Exhibit 1.1
Execution Copy
6,800,000 Shares
AXIS CAPITAL HOLDINGS LIMITED
Common Shares
Par Value $0.0125 Per Share
UNDERWRITING AGREEMENT
November 15, 2005
November 15, 2005
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs and Mesdames:
AXIS Capital Holdings Limited, a Bermuda corporation (the "Company"),
proposes to sell to Citigroup Global Markets Inc. (the "Underwriter") an
aggregate of 6,800,000 Common Shares, par value $0.0125 per share, of the
Company (the "Shares"). The Common Shares, par value $0.0125 per share, of the
Company, including the Shares, are hereinafter referred to as the "Common
Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-128786) on Form S-3, including
a prospectus, relating to the Shares. The registration statement as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"),
is hereinafter referred to as the "Registration Statement"; any preliminary
prospectus relating to the Shares included in the Registration Statement or
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act (the "Securities Act Regulations")
being hereinafter called a "Preliminary Prospectus"; the final prospectus
relating to the Shares in the form filed pursuant to Rule 424(b) under the
Securities Act Regulations being hereinafter referred to as the "Prospectus."
Any reference herein to the Registration Statement, a Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") on or before the effective date of the Registration Statement or the
issue date of such Preliminary Prospectus or the Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, any Preliminary Prospectus or the
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 any Preliminary Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to the Underwriter furnished to the
Company in writing by the Underwriter expressly for use therein.
(c) Deloitte & Touche, whose report is included in the Prospectus, is
an independent certified public accountant with respect to the Company and
its consolidated subsidiaries within the meaning of the Securities Act and
the rules and regulations adopted by the Commission thereunder. The
financial statements of the Company and its consolidated subsidiaries
(including the related notes and supporting schedules) included in the
Registration Statement and the Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows of
the entities purported to be shown thereby at the dates and for the
periods indicated and have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated and conform in all material respects with
the rules and regulations adopted by the Commission under the Securities
Act; and the supporting schedules included in the Registration Statement
present fairly in all materials respects the information required to be
stated therein.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing (including as an exempted company) under the
laws of the jurisdiction of its incorporation (good standing meaning that
it has not failed to make any required filing with any Bermuda
governmental authority or to pay any Bermuda governmental fee or tax which
would make it liable to be struck off the registrar of companies and
thereby cease to exist under the laws of Bermuda), has the corporate power
and authority to own, lease and operate its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing or operating of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each of AXIS Specialty Limited, AXIS Specialty Europe Limited,
AXIS Re Limited, AXIS Specialty Insurance Company, AXIS Reinsurance
Company, AXIS Surplus Insurance Company, AXIS Specialty U.S. Holdings,
Inc. and AXIS Specialty Holdings Ireland Limited (hereafter, the
"Designated Subsidiaries") has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation (good standing meaning, with respect to each of AXIS
Specialty Limited, AXIS Specialty Europe Limited, AXIS Re Limited and AXIS
Specialty Holdings Ireland Limited, that each has not failed to make any
required filing with any government authority of the jurisdiction of its
incorporation or to pay any government fee or tax in its jurisdiction of
incorporation which would make it liable to be struck off the register of
companies and thereby cease to exist under the laws of its jurisdiction of
incorporation), has the corporate power and authority to own, lease and
operate its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing (good standing meaning, with respect to each of AXIS Specialty
Limited, AXIS Specialty Europe Limited, AXIS Re Limited and AXIS Specialty
Holdings Ireland Limited, that each has not failed to make any required
filing with any government authority of the jurisdiction of its
incorporation or to pay any government fee or tax in its jurisdiction of
incorporation which would make it liable to be struck off the register of
companies and thereby cease to exist under the laws of its jurisdiction of
incorporation) in each jurisdiction in which the conduct of its business
or its ownership or leasing or operating of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares
of capital stock of each Designated Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable (non-assessable
meaning, with respect to each of AXIS Specialty Limited, AXIS Specialty
Europe Limited, AXIS Re Limited and AXIS Specialty Holdings Ireland
Limited, that no further sums are payable with respect to the holding of
such shares and the member shall not be bound by an alteration (unless it
agrees in writing to such alteration) in the memorandum of association or
the bye-laws or equivalent organizational documents of such Designated
Subsidiary after the date upon which it became a member if and so far as
the alteration requires such member to take or subscribe for additional
shares or in any way increases its liability to contribute to the share
