Exhibit 1.2
630,000 Shares
LASALLE RE HOLDINGS LIMITED
Common Shares
INTERNATIONAL UNDERWRITING AGREEMENT
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November , 1996
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ CAPITAL MARKETS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
As Lead Managers for the Several Managers
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The persons named in Part A of Schedule I hereto (the "Selling
Shareholders") propose to sell an aggregate of 630,000 common shares, par value
$1.00 per share (the "Shares"), of LaSalle Re Holdings Limited, a Bermuda
corporation (the "Company"), to the several Underwriters named in Schedule II
hereto (the "Managers") for whom ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Capital Markets, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited are acting as representatives (the
"Lead Managers"). The Company's common shares, par value $1.00 per share,
including the Shares and the U.S. Shares (as defined herein) as applicable, are
sometimes referred to herein as the "Common Shares." References herein to
"LaSalle Re" are to LaSalle Re Limited, a Bermuda corporation and a subsidiary
of the Company.
It is understood that the Company and the Selling Shareholders are
concurrently entering into a U.S. Underwriting Agreement, dated the date hereof
(the "U.S. Underwriting Agreement"), providing for the sale of 2,520,000 Common
Shares (the "Firm U.S. Shares"), all of which will be sold by the Selling
Shareholders (plus an option granted by the Selling Shareholders to purchase up
to an additional 472,500 Common Shares (the "Additional U.S. Shares") solely
for the purpose of covering over-allotments) through arrangements in the United
States and Canada with ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Lazard Freres & Co. LLC, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated (the "U.S. Underwriters"). All Common Shares
proposed to be offered to the U.S. Underwriters pursuant to the U.S.
Underwriting Agreement, including the Firm U.S. Shares and the Additional U.S.
Shares, are herein called the "U.S. Shares"; the U.S. Shares and the Shares,
collectively, are herein called the "Underwritten Shares."
The Company and the Selling Shareholders also understand that the Lead
Managers and the U.S. Underwriters have entered into an agreement (the
"Agreement Between U.S. Underwriters and Managers") contemplating the
coordination of certain transactions between the Managers and the U.S.
Underwriters and that, pursuant thereto and subject to the conditions set forth
therein, the Managers may purchase from U.S. Underwriters a portion of the U.S.
Shares or sell to the U.S. Underwriters a portion of the Shares. The Company and
the Selling Shareholders understand that any such purchases and sales between
the Managers and the U.S. Underwriters shall be governed by the Agreement
Between U.S. Underwriters and Managers and shall not be governed by the terms of
this Agreement or the U.S. Underwriting Agreement.
The Company and the Selling Shareholders wish to confirm as follows
their respective agreements with you and the other several Managers on whose
behalf you are acting, in connection with the several purchases of the Shares by
the Managers.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations of the Commission thereunder, a
registration statement on Form S-1, including prospectuses subject to
completion, relating to the Underwritten Shares. The term "Registration
Statement" as used in
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this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, and as thereafter amended by post-effective amendment. The term
"Prospectuses" as used in this Agreement means the prospectuses in the forms
included in the Registration Statement, or, if the prospectuses included in the
Registration Statement omit information in reliance on Rule 430A under the Act
and such information is included in prospectuses filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectuses" as used in this
Agreement means the prospectuses in the forms included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectuses filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion in the forms included in the Registration Statement at the
time of the initial filing of the Registration Statement with the Commission,
and as such prospectuses shall have been amended from time to time prior to the
date of the Prospectuses. If the Company has filed an abbreviated registration
statement to register additional Common Shares pursuant to Rule 462(b) under the
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement.
