Exhibit 1.1
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ACE LIMITED
(a Cayman Islands company)
$500,000,000 6% Notes due 2007
UNDERWRITING AGREEMENT
Dated: March 19, 2002
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TABLE OF CONTENTS
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Section 1. Representations and Warranties............................ 2
(a) Representations and Warranties by the Company.............. 2
(1) Compliance with Registration Requirements............ 2
(2) Incorporated Documents............................... 3
(3) Independent Accountants.............................. 3
(4) Financial Statements................................. 3
(5) No Material Adverse Change in Business............... 4
(6) Good Standing of the Company......................... 4
(7) Good Standing of Corporate Subsidiaries.............. 4
(8) Good Standing of Partnership Subsidiaries............ 5
(9) Capitalization....................................... 5
(10) Authorization of the Indenture....................... 5
(11) Authorization of the Securities...................... 5
(12) Authorization of this Agreement...................... 6
(13) Description of the Securities and the Indenture...... 6
(14) Non-Taxation of Interest............................. 6
(15) Reserves............................................. 6
(16) Absence of Defaults and Conflicts.................... 6
(17) Absence of Proceedings............................... 7
(18) Accuracy of Exhibits................................. 7
(19) Absence of Further Requirements...................... 7
(20) Possession of Licenses and Permits................... 8
(21) Insurance Laws....................................... 8
(22) Governmental Authorization........................... 8
(23) Investment Company Act............................... 9
(b) Officers' Certificates..................................... 9
Section 2. Sale and Delivery to Underwriters; Closing................ 9
(a) Purchase and Sale.......................................... 9
(b) Payment.................................................... 9
(c) Denominations; Registration................................ 9
Section 3. Covenants of the Company.................................. 10
(a) Compliance with Securities Regulations and Commission
Requests................................................. 10
(b) Filing of Amendments....................................... 10
(c) Delivery of Registration Statements........................ 10
(d) Delivery of Prospectuses................................... 10
(e) Continued Compliance with Securities Laws.................. 11
(f) Blue Sky Qualifications.................................... 11
(g) Earnings Statement......................................... 11
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(h) Use of Proceeds........................................... 11
(i) Restriction on Sale of Securities......................... 12
(j) Reporting Requirements.................................... 12
(k) Documentary, Stamp or Similar Issue Taxes................. 12
Section 4. Payment of Expenses...................................... 12
(a) Expenses.................................................. 12
(b) Termination of Agreement.................................. 13
Section 5 Conditions of Underwriters' Obligations.................. 13
(a) Effectiveness of Registration Statement................... 13
(b) Opinions of Counsel for the Company....................... 13
(c) Opinion of Counsel for Underwriters....................... 13
(d) Officers' Certificate..................................... 13
(e) Accountant's Comfort Letters.............................. 14
(f) Bring-down Comfort Letters................................ 14
(g) Ratings................................................... 14
(h) Additional Documents...................................... 14
(i) Termination of Agreement.................................. 15
Section 6. Indemnification.......................................... 15
(a) Indemnification of Underwriters........................... 15
(b) Indemnification of the Company, Directors and Officers.... 16
(c) Actions against Parties; Notification..................... 16
(d) Settlement without Consent if Failure to Reimburse........ 17
Section 7. Contribution............................................. 17
Section 8. Representations, Warranties and Agreements to Survive
Delivery................................................. 18
Section 9. Termination.............................................. 18
(a) Underwriting Agreement.................................... 18
(b) Liabilities............................................... 19
Section 10. Default by One or More of the Underwriters............... 19
Section 11. Notices.................................................. 19
Section 12. Parties.................................................. 20
Section 13. Consent to Jurisdiction; Miscellaneous................... 20
Section 14. Waiver of Immunities..................................... 20
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Section 15. Judgment Currency............................................21
Section 16. GOVERNING LAW AND TIME.......................................21
Section 17. Effect of Headings...........................................21
SCHEDULE A
EXHIBIT A Form of Opinion of Maples and Calder, the Company's Cayman
Islands Counsel, to be Delivered Pursuant to Section 5(b)
EXHIBIT B Form of Opinion of Conyers, Dill & Pearman, the Company's
Bermuda Counsel, to be Delivered Pursuant to Section 5(b)
EXHIBIT C Form of Opinion of Peter N. Mear, Esq., General Counsel of the
Company, to be Delivered Pursuant to Section 5(b)
EXHIBIT D Form of Opinion of Mayer, Brown, Rowe & Maw, United States
Counsel for the Company, to be Delivered Pursuant to Section
5(b)
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ACE LIMITED
(a Cayman Islands Company)
$500,000,000 6% Notes due 2007
UNDERWRITING AGREEMENT
March 19, 2002
BANC OF AMERICA SECURITIES LLC
9 West 57th Street
New York, New York 10019
J.P. MORGAN SECURITIES INC.
270 Park Avenue
New York, New York 10017
As Representatives of the several Underwriters
listed in Schedule A
Ladies and Gentlemen:
ACE Limited, a Cayman Islands company (the "Company"), confirms its
agreement with Banc of America Securities LLC ("Banc of America"), J.P. Morgan
Securities Inc. ("JPMorgan") and the other firms listed on Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as provided in Section 10 hereof) for whom Banc of America and
JPMorgan are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $500,000,000
aggregate principal amount of the Company's 6% Notes due 2007 (the
"Securities"). The Securities will be issued pursuant to an indenture, dated as
of March 15, 2002 (the "Indenture"), between the Company and Bank One Trust
Company, N.A., as trustee (the "Trustee").
