other than as set forth or incorporated by reference in the
Prospectus, or as encountered in the ordinary course of business in the
Company's claims activities, there are no legal or governmental
actions, suits or proceedings pending to which the Company or any of
its Significant Subsidiaries is a party or of which any property of the
Company or any of its Significant Subsidiaries is the subject, which
would individually or in the aggregate reasonably be expected to have a
Material Adverse Effect on the operations of the Company and its
Significant Subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(t) The financial statements of the Company and its consolidated
subsidiaries incorporated by reference in the Prospectus present fairly
the financial position of the Company and its consolidated Subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis;
(u) The Company and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any written notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(v) The Company is subject to Section 13 or 15(d) of the Exchange
Act;
(w) Neither the Company nor any of its Significant Subsidiaries is
in violation of its Articles of Association or Memorandum of
Association (or similar organizational documents) or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except for such defaults which would not result in a Material Adverse
Effect;
8
(x) The statements set forth in the Prospectus as amended or
supplemented relating to the Designated Units under the captions
"Description of the Equity Security Units," "Description of the Senior
Notes," "Prospectus Supplement Summary," "Description of XL Capital
Share Capital," "Description of XL Capital Ordinary Shares,"
"Description of XL Capital Ordinary Share Purchase Contracts and
Ordinary Share Purchase Units" and "Description of XL Capital Debt
Securities", insofar as they purport to constitute a summary of the
terms of the Units, the Underlying Notes, the Purchase Contracts, the
Underlying Shares and the other transaction documents described therein
and the statements set forth under the caption "Certain Tax
Considerations" in the Prospectus as amended or supplemented relating
to the Designated Units insofar as they purport to describe the
provisions of the laws referred to therein, are accurate, complete and
fair in all material respects;
(y) The Company is not and, after giving effect to the offering
and sale of the Units, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(z) PricewaterhouseCoopers LLP, the Company's auditors, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(aa) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Cayman Islands or any political
subdivision or taxing authority thereof or therein in connection with
(A) the issuance, sale and delivery by the Company to or for the
respective accounts of the Underwriters of the Designated Units
(including the Underlying Shares and the Underlying Notes) or (B) the
sale or delivery outside the Cayman Islands by the Underwriters of the
Designated Units (including the Underlying Shares and the Underlying
Notes) to the initial purchasers thereof, other than as described in
the opinion of Hunter & Hunter delivered pursuant to Section 7(d) of
this Agreement.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Units and authorization by the Representatives of the release of the
Firm Units, the several Underwriters propose to offer the Firm Units for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Units that the Company thereby grants to the Underwriters the right
to purchase at their election up to the number of Optional Units set forth in
such Pricing Agreement, on the terms set forth in the paragraph above. Any such
election to purchase Optional Units may be exercised by written notice from the
Representatives to the Company, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Units to be purchased
and the date on which such Optional Units are to be delivered, as determined by
the Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives and the Company
otherwise agree in writing, earlier than or later than the respective number of
business days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Units to be added to the number of Firm Units to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated
9
Units shall be, in each case, the number of Optional Units which the Company has
been advised by the Representatives have been attributed to such Underwriter;
PROVIDED THAT, if the Company has not been so advised, the number of Optional
Units to be so added shall be, in each case, that proportion of Optional Units
which the number of Firm Units to be purchased by such Underwriter under such
Pricing Agreement bears to the aggregate number of Firm Units (rounded as the
Representatives may determine to the nearest 40 Units). The total number of
Designated Units to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm Units set forth in
Schedule I to such Pricing Agreement plus the aggregate number of Optional Units
which the Underwriters elect to purchase.
4. Certificates for the Firm Units and the Optional Units to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Goldman, Sachs & Co. at least twenty-four
hours in advance as specified in such Pricing Agreement, (i) with respect to the
Firm Units, all in the manner and at the place and time and date specified in
such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Units, if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Units, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Company agrees with each of the Underwriters of any Designated
Units:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Units in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Units or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Units and prior to any Time of
Delivery for such Units which shall be disapproved by the
Representatives for such Units promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement so long as the delivery of a prospectus is required in
connection with the offering or sale of such Units and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Units, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission
of any stop order or of any
10
order preventing or suspending the use of any prospectus relating to
the Units, of the suspension of the qualification of such Units for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Units or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order; Goldman, Sachs & Co.
