Willis Group Holdings Limited
20,000,000 Shares 1
Common Stock
($0.000115 par value)
Form of Underwriting Agreement
New York, New York
February 19, 2004
Citigroup Global Markets Inc.
Banc of America Securities LLC
Credit Suisse First Boston LLC
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Profit Sharing (Overseas), Limited Partnership, a limited
partnership formed pursuant to the laws of the Province of Alberta ("Overseas")
and Fisher Capital Corp. L.L.C., a Delaware limited liability company ("Fisher
Capital" and, together with Overseas, the "Selling Stockholders"), propose to
sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 20,000,000 shares of Common Stock, par value $0.000115 per
share ("Common Stock"), of Willis Group Holdings Limited, a Bermuda company (the
"Company") (said shares to be sold by the Selling Stockholders being hereinafter
called the "Underwritten Securities"). The Selling Stockholders also propose to
grant to the Underwriters an option to purchase up to 3,000,000 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. In addition,
to the extent that there is not more than one Selling Stockholder named in
Schedule II, the term Selling Stockholder shall mean either the singular or
plural. The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Except as otherwise specified or as the context
otherwise implies, where reference is made herein to information contained,
described, disclosed, included or set forth in, or omitted from, the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus, such reference shall be deemed to include the information
contained in the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be (the
"Incorporated Documents"); and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
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1 Plus an option to purchase from the Selling
Stockholders, up to 3,000,000 additional
shares of Common Stock to cover
over-allotments.
1. Representations and Warranties of the Company and the
Selling Stockholders. (a) The Company represents and warrants to, and agrees
with, each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a
registration statement (File No. 333-112354) on Form S-3,
including a related Basic Prospectus, for registration under
the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto,
including a Preliminary Prospectus, each of which has
previously been furnished to you. The Company will next file
with the Commission one of the following: (1) after the
Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment
to such registration statement (including the form of final
prospectus supplement) or (3) a final prospectus in
accordance with Rules 415 and 424(b). In the case of clause
(1), the Company has included in such registration
statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration
statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will
be included or made therein. The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
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(ii) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing
Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects
with the applicable requirements of the Act and the rules
thereunder; the Incorporated Documents, when they were
filed, complied in all material respects with the applicable
requirements of the Exchange Act and the rules thereunder;
on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on
the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to the information
contained in or omitted from the Registration Statement, or
the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing
to the Company by or on behalf of any Selling Stockholder or
Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood
and agreed that the only such information is that described
as such in Sections 8(b) and 8(c) hereof, respectively.
(iii)Each of the Company and its subsidiaries (other than
Sovereign Marine & General Insurance Company Limited and its
subsidiaries) has been duly organized and is validly
existing and in good standing under the laws of the
jurisdiction in which it is organized with requisite power
and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described
in the Final Prospectus, and is duly qualified to do
business and is in good standing under the laws of each
jurisdiction which requires such qualification, except where
the failure to be so qualified would not, individually or in
the aggregate, reasonably be expected to have a material
adverse effect on the condition (financial or otherwise),
business or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse
Effect").
(iv) All the outstanding common equity interests in each of the
Company's subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable, and, except as
otherwise set forth on Schedule III, all outstanding common
equity interests in each such subsidiary are owned by the
Company either directly or indirectly and, except as set
forth in the Final Prospectus, are owned free and clear of
any perfected security interest or any other security
interests, claims, liens or encumbrances.
3
(v) The Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Final Prospectus; the outstanding
shares of Common Stock, including the Securities, have been
duly authorized and validly issued and are fully paid and
nonassessable; the Securities are duly listed, and admitted
and authorized for trading, on the New York Stock Exchange;
on the Closing Date the certificates for the Underwritten
Securities will be in valid and sufficient form; in the
event that Option Securities are purchased, on the Closing
Date or any settlement date, as applicable, the certificates
for such Option Securities will be in valid and sufficient
form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights
to subscribe for the Securities; and, except as set forth in
the Final Prospectus, no options, warrants or other rights
to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(vi) The descriptions in the Final Prospectus (exclusive of any
supplement thereto) of statutes, and other laws, rules and
regulations, legal and governmental proceedings and
contracts and other documents are accurate and fairly
present in all material respects the information that is
required to be described therein under the Act; and there is
no franchise, contract or other document of a character
required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required.
(vii)This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The Company is not and, after giving effect to the
offering and sale of the Securities as described in the
Final Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(ix) No consent, approval, authorization, filing, order,
registration or qualification of or with any court or
governmental agency or body is required in connection with
the transactions contemplated herein, except (1) that (i)
the consent of the Bermuda Monetary Authority (the
"Authority") is required and has been obtained for the sale
and subsequent transferability of the Securities; and (ii)
the Final Prospectus is required to be and has been filed
with the Registrar of Companies in Bermuda pursuant to Part
III of the Companies Act 1981 of Bermuda; (2) such as have
been obtained under the Act; and (3) such as may be required
under the state securities laws ("Blue Sky laws") of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Final Prospectus.
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(x) None of the execution and delivery of this Agreement, the
sale of the Securities, the consummation of any other of the
transactions herein contemplated or the fulfillment of the
terms hereof will conflict with, result in a breach or
violation of, or constitute a default under, or result in
the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to (i) the Memorandum of Association or Bye-laws of
the Company or the charter or by-laws (or similar
organizational documents) of any of the Company's
subsidiaries, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan
agreement, partnership agreement, joint venture agreement or
other agreement or instrument to which the Company or any of
its subsidiaries is a party or is bound or to which its or
their properties or assets are subject (collectively,
"Contracts") or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any
of its subsidiaries or any of its or their properties or
assets, except in the case of clauses (ii) and (iii) for
such conflicts, breaches, violations or defaults that would
not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xi) The consolidated historical financial statements of the
Company and its consolidated subsidiaries, and the related
notes thereto, included in the Final Prospectus and the
Registration Statement present fairly in all material
respects the consolidated financial condition, results of
operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form in all material
respects with the applicable accounting requirements of the
Act and have been prepared in conformity with United States
generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set
forth under the captions "Prospectus Supplement Summary -
Summary Consolidated Financial Data" and "Prospectus
Supplement - Recent Financial Results" each in the Final
Prospectus and Registration Statement fairly present in all
material respects, on the basis stated in the Final
Prospectus and the Registration Statement, the information
included therein. The selected financial data set forth
under the caption "Selected Historical Consolidated
Financial Data" in the Company's Annual Report on Form 10-K
for the year ended December 31, 2002 (the "Annual Report")
fairly present in all material respects, on the basis stated
in the Annual Report, the information included therein.