The Company and certain other entities affiliated therewith have filed
with the Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3 (No. 333-78841) and pre-effective amendments
nos. 1 and 2 thereto, for the registration of the Securities and certain other
securities described therein under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement,
in the form in which it became effective, is referred to herein as the
"Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Securities, in the form first
furnished to the Underwriters through the Representatives by the Company for use
in connection with the offering of the Securities, are collectively referred to
herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
time the applicable final prospectus and the final prospectus supplement were
first furnished to the Underwriters by the Company; provided, further, that if
the Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement. A "preliminary
prospectus" shall be deemed to refer to any prospectus relating to the offering
of the Securities that omitted information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after the Registration Statement became effective and
prior to the execution and delivery of this Agreement. For purposes of this
Agreement, all references to the Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of this Agreement; and all references
in this Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement, Prospectus or preliminary prospectus, as the case
may be, after the execution of this Agreement.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriters as of the date hereof and as of the
Closing Time (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information with respect to the Registration Statement (or
any document incorporated therein by reference pursuant to the 1934
Act) has been complied with. In addition, the Indenture has been duly
qualified under the 1939 Act.
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At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's Annual Report
on Form 10-K for the year ended December 31, 2001 with the Commission
(the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement (including any Rule
462(b) Registration Statement) and any amendments thereto complied and
will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At
the date of the Prospectus and at the Closing Time, neither the
Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement (or any amendment thereto) or
the Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto).
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of the Securities will, at the time of such delivery, be identical to
any electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus and at the Closing Time, did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who
certified or shall certify the financial statements and any supporting
schedules thereto of the Company included in the Registration Statement
and the Prospectus are independent public accountants with respect to
the Company and its subsidiaries as required by the 1933 Act and the
1933 Act Regulations.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and
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notes, as well as those financial statements, schedules and notes of
any other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or such
other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries, or such other entity, as the
case may be, for the periods specified. Such financial statements have
been prepared in conformity with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved, except as indicated therein or in the notes
thereto. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information, if any, included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the related audited
financial statements included in the Registration Statement and the
Prospectus.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein (i)
neither the Company nor any of its subsidiaries has sustained any
material loss or material interference with its business from any
action, notice, order or decree from an insurance regulatory authority
and (ii) there has been (A) no material adverse change in case reserves
or losses or loss expense of the Company and its consolidated
subsidiaries and (B) no material adverse change, nor any development or
event involving a prospective material adverse change, in the financial
condition, business, or results of operations of the Company and its
subsidiaries considered as one enterprise, in either case whether or
not arising in the ordinary course of business (a "Material Adverse
Change").
(6) Good Standing of the Company. The Company has been
duly organized and is subsisting and in good standing under the laws of
the Cayman Islands, with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus. The Company is duly qualified to transact business as a
foreign corporation and is in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so
qualify or be in good standing would not reasonably be expected to
result in a Material Adverse Change.
(7) Good Standing of Corporate Subsidiaries. Each
subsidiary of the Company, other than such subsidiaries as would not,
individually or in the aggregate, constitute a "significant subsidiary"
as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the 1933 Act (each, a "Significant Subsidiary") which is a
corporation has been duly incorporated or organized and is an existing
corporation in good standing (with respect to jurisdictions which
recognize such concept) under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and each such Significant Subsidiary of the Company is duly
qualified to transact business as a foreign corporation and is in good
standing (with respect to jurisdictions which recognize such concept)
in all other jurisdictions in which its ownership or lease of
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property or the conduct of its business requires such qualification,
except where the failure to so qualify or be in good standing would not
reasonably be expected to result in a Material Adverse Change; all of
the issued and outstanding capital stock of each such Significant
Subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and all of the issued and
outstanding capital stock of each such Significant Subsidiary is owned
by the Company, directly or through subsidiaries, except for de minimis
shareholdings as required to comply with applicable law, and such
capital stock is owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity (except for
restrictions on transferability of the shares of insurance subsidiaries
under applicable law).
(8) Good Standing of Partnership Subsidiaries. Each
Significant Subsidiary of the Company which is a partnership has been
duly formed and is an existing partnership in good standing (with
respect to jurisdictions which recognize such concept) under the laws
of the jurisdiction of its formation, with power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus; and each such Significant Subsidiary of
the Company is duly qualified to transact business and is in good
standing (with respect to jurisdictions which recognize such concept)
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to so qualify or be in good standing would not
reasonably be expected to result in a Material Adverse Change; all of
the outstanding equity interests of each such Significant Subsidiary of
the Company have been duly authorized and validly issued; and all of
the equity interests of each such Significant Subsidiary are owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity
(other than immaterial amounts necessary to comply with applicable
law).
(9) Capitalization. The authorized, issued and
outstanding shares of capital stock of the Company set forth in the
Prospectus in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any,
pursuant to reservations, agreements or employee benefit plans or
pursuant to the exercise of convertible securities or options). Such
shares of capital stock have been duly authorized and validly issued by
the Company and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(10) Authorization of the Indenture. The Indenture has
been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(11) Authorization of the Securities. The Securities have
been duly authorized by the Company for issuance and sale pursuant to
this Agreement. Such Securities, when
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issued and authenticated in the manner provided for in the Indenture
and delivered against payment of the consideration therefor specified
in this Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law). Such Securities will be in the
form contemplated by, and each registered holder thereof will be
entitled to the benefits of, the Indenture.