shall advise the Company when the delivery of a prospectus is no longer
required in connection with the offer or sale of Units pursuant to this
Section 5(a);
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Units, the
Underlying Shares, the Purchase Contracts and the Underlying Notes for
offering and sale under the securities laws of such jurisdictions as
the Representatives may reasonably request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Units, the Underlying Shares, the Purchase
Contracts and the Underlying Notes, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 3:00 P.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic copies
of the Prospectus as amended or supplemented in New York City in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Units and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many written and electronic copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) That during the period beginning from the date hereof and
continuing until the date 90 days after the date of this Underwriting
Agreement, not to offer to sell, sell, contract to sell
11
or otherwise dispose of, except as provided hereunder with regard to
the Firm Units and the Optional Units, if any, any Ordinary Shares,
equity-linked securities or Units (including the related Purchase
Contracts and Underlying Notes) of the Company or any securities that
are substantially similar to Ordinary Shares, equity-linked securities
or Units (including the related Purchase Contracts and Underlying
Notes), or any securities convertible into, exchangeable for or that
represent the right to receive Ordinary Shares, equity-linked
securities or Units (other than sales of Ordinary Shares (i) pursuant
to employee benefit plans existing on the date of this Agreement, (ii)
in connection with any repurchase or conversion of any of the Company's
Zero-Coupon Convertible Debentures due 2021 or (iii) pursuant to this
Agreement), without the prior written consent of Goldman, Sachs & Co.
and Citigroup Global Markets Inc., on behalf of the Underwriters;
(f) That the Underwriters shall have received letters, dated the
First Time of Delivery, from Michael Esposito, Jr. and Brian O'Hara
whereby each such person agrees, for the period commencing on the date
of the Time of Delivery and ending 60 days after the date of the
Underwriting Agreement, not to offer to sell, sell, contract to sell or
otherwise dispose of any Ordinary Shares, equity-linked securities or
Units (including the related Purchase Contracts and Underlying Notes)
of the Company or any securities that are substantially similar to
Ordinary Shares, equity-linked securities or Units (including the
related Purchase Contracts and Underlying Notes), or any securities
convertible into, exchangeable for or that represent the right to
receive Ordinary Shares, equity-linked securities or Units (other than
sales of Ordinary Shares (i) pursuant to Rule 10b5-1 programs for such
director or officer existing on the date of this Agreement, (ii) in an
amount not greater than 10% of the number of Ordinary Shares held by
each such person on the date of this Agreement or (iii) at any time
after the date on which such person ceases to be a director or officer
of the Company), without the prior written consent of Goldman, Sachs &
Co. and Citigroup Global Markets Inc., on behalf of the Underwriters;
(g) To use its best efforts to cause the Designated Units and the
Underlying Shares to be listed, and to maintain the listing of the
Designated Units and the Underlying Shares, on the New York Stock
Exchange;
(h) To use the net proceeds received by it from the sale of the
Designated Units pursuant to this Agreement and the Pricing Agreement
in the manner set forth in the Prospectus as amended or supplemented
under the caption "Use of Proceeds;"
(i) To enter into the Remarketing Agreement with a nationally
recognized investment banking firm at least one month prior to the
Remarketing Date, such Remarketing Agreement to contain provisions that
are consistent in all material respects with the descriptions in the
Prospectus as amended or supplemented of the rights and obligations of
each of the Company, the Purchase Contract Agent and the Remarketing
Agent under the Remarking Agreement;
(j) To reserve and keep available at all times, free of preemptive
rights, Ordinary Shares for the purpose of enabling the Company to
satisfy its obligation to issue the Underlying Shares in accordance
with the provisions of such Purchase Contracts; and
12
(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of the Pricing Agreement with respect to the Designated Units,
and the Company shall at the time of filing either pay the Commission
the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters,
subject to any agreements between the Company and the Representatives relating
to expenses, that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Units under the Act and the issuance and
sale of the Designated Units and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Remarketing Agreement, any
Purchase Contract Agreement, any Purchase Contracts, any Pledge Agreement, any
Blue Sky Memorandum, closing documents (including compilations thereof); (iii)
all expenses in connection with the qualification of the Units for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Underlying Notes; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Units; (vi) the cost of preparing the Units, the Underlying
Notes and certificates for the Underlying Shares; (vii) the fees and expenses of
any Trustee, any Purchase Contract Agent, any Collateral Agent, any Custodial
Agent, any Securities Intermediary, any Remarketing Agent, any Registrar, any
Transfer Agent, Dividend Disbursing Agent, or any Calculation Agent and any
agent of any Trustee, Purchase Contract Agent, Collateral Agent, Custodial
Agent, Securities Intermediary, Remarketing Agent, Registrar, Transfer Agent,
Dividend Disbursing Agent, or Calculation Agent and the fees and disbursements
of counsel for any such persons in connection with any Indenture, any
Remarketing Agreement, any Purchase Contract Agreement, any Purchase Contracts
and any Pledge Agreement; (viii) the cost and charges of any transfer agent or
registrar or dividend disbursing agent; (ix) all expenses and taxes arising as a
result of the issuance, sale and delivery of the Designated Units, of the sale
and delivery outside of the Cayman Islands of the Designated Units by the
Underwriters to the initial purchasers thereof in the manner contemplated under
this Agreement and the Pricing Agreement, including, in any such case, any
Cayman Islands income, capital gains, withholding, transfer or other tax
asserted against a Underwriter by reason of the purchase and sale of the
Designated Units pursuant to the Underwriting Agreement and the Pricing
Agreement; (x) any cost incurred in connection with the listing of the
Designated Units or the Underlying Shares on the New York Stock Exchange; and
(xi) all other costs and expenses incident to the performance of its obligations
hereunder, under any Pricing Agreement and under any options to purchase
additional Units which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8, 11 and 19 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Units by them, and any advertising expenses connected with
any offers they may make.
