Exhibit 10.15
[LETTERHEAD OF PRUDENTIAL SECURITIES INCORPORATED]
October 26, 1998
Scottish Annuity & Life Holdings, Ltd.
P.O. Box 10657 APO
Ugland House
George Town, Grand Cayman
Cayman Islands, BWI
Attn: Michael C. French
Dear Sir:
This letter confirms the understanding and agreement (the "Agreement") between
Prudential Securities Incorporated ("Prudential Securities") and Scottish
Annuity & Life Holdings, Ltd. (the "Company") as follows:
1. The Company hereby engages Prudential Securities as its exclusive financial
advisor in connection with the evaluation of and preparation for the Company's
proposed initial public offering (the "Offering").
2. Prudential Securities accepts the engagement described in paragraph 1 and in
that connection, agrees to:
(a) review the business, operations, financial condition and prospects
of the Company;
(b) review the company's financial plans and analyze its strategic
plans;
(c) assist the Company in developing a capital markets plan;
(d) advise the Company regarding certain structural issues such as,
but not limited to, the composition of the board of directors,
employee stock option plan, dividend policy, selection of the
exchange for listing the company's shares and corporate governance
issues;
(e) provide the Company with a preliminary valuation analysis and a
preliminary assessment of other relevant market data; and
(f) be available to meet with the Company's Board of Directors to
discuss Prudential Securities' analysis and recommendations.
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3. The term of this Agreement shall extend from the date hereof through April
30, 1999. Either party may terminate this Agreement at any time, with or without
cause, by giving the other party at least 10 days' prior written notice, subject
to the provisions of this paragraph through paragraph 11, which shall survive
any termination or expiration of this Agreement.
4. As compensation for the services rendered by Prudential Securities, the
Company shall pay Prudential Securities as follows:
(a) If the Company makes an announcement or files a Registration
Statement with the Securities Exchange Commission with respect to the
Offering, either during the term of Prudential Securities' engagement
hereunder, or at any time during a period of 12 months following the
effective date of termination of Prudential Securities' engagement, and
the Offering is thereafter consummated, then the Company will pay a
financial advisory fee of US$800,000 payable upon the closing of the
Offering.
(b) All fees payable hereunder shall be payable in U.S. Dollars and
shall be made free and clear of, and without deduction or withholding
or account of, any present or future income, stamp or other taxes,
levies, duties, charges, fees, deductions, or withholding, now or
hereafter imposed, levied, collected, withheld, or assessed by any
governmental authority in the Cayman Islands (all such taxes, levies,
imposts, duties, charges, fees, deductions and withholdings being
described hereinafter are called the "Taxes"). If any Taxes are
required to be withheld from any amounts payable to Prudential
Securities in connection with the Proposed Offering, the amounts so
payable to Prudential Securities shall be increased to the extent
necessary to yield Prudential Securities (after payment of all Taxes)
the amounts payable in connection with the proposed Offering.
5. The Company shall reimburse Prudential Securities on demand for any
reasonable out-of-pocket expenses incurred in connection with this Agreement,
including the reasonable fees and disbursements of its legal counsel.
6. Because Prudential Securities will be acting on behalf of the Company in
connection with the engagement hereunder, the Company agrees to indemnify
Prudential Securities and certain other persons as set forth in a separate
letter agreement dated the date hereof between Prudential Securities and the
Company.
7. In connection with this Agreement, the Company will furnish Prudential
Securities with all information concerning the Company which Prudential
Securities reasonably deems appropriate and will provide Prudential Securities
with access to the Company's officers, directors, employees, accountants,
counsel and other advisors and facilities. The Company represents and warrants
to Prudential Securities that all such information concerning the Company is and
will be true and accurate in all material respects and does not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of the
circumstances under which such statements are made. The Company acknowledges and
agrees that Prudential Securities will be using and relying upon financial
information supplied by the Company and its officers, agents and others and any
other publicly available information
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concerning the Company without any independent investigation or verification
thereof or independent appraisal by Prudential Securities.