(12) Authorization of this Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(13) Description of the Securities and the Indenture. The
Securities and the Indenture, as of each Representation Date, will
conform in all material respects to the statements relating thereto
contained in the Prospectus and will be in substantially the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(14) Non-Taxation of Interest. Except as disclosed in the
Prospectus, under current laws and regulations of the Cayman Islands
and Bermuda and any political subdivision thereof, all interest payable
on the Securities may be paid by the Company to the holder thereof in
United States dollars and freely transferred out of the Cayman Islands
or Bermuda and all such payments made to holders thereof or therein who
are non-residents of the Cayman Islands or Bermuda will not be subject
to income, withholding or other taxes under laws and regulations of the
Cayman Islands or Bermuda or any political subdivision or taxing
authority thereof or therein and will otherwise be free and clear of
any other tax, duty, withholding or deduction in the Cayman Islands or
Bermuda or any political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any governmental
authorization in the Cayman Islands or Bermuda or any political
subdivision or taxing authority thereof or therein.
(15) Reserves. The description of the Company's reserves
and reserving methodology and assumptions described in the Prospectus
is accurate and fairly presents the information set forth therein in
all material respects and, since the date of the latest financial
statements included in the Prospectus, no loss experience has developed
which would require or make it appropriate for the Company to alter or
modify such methodology.
(16) Absence of Defaults and Conflicts. None of the
Company or any subsidiary thereof is in violation of its charter or
by-laws, partnership agreement or other constitutive documents or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any subsidiary thereof is a party
or by which it or any of them may be bound, or to which any of the
assets, properties or operations of the Company or any
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subsidiary thereof is subject (collectively, "Agreements and
Instruments"), except for such defaults that would not reasonably be
expected to result in a Material Adverse Change. The offer of the
Securities as contemplated herein and in the Prospectus, the execution,
delivery and performance of this Agreement, the Indenture and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus,
and the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including, without
limitation, the issuance and sale of the Securities, and the use of the
proceeds from the sale of the Securities as described under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any subsidiary thereof pursuant to, any Agreements and
Instruments (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that would not reasonably be
expected to result in a Material Adverse Change), nor will such action
result in any violation of the provisions of the charter or by-laws,
partnership agreement or other constitutive documents of the Company or
any subsidiary thereof or, to the best knowledge of the Company, any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary
thereof or over any of their assets, properties or operations, except
for such violations under any applicable law, statute, rule,
regulation, judgement, order, writ or decree as would not reasonably be
expected to result in a Material Adverse Change. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary thereof.
(17) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary thereof which is required to be disclosed in
the Registration Statement and the Prospectus (other than as disclosed
therein), or which would reasonably be expected to result in a Material
Adverse Change, or which would reasonably be expected to materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement.
(18) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(19) Absence of Further Requirements. No consent,
approval, authorization, or order of, or filing with, any governmental
agency or body or any court, domestic or
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foreign, is required in connection with the issuance, offering and sale
of the Securities by the Company, for the due authorization, execution
or delivery by the Company of this Agreement or for the performance by
the Company of the transactions contemplated under the Prospectus, this
Agreement or the Indenture, except such as have been obtained or made
prior to the Closing Time, such as have been obtained and made under
the 1933 Act, such filing of the Prospectus as has been made with the
Bermuda Registrar of Companies under the Companies Act 1981 of Bermuda
and such as may be required under state securities laws.
(20) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them,
except where the failure to so possess any such Governmental Licenses
would not, singly or in aggregate, reasonably be expected to result in
a Material Adverse Change. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse
Change. Neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to result in a Material Adverse Change.
(21) Insurance Laws. Each of the Company and its insurance
subsidiaries (including insurance holding companies) is duly
registered, licensed or admitted as an insurer or an insurance holding
company (as applicable) in each jurisdiction where it is required to be
so licensed or admitted to conduct its business as presently conducted,
except where the failure to be so registered, licensed or admitted
would not reasonably be expected to result in a Material Adverse
Change; each of the Company and its insurance subsidiaries (including
insurance holding companies) is in compliance with all applicable
insurance statutes and regulations and has filed all reports, documents
or other information required to be filed under such statutes and
regulations, except where the failure to comply or file would not
reasonably be expected to result in a Material Adverse Change.
(22) Governmental Authorization. Except as set forth in
the Registration Statement and the Prospectus, no authorization,
approval or consent of any governmental authority or agency is required
(other than any license as an insurer or insurance holding company and
other than those which have already been obtained) under the laws of
any jurisdiction in which the Company or any of its subsidiaries
conduct their respective businesses in connection with the ownership,
directly or indirectly, by the Company of equity interests in any
subsidiary or the repatriation of any amount from or to the Company or
any of its subsidiaries, except to the extent that the failure to
obtain such authorization, approval or consent would not reasonably be
expected to result in a Material Adverse Change.
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(23) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(b) Officers' Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries and delivered to the Representatives
or to counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company or such
subsidiary, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
Section 2. Sale and Delivery to Underwriters; Closing.
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(a) Purchase and Sale. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, at a price equal to 99.231% of the
principal amount thereof, plus accrued interest, if any, from the Closing Time
the aggregate principal amount of Securities set forth in Schedule A hereto
opposite the name of such Underwriter, plus any additional aggregate principal
amount of Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of,
the Securities shall be made at the offices of Sidley Austin Brown & Wood LLP,
875 Third Avenue, New York, New York, or at such other place as shall be agreed
upon by the Representatives and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date of this Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them. It is understood that each Underwriter has
authorized JPMorgan, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Securities which it has severally
agreed to purchase. JPMorgan, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(c) Denominations; Registration. The Securities and certificates
for the Securities shall be in such denominations and registered in such names
as the Representatives may request in writing at least one full business day
prior to the Closing Time. The Securities and certificates for the Securities
will be made available for examination and packaging by the Representatives
9
in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time.
