Exhibit 1.1
Willis Group Holdings Limited
6,100,000 Shares
Common Stock
($0.000115 par value)
Underwriting Agreement
New York, New York
November 9, 2005
Citigroup Global Markets Inc.
Lehman Brothers Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
and
Lehman Brothers Inc.
745 Seventh Avenue, 20th Floor
New York, NY 10019
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, 6,100,000 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 "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 18 hereof.
1. Representations and Warranties of the Company and the
Selling Stockholders. (a) The Company represents and warrants to, and agrees
with, each Underwriter that:
(i) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the
Commission a registration statement (File No. 333-112354) 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) 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, 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.
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(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 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 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 granted for the sale
and subsequent transferability of the Securities for such
time as the Company's common shares remain listed on the New
York Stock Exchange or another appointed stock exchange; and
(ii) the Final Prospectus is required to be filed with the
Registrar of Companies in Bermuda pursuant to Part III of
the Companies Act 1981 of Bermuda; (2) such as have been
obtained under the Act; and (3) such as may be required
under the state securities laws ("Blue Sky laws") of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the
manner contemplated herein and in the Final Prospectus.
(x) None of the execution and delivery of this
Agreement, the sale of the Securities, the consummation of
any other of the transactions herein contemplated or the
fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or constitute a default under,
or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to (i) the Memorandum of
Association or Bye-laws of the Company or the charter or
by-laws (or similar organizational documents) of any of the
Company's subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement,
loan agreement, partnership agreement, joint venture
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or is bound or
to which its or their properties or assets are subject
(collectively, "Contracts") or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or
any of its subsidiaries or any of its or their properties or
assets, except in the case of clauses (ii) and (iii) for
such conflicts, breaches, violations or defaults that would
not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
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(xi) The consolidated historical financial statements
of the Company and its consolidated subsidiaries, and the
related notes thereto, included in the Final Prospectus and
the Registration Statement present fairly in all material
respects the consolidated financial condition, results of
operations and cash flows of the Company as of the dates and
for the periods indicated, comply as to form in all material
respects with the applicable accounting requirements of the
Act and have been prepared in conformity with United States
generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set
forth under the caption "Selected Historical Consolidated
Financial Data" in the Company's Annual Report on Form 10-K
for the year ended December 31, 2004 (the "Annual Report")
fairly present in all material respects, on the basis stated
in the Annual Report, the information included therein.
(xii) Except as disclosed in the Final Prospectus
(exclusive of any supplement thereto), there is (i) no
action, suit or proceeding before or by any court,
arbitrator or governmental agency, body or official,
domestic or foreign, now pending, or to the knowledge of the
Company or any of its subsidiaries threatened or
contemplated, to which the Company or any of its
subsidiaries is or may be a party or to which the business,
property or assets of the Company or any of its subsidiaries
is or may be subject, (ii) to the Company's knowledge, no
statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency or that has
been proposed by any governmental body, and (iii) no
injunction, restraining order or order of any nature by a
court of competent jurisdiction to which the Company or any
of its subsidiaries is or may be subject, that has been
issued and is outstanding that, in the case of clauses (i),
(ii) or (iii) above (x) would reasonably be expected to have
a Material Adverse Effect or (y) seeks to restrain, enjoin,
interfere with, or would reasonably be expected to adversely
affect in any material respect, the performance of this
Agreement or any of the transactions contemplated by this
Agreement; and the Company and each of its subsidiaries has
complied with any and all requests by any securities
authority in any jurisdiction for additional information to
be included in the Final Prospectus.
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(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.
(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.
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(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.
(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.
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(xxii) Each of the Company and its subsidiaries
maintain a system of internal control over financial
reporting sufficient to provide reasonable assurance that
(i) the Company's financial records, in reasonable detail,
accurately and fairly reflect the transactions and
dispositions of the assets of the Company; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting
principles, and that receipts and expenditures of the
Company are being made only in accordance with
authorizations of management and directors of the Company;
and (iii) unauthorized acquisition, use or disposition of
the Company's assets that could have a material effect on
the Company's financial statements are detected in a timely
manner. 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) There is and has been no failure on the part of
the Company and any of the Company's directors or officers,
in their capacities as such, to comply with any provision of
the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the "Sarbanes Oxley
Act"), including Section 402 related to loans and Sections
302 and 906 related to certifications.