8. Any advice, either oral or written, provided to the Company by Prudential
Securities hereunder shall not be publicly disclosed or made available to third
parties without the prior written consent of Prudential Securities. In addition,
Prudential Securities may not be otherwise publicly referred to without its
prior consent.
9. The Company represents and warrants to Prudential Securities that there are
no brokers, representatives or other persons who have an interest in
compensation due to Prudential Securities from any transaction contemplated
herein.
10. The benefits of this Agreement, together with the separate indemnification
letter, shall inure the respective successors and assigns of the parties hereto
and of the indemnified parties under the indemnity letter and their successors,
assigns and representatives, and the obligations and liabilities assumed in this
Agreement by the parties hereto shall be binding upon their respective
successors and assigns. This Agreement may not be assigned without the prior
written consent of the non- assigning party.
11. (a) This Agreement may not be amended or modified except in writing and
shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws.
(b) EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN BEHALF
AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
SHAREHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR
OTHERWISE) RELATED TO OR ARISING OUT OF THE ENGAGEMENT OF PRUDENTIAL
SECURITIES PURSUANT TO, OR THE PERFORMANCE BY PRUDENTIAL SECURITIES OF
THE SERVICES CONTEMPLATED BY THIS AGREEMENT.
(c) The Company hereby consents to service of process in the State of
New York and to the jurisdiction of and venue in the United States
District Court for the Southern District of New York and of any of the
courts in the State of New York in any action suit or proceeding
arising under this Agreement. The Company irrevocably appoints CT
Corporation, as its agent, to receive on behalf of the Company, service
of copies of the summons and complaints and any other process which may
be served in any such action, claim, suit, proceeding or counterclaim.
The Company will provide Prudential Securities with written evidence of
such appointment upon the execution of this Agreement. The Company
hereby irrevocably waives and agrees not to assert, in any action or
proceeding with respect to this Agreement, any claim that (1) it is not
personally subject to the jurisdiction of the aforesaid courts, (2) it
or its property is exempt or immune from jurisdiction of any such court
or from any legal process, (3) the action or proceeding is brought in
an inconvenient forum or (d) the venue of the action or proceeding is
improper.
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Prudential Securities is pleased to accept this financial advisory engagement
and looks forward to working with you on this assignment. Please confirm that
the foregoing correctly sets forth our Agreement by signing and returning the
enclosed duplicate of this letter to Prudential Securities.
Very truly yours,
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Scott E. Willkomm
--------------------------
Title: Director
Accepted and agreed to as of the date first written above:
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
By: /s/ Michael C. French
--------------------------------
Title: President & CEO
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[LETTERHEAD OF PRUDENTIAL SECURITIES INCORPORATED]
October 26, 1998
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza
New York, N.Y. 10292
In connection with the engagement, dated October 26, 1998, between
Prudential Securities Incorporated ("Prudential Securities") and Scottish
Annuity & Life Holdings, Ltd. (the "Company"), the Company hereby agrees to
indemnify and hold harmless Prudential Securities and its affiliates, their
respective directors, officers, controlling persons (within the meaning of
Section 15 of the Securities Act of 1933 or Section 20(a) of the Securities
Exchange Act of 1934), if any, agents and employees of Prudential Securities or
any of Prudential Securities' affiliates (collectively, "Indemnified Persons"
and individually, an "Indemnified Person") from and against any and all claims,
liabilities, losses, damages and expenses incurred by any Indemnified Person
(including fees and disbursements of Prudential Securities' and an Indemnified
Person's counsel) which (A) are related to or arise out of (i) actions taken or
omitted to be taken (including any untrue statements made or any statements
omitted to be made) by the Company or (ii) actions taken or omitted to be taken
by an Indemnified Person with the Company's consent or in conformity with the
Company's instructions or the Company's actions or omissions or (B) are
otherwise related to or arise out of Prudential Securities' engagement, and will
reimburse Prudential Securities and any other Indemnified Person for all costs
and expenses, including fees of Prudential Securities' or an Indemnified
Person's counsel, as they are incurred, in connection with investigating,
preparing for, or defending any action, formal or informal claim, investigation,
inquiry or other proceeding, whether or not in connection with pending or
threatened litigation, caused by or arising out of or in connection with pending
or threatened litigation, caused by or arising out of or in connection with
Prudential Securities acting pursuant to the engagement, whether or not