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(xii)Except as disclosed in the Final Prospectus (exclusive of
any supplement thereto), there is (i) no action, suit or
proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign,
now pending, or to the knowledge of the Company or any of
its subsidiaries threatened or contemplated, to which the
Company or any of its subsidiaries is or may be a party or
to which the business, property or assets of the Company or
any of its subsidiaries is or may be subject, (ii) to the
Company's knowledge, no statute, rule, regulation or order
that has been enacted, adopted or issued by any governmental
agency or that has been proposed by any governmental body,
and (iii) no injunction, restraining order or order of any
nature by a court of competent jurisdiction to which the
Company or any of its subsidiaries is or may be subject,
that has been issued and is outstanding that, in the case of
clauses (i), (ii) or (iii) above (x) would reasonably be
expected to have a Material Adverse Effect or (y) seeks to
restrain, enjoin, interfere with, or would reasonably be
expected to adversely affect in any material respect, the
performance of this Agreement or any of the transactions
contemplated by this Agreement; and the Company and each of
its subsidiaries has complied with any and all requests by
any securities authority in any jurisdiction for additional
information to be included in the Final Prospectus.
(xiii) None of the Company or its Subsidiaries is (i) in
violation of its charter or by-laws (or similar
organizational documents), (ii) in breach or violation of
any statute, judgment, decree, order, rule or regulation
applicable to the Company or its Subsidiaries or any of
their properties or assets or (iii) in breach or default in
the performance of any Contract, except, in the case of
clauses (i), (ii) and (iii) (and in the case of clause (i),
only with respect to the Subsidiaries) for any such
violation, breach or default that would not, individually or
in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(xiv)Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries
and delivered their report with respect to certain audited
consolidated financial statements included in the Final
Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the
applicable rules and regulations thereunder. Ernst & Young,
who have certified certain financial statements and
financial statement schedules of Willis Corroon Group
Limited for all years prior to 1999 included in the Willis
Corroon Corporation Registration Statement on Form F-4 (File
No. 333-74483) (the "Willis Corroon Corporation Form F-4"),
were at such time independent public accountants with
respect to Willis Corroon Group Limited within the meaning
of the Act and the applicable rules and regulations
thereunder.
6
(xv) No stamp duty, stock exchange tax, value-added tax,
withholding or any other similar duty or tax is payable in
the United States, the United Kingdom, Bermuda or any other
jurisdiction in which either the Company or any of its
subsidiaries is organized or engaged in business for tax
purposes or, in each case, any political subdivision thereof
or any authority having power to tax, in connection with the
execution or delivery of this Agreement by the Company or
the sale or delivery of the Securities by the Selling
Stockholders to the Underwriters or the initial resales
thereof by the Underwriters in the manner contemplated by
this Agreement and the Final Prospectus.
(xvi)Each of the Company and its subsidiaries has filed all
necessary federal, state and foreign (including, without
limitation, United Kingdom and Bermuda) income and franchise
tax returns required to be filed to the date hereof, except
where the failure to so file such returns would not,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, and has paid all material
taxes shown as due thereon; and other than tax deficiencies
which the Company or any subsidiary is contesting in good
faith and for which the Company or such subsidiary has
provided adequate reserves, there is no tax deficiency that
has been asserted against the Company or any of the
subsidiaries that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(xvii) Each of the Company and its subsidiaries has good and
marketable title, free and clear of all liens, claims,
encumbrances and restrictions, to all property and assets
described in the Final Prospectus as being owned by it and
good title to all leasehold estates in the real property
described in the Final Prospectus as being leased by it
except for (i) liens for taxes not yet due and payable, (ii)
liens and encumbrances that are contemplated by the Senior
Credit Facility, (iii) liens, claims, encumbrances and
restrictions that do not materially interfere with the use
made and proposed to be made of such properties (including,
without limitation, purchase money mortgages), and (iv) to
the extent the failure to have such title or the existence
of such liens, claims, encumbrances and restrictions would
not reasonably be expected to have a Material Adverse
Effect.
(xviii) Neither the Company nor any of its subsidiaries is
involved in any labor dispute nor, to the best of the
knowledge of the Company and its subsidiaries, is any labor
dispute threatened which, if such dispute were to occur,
would reasonably be expected to have a Material Adverse
Effect.
7
(xix)The Company and each of its subsidiaries maintain insurance
insuring against such losses and risks as the Company
reasonably believes is adequate to protect the Company and
each of its subsidiaries and their respective businesses,
except where the failure to maintain such insurance would
not reasonably be expected to have a Material Adverse
Effect; the Company and its subsidiaries are in compliance
with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or
any of its subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or
defending under a reservation of rights clause that would
reasonably be expected to have a Material Adverse Effect;
none of the Company or its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the
Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not reasonably
be expected to have a Material Adverse Effect whether or not
arising from transactions in the ordinary course of
business, except as set forth in the Final Prospectus
(exclusive of any supplement thereto).
(xx) Under the current laws and regulations of Bermuda, all
dividends and other distributions declared and payable on
the Securities may be paid by the Company to the holder
thereof in United States dollars that may be freely
transferred out of Bermuda and all such payments made to
holders thereof who are non-residents of Bermuda will not be
subject to income, withholding or other taxes under the laws
or regulations of Bermuda and will otherwise be free of any
other tax, duty, withholding or deduction in Bermuda and
without the necessity of obtaining any governmental
authorization in Bermuda.