(xxiv) 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.
(xxv) 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.
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(xxvi) 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.
(xxvii) 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").
(xxviii) 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.
(xxix) 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.
(xxx) 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 has been granted for such time as the Company's common
shares remain listed on the New York Stock Exchange or
another appointed stock exchange; and (ii) the Final
Prospectus is required to be filed with the Registrar of
Companies in Bermuda pursuant to Part III of the Companies
Act 1981 of Bermuda.
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(xxxi) 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.
(xxxii) 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.
(xxxiii) 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, provided that:
(1) the court which gave the judgment
was competent to hear the action in accordance with private
international law principles as applied in Bermuda; and
(2) the judgment is not contrary to public
policy in Bermuda, has not been obtained by fraud or in
proceedings contrary to natural justice and is not based on
an error in Bermuda law.
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(xxxiv) Approximately 1,865,000 currently outstanding
shares of Common Stock held by directors, officers and other
employees (including former employees) of the Company or its
subsidiaries, including 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 transfer restrictions
under 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 6.8% 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 (or, in the case of
any such Securities underlying options, such options are,
and on the Closing Date will be, presently exercisable and
such Selling Stockholder is the record owner of such options
and, upon the exercise of such options on the Closing Date,
will be the record owner of such underlying Securities) 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.
11
(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 for the sale and
subsequent transferability of the Securities; and (ii) the
Final Prospectus is required to be filed with the Registrar
of Companies in Bermuda pursuant to Part III of the
Companies Act 1981 of Bermuda; (2) such as are required
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, 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.
12
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. 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
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 $36.00 per share, such Selling
Stockholder's proportionate share of the amount of the Securities set forth
opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on November 16, 2005,
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 Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters of
the Securities to be purchased by them from such Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved in
further transfers.
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),
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.
13
(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.
(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.
14
(vi) The Company will not, without the prior written
consent of Citigroup Global Markets Inc. and Lehman Brothers
Inc., (1) offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company),
directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the
Exchange Act, any shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for,
shares of Common Stock; (2) publicly announce an intention
to effect any such transaction; or (3) amend, waive or fail
to enforce the Management Transfer Restrictions in respect
of the Management Shares (except that after the expiration
of 30 days from the date of this Agreement the Company may
waive such Management Transfer Restrictions with respect to
up to an aggregate of approximately 580,000 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 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 and (y) 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 (y) 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.
15
(vii) The Company will comply with all applicable
securities and other applicable laws, rules and regulations,
including, without limitation, the Sarbanes Oxley Act, and
to use its best efforts to cause the Company's directors and
officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation,
the provisions of the Sarbanes Oxley Act.
(viii) 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.
(ix) The Company agrees to pay the costs and expenses
relating to the following matters: (1) the preparation,
printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements
and exhibits thereto), each Preliminary Prospectus, the
Final Prospectus, and each amendment or supplement to any of
them; (2) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Final
Prospectus, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use
in connection with the offering and sale of the Securities;
(3) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original sale
by the Selling Stockholders to the Underwriters of the
Securities; (4) the printing (or reproduction) and delivery
of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities;
(5) the registration of the Securities under the Exchange
Act and the listing of the Securities on the New York Stock
Exchange; (6) any registration or qualification of the
Securities for offer and sale under the securities or blue
sky laws of the several states (including filing fees and
the reasonable fees and expenses of one counsel for the
Underwriters relating to such registration and
qualification); (7) any filings required to be made with the
National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of one
counsel for the Underwriters relating to such filings); (8)
one-half of any 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.
16
(b) Each Selling Stockholder agrees with the several Underwriters
that:
(i) 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.