capital of, or otherwise pay money to, such Designated Subsidiary) and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities, claims, preemptive rights or restrictions upon
voting or transfer except, in the case of restrictions on transfer, as
described in the Prospectus. Except for AXIS Specialty U.S. Services,
Inc., AXIS Specialty UK Limited, AXIS Specialty UK Holdings Limited,
Combined Specialty Group, Inc. and AXIS Insurance Company, each of which
is immaterial and not a "significant subsidiary" of the Company as that
term is defined in Rule 1-02(w) of Regulation S-X of the rules and
regulations of the Commission under the Securities Act, the Designated
Subsidiaries are the only subsidiaries of the Company.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Shares have been duly authorized and, when the Shares are
issued and delivered pursuant to this Agreement, such Shares will have
been validly issued, fully paid and non-assessable and will conform to the
description thereof contained in the Prospectus.
(h) The issuance of the Shares will not be subject to any preemptive
or similar rights.
(i) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(j) The capitalization of the Company as of September 30, 2005
conforms in all material respects to the description thereof in the
Prospectus. All of the outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and non-assessable and were
not issued in violation of any preemptive or similar rights.
(k) None of the execution and delivery by the Company of, or the
performance by the Company of its obligations under, this Agreement, nor
the consummation of the transactions contemplated hereby, will (i)
contravene or result in a breach or violation of, or constitute a default
under, (A) the charter, memorandum of association, bye-laws or other
governing documents of the Company or any of its subsidiaries, (B) any
provision of applicable law or any regulation, rule, judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary or any of their respective properties or (C)
any agreement, indenture or other instrument binding upon the Company or
any of its subsidiaries or to which the Company or any of its subsidiaries
is a party or to which any of their respective properties are subject, or
(ii) result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property of the Company or any of its subsidiaries,
except (other than with respect to clause (i)(A)) as would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole. Except for permits,
consents, approvals and similar authorizations required by the securities
or "Blue Sky" or insurance laws of certain jurisdictions in connection
with the offer and sale of the Shares and permits, consents, approvals and
authorizations which have been obtained, no permit, consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation of
the transactions contemplated by this Agreement.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement). Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) the Company and its
subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt of
the Company and its subsidiaries, except in each case as described in the
Prospectus.
(m) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that would reasonably be expected to
have, individually or in the aggregate, a material adverse effect on the
Company and its subsidiaries, taken as a whole, or that are required to be
described in the Registration Statement or the Prospectus and are not so
described, or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(o) The Company is not, and after giving effect to the offering and
sale of the Shares will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(p) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
(q) On the date hereof and upon issuance of the Shares, each of the
Company and its Designated Subsidiaries is and will be solvent and able to
pay its liabilities as they become due.
(r) Each of the Company and its Designated Subsidiaries has (i) all
licenses, certificates, permits, authorizations, approvals, franchises and
other rights from, and has filed all reports, documents and other
information required to be filed pursuant to the applicable laws of
Bermuda, Ireland, the United Kingdom, Switzerland and the United States
(and any State thereof) and all other relevant jurisdictions as is
necessary to engage in the business currently conducted by it in the
manner described in the Prospectus (each, an "Authorization"), except
where the failure, individually or in the aggregate, to file such report,
document or information would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, (ii) fulfilled and
performed all obligations necessary to maintain each Authorization, except
where the failure to fulfill or perform such obligation, individually or
in the aggregate, would not have a material adverse effect on the Company
and its subsidiaries taken as a whole and (iii) no knowledge of any
pending or threatened action, suit, proceeding or investigation that would
reasonably be expected to result in the revocation, termination, material
adverse modification, material adverse impairment or suspension of any
Authorization. All such Authorizations are valid and in full force and
effect and the Company and the Designated Subsidiaries are in compliance
in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect thereto, except where the
failure to comply, individually or in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as
whole. Except as otherwise described in or contemplated by the Prospectus,
the Company has not received any order or decree from any insurance
regulatory agency or body impairing, restricting or prohibiting the
payment of dividends by any Designated Subsidiary to its parent and has
not otherwise agreed to any such impairment, restriction or prohibition.