It is understood that two forms of Prepricing Prospectus and two forms
of Prospectus are to be used in connection with the offering and sale of the
Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to the
U.S. Shares that are to be offered and sold in the United States (as defined
herein) or Canada (as defined herein) to U.S. or Canadian Persons (as defined
herein) (the "U.S. Prepricing Prospectus" and the "U.S. Prospectus,"
respectively), and a Prepricing Prospectus and a Prospectus relating to the
Shares which are to be offered and sold outside the United States or Canada to
persons other than U.S. or Canadian Persons (the "International Prepricing
Prospectus" and the "International Prospectus," respectively). The U.S.
Prospectus and the International Prospectus are herein collectively called the
"Prospectuses," and the U.S. Prepricing Prospectus and the International
Prepricing Prospectus are herein called the "Prepricing Prospectuses." For
purposes of this Agreement: "Rules and Regulations" means the rules and
regulations adopted by the Commission under either the Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable; "U.S. or
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Canadian Person" means any resident or national of the United States or Canada,
any corporation, partnership or other entity created or organized in or under
the laws of the United States or Canada or any estate or trust the income of
which is subject to United States or Canadian income taxation regardless of the
source of its income (other than the foreign branch of any U.S. or Canadian
Person), and includes any United States or Canadian branch of a person other
than a U.S. or Canadian Person; "United States" means the United States of
America (including the states thereof and the District of Columbia) and its
territories, its possessions and other areas subject to its jurisdiction; and
"Canada" means Canada and its territories, its possessions and other areas
subject to its jurisdiction.
2. Agreements to Sell and Purchase. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein and to such adjustments as you may
determine to avoid fractional shares, each Selling Shareholder, severally and
not jointly, agrees to sell to each Manager and each Manager agrees, severally
and not jointly, to purchase from each Selling Shareholder, at a purchase price
of $[____] per share (the "purchase price per share"), the number of Shares that
bears the same proportion to the number of Shares set forth opposite the name of
such Selling Shareholder in Schedule I hereto as the number of Shares set forth
opposite the name of such Manager in Schedule II hereto (or such number of
Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Shares to be sold by the Selling Shareholders.
Certificates in transferable form for the Shares that each of the
Selling Shareholders agrees to sell pursuant to this Agreement have been placed
in custody with First Chicago Trust Company of New York (the "Custodian") for
delivery under this Agreement pursuant to a Selling Shareholder's Custody
Agreement (the "Custody Agreement") and a Selling Shareholder's Irrevocable
Power of Attorney (the "Power of Attorney") executed by each of the Selling
Shareholders appointing ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ Given as agents
and attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling Shareholder agrees
that (i) the Shares represented by the certificates held in custody pursuant to
the Custody Agreement are subject to the interests of the Managers, the Company
and each other Selling Shareholder, (ii) the arrangements made by the Selling
Shareholders for such custody are,
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except as specifically provided in the Custody Agreement, irrevocable, and
(iii) the obligations of the Selling Shareholders hereunder and under the
Custody Agreement and Power of Attorney shall not be terminated by any act of
such Selling Shareholder or by operation of law, whether by the death,
incapacity, dissolution or liquidation of any Selling Shareholder or the
occurrence of any other event (including, without limitation, the termination
of any trust or estate). If any Selling Shareholder shall die or become
incapacitated, dissolved, liquidated or terminated or if any other such event
shall occur before the delivery of the Shares hereunder and completion of the
transactions contemplated hereby, certificates for the Shares of such Selling
Shareholder shall be delivered to the Underwriters by the Custodian or the
Attorneys-in-Fact in accordance with the terms and conditions of this Agreement
and the Custody Agreement, and such actions shall be valid as if such death,
incapacity, dissolution, liquidation, termination or other event had not
occurred, regardless of whether or not the Custodian or the Attorneys-in-Fact
or any Manager shall have received notice of such death, incapacity,
dissolution, liquidation, termination or other event.
3. Terms of Public Offering. The Selling Shareholders have been advised
by you that the Managers propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the International Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the Managers
of and payment for the Shares shall be made at the office of LeBoeuf, Lamb,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00
A.M., New York City time, on [____________], 1996 (the "Closing Date"). The
place of closing for the Shares and the Closing Date may be varied by agreement
among you, the Company and the Attorneys-in-Fact.