13
7. The obligations of the Underwriters of any Designated Units under
the Pricing Agreement relating to such Designated Units shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Units are, at and as of
each Time of Delivery for such Designated Units, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Units shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement with respect to such Designated Units; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Simpson Thacher & Bartlett LLP, counsel for the Underwriters,
shall have furnished to the Representatives their written opinion or
opinions and letter, dated such Time of Delivery, in form and substance
reasonably satisfactory to the Representatives, in the form attached
hereto in Annex II-1 and Annex II-2, respectively, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Cahill Gordon & Reindel LLP, United States counsel for the
Company, shall have furnished to the Representatives their written
opinion or opinions and letter, dated such Time of Delivery, in form
and substance reasonably satisfactory to the Representatives, in the
form attached hereto in Annex III-1 and Annex III-2, respectively;
(d) Hunter & Hunter, Cayman Islands counsel for the Company, shall
have furnished to the Representatives their written opinion or
opinions, dated such Time of Delivery, in form and substance reasonably
satisfactory to the Representatives, in the form attached hereto in
Annex IV;
(e) Paul S. Giordano, Executive Vice President and General Counsel
to the Company, shall have furnished to the Representatives his written
opinion or opinions, dated such Time of Delivery, in form and substance
reasonably satisfactory to the Representatives, in the form attached
hereto in Annex V;
(f) White & Case, counsel to U.S. Bank National Association, as
Purchase Contract Agent and Collateral Agent, shall have furnished
their written opinion or opinions dated such Time of Delivery, in form
and substance reasonably satisfactory to the Representatives in the
form attached hereto in Annex VI;
(g) On the date of the Pricing Agreement for such Designated Units
and at each Time of Delivery for such Designated Units,
PricewaterhouseCoopers LLP, the independent
14
accountants of the Company who have certified the financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter or letters, dated the respective dates of
delivery thereof, in form and substance reasonably satisfactory to the
Representatives;
(h) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Units any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Units, and
(ii) since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Units, there shall not have been
any change in the capital stock (other than changes resulting from the
exercise of share or over-allotment options or the conversion of
warrants or capital stock which were outstanding as of such date, or
from the exercise of options granted after such date in the ordinary
course of business or from repurchases of capital stock) or long-term
debt of the Company or any of its Significant Subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
Significant Subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Agreement relating to the Designated Units, the
effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Representatives so material and adverse as to
make it impractical or inadvisable to proceed with the public offering
or the delivery of the Designated Units on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to
the Designated Units;
(i) On or after the date of the Pricing Agreement relating to the
Designated Units (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or the Company's financial
strength or claims paying ability by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) other
than any announcements made prior to the date of the Pricing Agreement,
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities or the Company's financial
strength or claims paying ability;
(j) On or after the date of the Pricing Agreement relating to the
Designated Units there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange (the "Exchange"); (ii) a
suspension or material limitation in trading in the Company's
securities on the Exchange; (iii) a general moratorium on commercial
banking activities in New York, the Cayman Islands or Bermuda declared
by the relevant authority or a material disruption in commercial
banking or securities settlement or clearance services in the United
States or any other relevant jurisdiction; (iv) the outbreak or
escalation of hostilities involving the United States, the Cayman
Islands or Bermuda or the declaration by the United States, the Cayman
Islands or Bermuda of a national emergency or war, if the effect of any
such event specified in this clause (iv) in the
15
judgment of the Representatives is so material and adverse as to make
it impractical or inadvisable to proceed with the public offering or
the delivery of the Designated Units on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to
the Designated Units; (v) a change or development involving a
prospective change in the Cayman Islands or Bermuda taxation affecting
the Company, the Designated Units or the transfer thereof or the
imposition of exchange controls by the United States, Bermuda or the
Cayman Islands or (vi) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the
United States or currency exchange rates or controls in the United
States, the Cayman Islands, Bermuda or elsewhere, if the effect of any
such event specified in this clause (vi) in the judgment of the
Representatives is so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Designated Units on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated Units;
(k) The Units and the Underlying Shares at each Time of Delivery
shall have been duly listed, subject to notice of issuance, on the
Exchange;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of the Pricing Agreement
relating to such Designated Units;
(m) The Company shall have obtained and delivered to the
Underwriters executed copies of a lock-up agreement from each person
listed in Section 5(f) in form and substance reasonably satisfactory to