(s) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the
Company and its subsidiaries are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(t) The Company has no knowledge of any threatened or pending
downgrading of any of its or its Designated Subsidiaries claims-paying
ability rating by A.M. Best Company, Inc. or Standard & Poor's Ratings
Service, a Division of The McGraw-Hill Companies, Inc., the only
"nationally recognized statistical rating organizations," as such term is
defined for purposes of Rule 463(g)(2) ability under the Securities Act,
which currently rate the claims-paying ability of the Company or any of
the Designated Subsidiaries.
(u) The Shares have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance.
(v) The Company and each of the Designated Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(w) Neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any material patents, patent rights, licenses, inventions,
copyrights, technology, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by
them, which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse affect on the
Company and its subsidiaries, taken as a whole.
(x) None of the Company or any of its Designated Subsidiaries (i) is
in violation of its charter, memorandum of association or bye-laws or
articles of association or other governing documents, (ii) is in default
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any agreement (including any
retrocessional or reinsurance treaty, contract or arrangement), indenture
or other instrument to which it is a party or by which it is bound or to
which any of its properties is subject, except for any such defaults that
would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or (iii) is
in violation of any insurance law, rule or regulation to which it or its
property is subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole. Except as disclosed in the
Prospectus, all retrocessional and reinsurance treaties, contracts and
arrangements to which any of the Company or its subsidiaries are a party
as the reinsured or insured are in full force and effect except where the
failure to be in full force and effect would not, individually or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole. None of the Company or any of its
Designated Subsidiaries has received any notice or otherwise has knowledge
that any of the other parties to such retrocessional and reinsurance
treaties, contracts, agreements or arrangements intends not to perform, or
will be unable to perform, in any material respect such retrocessional or
reinsurance treaty, contract, agreement or arrangement, except where such
non-performance would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(y) None of the Company's subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company or from
making any other distribution on such subsidiary's capital stock, except
as described in or contemplated by the Prospectus.
(z) Neither the Underwriter nor any subsequent purchaser of the Shares
(other than any purchaser resident in Bermuda for Bermuda exchange control
purposes) is subject to any stamp duty, excise or similar tax imposed in
Bermuda in connection with the offering, sale or purchase of the Shares.
(aa) There are no currency exchange control laws or withholding taxes
of Bermuda that would be applicable to the payment of dividends on the
Shares by the Company (other than to residents of Bermuda for Bermuda
exchange control purposes).
(bb) Any tax returns required to be filed in any jurisdiction by the
Company or any of its subsidiaries other than AXIS Reinsurance Company,
AXIS Surplus Insurance Company, AXIS Specialty Insurance Company and AXIS
Insurance Company (collectively, the "U.S. Insurance Companies") have been
accurately prepared and timely filed and any taxes, including any
withholding taxes, excise taxes, sales taxes, use taxes, penalties and
interest, assessments and fees and other charges due or claimed to be due
from such entities, have been paid, other than any of those being
contested in good faith and for which adequate reserves have been provided
or any of those currently payable without penalty or interest and (ii) to
the Company's knowledge, any tax return required to be filed in any
jurisdiction by any of the U.S. Insurance Companies has been accurately
prepared and timely filed and any taxes, including any withholding taxes,
excise taxes, sales taxes, use taxes, penalties and interest, assessments
and fees and other charges due or claimed to be due from such entities
have been paid, other than any of those being contested in good faith and
for which adequate reserves have been provided or any of those currently
payable without penalty or interest, in either case except to the extent
that the failure to so file or pay would not result in a material adverse
effect on the Company and its subsidiaries, taken as a whole, and in
either case other than those tax returns that would be required to be
filed or taxes that would be payable by the Company or any of its
subsidiaries if (A) any of them was characterized as a "personal holding
company" as defined in Section 542 of the Code (as defined below), (B) any
of them other than the U.S. Insurance Companies, AXIS Specialty U.S.