Certificates for the Shares to be purchased hereunder shall be
registered in such names and in such denominations as you shall request by
written notice, it being understood that a facsimile transmission shall be
deemed written notice, prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date. Such certificates shall be made
available to you in New York City for inspection and packaging not later than
9:30 A.M.,
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New York City time, on the business day next preceding the Closing Date. The
certificates and stockpowers evidencing the Shares to be purchased hereunder
shall be delivered to you on the Closing Date, against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
Managers as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectuses or the Prospectuses or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, including the filing of any information, documents or reports
pursuant to the Exchange Act, that makes any statement of a material fact made
in the Registration Statement or the Prospectuses (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectuses (as then amended or
supplemented) in order to state a material fact required by the Act or the Rules
and Regulations to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectuses (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration
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Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, four signed
copies of the Registration Statement as originally filed with the Commission
and of each amendment thereto, including financial statements and all exhibits
to the Registration Statement and will also furnish to you, without charge,
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto, but without exhibits, as you may
reasonably request.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectuses of which you
shall not previously have been advised or to which you shall reasonably object
in writing after being so advised or (ii) so long as, in the written opinion of
counsel for the Managers (a copy of which shall be delivered to the Company), a
prospectus is required to be delivered in connection with sales by any Manager
or dealer, file any information, documents or reports pursuant to the Exchange
Act, without delivering a copy of such information, documents or reports to you,
as Lead Managers for the Managers, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such quantities
as you have reasonably requested or may hereafter reasonably request, copies of
each form of the International Prepricing Prospectus. The Company consents to
the use, in accordance with the provisions of the Act and with the securities
laws of the jurisdictions in which the Shares are offered by the several
Managers and by dealers, prior to the date of the International Prospectus, of
each International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the written
opinion of counsel for the Managers an International Prospectus is required by
the Act or the Rules and Regulations to be delivered in connection with sales by
any Manager or dealer, the Company will expeditiously deliver to each Manager
and each dealer, without charge, as many copies of the International Prospectus
(and of any amendment or supplement thereto) as you may
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reasonably request. The Company consents to the use of the International
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Act and the Rules and Regulations and with the securities
laws of the jurisdictions in which the Shares are offered by the several
Managers and by all dealers to whom Shares may be sold, both in connection with
the offering and sale of the Shares and for such period of time thereafter as
the International Prospectus is required by the Act or the Rules and
Regulations to be delivered in connection with sales by any Manager or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the written opinion of counsel for the Managers is required to be
set forth in the International Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the International Prospectus to comply with
the Act or any other law, the Company will forthwith prepare and, subject to
the provisions of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto and will expeditiously furnish to the Managers
and dealers a reasonable number of copies thereof. In the event that the
Company and you, as Lead Managers for the several Managers, agree that the
International Prospectus should be amended or supplemented, the Company, if
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Managers in
connection with the registration or qualification of the Shares for offering
and sale by the several Managers and by dealers under the securities laws of
such jurisdictions as you may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Shares, and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Shares, or subject it to
general taxation, in any jurisdiction where it is not now so subject.
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(h) The Company will make generally available to its securityholders
a consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as reasonably
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section ll(a) of the Act.
(i) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to shareholders or filed with the Commission or the Nasdaq National
Market, and (ii) from time to time such other information concerning the Company
as you may reasonably request; provided that the Company shall not be required
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to provide to you any such information that is not available to the public.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Managers because of any failure or refusal on the
part of the Company or any of the Selling Shareholders to comply, in
any material respect, with the terms or fulfill, in any material respect, any of
the conditions of this Agreement, the Company agrees to reimburse the Lead
Managers for all reasonable out-of-pocket expenses (including reasonable fees
and expenses of counsel for the Managers) incurred by you in connection
herewith.