the Representatives;
(n) The Company shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Units
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) relating to the effectiveness of the
Registration Statement and no stop orders, the matters set forth in
subsections (h) and (i) of this Section and as to such other matters as
the Representatives may reasonably request; and
(o) Prior to each Time of Delivery, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Units, or any amendment 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 will reimburse each
Underwriter for any legal expenses of one counsel (in addition to any local
counsel) engaged reasonably incurred by such
16
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus and any other prospectus relating to the Units, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Units
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to the such Units.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Units, or any amendment 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Units, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred, including the reasonable fees and expenses of one counsel (in addition
to any applicable local counsel).
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation (except as set forth below). 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
17
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 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. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Units on the other from the offering of the Designated Units
to which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
of the Designated Units on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Units
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged
18
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Units in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Units and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Units or Optional Units which it has agreed to purchase under the
Pricing Agreement relating to such Units, the Representatives may in their
discretion arrange for themselves or another party or other parties satisfactory
to the Company to purchase such Units on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Firm Units or Optional Units, as the case
may be, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Units on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Units, or the Company notifies
the Representatives that it has so arranged for the purchase of such Units, the
Representatives or the Company shall have the right to postpone a Time of
Delivery for such Units for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Units.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Units or Optional Units, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of such Units which remains unpurchased does not
exceed one-eleventh of the aggregate number of the Firm Units or Optional Units,
as the case may be, to be purchased at the respective Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Units or Optional Units, as the case may be, which
such Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Units and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Firm Units or Optional
Units, as the case may be, which such Underwriter agreed to purchase under such
Pricing Agreement) of the Firm Units or Optional Units, as the case may be, of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
19
(c) If, after giving effect to any arrangements for the purchase of the
Firm Units or Optional Units, as the case may be, of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate number of Firm Units or Optional Units, as the case may
be, which remains unpurchased exceeds one-eleventh of the aggregate number of
the Firm Units or Optional Units, as the case may be, to be purchased at the
respective Time of Delivery, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Units or Optional Units, as
the case may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Units or the option to purchase additional Units
relating to such Optional Units, as the case may be, shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Units.
11. If any Pricing Agreement or option to purchase additional Units
shall be terminated pursuant to Section 9 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the Firm Units or
Optional Units with respect to which such Pricing Agreement shall have been
terminated except as provided in Sections 6, 8 and 19 hereof; but, if for any
other reason, Designated Units are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Units, but the Company shall then be under
no further liability to any Underwriter with respect to such Designated Units
except as provided in Sections 6, 8 and 19 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Units shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; PROVIDED, HOWEVER, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its principal
address, which address will be supplied to the Company by the Representatives
upon written request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
20
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Units from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person who
controls any Underwriter arising out of or based upon this Agreement, any
Pricing Agreement or the transactions contemplated hereby or thereby may be
instituted in the federal district court for the Southern District of New York
and the New York County Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
has appointed CT Corporation System, New York, New York, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any such action
arising out of or based on this Agreement, any Pricing Agreement or the
transactions contemplated hereby or thereby which may be instituted in the
federal district court for the Southern District of New York and the New York
County Court by any Underwriter or by any person who controls any Underwriter,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. The
Company represents and warrants that the Authorized Agent has agreed to act as
such agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company.