(xxi)Each of the Company and its subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations
and filings with, all appropriate federal, state, local,
foreign and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals, presently required or necessary to own or lease,
as the case may be, and to operate their respective
properties and to carry on the business of the Company and
its subsidiaries as now conducted as set forth in the Final
Prospectus, the lack of which would, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect ("Permits"); each of the Company and its subsidiaries
has fulfilled and performed all of its obligations with
respect to such Permits and, to the best knowledge of the
Company, no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination
thereof or results in any other impairment of the rights of
the holder of any such Permit, except where the failure to
fulfill or perform such obligations or such impairment,
would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and none of the
Company or its subsidiaries has received any notice of any
proceeding relating to revocation or modification of any
such Permit except where such revocation or modification
would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
8
(xxii) Each of the Company and its subsidiaries maintain a system
of internal accounting controls sufficient to provide
reasonable assurance that transactions are recorded as
necessary to permit preparation of consolidated financial
statements in conformity with United States generally
accepted accounting principles. The Company maintains
disclosure controls and procedures (as such term is defined
in Rule 13a-15 under the Exchange Act) that are effective in
ensuring that information required to be disclosed by the
Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the rules and
forms of the Commission, including, without limitation,
controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that
it files or submits under the Exchange Act is accumulated
and communicated to the Company's management, including its
principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow
timely decisions regarding required disclosure.
(xxiii) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the
sale or resale of the Securities.
(xxiv) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, to
the knowledge of the Company and its subsidiaries, the
Company and its subsidiaries are in compliance with all
applicable existing federal, state, local and foreign laws
and regulations relating to the protection of human health
or the environment or imposing liability or requiring
standards of conduct concerning any Hazardous Materials
("Environmental Laws"). The term "Hazardous Material" means
(a) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (b) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act, as
amended, (c) any petroleum or petroleum product, (d) any
polychlorinated biphenyl and (e) any pollutant or
contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the
meaning of any other Environmental Law. None of the Company
or its subsidiaries has received any written notice and
there is no pending or, to the best knowledge of the Company
and its subsidiaries, threatened action, suit or proceeding
before or by any court or governmental agency or body
alleging liability (including, without limitation, alleged
or potential liability for investigatory costs, cleanup
costs, governmental response costs, natural resources
damages, property damages, personal injuries, or penalties)
of the Company or any of its subsidiaries arising out of,
based on or resulting from (i) the presence or release into
the environment of any Hazardous Material at any location
owned by the Company or any subsidiary of the Company, or
(ii) any violation or alleged violation of any Environmental
Law, in either case (x) which alleged or potential liability
would be required to be described in the Registration
Statement under the Act, or (y) which alleged or potential
liability would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
9
(xxv)None of the Company or its subsidiaries has any material
liability for any prohibited transaction or funding
deficiency or any complete or partial withdrawal liability
with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), to which it makes or ever
has made a contribution and in which any employee of it is
or has ever been a participant. With respect to such plans,
each of the Company and its subsidiaries is in compliance in
all material respects with all applicable provisions of
ERISA. In addition, the Company has caused (i) all pension
schemes maintained by or for the benefit of any of its
subsidiaries organized under the laws of England and Wales
or any of its employees to be maintained and operated in all
material respects in accordance with all applicable laws
from time to time and (ii) all such pension schemes to be
funded in accordance with the governing provisions of such
schemes, except to the extent failure to do so would not,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xxvi) The subsidiaries listed on Schedule IV attached hereto are
the only significant subsidiaries of the Company as defined
by Rule 1-02 of Regulation S-X (the "Subsidiaries").
(xxvii) The Company and each of its subsidiaries own or possess
adequate licenses or other rights to use all patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations,
copyrights, licenses and know-how (including, without
limitation, trade secrets and other unpatented and/or
unpatentable proprietary or confidential information,
systems or procedures) and copyrights necessary to conduct
the business described in the Final Prospectus, except where
the failure to own or possess or have the ability to acquire
any of the foregoing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, and none of the Company or its subsidiaries has
received any notice of infringement of or conflict with
asserted rights of others with respect to any patents,
trademarks, service marks, trade names or copyrights which,
if such assertion of infringement or conflict were
sustained, would individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
10
(xxviii) None of the Company or its subsidiaries or its or their
properties or assets has any immunity from the jurisdiction
of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment
in aid of execution or otherwise) under the laws of the
United States, the United Kingdom or Bermuda.
(xxix) To ensure the legality, validity, enforceability and
admissibility into evidence of each of this Agreement, the
Securities and any other document to be furnished hereunder
in Bermuda, it is not necessary that this Agreement, the
Securities or such other document be filed or recorded with
any court or other authority in Bermuda or any stamp or
similar tax be paid in Bermuda on or in respect of this
Agreement, the Securities or any such other document except
that (i) the consent of the Authority is required for the
sale and subsequent transferability of the Securities and
the Company has applied for such consent; and (ii) the Final
Prospectus is required to be and has been filed with the
Registrar of Companies in Bermuda pursuant to Part III of
the Companies Act 1981 of Bermuda.
(xxx)The Company has duly and irrevocably appointed William P.
Bowden, Jr., Willis Group Holdings Limited, 7 Hanover
Square, New York, New York, 10004, as its agent to receive
service of process with respect to actions arising out of or
in connection with (i) this Agreement; and (ii) violations
of United States federal securities laws relating to offers
and sales of the Securities.
(xxxi) Under Bermuda law the Underwriters will not be deemed to
be resident, domiciled, carrying on any commercial activity
in Bermuda or subject to any taxation in Bermuda by reason
only of the entry into, performance or enforcement of this
Agreement to which they are a party or the transactions
contemplated hereby. It is not necessary under Bermuda law
that the Underwriters be authorized, licensed, qualified or
otherwise entitled to carry on business in Bermuda for their
execution, delivery, performance or enforcement of this
Agreement.
(xxxii) A final and conclusive judgment of a court located
outside Bermuda against the Company based upon this
Agreement (other than a court of jurisdiction to which The
Judgments (Reciprocal Enforcement) Act, 1958 applies, and it
does not apply to the federal and state courts of the
Borough of Manhattan in New York City) under which a sum of
money is payable (not being a sum payable in respect of
taxes or other charges of a like nature, in respect of a
fine or other penalty, or in respect of multiple damages as
defined in The Protection of Trading Interests Act 1981) may
be the subject of enforcement proceedings in the Supreme
Court of Bermuda under the common law doctrine of obligation
by action on the debt evidenced by the judgment of such
court located outside Bermuda.