(k) If Rule 430A of the Act is employed, the Company will timely file
the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(l) For a period of 180 days after the date hereof (the "Lock-up
Period"), neither the Company nor LaSalle Re will, without the prior written
consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., sell, offer to sell, solicit an offer to buy,
contract to sell, grant any option or right to purchase or acquire, or otherwise
transfer or dispose of, any common shares of the Company or LaSalle Re or any of
their respective subsidiaries (or any securities convertible into or exercisable
or exchangeable for such common shares), except that the Company may issue
Common Shares pursuant to stock purchase plans and grant options pursuant to
stock option plans.
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(m) The Company has furnished or will furnish to you "lock-up"
letters, signed by each of the officers and directors set forth under the
heading "Management" in the Prospectuses and each of the Selling Shareholders,
stating that, for the Lock-up Period, such officer, director or Selling
Shareholder will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
sell, offer to sell, solicit an offer to buy, contract to sell, grant any option
or right to purchase or acquire, or otherwise transfer or dispose of, any common
shares of the Company or any of its subsidiaries (or any securities convertible
into or exercisable or exchangeable for such common shares), except that such
officer, director, or Selling Shareholder may (i) sell shares subject to the
over-allotment option pursuant to the U.S. Underwriting Agreement; (ii) sell
shares repurchased by the Company pursuant to the Company's capital management
strategy (as contemplated in the Prospectuses); and (iii) transfer shares as
bona fide gifts and pledge shares so long as the donees or the pledgees, as the
case may be, agree in writing with the Managers to be bound by the terms of such
lock-up letter; each such lock-up letter shall also state that prior to the
expiration of the Lock-Up Period, such officer, director or Selling Shareholder
will not announce or disclose any intention to do anything after the expiration
of such period which such officer, director or Selling Shareholder is
prohibited, as provided in this Section 5(m), from doing during such period.
(n) Except as stated in this Agreement and in the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and Prospectuses, neither the
Company nor any of its subsidiaries has taken or will take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Shares or
any other security of the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement.
(o) The Company will use its best efforts to have the Common Shares
listed on the Nasdaq National Market concurrently with the effectiveness of the
registration statement and to maintain such listing and the registration of the
Shares under the Exchange Act.
(p) The Company hereby validly and irrevocably submits to the
jurisdiction of any federal or state court sitting in The City of New York and
irrevocably waive, to the fullest extent permitted
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by law, any objection that either of them may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought in any such
court based on or arising under this Agreement and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(q) The Company will use all reasonable commercial efforts to satisfy
on or before the Closing Date all conditions contained in Section 10 hereof to
the Managers' obligations to purchase the Shares.
6. Agreements of the Selling Shareholders. Each of the Selling
Shareholders agrees with the several Managers as follows:
(a) Such Selling Shareholder will cooperate to the extent necessary
to cause the registration statement or any post-effective amendment thereto to
become effective at the earliest possible time.
(b) Such Selling Shareholder will pay all Federal and other taxes, if
any, on the transfer or sale of such Shares that are sold by the Selling
Shareholder to the Managers.
(c) Such Selling Shareholder will do or perform all things required
to be done or performed by the Selling Shareholder prior to the Closing Date to
satisfy all conditions precedent to the delivery of the Shares pursuant to this
Agreement.
(d) Such Selling Shareholder has executed or will execute a "lock-up"
letter as provided in Section 5(m) above and will not, without the prior
written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., sell, offer to sell, solicit an offer to
buy, contract to sell, grant any option or right to purchase or acquire, or
otherwise transfer or dispose of, any common shares of the Company or any of
its subsidiaries (or any securities convertible into or exercisable or
exchangeable for such common shares), except for sales to the Managers pursuant
to this Agreement and the U.S. Underwriters pursuant to the U.S. Underwriting
Agreement, and except that such Selling Shareholder may sell shares repurchased
by the Company pursuant to the Company's capital management strategy as
contemplated in the Prospectuses and may transfer shares as bona fide gifts and
pledge shares so long as donees or the pledgees, as the case may be, agree in
writing with the Managers to be bound by the terms of such "lock-up" letter.