Holdings, Inc. or AXIS Specialty U.S. Services, Inc. (collectively the
"U.S. Subsidiaries") was characterized as engaged in a U.S. trade or
business, (C) any of them other than AXIS Specialty UK Limited, AXIS
Specialty UK Holdings Limited, AXIS Specialty Europe Limited or AXIS
Specialty Holdings Ireland Limited (the "U.K./Irish Subsidiaries") was
characterized as resident, managed or controlled or carrying on a trade
through a branch or agency in the United Kingdom or (D) any of them other
than AXIS Specialty Europe Limited, AXIS Re Limited or AXIS Specialty
Holdings Ireland Limited (the "Irish Subsidiaries") was characterized as
resident, managed or controlled or carrying on a trade through a branch or
agency in Ireland. No deficiency assessment with respect to a proposed
adjustment of the Company's or any of its subsidiaries' taxes is pending
or, to the Company's knowledge, threatened. There is no material tax lien,
whether imposed by any federal, state, or other taxing authority,
outstanding against the assets, properties or business of the Company or
any of its subsidiaries.
(cc) Based upon and subject to the assumptions and qualifications set
forth in the Prospectus under the heading "Material Tax Considerations,"
the Company does not believe: (i) that either the Company or any of its
subsidiaries currently should be, or upon the sale of the Shares herein
contemplated should be, (A) treated as a "passive foreign investment
company" as defined in Section 1297(a) of the Internal Revenue Code of
1986, as amended (the "Code"), (B) except for the U.S. Subsidiaries,
considered to be engaged in a trade or business within the United States
for purposes of Section 864(b) of the Code, (C) except for the U.K./Irish
Subsidiaries, characterized as resident, managed or controlled or carrying
on a trade through a branch or agency in the United Kingdom or (D) except
for the Irish Subsidiaries, characterized as resident, managed or
controlled or carrying on a trade through a branch or agency in Ireland;
or (ii) that any person who owns shares of the Company directly or
indirectly through foreign entities should be treated as owning (directly,
indirectly through foreign entities or by attribution pursuant to Section
958(b) of the Code) 10 percent or more of the total voting power of the
Company or any of its foreign subsidiaries.
(dd) AXIS Specialty Limited, AXIS Re Limited and AXIS Specialty Europe
Limited intend to operate in a manner that is intended to ensure that the
related person insurance income of each of AXIS Specialty Limited, AXIS Re
Limited or AXIS Specialty Europe Limited does not equal or exceed 20% of
each such company's gross insurance income for any taxable year in the
foreseeable future.
2. Agreements to Sell and Purchase. (a) The Company hereby agrees to
sell to the Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Company at $29.42 per share
(the "Purchase Price") the Shares.
(b) The Company hereby agrees that, without the prior written consent
of the Underwriter, it will not, during the period ending 45 days after
the date of the Prospectus, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for shares of Common Stock, or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of shares of Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (A) the
Shares to be sold pursuant to this Agreement or (B) the grant of shares of
Common Stock (including any restricted shares of Common Stock) or of
options to purchase shares of Common Stock pursuant to any existing
benefit plans of the Company as existing on the date hereof and the
issuance of Common Stock upon the exercise of options outstanding on the
date hereof or granted pursuant to such plans or the conversion of a
security outstanding on the date hereof.