Section 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will notify the Representatives
immediately, and confirm the notice in writing, of (i) the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of any comments from
the Commission, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as they deem necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, they
will promptly file the Prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will give the Representatives a reasonable opportunity to comment on any such
document prior to such proposed filing or use, as the case may be.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes
10
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration Statement
and the Prospectus. If at any time when the Prospectus is required by the 1933
Act or the 1934 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement in order that the Registration Statement will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or to amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of this Agreement; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation or as a dealer in securities in any jurisdiction in which
they are not so qualified or to subject themselves to taxation in respect of
doing business in any jurisdiction in which they are not otherwise so subject.
In each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the date of this Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
11
(i) Restriction on Sale of Securities. Between the date of this
Agreement and the Closing Time, the Company will not, without the prior written
consent of the Underwriters, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of,
securities which are substantially similar to the Securities.
(j) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) Documentary, Stamp or Similar Issue Taxes. The Company will
jointly and severally indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Securities and on the execution and
delivery of this Agreement. All payments to be made by the Company hereunder
shall be made without withholding or deduction for or on account of any present
or future taxes, duties or governmental charges whatsoever unless the Company is
compelled by law to deduct or withhold such taxes, duties or charges. In that
event, the Company shall pay such additional amounts as may be necessary in
order that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or deduction
had been made.
Section 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, the Indenture, and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the Securities and any certificates for the Securities, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors or agents (including transfer agents and registrars), as well as the
fees and disbursements of the Trustee, and their respective counsel, (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation, printing and delivery of the Blue Sky
Survey, and any amendment thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities, if
applicable, (viii) the fees and expenses incurred with respect to the listing of
the Securities, if applicable, and (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities.
12
(b) Termination of Agreement. If this Agreement is terminated by
the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or 9(a)(ii) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Securities pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Company contained in Section 1 hereof or in certificates of any officer of
the Company or any of its respective subsidiaries delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Securities, the specific method of
distribution of the Securities and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable.
(b) Opinions of Counsel for the Company. At Closing Time, the
Representatives shall have received the favorable opinions, each dated as of
Closing Time, of Maples and Calder, Cayman Islands counsel for the Company,
Conyers Dill & Pearman, Bermuda counsel for the Company, Peter N. Mear, Esq.,
General Counsel of the Company, and Mayer, Brown, Rowe & Maw, United States
counsel for the Company, each in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letters for
each of the other Underwriters, to the effect set forth in: Exhibit A hereto
with respect to the opinion of Maples and Calder; Exhibit B hereto with respect
to the opinion of Conyers Dill & Pearman; Exhibit C hereto with respect to the
opinion of Peter N. Mear, Esq., and Exhibit D hereto with respect to the opinion
of Mayer, Brown, Rowe & Maw, and, as to each opinion, to such further effect as
counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Sidley Austin Brown & Wood LLP, counsel for the Underwriters, in form
and substance reasonably satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each of the other Underwriters.
In giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, the Representatives
shall have received a certificate of the Chairman, President and Chief Executive
Officer or the General Counsel and
13
Secretary of the Company and of the chief financial officer, chief accounting
officer or chief investment officer of the Company, dated as of Closing Time, to
the effect that (i) there has not been, since the date of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change, or any development or event involving a prospective
material adverse change, in the financial condition, business or results of
operations of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company in Section 1(a) are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officers' knowledge, are
threatened by the Commission.
(e) Accountant's Comfort Letters. At the time of the execution of
this Agreement, the Representatives shall have received from
PricewaterhouseCoopers LLP a letter, dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letters for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letters. At Closing Time, the
Representatives shall have received from PricewaterhouseCoopers LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (e) of this Section 5, except
that the specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) Ratings. At Closing Time, the Securities shall be rated no
lower than "A-" by Standard & Poor's Rating Service and "a2" by Moody's
Investors Service, Inc., and the Company shall have delivered to the
Representatives a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representatives, confirming
that the Securities have such ratings. Since the time of execution of this
Agreement, there shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Securities or any of the Company's securities or the
Company's financial strength or claims paying ability by any such rating
organization or any other "nationally recognized statistical rating
organization," as defined for purposes of Rule 436(g)(2) under the 1933 Act
Regulations, and no such rating organization shall have publicly announced that
it has under surveillance or review with negative implications its rating of the
Securities or any of the Company's securities or the Company's financial
strength or claims paying ability.
(h) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by Company in connection
14
with the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representatives by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
Section 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, based upon or arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon or arising out of any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent based upon or arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly
15
for use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the contrary, (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to the indemnified
party or (iii) the named parties in any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
16
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(2) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
Section 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
underwriting commission received by the Underwriters, in each case as set forth
on the cover of the Prospectus, bear to the aggregate initial public offering
price of such Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters 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 contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency
17
or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto, and not joint.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of and payment for the Securities.
Section 9. Termination.
-----------
(a) Underwriting Agreement. The Representatives may terminate this
Agreement by notice to the Company, at any time at or prior to the Closing Time,
if (i) there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change, or any development or event involving a prospective
material adverse change, in the financial condition, business or results of
operations of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) there has
occurred any material adverse change in the financial markets in the United
States or any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case
referred to in this clause (ii), the effect of which is such as to make it, in
the judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii)
trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the New York Stock Exchange or the American Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been
18
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(iv) a banking moratorium has been declared by either U.S. Federal, New York or
Bermuda authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
Section 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Securities to
be purchased on such date pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations under this Agreement bear to
the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Securities to be
purchased on such date pursuant to this Agreement, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Banc of America
Securities LLC, 9 West 57th Street, New York, New York 10019, attention of O and
c/o J.P. Morgan Securities Inc., 270 Park Avenue, New York, New York 10017,
attention of O; and notices to the Company shall be directed to it at ACE Global
Headquarters, 17
19
Woodbourne Avenue, Hamilton HM 08 Bermuda, attention of the General Counsel and
Secretary.