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(e) Except as stated in this Agreement and the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and the Prospectuses, such Selling
Shareholder has not taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Shares or any other
security of the Company to facilitate the sale or resale of the Shares pursuant
to the distribution contemplated by this Agreement.
(f) Such Selling Shareholder will advise you promptly upon becoming
aware, and if requested by you, will confirm such advice in writing, within the
period of time referred to in Section 5(f) hereof, of any change in the
Company's or LaSalle Re's condition, financial or otherwise, earnings, business,
prospects, properties or results of operations, or of the happening of any event
that makes any statement made in the Registration Statement or the Prospectuses
(as then amended or supplemented) untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectuses (as
then amended or supplemented) in order to state a material fact required by the
Act or the Rules and Regulations to be stated therein or necessary in order to
make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectuses (as then amended or supplemented) to comply with the
Act or any other law.
7. Representations and Warranties of the Company. The Company represents
and warrants to each Manager that:
(a) Each International Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act and the Rules
and Regulations, and did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; except that this representation and warranty does not
apply to statements in or omissions from such International Prepricing
Prospectus (or any amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any U.S. Underwriter or Manager
furnished to the Company in writing by a U.S. Underwriter or by a Manager
through the Lead Managers expressly for use therein.
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(b) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectuses and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) under the Act, complied or will comply in all material respects with the
provisions of the Act and the Rules and Regulations and will not at any such
times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; except that this representation and warranty does not
apply to statements in or omissions from the Registration Statement or the
Prospectuses (or any amendment or Suppleement thereto) made in reliance upon
and in conformity with information relating to any U.S. Underwriter or Manager
furnished to the Company in writing by a U.S. Underwriter or by a Manager
through the Lead Managers expressly for use therein.
(c) No order preventing or suspending the use of any Prepricing
Prospectus has been issued by the Commission and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company, threatened or
contemplated by the Commission.
(d) The consolidated financial statements of the Company (together
with related notes) included in the Registration Statement and Prospectuses
comply as to form in all material respects with the requirements of the Act and
the Rules and Regulations and present fairly the financial position of the
Company as at the dates indicated and the results of its operations for the
periods specified; such financial statements have been prepared in conformity
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved, except as disclosed therein; and
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein. All statutory financial
statements of the Company and its subsidiaries where required or permitted to be
prepared in accordance with the insurance laws of each of the jurisdictions in
which it conducts its business and the rules and regulations promulgated
thereunder, from which certain ratios and other statistical data contained in
the Registration Statement and the Prospectuses have been derived, and for each
relevant period have been prepared in conformity in all material respects with
the requirements of such insurance laws and such rules
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and regulations and present fairly the information purported to be shown.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, earnings, business, prospects, or results of operations
of the Company and its subsidiaries considered as a whole, whether or not
arising in the ordinary course of business, (ii) there have been no material
transactions entered into by the Company or any of its subsidiaries other than
those in the ordinary course of business, (iii) neither the Company nor any of
its subsidiaries has incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries considered as
a whole, and there has not been any change in the capital stock of the Company
or any payment of or declaration to pay any dividends or any other
distributions with respect to the Company's capital stock, except as set forth
in the Prospectuses, and (iv) there has not been any material change in the
shareholders' equity, statutory surplus or reserves (including any such change
in the loss and loss expense reserves) of the Company or any of its
subsidiaries.
(f) The Company has been duly incorporated and organized and is
validly existing as a corporation and as an exempted company in good standing
under the laws of Bermuda with all requisite power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as
described in the Registration Statement and Prospectuses; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases property or in which
the conduct of its business 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 condition, financial or otherwise, earnings,
business, prospects, or results of operations of the Company and its
subsidiaries considered as a whole.