Prudential Securities or any Indemnified Person is named as a party thereto and
whether or not any liability results therefrom. The Company will not, however,
be responsible for any claims, liabilities, losses, damages, or expenses
pursuant to clause (B) of the preceding sentence which are finally judicially
determined to have resulted primarily from Prudential Securities' bad faith or
gross negligence. The Company also agrees that neither Prudential Securities nor
any other Indemnified Person shall have any liability to the Company for or in
connection with such engagement except for any such liability for claims,
liabilities, losses, damages, or expenses incurred by the Company which are
finally judicially determined to have resulted primarily from Prudential
Securities' bad faith or gross negligence. The Company further agrees that the
Company will not, without the prior written consent of Prudential Securities,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not Prudential Securities or any Indemnified
Person is an actual or potential party to such claim, action, suit or
proceeding) and unless such settlement, compromise or consent includes an
unconditional release of Prudential Securities and each other Indemnified Person
hereunder from all liability arising out of such claim, action, suit or
proceeding.
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In order to provide for just and equitable contribution, if a claim for
indemnification is made pursuant to these provisions but is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification is not available for any reason (except, with respect
to indemnification sought solely pursuant to clause (B) of the first paragraph
hereof, for the reasons specified in the second sentence thereof), even though
the express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and Prudential Securities, on the other hand, shall
contribute to such claim, liability, loss, damage or expense for which such
indemnification or reimbursement is held unavailable in such proportion as is
appropriate to reflect the relative benefits to the Company, on the one hand,
and Prudential Securities on the other hand, in connection with the transactions
contemplated by the engagement, subject to the limitation that in any event
Prudential Securities' aggregate contribution to all losses, claims, damages,
liabilities and expenses to which contribution is available hereunder shall not
exceed the amount of fees actually received by Prudential Securities pursuant to
the engagement.
The foregoing right to indemnity and contribution shall be in addition
to any rights that Prudential Securities and/or any other Indemnified Person may
have at common law or otherwise and shall remain in full force and effect
following the completion or any termination of your engagement. The Company
hereby consents to personal jurisdiction and to service and venue in any court
in which any claim which is subject to this Agreement and is brought against
Prudential Securities or any other Indemnified Person.
EACH OF PRUDENTIAL SECURITIES AND THE COMPANY (ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SHAREHOLDERS) WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS
AGREEMENT.
The benefits of this Indemnification Agreement shall insure to the
respective successors and assigns of the parties hereto and of the Indemnified
Persons hereunder and their respective successors, assigns and representatives,
and the obligations and liabilities assumed in this Indemnification Agreement by
the parties hereto shall be binding upon their respective successors and
assigns. This Indemnification Agreement may not be assigned without the prior
written consent of the non-assigning party.
This Indemnification Agreement may not be amended or modified except in
a writing signed by the party against whom enforcement is sought and shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws.
It is understood that, in connection with Prudential Securities'
engagement, Prudential Securities may also be engaged to act for the Company in
one or more additional capacities, and that the terms of this engagement or any
such additional engagement may be embodied in one or more separate written
agreements. This indemnification shall apply to said engagement, any such
additional engagement(s) (whether written or oral) and any modification of said
engagement or such additional engagement(s) and shall remain in full force and
effect following the completion or termination of said engagement or such
additional engagements.
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The Company further understands that if Prudential Securities is asked
to act for the Company as dealer manager in an exchange of tender offer or as
underwriter in connection with the issuance of securities by the Company or to
furnish the Company a financial opinion letter or in any other formal capacity,
such further action may be subject to a separate agreement containing provisions
and terms to be mutually agreed upon.
Very truly yours,
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Scott E. Willkomm
----------------------------------
Title: Director
Accepted and agreed to as of the date first written above:
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
By: /s/ Michael C. French
------------------------------------
Title: President & CEO
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