11
(xxxiii) Approximately 6,300,000 of the 6,900,000 currently
outstanding shares of Common Stock held by directors,
officers and other employees (including former employees) of
the Company or its subsidiaries, and all shares of Common
Stock that will be issued pursuant to any employee stock
option plan, stock ownership plan, stock purchase plan,
dividend reinvestment plan or other employee or director
benefit plan (other than the shares held pursuant to the
2001 Share Purchase and Option Plan, Employee Stock Purchase
Plan and Sharesave Plan) of the Company to, or that will be
issued upon the exercise of options by, such directors,
officers or other employees of the Company or its
subsidiaries (the "Management Shares") are subject to the
provisions of various Management and Employee Shareholders'
and Subscription Agreements (the "Management Registration
Rights Agreement"), true and complete copies of which have
been provided to the Representatives prior to the date of
this Agreement; pursuant to the Management Registration
Rights Agreement, no officer or other employee is permitted
to sell, transfer, assign, pledge or hypothecate its shares
of Common Stock prior to the sixth anniversary of the date
such officer or other employee purchased shares (except that
he may sell his shares under an effective registration
statement or pursuant to sale participation rights at the
time Overseas sells its shares; it being understood that the
Company intends to release from the Management Transfer
Restrictions (as defined below), effective thirty days after
the date of this Agreement, such portion of his shares as is
equal to the number of shares he would have been permitted
to include in the Registration Statement, pursuant to the
Management Registration Rights Agreement), and, in any
event, prior to the 90th day following the sale of the
Securities as contemplated hereby, in each case without the
prior written consent of the Company (the "Management
Transfer Restrictions"); and prior to the date of this
Agreement the shares of Common Stock held by Overseas and
Fisher Capital, together with the Management Shares
beneficially owned as of the date of this Agreement,
comprise 26.2% of the issued Common Stock.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
(b) Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, each Underwriter that:
(i) Such Selling Stockholder is the record owner of the
Securities to be sold by it hereunder free and clear of all
liens, encumbrances, equities and claims and has taken all
steps necessary to transfer ownership of the Securities to
the Underwriters.
12
(ii) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(iii)No consent, approval, authorization, filing, order,
registration or qualification of or with any court or
governmental agency or body is required for the sale of the
Securities by such Selling Stockholder, except (1) that (i)
the consent of the Authority is required and has been
obtained for the sale and subsequent transferability of the
Securities; and (ii) the Final Prospectus is required to be
and has been filed with the Registrar of Companies in
Bermuda pursuant to Part III of the Companies Act 1981 of
Bermuda; (2) such as have been obtained under the Act; and
(3) such as may be required under the Blue Sky laws of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Final Prospectus.
(iv) Neither the sale of the Securities being sold by such
Selling Stockholder nor the fulfillment of the terms hereof
by such Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any
law or, if applicable, the charter or by-laws of such
Selling Stockholder or the terms of any indenture or other
agreement or instrument to which such Selling Stockholder
or, if applicable, any of its subsidiaries, is a party or
bound, or any judgment, order or decree applicable to such
Selling Stockholder or, if applicable, any of its
subsidiaries, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over such Selling Stockholder or, if applicable, any of its
subsidiaries.
(v) The sale of Securities by such Selling Stockholder pursuant
hereto is not prompted by any information concerning the
Company or any of its subsidiaries which is not set forth in
the Final Prospectus or any supplement thereto.
(vi) In respect of any statements in or omissions from the
Registration Statement or the Final Prospectus or any
supplements thereto, in each case made in reliance upon and
in conformity with information furnished in writing to the
Company by such Selling Stockholder specifically for use in
connection with the preparation thereof, such statements
comply in all material respects with the applicable
requirements of the Act and the rules thereunder; and on the
Effective Date, at the Execution Time, on the date of any
filing of the Final Prospectus pursuant to Rule 424(b) and
on the Closing Date and any settlement date, such statements
did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the
statements therein not misleading.
13
Any certificate signed by any Selling Stockholder and, if
applicable, any officer of any Selling Stockholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, each Selling
Stockholder agrees to sell to the several Underwriters the amount of
Underwritten Securities set forth opposite such Selling Stockholder's name in
Schedule II hereto, and each Underwriter agrees, severally and not jointly, to
purchase from each Selling Stockholder, at a purchase price of $37.026 per
share, such Selling Stockholder's proportionate share of the amount of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders hereby
grant an option to the several Underwriters to purchase, severally and not
jointly, up to 3,000,000 Option Securities at the same purchase price per share
as the Underwriters shall pay for the Underwritten Securities. Said option may
be exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Final Prospectus upon written or telegraphic notice by the Representatives
to the Selling Stockholders setting forth the number of shares of the Option
Securities as to which the several Underwriters are exercising the option and
the settlement date. The maximum number of Option Securities which each Selling
Stockholder agrees to sell is set forth in Schedule II hereto. In the event that
the Underwriters exercise less than their full over-allotment option, the number
of Option Securities to be sold by each Selling Stockholder listed in Schedule
II shall be, as nearly as practicable, in the same proportion as the maximum
number of Option Securities to be sold by each Selling Stockholder and the
number of Option Securities to be sold. The number of Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on February 25,
2004, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Selling
Stockholders or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date"). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the aggregate purchase price of the Securities
being sold by each of the Selling Stockholders to or upon the order of such
Selling Stockholder by wire transfer payable in same-day funds to an account
specified by such Selling Stockholder. Delivery of the Underwritten Securities
and the Option Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
14
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters of
the Securities to be purchased by them from such Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved in
further transfers.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Selling Stockholders
will deliver the Option Securities (at the expense of the Company) to the
Representatives, at 388 Greenwich Street, New York, New York 10013, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of each of
the Selling Stockholders by wire transfer payable in same-day funds to an
account specified by such Selling Stockholder. If settlement for the Option
Securities occurs after the Closing Date, the Company and the Selling
Stockholders will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements. (a) The Company agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time, and any amendment thereof, to become effective. Prior
to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or
any Preliminary Prospectus) to the Basic Prospectus or any
Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the
Final Prospectus is otherwise required under Rule 424(b),
15
the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed. The Company will
promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any
supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the
Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in the light of the
circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company will (1) promptly notify the Representatives of any
such event, (2) as soon as practicable, prepare and file
with the Commission, subject to the second sentence of
paragraph (a)(i) of this Section 5, an amendment or
supplement which will correct such statement or omission or
effect such compliance; and (3) thereafter, promptly supply
any supplemented Final Prospectus to you in such quantities
as you may reasonably request.