(c) The Underwriter represents, warrants and undertakes, that: (i) it
has not offered or sold and, prior to the expiry of a period of six months
from the Closing Date, will not offer or sell any Shares to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995, as amended; (ii) it has only communicated or caused to
be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA")) received by it in connection with the issue or sale of any Shares
in circumstances in which section 21(1) of the FSMA does not apply; and
(iii) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Shares in,
from or otherwise involving the United Kingdom.
3. Offering by the Underwriter. The Underwriter shall offer the Shares
for resale as set forth in the Prospectus.
4. Payment and Delivery. Payment for the Shares to be sold by the
Company shall be made to the Company in Federal or other funds immediately
available in New York City against delivery of the Shares to the Underwriter at
10:00 a.m., New York City time, on November 21, 2005, or at such other time on
the same or such other date, not later than November 29, 2005, as shall be
designated in writing by the Underwriter. The time and date of such payment are
hereinafter referred to as the "Closing Date."
The Shares shall be registered in such names and in such denominations
as the Underwriter shall request in writing not later than one full business
day prior to the Closing Date. The Shares shall be delivered to the Underwriter
on the Closing Date, for the account of the Underwriter, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriter
duly paid by the Company, against payment of the Purchase Price therefor.
5. Conditions to the Underwriter's Obligations. The obligations of the
Company to sell the Shares to the Underwriter and the obligation of the
Underwriter to purchase and pay for the Shares on the Closing Date are subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions.
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's or any Designated Subsidiary's securities or in the
Company's or any Designated Subsidiary's financial strength or claims
paying ability rating by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Underwriter, is material and adverse and that makes
it, in the judgment of the Underwriter, impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date. The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date an opinion
of Skadden, Arps, Slate, Meagher & Flom LLP, outside counsel for the
Company, dated the Closing Date, substantially to the effect set forth in
Exhibit A hereto.
(d) The Underwriter shall have received on the Closing Date an opinion
of Conyers Dill & Pearman, special Bermuda counsel for the Company, dated
the Closing Date, substantially to the effect set forth in Exhibit B
hereto.
(e) The Underwriter shall have received on the Closing Date opinions
of each of William Fry and William Fry Tax Advisers Limited, special Irish
counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibits C-1 and C-2 hereto.
(f) The Underwriter shall have received on the Closing Date two
opinions of LeBoeuf, Lamb, Greene & MacRae L.L.P., special United States
counsel for the Company, dated the Closing Date, substantially to the
effect set forth in Exhibits D-1 and D-2 hereto.
(g) The Underwriter shall have received on the Closing Date an opinion
of Bar & Karrer, special Swiss counsel for the Company, dated the Closing
Date, substantially to the effect set forth in Exhibit E hereto.
(h) The Underwriter shall have received on the Closing Date an opinion
of Carol S. Rivers, Esq., General Counsel for the Company, dated the
Closing Date, substantially to the effect set forth in Exhibit F hereto.
(i) The Underwriter shall have received on the Closing Date (i) an
opinion of Simpson Thacher & Bartlett LLP, counsel for the Underwriter,
and (ii) a letter from Simpson Thacher & Bartlett LLP, counsel for the
Underwriter, dated the Closing Date, covering the matters referred to in
paragraph 2 and the last paragraph of Exhibit A.
(j) The Underwriter shall have received, on each of a date prior to
the Closing Date and the Closing Date, a letter dated as of the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriter, from Deloitte & Touche, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus; provided that
the letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
The opinions of Skadden, Arps, Slate, Meagher & Flom LLP, Conyers Dill
& Pearman, William Fry, William Fry Tax Advisers Limited, LeBoeuf, Lamb, Greene
& MacRae L.L.P., Bar & Karrer and Carol S. Rivers, Esq. described in Sections
5(c), 5(d) 5(e), 5(f), 5(g) and 5(h) above shall be rendered to the Underwriter
at the request of the Company and shall so state therein.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriter herein contained, the Company covenants with the
Underwriter as follows:
(a) To furnish to the Underwriter, without charge, one signed copy of
the Registration Statement and all amendments thereto (including exhibits
thereto) and to furnish to the Underwriter in New York City, without
charge, prior to 10:00 a.m. New York City time on the second business day
succeeding the date of this Agreement and during the period mentioned in
Section 6(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as the Underwriter
may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to the Underwriter a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which the Underwriter reasonably objects, and to file with
the Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriter the
Prospectus is required by law to be delivered in connection with sales by
the Underwriter or a dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriter, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriter and to the dealers (whose names and addresses the Underwriter
will furnish to the Company) to which Shares may have been sold by the
Underwriter and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriter shall
reasonably request; 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 material
taxation or service of process in suits, other than those arising out of
the offering or sale of the Shares, in any jurisdiction where it is not
now so subject.