15. Time shall be of the essence in each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business. "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
16. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
18. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
19. In respect of any judgment or order given or made for any amount
due hereunder or under any Pricing Agreement that is expressed and paid in a
currency (the "judgment currency") other
21
than United States dollars, the Company will indemnify each Underwriter against
any loss incurred by such Underwriter as a result of any variation between (i)
the rate of exchange at which the United States dollar amount is converted into
the judgment currency for the purpose of such judgment or order and (ii) the
rate of exchange at which an Underwriter is able to purchase United States
dollars with the amount of judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order aforesaid. The term "rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of or conversion into United States dollars.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
22
If the foregoing is in accordance with your understanding,
please sign and return to us one for the Company and one for each of the
Representatives counterparts hereof.
Very truly yours,
XL Capital Ltd
By: /s/ PAUL S. GIORDANO
------------------------------------
Name: Paul S. Giordano
Title: Executive Vice President,
General Counsel & Secretary
Accepted as of the date hereof:
Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., and
J.P. Morgan Securities Inc.
/s/ GOLDMAN, SACHS & CO.
- ------------------------------------
(Goldman, Sachs & Co.)
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., and
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
As Representatives of the several
Underwriters named in Schedule I hereto
March 17, 2004
Ladies and Gentlemen:
XL Capital Ltd, a Cayman Islands exempted limited company (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated March 17, 2004 (the "Underwriting Agreement"),
between the Company on the one hand and Goldman, Sachs & Co., Citigroup Global
Markets Inc., Deutsche Bank Securities Inc. and J.P. Morgan Securities Inc., on
the other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Units specified in Schedule II hereto (the "Designated
Units") consisting of Firm Units and any Optional Units the Underwriters may
elect to purchase. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Units which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Units pursuant to Section 12 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Units, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Units set forth opposite the name of such
Underwriter in Schedule I hereto and, (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Units, as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Units as to which such
election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Units set forth opposite
the name of such Underwriter in Schedule I hereto on the terms referred to in
the paragraph above. Any such election to purchase Optional Units may be
exercised by written notice from Goldman, Sachs & Co. and Citigroup Global
Markets, Inc. to the Company, setting forth the aggregate number of Optional
Units to be purchased and the date on which such Optional Units are to be
delivered, as determined by Goldman, Sachs & Co. and Citigroup Global Markets,
Inc., but in no event earlier than the First Time of Delivery or later than 13
calendar days after the First Delivery Date or, unless Goldman, Sachs & Co.,
Citigroup Global Markets, Inc. and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and one for each of the Representatives
plus one for each counsel counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
XL Capital Ltd
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., and
J.P. Morgan Securities Inc.
- ----------------------------------
(Goldman, Sachs & Co.)
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
SCHEDULE I
MAXIMUM NUMBER OF
NUMBER OF FIRM OPTIONAL
UNITS TO BE UNITS WHICH MAY BE
UNDERWRITER PURCHASED PURCHASED
----------- --------- ---------
Goldman, Sachs & Co. 5,188,800 1,500,000
Citigroup Global Markets Inc. 5,188,800 1,500,000
Deutsche Bank Securities Inc. 5,188,800 0
J.P. Morgan Securities Inc. 4,191,000 0
Banc One Capital Markets, Inc. 997,500 0
Barclays Capital Inc. 997,500 0
Merrill Lynch, Pierce, Fenner & Smith Incorporated 997,500 0
Morgan Stanley & Co. Incorporated 997,500 0
UBS Securities LLC 997,500 0
Wachovia Capital Markets, LLC 997,500 0
ABN Amro Rothschild LLC 266,100 0
BNP Paribas Securities Corp. 266,100 0
BNY Capital Markets, Inc. 266,100 0
Comerica Securities, Inc. 266,100 0
Credit Lyonnais Securities (USA) Inc. 266,100 0
Dowling & Partners Securities, LLC 266,100 0
Fleet Securities, Inc. 266,100 0
Fox-Pitt, Kelton Inc. 266,100 0
HSBC Securities (USA) Inc. 266,100 0
ING Financial Markets LLC 266,100 0
Keefe, Bruyette & Woods 266,100 0
Lazard Freres & Co. LLC 266,100 0
McDonald Investments Inc., A KeyCorp Company 266,100 0
Sandler O'Neill & Partners, L.P. 266,100 0
Scotia Capital (USA) Inc. 266,100 0
The Royal Bank of Scotland plc 266,100 0
Total........................................................... 30,000,000 3,000,000
========== =========
SCHEDULE II
TITLE OF DESIGNATED UNITS:
6.50% Equity Security Units (the "Units"). Each Unit has a stated
amount of $25 and will initially consist of (a) a contract pursuant to which the
holder agrees to purchase Ordinary Shares of the Company on May 15, 2007
(collectively, the "Purchase Contracts") and (b) a 1/40, or 2.5%, ownership
interest in a 2.53% Senior Note due May 15, 2009 of the Company with a principal
amount of $1,000 (collectively, the "Underlying Notes").