(iii)As soon as practicable, the Company will make generally
available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
16
(iv) The Company will furnish to the Representatives and counsel
for the Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Prospectus and the Final
Prospectus and any supplement thereto as the Representatives
may reasonably request.
(v) The Company will cooperate with you and counsel for the
Underwriters in connection with the qualification of the
Securities for sale under the laws of such jurisdictions as
the Representatives may designate and will maintain such
qualifications in effect so long as required for the
distribution of the Securities; provided that in no event
shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in
suits, other than those arising out of the offering or sale
of the Securities, or taxation in any jurisdiction where it
is not now so subject.
(vi) The Company will not, without the prior written consent of
Citigroup Global Markets Inc., Banc of America Securities
LLC and Credit Suisse First Boston LLC, (1) offer, sell,
contract to sell, pledge, or otherwise dispose of (or enter
into any transaction which is designed to, or might
reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company),
directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the
Exchange Act, any shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for,
shares of Common Stock; (2) publicly announce an intention
to effect any such transaction; or (3) amend, waive or fail
to enforce the Management Transfer Restrictions in respect
of the Management Shares (except that after the expiration
of 30 days from the date of this Agreement the Company may
waive such Management Transfer Restrictions with respect to
up to an aggregate of approximately 4,820,000 shares of
Common Stock); in the case of clauses (1), (2), or (3) for a
period of 90 days after the date of this Agreement;
provided, however, that the Company may (u) issue and sell
Common Stock and options pursuant to any employee stock
option plan, stock ownership plan, stock purchase plan,
dividend reinvestment plan or other employee or director
benefit plan of the Company existing on the date hereof and
described in the Final Prospectus (upon the terms of such
plan as described in the Final Prospectus), (v) issue Common
17
Stock issuable upon the exercise of options outstanding on
the date hereof pursuant to any such plans, (w) issue Common
Stock as consideration in connection with the acquisition by
the Company or any of its subsidiaries of any person
(including broker teams) or assets and, in connection
therewith, file a registration statement with the
Commission, provided that in the case of this clause (w),
such registration statement does not become effective prior
to the expiration of the 90 day period set forth above and
each recipient of such Common Stock agrees to sign a lock-up
letter having restrictions similar to those set forth in
Section 5(b)(i) hereof for the remainder of such 90 day
period, (x) file one or more shelf registration statements
with the Commission relating to shares of Common Stock to be
offered in the future, provided that no offers or sales of
shares registered pursuant to such shelf
registration statements may be made prior to the expiration
of the 90 day period set forth above, (y) purchase,
concurrently with the purchase and sale contemplated by this
Agreement, 4,000,000 shares of Common Stock from the Selling
Stockholders as described in the in the Final Prospectus
(exclusive of any supplement thereto) at the purchase price
set forth in Section 2(a) and (z) issue options pursuant to
any employee stock option plan approved by the Board of
Directors of the Company subsequent to the date hereof,
provided, however, that the aggregate amount of
shares of Common Stock reserved for issuance
pursuant to the Company's employee stock option plans, stock
ownership plans, stock purchase plans, dividend reinvestment
plans or other employee or director benefit plans as of the
date of any issuance of options pursuant to this clause (z)
does not exceed the aggregate amount of shares of Common
Stock reserved for issuance under the Company's employee
stock option plans, stock ownership plans, stock purchase
plans, dividend reinvestment plans or other employee or
director benefit plans existing as of the date hereof.
(vii)The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the
sale or resale of the Securities.
(viii) The Company agrees to pay the costs and expenses relating
to the following matters: (1) the preparation, printing or
reproduction and filing with the Commission of the
Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Final
Prospectus, and each amendment or supplement to any of them;
(2) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, the Final Prospectus, and all
amendments or supplements to any of them, as may, in each
case, be reasonably requested for use in connection with the
offering and sale of the Securities; (3) the preparation,
18
printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or
transfer taxes in connection with the original sale by the
Selling Stockholders to the Underwriters of the Securities;
(4) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements
or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (5) the
registration of the Securities under the Exchange Act and
the listing of the Securities on the New York Stock
Exchange; (6) any registration or qualification of the
Securities for offer and sale under the securities or blue
sky laws of the several states (including filing fees and
the reasonable fees and expenses of one counsel for the
Underwriters relating to such registration and
qualification); (7) any filings required to be made with the
National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of one
counsel for the Underwriters relating to such filings); (8)
one-half of the aircraft costs; and all other transportation
and other expenses incurred by or on behalf of Company
representatives in connection with presentations to
prospective purchasers of the Securities; (9) the fees and
expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel)
for the Company and the Selling Stockholders, as previously
agreed; and (10) all other costs and expenses incurred by
the Company that are incidental to the performance by the
Company or the Selling Stockholders of their obligations
hereunder.
(b) Each Selling Stockholder agrees with the several
Underwriters that:
(i) Such Selling Stockholder will not, without the prior written
consent of Citigroup Global Markets Inc., Banc of America
Securities LLC and Credit Suisse First Boston LLC, offer,
sell, contract to sell, pledge or otherwise dispose of (or
enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by such
Selling Stockholder or any affiliate of such Selling
Stockholder or any person in privity with such Selling
Stockholder or any affiliate of such Selling Stockholder),
directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any shares of capital stock of
the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of the
Underwriting Agreement, other than shares of Common Stock
(i) disposed of as bona fide gifts approved by Citigroup
19
Global Markets Inc., Banc of America Securities LLC and
Credit Suisse First Boston LLC, (ii) transferred by such
Selling Stockholder to its affiliates who agree to be bound
by the terms hereof and (iii) transferred by such Selling
Stockholder to bona fide family members or trusts who agree
to be bound by the terms hereof. Notwithstanding the
foregoing, nothing in this clause (i) shall prohibit such
Selling Stockholder from (a) filing (or participating in the
filing of) one or more shelf registration statements with
the Commission relating to shares of capital stock of the
Company to be offered in the future, provided that no offers
or sales of shares registered pursuant to such
shelf registration statements may be made prior to the
expiration of the 90 day period set forth above or (b)
selling shares of Common Stock at the price set forth in
Section 2(a) in an amount that, together with all other
shares of Common Stock sold by the Selling Stockholders to
the Company, does not exceed 4,000,000 shares.