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company, and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Company, and their respective successors and the controlling persons and
officers, directors and trustees referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and officers, directors and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 13. Consent to Jurisdiction; Miscellaneous. Each of the parties
hereto hereby expressly and irrevocably submits to the non-exclusive
jurisdiction of any competent court in the place of its domicile and any United
States Federal or New York State court sitting in the Borough of Manhattan in
The City of New York in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby to the extent
that such court has subject matter jurisdiction over the controversy, and
expressly and irrevocably waives, to the extent permitted under applicable law,
any immunity from the jurisdiction thereof and any claim or defense in such
action, suit or proceeding based on a claim of improper venue, forum non
conveniens or any similar basis to which it might otherwise be entitled in any
such action, suit or proceeding. The Company irrevocably appoints ACE USA, Inc.,
1133 Avenue of the Americas, 32nd Floor, New York, New York 10036 as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such action, suit or proceeding, and agrees that
service of process upon such agent, and written notice of said service to the
Company by the person serving the same to the address provided in Section 11,
shall be deemed in every respect effective service of process upon the Company,
in any such action, suit or proceeding. The Company further agrees to take any
and all action as may be necessary to maintain such designation and appointment
of such agent in full force and effect for a period of seven years from the date
of this Agreement.
Section 14. Waiver of Immunities. To the extent that the Company or any
of its properties, assets or revenues may have or may hereafter become entitled
to, or have attributed to them, any right of immunity, on the grounds of
sovereignty, from any legal action, suit or proceeding, from set-off or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, or from attachment in aid of execution of
judgment, or from execution of judgment, other legal process or proceeding for
the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
their obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement or any additional agreement, the Company hereby
irrevocably and unconditionally, to the extent permitted by applicable law,
waives and agrees not to plead or claim any such immunity and consents to such
relief and enforcement.
20
Section 15. Judgement Currency. The Company agrees to indemnify each
Underwriter against any loss incurred by such Underwriter as a result of any
judgment or order being given or made for any amount due hereunder and such
judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order,
and (ii) the rate of exchange at which such Underwriter is able to purchase
United States dollars with the amount of the 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 as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
Section 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 17. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
ACE LIMITED
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
By: BANC OF AMERICA SECURITIES LLC
By:
--------------------------------------
Authorized Signatory
By: J.P. MORGAN SECURITIES INC.
By:
--------------------------------------
Authorized Signatory
As Representatives of the several Underwriters
listed in Schedule A
Schedule A
Principal
Amount of
Underwriter Securities
----------- ------------
Banc of America Securities LLC........................ $150,000,000
J.P. Morgan Securities Inc............................ 150,000,000
Barclays Capital Inc.................................. 40,000,000
Salomon Smith Barney Inc.............................. 40,000,000
Deutsche Banc Alex. Brown Inc......................... 20,000,000
First Union Securities, Inc........................... 20,000,000
Fleet Securities, Inc................................. 20,000,000
ABN AMRO Incorporated................................. 6,667,000
Banc One Capital Markets, Inc......................... 6,667,000
Comerica Securities, Inc.............................. 6,667,000
Commerzbank Capital Markets Corp...................... 6,667,000
Credit Lyonnais Securities (USA) Inc.................. 6,667,000
Mellon Financial Markets, LLC......................... 6,667,000
RBC Dominion Securities Corporation................... 6,666,000
The Royal Bank of Scotland plc........................ 6,666,000
Tokyo-Mitsubishi International plc.................... 6,666,000
------------
Total.................................. $500,000,000
============
Sch-A-1
Exhibit A
FORM OF OPINION OF MAPLES AND CALDER, THE COMPANY'S
CAYMAN ISLANDS COUNSEL, TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(1) The Company has been duly incorporated and is validly
existing and in good standing as an exempted company, under the laws of
the Cayman Islands, and has the corporate power and corporate authority
to own, lease and operate its property, and to conduct its business, as
described in the Registration Statement and the Prospectus, and to
enter into and perform its obligations under, or as contemplated under,
the Underwriting Agreement.
(2) The authorized share capital of the Company, as set
out in its Memorandum and Articles of Association, conforms as to legal
matters to the description thereof contained in the Registration
Statement and the Prospectus.
(3) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(4) The Indenture has been duly authorized, executed and
delivered by the Company.
(5) The Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement.
Upon signature in facsimile or manually, authentication in the manner
provided for in the Indenture and delivery against payment therefore,
the Securities will be duly executed and delivered by the Company.
(6) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement and the Indenture, and the consummation by the Company of the
transactions contemplated by the Underwriting Agreement, do not and
will not (A) violate any provision of the Memorandum and Articles of
Association of the Company; (B) contravene any provision of any law,
public rule or regulation of the Cayman Islands applicable to the
Company; (C) to the best of such counsel's knowledge, contravene any
existing published order or decree of the courts of the Cayman Islands
by which the Company is bound or by which its properties or assets may
be affected; or (D) require any consent, approval or authorization or
order of, or qualification with, any Cayman Islands governmental agency
in connection with the offer and sale of the Securities.
