Exhibit 1.1
Execution Copy
2,500,000 Shares
AXIS CAPITAL HOLDINGS LIMITED
7.50% Series B Preferred Shares
(Liquidation Preference $100 Per Share)
UNDERWRITING AGREEMENT
November 18, 2005
November 18, 2005
Citigroup Global Markets Inc.
Morgan Stanley & Co. Incorporated,
As Representatives of the several
Underwriters named in Schedule I
hereto,
c/o 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 the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, an aggregate of 2,500,000 7.50% Series B Preferred Shares,
liquidation preference $100 per share, of the Company (the "Shares"), which
shall have the rights, powers and preferences set forth in the Certificate of
Designations of 7.50% Series B Preferred Shares (the "Certificate of
Designations"). The Common Shares, par value $0.0125 per share, of the Company,
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 each of the Underwriters 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 any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives 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 the Certificate of Designations, 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 and the Certificate of
Designations, 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 Certificate of Designations has been duly authorized by the
Company and conforms in all material respects to the description thereof
contained in the Prospectus.
(j) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(k) 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.
(l) None of the execution and delivery by the Company of, or the
performance by the Company of its obligations under, this Agreement and the
Certificate of Designations, 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 and the Certificate of
Designations.
(m) 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.
(n) 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.
(o) 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.
(p) 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.
(q) 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.
(r) 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.
(s) 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.
(t) 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.
(u) 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.
(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) None of the Underwriters or 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 each Underwriter, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company at $98.75 per Share (the "Purchase Price"), the number of Shares set
forth opposite such Underwriter's name on Schedule I hereto.
(b) The Company hereby agrees that, without the prior written consent
of the Representatives, 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 preference shares of the Company
or any securities convertible into or exercisable or exchangeable for
preference shares of the Company 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 preference shares of the Company,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of preference shares or such other securities, in cash
or otherwise. The foregoing sentence shall not apply to the Shares to be
sold pursuant to this Agreement.
(c) Each of the Underwriters represents and agrees that the Prospectus
is only being distributed to, and is only directed at, persons in the United
Kingdom that are qualified investors within the meaning of Article 2(1)(e)
of the Prospectus Directive ("Qualified Investors") that are also (i)
investment professionals falling within Article 19(5) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order")
or (ii) high net worth entities, and other persons to whom it may lawfully
be communicated, falling within Article 49(2)(a) to (d) of the Order.
3. Offering by the Underwriters. The several Underwriters 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 Representatives
for the respective accounts of the several Underwriters at 10:00 a.m., New York
City time, on November 23, 2005, or at such other time on the same or such other
date, not later than December 1, 2005, as shall be designated in writing by the
Representatives. 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 Representatives shall request in writing not later than one full business
day prior to the Closing Date. The Shares shall be delivered to the
Representatives on the Closing Date for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of
the Shares to the Underwriters duly paid by the Company, against payment of the
Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the obligation of the
Underwriters 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
Representatives, is material and adverse and that makes it, in the
judgment of the Representatives, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters 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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters shall have received on the Closing Date (i) an
opinion of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, and
(ii) a letter from Simpson Thacher & Bartlett LLP, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to in
paragraph 2 and the last paragraph of Exhibit A.
(j) The Underwriters 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 Underwriters, 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 Underwriters
at the request of the Company and shall so state therein.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to the Representatives, without charge, one signed copy
of the Registration Statement and all amendments thereto (including exhibits
thereto) and to furnish to the Representatives 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 Representatives
may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to the Representatives a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which the Representatives reasonably object, 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 Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
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 Underwriters, 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
Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Shares may have been
sold by any 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 Representatives
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 Representatives 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 Underwriters 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 Underwriters, 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 Underwriters 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 Underwriters 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) the cost of printing certificates representing
the Shares; and (ix) 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 Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make and shall reimburse an aggregate of $625,000 of
the expenses incurred by the Company in the course of performing its obligations
under this Agreement..
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any 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 any
Underwriter furnished to the Company in writing by the Underwriter through the
Representatives expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such 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 such 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) Each Underwriter agrees, severally and not jointly, 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 such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives 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 Underwriters and all persons, if any,
who control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of
any 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 Underwriters and such control persons and affiliates
of any Underwriters, such firm shall be designated in writing by the
Representatives. 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
Underwriters 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 Underwriters
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
Underwriters 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 Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation 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, no Underwriter
shall 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 such 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 any Underwriter, any person
controlling any Underwriter or any affiliate of any 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 Underwriters 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
Representatives, 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
Representatives, 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; Defaulting Underwriters.
(a) This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
(b) If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Shares that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Shares to
be purchased on such date, the other Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
aggregate number of Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the
Representatives may specify) the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to
this Section 10 by an amount in excess of one-ninth of such aggregate number
of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Shares and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares
to be purchased, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriters or the Company. In such case the
Representatives shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
(c) If this Agreement shall be terminated by the Underwriters, or any
of them, 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 Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by such Underwriters
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 Underwriters 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 any 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
Underwriters 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.
(e) No Fiduciary Duty. The Company hereby acknowledges that (a) the
Underwriters are acting as principals and not as agents or fiduciaries of
the Company and (b) its engagement of the Underwriters in connection with
the offering contemplated hereby is as independent contractors 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 Underwriters have advised
or are currently advising the Company on related or other matters).
14. 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) 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; and (ii) Morgan Stanley & Co. Incorporated, Legal Department (fax no.:
(212) 761-0538) and confirmed in writing to Morgan Stanley & Co. Incorporated,
1585 Broadway, New York, New York 10036, U.S.A., Attention: Legal Department;
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.
[Remainder of page left blank intentionally]
15. 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
Morgan Stanley & Co. Incorporated
By: /s/ Michael Fusco
-------------------------------
Name: Michael Fusco
Title: Executive Director
Acting severally on behalf of themselves and the several
Underwriters named in Schedule I hereto.
SCHEDULE I
Number of Shares
Underwriter To Be Sold
----------- ----------
Citigroup Global Markets Inc. ............................. 1,125,000
Morgan Stanley & Co. Incorporated ......................... 1,125,000
Calyon Securities (USA) Inc................................ 50,000
HSBC Securities (USA) Inc.................................. 50,000
J.P. Morgan Securities Inc. ............................... 50,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated ........ 50,000
Wachovia Capital Markets, LLC.............................. 50,000
---------
Total: ................................................ 2,500,000
=========
EXHIBIT A
[FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
EXHIBIT B
[FORM OF OPINION OF CONYERS DILL & PEARMAN]
EXHIBIT C
[FORMS OF OPINIONS OF WILLIAM FRY AND
WILLIAM FRY TAX ADVISERS LIMITED]
EXHIBIT D
[FORMS OF OPINION OF LEBOEUF, LAMB, GREENE & MACRAE L.L.P.]
EXHIBIT E
[FORM OF OPINION OF BAR & KARRER]
EXHIBIT F
[FORM OF OPINION OF CAROL S. RIVERS, ESQ.]