(ii) Such Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute
or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(iii)Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so
long as delivery of a prospectus relating to the Securities
by an underwriter or dealer may be required under the Act,
of any change in information in the Registration Statement
or the Final Prospectus relating to such Selling
Stockholder.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City
time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM
New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering
price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the
Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
20
(b) The Company shall have requested and caused Simpson Thacher
& Bartlett LLP, U.S. counsel for the Company, to have
furnished to the Representatives their opinion or opinions,
dated the Closing Date and addressed to the Representatives,
in the form or forms set forth on Annex A hereto.
(c) Overseas shall have requested and caused each of Simpson
Thacher & Bartlett LLP, U.S. counsel for Overseas, and Eeson
& Woolstencroft LLP, Canadian counsel for Overseas, to have
furnished to the Representatives their opinion, each dated
the Closing Date and addressed to the Representatives in the
form set forth on Annex A hereto (in the case of the opinion
of Simpson Thacher & Bartlett LLP) and in the form set forth
on Annex B hereto (in the case of the opinion of Eeson &
Woolstencroft LLP).
(d) Fisher Capital shall have requested and caused Simpson
Thacher & Bartlett LLP, counsel for Fisher Capital, to have
furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, in the
form set forth on Annex A hereto.
(e) The Company shall have requested and caused Appleby Spurling
& Kempe, Bermuda counsel for the Company, to have furnished
to the Representatives their opinion, dated the Closing Date
and addressed to the Representatives, in the form set forth
on Annex C hereto.
(f) Oliver Goodinge, Esq., the Company's Assistant General
Counsel, shall have furnished to the Representatives his
opinion, dated the Closing Date and addressed to the
Representatives, in the form set forth on Annex D hereto.
(g) William P. Bowden, Jr., the Company's General Counsel, shall
have furnished to the Representatives his opinion, dated the
Closing Date and addressed to the Representatives, in the
form set forth on Annex E hereto.
(h) The Representatives shall have received from Cravath, Swaine
& Moore LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the
Representatives, with respect to the sale of the Securities,
the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company
and each Selling Stockholder shall have furnished to such
counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) The Company shall have furnished to the Representatives a
certificate of the Company, signed by Thomas Colraine and
William P. Bowden, Jr., Esq., dated the Closing Date, to the
effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
21
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii)since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any
supplement thereto), there has been no event or development
that has had, or that would reasonably be expected to have,
a Material Adverse Effect.
(j) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed on its behalf by its
principal financial or accounting officer, general partner
or managing member, dated the Closing Date, to the effect
that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct in all
material respects on and as of the Closing Date to the same
effect as if made on the Closing Date.
(k) The Company shall have requested and caused Deloitte &
Touche LLP to have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the
Representatives, confirming that they are independent
accountants within the meaning of the Act and the applicable
rules and regulations adopted by the Commission thereunder,
and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its
subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 100, of the unaudited interim financial information for
the three-month period ended March 31, 2003, the six-month
period ended June 30, 2003, and the nine-month period ended
September 30, 2003; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to
the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors and
the executive, finance, compensation and audit committees of
the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
September 30, 2003:
22
(1) nothing came to their attention which caused them to believe
that any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus do not comply as to form in all
material respects with applicable accounting requirements of
the Act and with the related rules and regulations adopted
by the Commission with respect to registration statements on
Form S-3; and said unaudited financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Registration
Statement and the Final Prospectus;
(2) with respect to the period from October 1, 2003 to December
31, 2003, they have inquired of certain officials of the
Company who have responsibility for financial and accounting
matters whether, and such officials have confirmed that, (x)
the unaudited consolidated balance sheet as of December 31,
2003 and statements of income for the three month period
ended December 31, 2003 are on a basis substantially
consistent with that of the audited consolidated financial
statements incorporated by reference in the Registration
Statement, and (y) at December 31, 2003 there were any
change in long-term debt, or decrease in consolidated net
assets or stockholders' equity of the consolidated companies
as compared with amounts shown in the September 30, 2003
unaudited condensed consolidated balance sheet incorporated
by reference in the Registration Statement, and (z) for the
period from October 1, 2003 to December 31, 2003, excluding
the non-cash compensation charge for performance options,
there were any decreases, as compared to the corresponding
period in the preceding year, in consolidated total
revenues, net income, operating income, or basic and diluted
net earnings per share;
(3) with respect to the period subsequent to December 31, 2003,
nothing came to their attention which caused them to believe
that there were any changes, at a specified date not more
than five days prior to the date of the letter, in the total
long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
consolidated net assets of the Company or in the total
stockholders' equity of the Company as compared with the
amounts shown on the December 31, 2003 consolidated balance
sheet included in the Registration Statement and the Final
Prospectus, or for the period from January 1, 2004 to such
specified date, there were any decreases, as compared with
the corresponding period in the preceding year, in total
revenues, net income, operating income or basic and diluted
net earnings per share, except in all instances for changes
or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is
not deemed necessary by the Representatives;
23
(4) nothing came to their attention which caused them to believe
that the information included or incorporated by reference
in the Registration Statement and Final Prospectus in
response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
(5) nothing came to their attention which caused them to believe
that the unaudited income statement and balance sheet data
included in the Final Prospectus under the heading
"Prospectus Supplement Summary - Recent Financial Results"
do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited financial
statements included in the Registration Statement and the
Final Prospectus; and
(iii)they have performed certain other specified procedures as a
result of which they determined that certain information of
an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information
derived from the general accounting records of the Company
and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus that has previously been
identified to you agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (k)
include any supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there
shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (k) of this
Section 6 or (ii) any change, or any development that can be
expected to have a material adverse effect on the condition
(financial or otherwise), business or results of operations
of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary
course of business, except as set forth in the Final
Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii)
above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
24
(m) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives
such further customary information, certificates and
documents as the Representatives may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of debt securities of the Company
or any of its subsidiaries by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate
the direction of the possible change.
(o) The Company shall have furnished to the Representatives, in
each case effective as of the Execution Time, a letter
substantially in the form of Exhibit A hereto and addressed
to the Representatives from each person listed on Schedule
V.