(7) To the best of such counsel's knowledge, but based
only upon a search of the cause list at the offices of the Grand Courts
of the Cayman Islands, there was no action, suit or proceeding to which
the Company is a party or to which the assets, properties or operations
of the Company is subject, before the courts of the Cayman Islands at
the close of business on [specify a recent date].
(8) All statements made in the Prospectus with regard to
statutes, regulations, rules, treaties and other laws of the Cayman
Islands (including, but not limited to,
A-1
insurance, regulatory and tax matters and the Companies Law (1998
Revision) of the Cayman Islands) and enforcement of judgments in the
Cayman Islands are accurate.
(9) Pursuant to the Underwriting Agreement, and to the
extent that the laws of the Cayman Islands are relevant, the Company
has legally, validly, effectively and irrevocably submitted to the
jurisdiction of the United States Federal and New York State courts
sitting in the Borough of Manhattan in The City of New York, State of
New York, and has legally, validly and effectively appointed ACE USA,
Inc. as the authorized agent of the Company for the purposes described
in Section 13 of the Underwriting Agreement assuming this to be the
case as a matter of the applicable United States Federal and New York
State laws.
(10) The choice of the laws of the State of New York,
United States of America as the governing law of the Underwriting
Agreement and the Indenture is a valid and effective choice of law and
in an action brought before a court of competent jurisdiction in the
Cayman Islands, the laws of the State of New York would, to the extent
specifically pleaded and proved as a fact by expert evidence, be
recognized and applied by such court to all issues concerning the
formal and essential validity of the Underwriting Agreement and the
Indenture and the interpretation thereof, except that in any such
action such court will apply those laws of the Cayman Islands as such
court characterizes as procedural, and will not apply those laws of the
State of New York as such court characterizes as procedural.
(11) Although there is no statutory enforcement in the
Cayman Islands of a judgment obtained in New York, the courts of the
Cayman Islands will recognize and enforce a foreign judgment of a court
of competent jurisdiction, based on the principle that a judgment of a
competent foreign court imposes upon the judgment debtor an obligation
to pay the sum for which judgment has been given provided such judgment
is final, for a liquidated sum, not in respect of taxes or a fine or
penalty, and was not obtained in a manner and is not of a kind the
enforcement of which is contrary to the public policy of the Cayman
Islands. A Cayman Islands court may stay proceedings if concurrent
proceedings are being brought elsewhere. For the purposes of
enforcement of a judgment granted against the Company in respect of the
Underwriting Agreement and the Indenture, a court in the Cayman Islands
would recognize the jurisdiction of the applicable federal or state
court to the jurisdiction of which the Company has submitted rendering
such judgment if service of process on the Company is effected pursuant
to and in accordance with the provisions of the Underwriting Agreement.
(12) On the basis that the Company carries on its business
as set forth in the Prospectus, there is no requirement that it be
licensed under the Insurance Law, 1979, as amended of the Cayman
Islands.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the Cayman Islands, to
the extent such counsel deems proper and specified in such opinion, upon the
opinion of other counsel whom such counsel believes to be reliable (which
opinion shall be dated and furnished to the Representatives at the Closing Time,
shall be satisfactory in form and substance to counsel for the Underwriters and
A-2
shall expressly state that the Underwriters may rely on such opinion as if it
were addressed to them), provided that such counsel shall state in their opinion
that they believe that they and the Underwriters are justified in relying upon
such opinion, and (B) as to matters of fact (but not as to legal conclusions),
to the extent such counsel deems proper, on certificates of responsible officers
of the Company, its subsidiaries and public officials.
A-3
Exhibit B
FORM OF OPINION OF CONYERS DILL & PEARMAN, THE COMPANY'S
BERMUDA COUNSEL, TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(1) Each of ACE Bermuda Insurance Ltd., Corporate
Officers and Directors Assurance Ltd. and Tempest Reinsurance Company
Limited (collectively, the "Bermuda Insurance Subsidiaries") (A) is
validly existing under the laws of Bermuda as a company with limited
liability and is in good standing under the laws of Bermuda (meaning
that such company has not failed to make any filing with any Bermuda
government authority or to pay any Bermuda government fee or tax, the
failure of which would make such company immediately liable to be
struck off the Register of Companies and thereby cease to exist under
the laws of Bermuda) and (B) the corporate objects and powers contained
in the Memorandum of Association of each of the Bermuda Insurance
Subsidiaries are sufficient to allow them to carry on their business
and to own, lease and operate its properties as both are described in
the Prospectus.
(2) The Company is validly registered under the Companies
Act 1981 as a Permit Company and is in good standing under the laws of
Bermuda (meaning that such company has not failed to make any filing
with any Bermuda government authority or to pay any Bermuda government
fee or tax which is required to be paid in respect of Permit Companies
in Bermuda).
(3) Based solely upon a certified copy of the Register of
Members for each of the Bermuda Insurance Subsidiaries, and without
further inquiry, (A) all of the issued shares in the share capital of
each of the Bermuda Insurance Subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable (meaning
that no further sums are required to be paid by the holders thereof in
connection with the issue of such shares); and (B) the Company is the
registered holder of all the issued shares of each of the Bermuda
Insurance Subsidiaries.
(4) Each of the Bermuda Insurance Subsidiaries is duly
registered as an insurer under the Insurance Act of 1978 (Bermuda) and
the regulations promulgated thereunder (together, the "Insurance Act")
and as so registered, each Bermuda Insurance Subsidiary may conduct the
insurance business as described in the Prospectus; and based solely on
the Certificates of Compliance and without independent inquiry, each of
the Bermuda Insurance Subsidiaries has filed with the appropriate
Bermuda governmental authority all reports, documents or other
information required to be filed under the Insurance Act.