NUMBER OF UNITS:
Number of Firm Units: 30,000,000
Maximum Number of Optional Units: 3,000,000
INITIAL OFFERING PRICE TO PUBLIC PER UNIT:
$25, plus accumulated Contract Adjustment Payments and interest on the
Underlying Notes, if any, from March 23, 2004.
PURCHASE PRICE BY UNDERWRITERS PER UNIT:
$24.2483, plus accumulated Contract Adjustment Payments and interest on
the Underlying Notes, if any, from March 23, 2004.
UNDERWRITERS' COMMISSION PER UNIT:
$0.7517
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Same-Day funds
INDENTURE:
Indenture, dated January 23, 2003, between the Company and U.S. Bank
National Association, as Trustee, as supplemented by the First Supplemental
Indenture, to be dated as of March 23, 2004
PURCHASE CONTRACT AGREEMENT:
Purchase Contract Agreement, to be dated as of March 23, 2004, between
the Company and U.S. Bank National Association, as Purchase Contract Agent
PLEDGE AGREEMENT:
Pledge Agreement, to be dated as of March 23, 2004, between the Company
and U.S. Bank National Association, as Purchase Contract Agent, and U.S. Bank
Trust National Association, as Collateral Agent, Custodial Agent and Securities
Intermediary
REMARKETING AGREEMENT:
Remarketing Agreement, to be entered into between the Company and a
nationally recognized investment bank, as the Remarketing Agent
STOCK PURCHASE DATE:
May 15, 2007
CONTRACT ADJUSTMENT PAYMENTS:
3.97% per annum
PAYMENT DATES OF CONTRACT ADJUSTMENT PAYMENTS:
February 15, May 15, August 15 and November 15, commencing on May 15,
2004 and ending on the Stock Purchase Date
REFERENCE PRICE:
$75.19
THRESHOLD APPRECIATION PRICE:
$93.99
MATURITY OF UNDERLYING NOTES:
May 15, 2009
INTEREST RATE ON UNDERLYING NOTES:
2.53% per annum
INTEREST PAYMENT DATES OF UNDERLYING NOTES:
Initially, February 15, May 15, August 15 and November 15, commencing
on May 15, 2004, and, following the earlier of a successful remarketing and the
Stock Purchase Date, semi-annually on May 15 and November 15
RECORD DATES FOR CONTRACT ADJUSTMENT PAYMENTS AND INTEREST PAYMENTS:
The relevant record dates will be the 15th calendar day prior to the
relevant payment dates
INITIAL REMARKETING DATE:
The ninth Business Day prior to the Stock Purchase Date
REDEMPTION PROVISIONS:
The Underlying Notes are redeemable at the option of the Company if a
Special Event (as defined in the Indenture) occurs in accordance with, and
subject to, the terms set forth in the Indenture
SINKING FUND PROVISIONS:
No sinking fund provisions
DEFEASANCE PROVISIONS:
No defeasance provisions
TIME OF DELIVERY:
9:30 A.M., New York City time, on March 23, 2004 (which is four
business days after the date of the Pricing Agreement relating to the Units,
which date may be delayed by agreement among the Representatives and the Company
(as defined therein))
FORM AT TIME OF DELIVERY:
Book-entry only
CLOSING LOCATION:
Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New
York 10017
DELAYED DELIVERY:
None
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.,
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., and
J.P. Morgan Securities Inc.
Address for Notices, etc.: Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004.
ANNEX II-1
SIMPSON THACHER & BARTLETT LLP FORM OF OPINION
ANNEX II-2
SIMPSON THACHER & BARTLETT LLP FORM OF NEGATIVE ASSURANCE LETTER
ANNEX III-1
CAHILL GORDON & REINDEL LLP FORM OF OPINION
ANNEX III-2
CAHILL GORDON & REINDEL LLP FORM OF NEGATIVE ASSURANCE LETTER
ANNEX IV
HUNTER & HUNTER FORM OF OPINION
ANNEX V
XL CAPITAL LTD FORM OF OPINION
ANNEX VI
FORM OF OPINION OF COUNSEL TO
PURCHASE CONTRACT AGENT AND COLLATERAL AGENT