(p) The Company shall have furnished to the Representatives,
effective as of the Execution Time, a letter substantially
in the form of Exhibit B hereto and addressed to the
Representatives from John M. Pelly.
(q) Prior to the Closing Date, the Company shall have obtained
the consent and approval of the Authority for the sale and
subsequent transferability of the Securities.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company and
the Selling Stockholders in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore LLP, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York,
10019-7475 on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied because of
any refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Citigroup Global Markets Inc. on
demand accompanied by reasonable supporting documentation for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. If the Company is required to make any payments to
the Underwriters under this Section 7 because of any Selling Stockholder's
refusal, inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, such Selling Stockholder shall reimburse
the Company on demand for all amounts so paid.
25
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other foreign, federal,
state or statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein, it being understood and agreed that the only
such information is that described in Section 8(c) hereof; provided, further,
that with respect to any untrue statement or omission of material fact made in
any Preliminary Prospectus, the indemnity agreement contained in this Section
8(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
concerned, to the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstance where it shall be determined by a
court of competent jurisdiction by final and non-appealable judgment that (i)
the Company had previously furnished copies of the Final Prospectus to the
Representatives, (ii) the untrue statement or omission of a material fact
contained in the Preliminary Prospectus was corrected in the Final Prospectus
and (iii) such loss, claim, damage or liability results from the fact that there
was not sent or given to such person at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the Final Prospectus. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
26
(b) Each Selling Stockholder severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls the
Company or any Underwriter within the meaning of either the Act or the Exchange
Act and each other Selling Stockholder, if any, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for inclusion in the documents referred to
in the foregoing indemnity; and such indemnity will be limited to an amount
equal to the aggregate gross proceeds, net of the underwriting discounts,
received by such Selling Stockholder from the sale of the Securities to the
Underwriters. This indemnity agreement will be in addition to any liability
which any Selling Stockholder may otherwise have. Each Underwriter acknowledges
that the name of each Selling Stockholder and the number of securities each
Selling Stockholder is offering constitute the only information furnished in
writing by or on behalf of each of the Selling Stockholders for inclusion in any
Preliminary Prospectus or the Final Prospectus.
(c) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act and each Selling Stockholder, to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and each Selling
Stockholder acknowledge that the statements set forth in the last paragraph of
the cover page regarding delivery of the Securities and, under the heading
"Underwriting", (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the third paragraph, (iii) the tenth,
eleventh and twelfth paragraphs related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and (iv) the
sixteenth and seventeenth paragraphs relating to electronic prospectuses and the
Final Prospectus, constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Final Prospectus.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
27
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or (c)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, each of the Selling Stockholders
and the Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company, each of the Selling Stockholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company, by each of the Selling Stockholders
and by the Underwriters from the offering of the Securities; provided, however,
that in no case shall (i) any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company, each of the Selling Stockholders and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company, of each of the
Selling Stockholders and of the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and/or by each of the
Selling Stockholders shall be deemed to be equal to the total net proceeds from
28
the offering (before deducting expenses) received by such Selling Stockholder,
and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company, such Selling
Stockholder or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, each of the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the aggregate gross proceeds, net of
underwriting discounts, received by such Selling Stockholder from the sale of
the Securities to the Underwriters. The Company and the Selling Stockholders may
agree, as among themselves and without limiting the rights of the Underwriters
under this Agreement, as to the respective amounts of such liability for which
they each shall be responsible.
(g) The Company agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any failure or alleged failure by the Company to comply
with the terms of the Consortium Registration Rights Agreement, the Profit
Sharing Registration Rights Agreement or the Management Registration Rights
Agreement in connection with the transactions contemplated by this Agreement.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
29
and if such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriter,
the Selling Stockholders or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Selling Stockholders and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company and
the Selling Stockholders prior to delivery of and payment for the Securities, if
(a) at any time subsequent to the execution and delivery of this Agreement and
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States or the United Kingdom of a
national emergency or war, or other calamity or crisis that is material and
adverse and (b) in the case of any of the events specified in clauses 10(a)(i)
through 10(a)(iii), the effect of such event, singly or together with any other
such event, makes it, in the judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, of each Selling Stockholder and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, any
Selling Stockholder or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancelation of this Agreement.
30
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.:
(212) 816 7912) and confirmed to the General Counsel, Citigroup Global Markets
Inc., at 388 Greenwich Street, New York, New York 10013, Attention: General
Counsel; if sent to the Company, will be mailed, delivered or telefaxed to
44(0)20 7481 7183 and confirmed to it at Ten Trinity Square, London, England,
EC3P 3AX, Attention: Corporate Secretary; or if sent to the Selling
Stockholders, will be mailed, delivered or telefaxed to each of the addresses or
telefax numbers set forth in Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York. The Company and each Selling
Stockholder hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in New York City in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
15. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a)(i) above contained in the Registration Statement at the Effective
Date including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Consortium" shall mean Axa Insurance UK plc, Axa General
Insurance Group plc, Royal & Sun Alliance Insurance Group plc, The Chubb
Corporation, The Hartford Financial Services Group, Inc., Travelers Casualty and
Surety Company and The Tokio Marine and Fire Insurance Co., Limited.
31
"Consortium Registration Rights Agreement" shall mean the
Registration Rights Agreement dated July 21, 1998, among the Company and the
Consortium, as amended prior to the date of this Agreement.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus.
"Management Registration Rights Agreement" shall mean the
Management and Employee Shareholders' and Subscription Agreements dated December
18, 1998, May 7, 1999, December 20, 1999, July 6, 2000, July 13, 2000, October
5, 2000, October 15, 2000, December 29, 2000 and January 19, 2001 among TA I
Limited, Mourant & Co. Trustees Limited and certain management members of TA I
Limited and its subsidiaries, as amended prior to the date of this Agreement.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Profit Sharing Registration Rights Agreement" shall mean the
Registration Rights Agreement dated December 18, 1998 between TA I Limited and
Overseas, as amended prior to the date of this Agreement.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a)(i) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
32
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section
1(a)(i) hereof.
"Senior Credit Facility" shall mean the Credit Agreement,
dated as of December 4, 2003, among Willis North America Inc., as borrower,
Willis Group Holdings Limited, the lenders thereunder and Banc of America
Securities Limited, as administrative agent.