(5) The Company is not registered as an insurer under the
Insurance Act and is therefore not required to comply with the
requirements of the Insurance Act applicable to registered insurers.
(6) The execution and delivery by the Company of, and the
performance by the Company of its obligations under the Underwriting
Agreement and the Indenture and
B-1
the consummation by the Company of the transactions contemplated by the
Underwriting Agreement do not and will not (A) violate any provision of
the Memorandum of Association or By-laws of any of the Bermuda
Insurance Subsidiaries or any applicable law, regulation, order or
decree in Bermuda; (B) based solely upon the Cause Book, contravene any
judgment, order or decree by the Bermuda Supreme Court against the
Company or the Bermuda Insurance Subsidiaries; or (C) require any
consent, approval or authorization or order of, or qualification with,
any Bermuda governmental agency.
(7) Based solely upon the Cause Book and without further
inquiry, there is no action, suit or proceeding now pending before the
Bermuda Supreme Court against the Company or the Bermuda Insurance
Subsidiaries or any of their respective properties.
(8) All statements made in the Registration Statement and
Prospectus with respect to statutes, regulations, rules, treaties and
other laws of Bermuda (including, but not limited to, statements made
with respect to the Insurance Act and Bermuda tax matters) fairly and
accurately present the information set forth therein.
(9) The choice of the law of the State of New York as the
governing law of the Underwriting Agreement and the Indenture is a
valid choice of law and would be recognized and given effect to in any
action brought before a court of competent jurisdiction in Bermuda,
except for those laws (A) which such court considers to be procedural
in nature, (B) which are revenue or penal laws or (C) the application
of which would be inconsistent with public policy, as such term is
interpreted under the laws of Bermuda.
(10) The courts of Bermuda would recognize as a valid
judgment, a final and conclusive judgment in personam obtained in the
courts of the State of New York and of the United States of America
against the Company based upon the Underwriting Agreement and the
Indenture under which a sum of money is payable (other than a sum of
money payable in respect of multiple damages, taxes or other charges of
a like nature or in respect of a fine or other penalty) and would give
a judgment based thereon provided that (A) such courts had proper
jurisdiction over the parties subject to such judgment, (B) such courts
did not contravene the rules of natural justice of Bermuda, (C) such
judgment was not obtained by fraud, (D) the enforcement of the judgment
would not be contrary to the public policy of Bermuda, (E) no new
admissible evidence relevant to the action is submitted prior to the
rendering of the judgment by the courts of Bermuda and (F) there is due
compliance with the correct procedures under the laws of Bermuda.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of Bermuda, to the extent
such counsel deems proper and specified in such opinion, upon the opinion of
other counsel whom such counsel believes to be reliable (which opinion shall be
dated and furnished to the Representatives at the Closing Time, shall be
satisfactory in form and substance to counsel for the Underwriters and shall
expressly state that the Underwriters may rely on such opinion as if it were
addressed to them), provided that such counsel shall state in their opinion that
they believe that they and the Underwriters are justified in relying upon such
opinion, and (B) as to matters of fact (but not as to legal
B-2
conclusions), to the extent such counsel deems proper, on certificates of
responsible officers of the Company, its subsidiaries and public officials.
B-3
Exhibit C
FORM OF OPINION OF PETER N. MEAR, ESQ.,
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(1) The Company is qualified to do business, and is in
good standing, as a foreign corporation, under the laws of each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or to be in good standing would not
singly or in the aggregate result in a Material Adverse Change;
(2) Each of ACE Bermuda Insurance Ltd., Tempest
Reinsurance Company Limited, ACE USA, Inc. and ACE INA Holdings Inc. is
qualified to transact business and is in good standing (with respect to
jurisdictions which recognize such concept) in each jurisdiction in
which it owns or leases real property or in which the conduct of its
business requires such qualification, except where the failure to be so
qualified or to be in good standing (with respect to jurisdictions
which recognize such concept) would not singly or in the aggregate
result in a Material Adverse Change;
(3) Except as set forth in the Registration Statement and
the Prospectus, such counsel does not know of any outstanding (A)
securities or obligations of the Company convertible into or
exchangeable for any shares of capital stock of the Company or any of
its subsidiaries; (B) rights, warrants or options to acquire or
purchase from the Company any shares of capital stock of the Company or
any such convertible or exchangeable securities or obligations; or (C)
obligations or understandings of the Company to issue or sell any
shares of capital stock of the Company or any of its subsidiaries, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or obligations; and
(4) To the best of such counsel's knowledge, and other
than as disclosed in the Prospectus, there are no threatened legal
proceedings against the Company or any of its subsidiaries which, if
determined adversely to the Company or such subsidiary, would result in
a Material Adverse Change.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent such counsel deems proper, on
certificates of responsible officers of the Company, its subsidiaries and public
officials.