(e) To make generally available to the Company's security holders and
to the Underwriter as soon as practicable an earning statement covering
the twelve-month period ending December 31, 2006 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees
to pay or cause to be paid: (i) the fees, disbursements and expenses of the
counsel for the Company in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith and the mailing
and delivering of copies thereof to the Underwriter and dealers, in the
quantities hereinabove specified; (ii) the fees, disbursements and expenses of
the Company's accountants in connection with the registration and delivery of
the Shares under the Securities Act; (iii) the costs and charges of any
transfer agent, registrar or depository; (iv) all costs and expenses related to
the transfer and delivery of the Shares to the Underwriter, including any
transfer or other taxes payable thereon; (v) the cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the offer and
sale of the Shares under state securities laws and all expenses in connection
with the qualification of the Shares for offer and sale under state securities
laws as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriter in connection
with such qualification and in connection with the Blue Sky or Legal Investment
memorandum; (vi) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriter incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc. (such fees and disbursements of counsel, together with
fees and disbursements of counsel pursuant to clause (v) above, not to exceed
$30,000); (vii) the document production charges and expenses associated with
printing this Agreement; (viii) all costs and expenses incident to listing the
Shares on the New York Stock Exchange; (ix) the cost of printing certificates
representing the Shares; and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section 7. It is understood, however, that except as
provided in this Section 7, Section 8 entitled "Indemnity and Contribution",
Section 10(c) and Section 13(d), the Underwriter will pay all of its costs and
expenses, including fees and disbursements of its counsel, stock transfer taxes
payable on resale of any of the Shares by it and any advertising expenses
connected with any offers it may make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless the Underwriter, each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of the Underwriter within
the meaning of Rule 405 under the Securities Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any Preliminary Prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling the Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless the failure to send
or give such Prospectus is the result of noncompliance by the Company with
Section 6(a) hereof.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
the directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any amendment thereof, any Preliminary Prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only with reference to
information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 8(a) or 8(b), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may
be sought (the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the reasonable fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (x) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (y)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (i) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Underwriter and all persons, if any, who control the
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act or who are affiliates of the Underwriter
within the meaning of Rule 405 under the Securities Act and (ii) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriter and such control persons and affiliates
of the Underwriter, such firm shall be designated in writing by the
Underwriter. In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
sale of the Shares or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the indemnifying party
or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriter on the other hand in connection with the
sale of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the sale of the Shares (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Underwriter in any resale of the Shares bear
to the aggregate offering price of the Shares in such resale. The relative
fault of the Company and the Underwriter shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Underwriter
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriter agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in Section 8(d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, the
Underwriter shall not be required to contribute any amount in excess of
the amount by which the total price at which the Shares resold by it
exceeds the amount of any damages that the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Underwriter, any person
controlling the Underwriter or any affiliate of the Underwriter or the
Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Shares.
9. Termination. The Underwriter may terminate this Agreement by notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on, or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State or Bermuda authorities or (v) there
shall have occurred any outbreak or escalation of hostilities, or any change in
financial markets, or any calamity or crisis that, in the judgment of the
Underwriter, is material and adverse and which, singly or together with any
other event specified in this clause (v), makes it, in the judgment of the
Underwriter, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
10. Effectiveness.
(a) This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
(b) If this Agreement shall be terminated by the Underwriter because
of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriter for all
out-of-pocket expenses (including the fees and disbursements of its
counsel) reasonably incurred by the Underwriter in connection with this
Agreement or the offering contemplated hereunder.