33
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
WILLIS GROUP HOLDINGS LIMITED
by
--------------------------------------
Name:
Title:
34
PROFIT SHARING (OVERSEAS), LIMITED PARTNERSHIP,
by KKR 1996 FUND (OVERSEAS), LIMITED
PARTNERSHIP, its general partner
by KKR ASSOCIATES II (1996), LIMITED
PARTNERSHIP, its general partner,
by KKR 1996 OVERSEAS, LIMITED, its
general partner,
by
-----------------------------------
Name:
Title:
35
FISHER CAPITAL CORP. L.L.C.
by
----------------------------------
Name:
Title:
36
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
Banc of America Securities LLC
Credit Suisse First Boston LLC
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
UBS Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Lehman Brothers Inc.
by Citigroup Global Markets Inc.
by
-------------------------------------------------------
Name:
Title:
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
37
SCHEDULE I
----------
Underwriters Number of Underwritten
- ------------ Securities to be Purchased
--------------------------
Citigroup Global Markets Inc. .................................................................2,952,000
Banc of America Securities LLC.................................................................2,952,000
Credit Suisse First Boston LLC.................................................................2,952,000
J.P. Morgan Securities Inc.....................................................................1,804,000
Morgan Stanley & Co. Incorporated..............................................................1,804,000
UBS Securities LLC.............................................................................1,804,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...............................................................................1,066,000
Lehman Brothers Inc. ..........................................................................1,066,000
Fox Pitt, Kelton Inc. ...........................................................................600,000
Dowling & Partners Securities, LLC...............................................................600,000
Keefe, Bruyette & Woods, Inc. ...................................................................600,000
Cochran, Caronia Securities LLC..................................................................600,000
Sandler O'Neil & Partners, L.P. .................................................................600,000
Janney Montgomery Scott LLC......................................................................600,000
---------
Total: .......................................................................................20,000,000
==========
38
SCHEDULE II
-----------
Maximum Number
Selling Stockholders: Number of Underwritten Securities of Option
-------------------- to be Sold Securities to be Sold
--------------------------------- ---------------------
Profit Sharing (Overseas), Limited Partnership 19,870,769 2,980,615
Ugland House
P.O. Box 309 George Town, Grand Cayman Cayman Islands, B.W.I. Fax: (212)
750-0003
Fisher Capital Corp. L.L.C. 129,231 19,385
8 Clarke Drive
Cranbury, NJ 08512
Fax: (609) 409-1235 ____________ ____________
Total:................................ 20,000,000 3,000,000
========== =========
39
SCHEDULE III
------------
Company Name Percentage Owned
- ----------------------------------------------------------------------- ------------------
BERAG Beratungsgesellschaft ufr betriebliche Altersversorgung 51
und Vergutung GmbH
- ----------------------------------------------------------------------- ------------------
C Wuppesahl Finanzversicherungsmakler GmbH 74.5
- ----------------------------------------------------------------------- ------------------
HEIM-CONCEPT Versicherungsmakler GmbH 52
- ----------------------------------------------------------------------- ------------------
Venture Reinsurance Limited 90
- ----------------------------------------------------------------------- ------------------
Willis SA 60
- ----------------------------------------------------------------------- ------------------
Willis Faber Chile Corredores de Reaseguro Limitada 99
- ----------------------------------------------------------------------- ------------------
Willis Correa Insurance Services S.A. 80
- ----------------------------------------------------------------------- ------------------
Willis Colombia Corredores de Seguros S.A. 51
- ----------------------------------------------------------------------- ------------------
Willis Kft 80
- ----------------------------------------------------------------------- ------------------
Consorzio Padova 55 55.9
- ----------------------------------------------------------------------- ------------------
Willis Vicenza S.r.l. 74
- ----------------------------------------------------------------------- ------------------
Willis Agente de Seguros y Fianzas, S.A. de C.V. 51
- ----------------------------------------------------------------------- ------------------
Rontarca-Prima Consultores C.A. 51
- ----------------------------------------------------------------------- ------------------
Rontarca Prima, Willis, C.A. 51
- ----------------------------------------------------------------------- ------------------
Plan Administrativo Rontarca Salud, C.A. 51
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Asesor Auto 911, C.A. 51
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C.A. Prima 51
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Willis New Zealand Limited 99
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Willis AS 50.1
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Willis Polska S.A. 70
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Willis South Africa (Pty) Limited 70
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Willis Iberia Correduria de Seguros y Reaseguros SA 85
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Willis Corretores de Seguros SA 84.94
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Claim Management Administrator, S.L. 68.85
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Willis Galicia Correduria de Seguros y Reaseguros S.A. 46.75
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Willis Global Financial & Executive Risks AB 71.85
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Willis AB 84.53
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Willis EB AB 78.61
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40
SCHEDULE IV
-----------
Significant Subsidiaries:
Willis Group Limited
Willis Limited
Willis North America Inc.
Willis Faber Limited
41
SCHEDULE V
----------
1. Joseph J. Plumeri, Chairman, Chief Executive Officer and Director
2. Henry R. Kravis, Director
3. George R. Roberts, Director
4. Perry Golkin, Director
5. Todd A. Fisher, Director
6. Scott C. Nuttall, Director
7. James R. Fisher, Director
8. William W. Bradley, Director
9. Douglas B. Roberts, Director
10. Paul M. Hazen, Director
11. William P. Bowden, Jr., Group General Counsel
12. Richard J. S. Bucknall, Vice Chairman and Co-Chief Operating Officer
13. Thomas Colraine, Vice Chairman, Co-Chief Operating Officer and Group Chief
Financial Officer
14. Janet Coolick, Group Chief Administrative Officer
15. Christopher M. London, Chief Operating Officer, Global Specialties
16. Patrick Lucas, Executive Vice President; Managing Partner of Gras Savoye &
Company
17. Stephen G. Maycock, Group Human Resources Director
18. Grahame J. Millwater, Chief Operating Officer of Willis Re and Global
Markets
19. James A. Ratcliffe, Chief Executive of Global Specialties
20. Sarah J. Turvill, Chief Executive Officer of International Operations
21 Mario Vitale, Chief Executive Officer of Willis North America