C-1
Exhibit D
FORM OF OPINION OF MAYER, BROWN, ROWE & MAW,
UNITED STATES COUNSEL FOR THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(1) Each of ACE INA Holdings Inc. and ACE USA, Inc. is
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(2) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement and the Indenture and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated by the Registration
Statement and the Prospectus and the consummation by the Company of the
transactions contemplated by the Underwriting Agreement do not and will
not (A) contravene any provision of any United States federal or New
York State law, rule or regulation, in each case which, in such
counsel's opinion, based on such counsel's experience, are normally
applicable to transactions of the type contemplated by the Underwriting
Agreement ("United States Applicable Laws"), except that such counsel
need not express any opinion in this paragraph with respect to state
securities laws; (B) contravene any judgment, order or decree known to
such counsel without independent inquiry of any United States federal
or New York State court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or by which
the Company or any of its subsidiaries is bound or by which their
properties or assets may be affected; (C) conflict with, result in any
breach of or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or give rise
to any right to accelerate the maturity or require the prepayment of
any indebtedness or the purchase of any capital stock under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any properties or assets of the Company or any of its subsidiaries,
pursuant to the terms of, any agreement or instrument filed as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 or any agreement or instrument otherwise known
to such counsel to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the assets, properties or operations of the Company or any of its
subsidiaries is subject, or the certificate of incorporation or bylaws
of ACE INA Holdings Inc. or ACE USA, except for such conflicts,
breaches, violations, defaults, accelerations, repayments, repurchases,
liens, charges or encumbrances that would not singly or in the
aggregate result in a Material Adverse Change; or (D) based upon such
counsel's review of the United States Applicable Laws, require any
consent, approval or authorization or order of, or qualification with,
any United States federal or state governmental agency or authority or
court, except such as have been obtained under the 1933 Act, the 1933
Act Regulations, the 1939 Act and the 1939 Act Regulations and such as
may be required
D-1
under state securities or blue sky laws or state insurance laws in
connection with the offer and sale of the Securities.
(3) The Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of
the consideration therefor specified in the Underwriting Agreement,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); the Securities are in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the Indenture.
(4) The Indenture constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(5) The Securities and the Indenture conform in all
material respects to the statements relating thereto contained in the
Prospectus and are in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement.
(6) Such counsel does not know, after inquiry of officers
of the Company and based solely on such inquiry, of any action, suit or
proceeding before or by any United States federal or state government,
governmental instrumentality or court now pending or threatened against
or affecting the Company or any of its subsidiaries or any of their
respective assets or properties that is required to be described in the
Registration Statement or the Prospectus and is not so described or of
any contract or other document that is required to be described in the
Registration Statement or the Prospectus, or to be filed as an exhibit
to the Registration Statement, that is not described or filed, as
required.
(7) The statements in the Registration Statement and the
Prospectus insofar as they are descriptions of contracts, agreements,
instruments or proceedings, or constitute statements or summaries of
United States federal or New York State laws or legal conclusions with
respect thereto, are accurate and present fairly the information
required to be shown.
(8) The discussion of tax matters set forth under the
heading "Certain Tax Consequences" in the Prospectus contains the
relevant and material provisions of present United States tax law
applicable to the Securities and the statements thereunder are true
D-2
and correct (subject to the qualifications and assumptions set forth in
such discussion) as of the Closing Time.
(9) The Registration Statement (including any Rule 462(b)
Registration Statement) and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement (including any Rule 462(b) Registration
Statement) and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates
(other than the financial statements and supporting schedules and other
financial data included therein or omitted therefrom, as to which such
counsel need express no opinion) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations.
(10) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules and other financial data included therein or omitted
therefrom, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the 1933 Act or the 1934 Act , as applicable, and the rules and
regulations of the Commission thereunder.
(11) The Indenture has been duly qualified under the 1939
Act.
(12) The Company is not, and upon the issuance and sale of
the Securities as contemplated in the Underwriting Agreement and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
Such counsel shall also state that it has been advised by the
Commission that the Registration Statement (including any Rule 462(b)
Registration Statement) became effective under the 1933 Act; that any required
filings of the Prospectus pursuant to Rule 424(b) have been made in the manner
and within the time period required by Rule 424(b); and that, based solely on
conversations with the Commission, no stop order suspending the effectiveness of
the Registration Statement (or such Rule 462(b) Registration Statement) has been
issued and no proceedings for the purpose have been instituted, are pending or,
to such counsel's knowledge, are contemplated under the 1933 Act.
Such counsel shall also state that they have examined various documents
and participated in conferences with representatives of the Company and their
accountants and with representatives of the Representatives and their counsel at
which times the contents of the Registration Statement and the Prospectus and
related matters were discussed, and that, although they are not passing upon and
assume no responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus or making
any representation that they have independently verified or checked the
accuracy, completeness or fairness of such statements, except as set forth
above, no facts have come to such counsel's attention that cause such counsel to
believe that the Registration Statement (including any Rule
D-3
462(b) Registration Statement) or any post-effective amendment thereto, at the
time the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (including the filing of the
Company's Annual Report on Form 10-K with the Commission) became effective or as
of the date of the Underwriting Agreement, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; or that the
Prospectus or any amendment or supplement thereto, at the date of the
Prospectus, at the date of any such amendment or supplement or at the Closing
Time, included or includes any untrue statement of a material fact or omitted or
omits 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 (such counsel need not express a belief with respect
to the financial statements and supporting schedules and other financial data
included in or omitted from the Registration Statement (including any Rule
462(b) Registration Statement) or any post-effective amendment thereto or the
Prospectus or any amendment or supplement thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the State of New York,
the corporate laws of the State of Delaware or the federal laws of the United
States of America, to the extent such counsel deems proper and specified in such
opinion, upon the opinion of other counsel whom such counsel believes to be
reliable (which opinion shall be dated and furnished to the Representatives at
the Closing Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them), provided that such counsel shall state
in their opinion that they believe that they and the Underwriters are justified
in relying upon such opinion, and (B) as to matters of fact (but not as to legal
conclusions), to the extent such counsel deems proper, on certificates of
responsible officers of the Company, its subsidiaries and public officials.
D-4