(g) Each of the subsidiaries of the Company has been duly incorporated
and organized and is validly existing as a corporation and in the case of
LaSalle Re as an exempted company in good standing under the laws of the
jurisdiction of its incorporation, with all requisite power and authority
(corporate and other) to own,
-14-
lease and operate its properties and conduct its business as described in the
Registration Statement and Prospectuses; and each is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases property or in which the conduct of its
business 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 condition, financial or otherwise, earnings, business, prospects, or
results of operations of the Company and its subsidiaries considered as a
whole; all of the issued and outstanding capital stock of each subsidiary of
the Company has been duly authorized and validly issued and is fully paid and
non-assessable, and (except as otherwise described in the Registration
Statement and the Prospectuses) as of the Closing Date all such capital stock
will be owned by the Company, directly or through one or more of its
subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance,
security interest adverse claim or equity.
(h) Neither the Company nor any of its subsidiaries is in violation of
its or any of their charters or bye-laws or other organizational documents or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it or any of
them is a party or by which it or any of them or their properties may be bound;
no consent, approval, authorization, order, registration, filing, qualification
or other action of or with any court, regulatory body, arbitrator,
administrative body or other governmental authority or agency (including,
without limitation, any insurance regulatory agency or body) is required for
the issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required and
have been obtained from the Bermuda Monetary Authority and under the Act, the
Exchange Act, the Rules and Regulations or as may be required under state
securities laws (including state insurance securities laws) in connection with
the distribution of the Shares by the Managers; and the issue and sale of the
Shares, the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its
-15-
subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will any such action conflict with or result in a breach or
violation of the terms and provisions of or constitute a default under (i) the
memorandum of association or bye-laws or other organizational documents of the
Company or any of its subsidiaries or (ii) any statute, rule, regulation or
administrative or court decree or order of any governmental agency or body
(including, without limitation, any insurance regulatory agency or body) or any
court or arbitrator, which is applicable to the Company or any of its
subsidiaries or any of their respective properties.
(i) The Company and each of its subsidiaries possess all necessary
consents, authorizations, approvals, orders, licenses, certificates, or permits
issued by any regulatory agencies or bodies (collectively, "Permits") which are
necessary to conduct the business now operated by them; each of the Company and
its subsidiaries has fulfilled and performed all obligations necessary to
maintain such Permits; all of such Permits are in full force and effect; there
is no pending, or to the knowledge of the Company or any of its subsidiaries,
contemplated or threatened action, suit, proceeding, investigation or event
against or involving the Company or any of its subsidiaries (and neither the
Company nor any of its subsidiaries know of any reasonable basis for any such
action, suit, proceeding, investigation or event) that could lead to the
revocation, modification, termination, suspension or any other material
impairment of the rights of the holder of any such Permit which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, earnings, business, prospects or results of operations of the
Company and its subsidiaries considered as a whole; neither the Company nor any
of its subsidiaries has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any additional
Permit from such authority, commission or body is needed to be obtained by
either the Company or any of its subsidiaries; and no insurance regulatory
agency or body has issued any order or decree impairing, restricting or
prohibiting the payment of any dividends by the Company or any of its
subsidiaries
-16-
or the continuation of the business of the Company or any subsidiary of the
Company as currently conducted.
(j) Except as set forth in the Prospectuses, as amended or
supplemented, there is no (i) action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or any of its subsidiaries, contemplated or threatened
against the Company or any of its subsidiaries, (ii) statute, rule, regulation
or order that has been enacted, adopted or issued by any governmental agency or
body, domestic or foreign, or (iii) injunction, restraining order or order of
any nature by a court of competent jurisdiction that has been issued, any of the
foregoing of which (a) might individually or in the aggregate result in any
material adverse change in the condition, financial or otherwise, earnings,
business, prospects or results of operations of the Company and its subsidiaries
considered as a whole, (b) might materially and adversely affect the properties
or assets thereof, (c) might interfere with or adversely affect the offering of
the Shares in the manner contemplated by the Prospectuses, (d) is required to be
disclosed in the Registration Statement or the Prospectuses and is not disclosed
or (e) in any manner seek to challenge the validity of this Agreement or the
Shares; and there are no material contracts or other documents which are
required to be described in the Registration Statement or the Prospectuses or
filed as exhibits to the Registration Statement by the Act or by the Rules and
Regulations which have not been so described or have not been so filed as
required.