(ii) 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 Securities 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 and the
Closing 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.
17
(b) The Company shall have requested and caused Sullivan &
Cromwell 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 B
hereto (in the case of the opinion of Simpson Thacher & Bartlett LLP)
and in the form set forth on Annex C 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 B
hereto.
(e) The Company shall have requested and caused Appleby Spurling
Hunter, 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 D 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 E 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 F 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:
18
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of
any supplement thereto), there has been no event or
development that has had, or that would reasonably be
expected to have, a Material Adverse Effect.
(j) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed 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, 2005, the six-month
period ended June 30, 2005 and the nine-month period ended
September 30, 2005; 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, 2005:
19
(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 subsequent
to September 30, 2005, 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 September 30, 2005
consolidated balance sheet included in the Registration
Statement and the Final Prospectus, or for the period from
October 1, 2005 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;
(3) 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; and
20
(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).
(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.
21
(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.
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.
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.
22
(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 ninth, tenth and eleventh paragraphs related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and (iv) the fourteenth paragraph relating to electronic
prospectuses, 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.
23
(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
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.
24
(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 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).
25
(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, 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).
26
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.
12. No Fiduciary Duty. The Company and the Selling
Stockholders hereby acknowledge that (a) the Underwriters are acting as
principal and not as an agent or fiduciary of the Company and (b) their
engagement of the Underwriters in connection with the Offering is as independent
contractors and not in any other capacity. Furthermore, each of the Company and
the Selling Stockholders agrees that it is solely responsible for making its own
judgments in connection with the Offering (irrespective of whether the
Underwriters have advised or are currently advising the Company or the Selling
Stockholders on related or other matters).
13. 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 (i) the General Counsel, Citigroup Global
Markets Inc. (fax no.: (212) 816-7912 and confirmed to Citigroup Global Markets
Inc., at 388 Greenwich Street, New York, New York 10013, Attention: General
Counsel and (ii) Lehman Brothers Inc., 745 Seventh Avenue, New York, New York
10019, Attention: Syndicate Registration (Fax: 646-497-4815), with a copy, in
the case of any notice pursuant to Section 8, to the Director of Litigation,
Office of the General Counsel, Lehman Brothers Inc., 399 Park Avenue, 10th
Floor, New York, New York 10022 (Fax: 212-520-0421); 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.
14. 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.
27
15. 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.
16. 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.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. 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.
"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.
28
"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
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.
"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 October 17, 2005, among Willis North America Inc., as borrower,
Willis Group Holdings Limited, Banc of America Securities Limited, as
administrative agent, Bank of America, N.A., as swingline agent, and the lenders
thereunder.
29
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 /s/ William P. Bowden, Jr.
----------------------------
Name: William P. Bowden, Jr.
Title: Group General Counsel
30
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
/s/ Henry R. Kravis
-------------------------------------------------------
Name: Henry R. Kravis
Title: Director
31
FISHER CAPITAL CORP. L.L.C.
by /s/ James R. Fisher
-----------------------------------------------------
Name: James R. Fisher
Title: Managing Member
32
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIGROUP GLOBAL MARKETS INC.
LEHMAN BROTHERS INC.
By Citigroup Global Markets Inc.
/s/ Richard Spiro
- -------------------------------------------------------
Name: Richard Spiro
Title: Managing Director
By Lehman Brothers Inc.
/s/ David H. Martin
- -------------------------------------------------------
Name: David H. Martin
Title: Vice President
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
33
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
- ------------ --------------------------
Citigroup Global Markets Inc. ...................................3,050,000
Lehman Brothers Inc. ............................................3,050,000
---------
Total: .....................................................6,100,000
=========
34
SCHEDULE II
SELLING STOCKHOLDERS: NUMBER OF SECURITIES
-------------------- TO BE SOLD
--------------------
Profit Sharing (Overseas), Limited Partnership 6,054,493
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. 45,507
8 Clarke Drive
Cranbury, NJ 08512
Fax: (609) 409-1235 _________
Total:................................ 6,100,000
=========
35