11. Successors and Assigns. This Agreement shall be binding upon and
inure solely to the benefit of, the Underwriter and the Company, and their
respective successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriter shall be deemed a successor or assign solely by
reason of such purchase.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law; Submission to Jurisdiction; Appointment of Agent
for Service; Judgment Currency.
(a) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
(b) The Company irrevocably submits to the non-exclusive jurisdiction
of any New York State or United States Federal court sitting in The City
of New York over any suit, action or proceeding arising out of or relating
to this Agreement, the Prospectus, the Registration Statement or the
offering of the Shares. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have
to the laying of venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. To the
extent the Company has or hereafter may acquire any immunity from the
jurisdiction of any court or from any legal process with respect to itself
or its property, it irrevocably waives, to the fullest extent permitted by
law, such immunity in respect of any such suit, action or proceeding.
(c) The Company hereby irrevocably appoints CT Corporation System,
with offices at 111 Eighth Avenue, New York, NY 10011, as its agent for
service of process in any suit, action or proceeding described in the
preceding paragraph. The Company agrees that service of process in any
such suit, action or proceeding may be made upon it at the office of its
agent. The Company waives, to the fullest extent permitted by law, any
other requirements of or objections to personal jurisdiction with respect
thereto. The Company represents and warrants that its agent has agreed to
act as agent for service of process, and agrees to take any and all
action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and
effect.
(d) In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in currency (the "judgment
currency") other than United States dollars, the party against whom such
judgment or order has been given or made will indemnify each party in
whose favor such judgment or order has been given or made (the
"Indemnitee") against any loss incurred by the Indemnitee as a result of
any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount
of the judgment currency actually received by such Indemnitee. The
foregoing indemnity shall constitute a separate and independent obligation
of the Company and the Underwriter and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term
"rate of exchange" shall include any reasonable premiums and costs of
exchange payable in connection with the purchase of or conversion into
United States dollars.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the
Underwriter is acting as principals and not as agent or fiduciary of the
Company and (b) its engagement of the Underwriter in connection with the
offering contemplated hereby is as independent contractor and not in any other
capacity. Furthermore, the Company agrees that it is solely responsible for
making its own judgments in connection with the offering contemplated hereby
(irrespective of whether the Underwriter has advised or is currently advising
the Company on related or other matters).
15. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to Citigroup Global Markets Inc., General Counsel (fax
no.: (212) 816-7912) and confirmed in writing to Citigroup Global Markets Inc.
at 388 Greenwich Street, New York, New York 10013, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to +(441)
296-9929 and confirmed in writing to AXIS Capital Holdings Limited, at 106
Pitts Bay Road, Pembroke, HM 08 Bermuda, Attention: Carol S. Rivers.
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
AXIS CAPITAL HOLDINGS LIMITED
By: /s Andrew Cook
___________________________________
Name: Andrew Cook
Title: Chief Financial Officer
Accepted as of the date hereof:
Citigroup Global Markets Inc.
By: /s/ Peter Spinelli
-----------------------------
Name: Peter Spinelli
Title: Vice President
EXHIBIT A
[FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
A-1
EXHIBIT B
[FORM OF OPINION OF CONYERS DILL & PEARMAN]
B-1
EXHIBIT C
[FORMS OF OPINIONS OF WILLIAM FRY AND
WILLIAM FRY TAX ADVISERS LIMITED]
C-1
EXHIBIT D
[FORMS OF OPINION OF LEBOEUF, LAMB, GREENE & MACRAE L.L.P.]
D-1
EXHIBIT E
[FORM OF OPINION OF BAR & KARRER]
E-1
EXHIBIT F
[FORM OF OPINION OF CAROL S. RIVERS, ESQ.]
F-1