(k) Each of the Company and its subsidiaries has good and marketable
title to all personal property and assets owned by it, in each case free and
clear of all liens, encumbrances and defects except (i) such as are referred to
in the Prospectuses or (ii) such as do not materially and adversely affect the
value of such property to the Company or such subsidiary, and do not materially
interfere with the use made and proposed to be made of such property by the
Company or such subsidiary; neither the Company nor any of its subsidiaries owns
any real property; and any real property and buildings held under lease by the
Company or any of its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made by the Company or any of its
subsidiaries, and no default (other than any default by the lessor) related
thereto has occurred or is continuing.
-17
(l) This Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(m) The Company and LaSalle Re have an authorized capitalization as
set forth in the Prospectuses, and on the Closing Date, all of the outstanding
shares of capital stock of the Company and LaSalle Re (including the Shares)
will have been duly authorized and validly issued and will be fully paid and
non-assessable; such shares conform to the description thereof contained in the
Prospectuses; the Shares are not subject to pre-emptive or other similar rights;
the form of certificates for the Shares conforms to the requirements of the laws
of Bermuda and the Nasdaq National Market; and the Shares have been approved for
quotation on the Nasdaq National Market.
(n) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company or its subsidiaries, contemplated or threatened against
the Company or any of its subsidiaries, or any injunction, restraining order or
order of any nature by a court of competent jurisdiction, arising out of or in
connection with the consummation of the transactions contemplated by this
Agreement.
(o) On the Closing Date, except as set forth in the Prospectuses, the
Company will be the exclusive owner of all rights, title and interests in
LaSalle Re that were previously held by shareholders of LaSalle Re that exchange
their shares for Common Shares to be sold pursuant to the Prospectuses.
(p) Consummation of the transactions contemplated by this Agreement,
including but not limited to any actions taken pursuant to the indemnification
and contribution provisions set forth herein, will not constitute unlawful
financial assistance by the Company or LaSalle Re under Bermuda law.
(q) Except as described in the Prospectuses, there are no (i)
contracts, agreements or understandings between the Company or any of its
subsidiaries and any person granting such person the right to require the
Company or such subsidiary to file a registration statement under the Act with
respect to any securities
-18-
of the Company or such subsidiary owned or to be owned by such person or to
require the Company to include such securities under the Registration Statement
or with any securities being registered pursuant to any other registration
statement filed by the Company or such subsidiary under the Act or (ii)
outstanding options, warrants or other rights with respect to the issuance of,
and there are no commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any subsidiary or any security convertible or
exchangeable into or exercisable for such shares.
(r) Each of the Company and its subsidiaries has filed all reports,
information statements and other documents as required to be filed pursuant to
applicable insurance statutes, including the statutes relating to companies
which control insurance companies, and the rules, regulations and
interpretations of the insurance regulatory authorities thereunder (the
"Applicable Insurance Laws"), and has duly paid all taxes (including franchise
taxes and similar fees) it is required to have paid under the Applicable
Insurance Laws, except where the failure to file such statement or reports would
not have a material adverse effect on the condition, financial or otherwise,
earnings, business, prospects or results of operations of the Company and its
subsidiaries considered as a whole; and each of the Company and its subsidiaries
maintains its books and records in accordance with the Applicable Insurance
Laws, except where the failure to so maintain its books and records would not
have a material adverse effect on the condition, financial or otherwise,
earnings, business, prospects, or results of operations of the Company and its
subsidiaries considered as a whole.
(s) LaSalle Re is duly registered as an insurer and is subject to
regulation and supervision in Bermuda. Each of the Company and its subsidiaries
is duly licensed or admitted as an insurer or an insurance holding company, as
applicable, in each jurisdiction where it is required to be so licensed or
admitted to conduct its business as described in the Prospectuses.
(t) The Company and each of its subsidiaries are in compliance with
the applicable requirements of the Bermuda Insurance ▇▇▇ ▇▇▇▇, as amended, and
any applicable rules and regulations thereunder (collectively, the "Bermuda
Insurance Act"); neither the Company nor any of its subsidiaries is subject to
the insurance laws of any other jurisdiction, provided that LaSalle Re Corporate
--------
Capital Ltd., a Bermuda corporation and a subsidiary of the Company
-19-
("LaSalle Re Capital"), must be admitted by Lloyd's of London ("Lloyd's") to
corporate membership in order to carry on insurance business as a member of
Lloyd's syndicates.
(u) All liability, property and casualty, workers compensation,
directors and officers liability, surety bonds and other similar insurance
contracts that insure the business, properties, operations or affairs of the
Company and each of its subsidiaries or affect or relate to the ownership, use
or operations of the Company's or any of its subsidiaries' assets or properties
are in full force and effect and, to the knowledge of the Company and each of
its subsidiaries, are with financially sound and reputable insurers and in
accordance with normal industry practice and, to the knowledge of the Company
and each of its subsidiaries, in light of the respective businesses,
properties, operations and affairs of the Company and each of its subsidiaries,
are in amounts and provide coverage that is reasonable and customary for
persons in similar businesses or for similar property.
(v) All reinsurance treaties, retrocessional agreements, contracts
and agreements to which the Company or any of its subsidiaries is a party are in
full force and effect and neither the Company nor any of its subsidiaries is in
violation of, or in default in the performance, observance or fulfillment of,
any obligation, agreement, covenant or condition contained therein, except where
any such violation or default would not have a material adverse effect on the
condition, financial or otherwise, earnings, business, prospects, or results of
operations of the Company and its subsidiaries taken as a whole; neither the
Company nor any of its subsidiaries has received any notice from any of the
other parties to such treaties, contract or agreements that such other party
intends not to perform in any material respect such treaty, contract or
agreement, and the Company and its subsidiaries have no reason to believe that
any of the other parties to such treaties, contracts or agreements will be
unable to perform such treaty, contract, agreement or arrangement.
(w) To the knowledge of the Company and each of its subsidiaries, no
change in any insurance law or regulation is pending which could have,
individually or in the aggregate, a material adverse effect on the condition,
financial or otherwise, earnings, business, prospects or results of operations
of the Company or any of its subsidiaries.
-20-
(x) The Company and LaSalle Re have received from the Bermuda Minister
of Finance an assurance under The Exempted Undertakings Tax Protection Act, 1966
of Bermuda to the effect set forth in the Prospectuses under the caption
"Certain Tax Considerations--Taxation of the Company and its Subsidiaries--
Bermuda".
(y) Other than as permitted by the Act or the Rules and Regulations,
the Company and its subsidiaries have not distributed and will not distribute,
prior to the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Shares, any prospectus or other offering material in
connection with the offering and sale of the Shares.
(z) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, or to the knowledge of the Company and each of its
subsidiaries, is threatened.
(aa) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(bb) Other than as set forth in this Agreement, there is no broker,
finder or other party that is entitled to receive from the Company or any of its
subsidiaries any brokerage commission, finder's fee or other like payment as a
result of any of the transactions contemplated by this Agreement.
(cc) The Company and each of its subsidiaries is in compliance with
all provisions of Section 1 of the Laws of Florida, Chapter 92-198, An Act
------
Relating to Disclosure of Doing Business with Cuba.
--------------------------------------------------
(dd) Any certificate signed by an officer of the Company or any of its
subsidiaries in their capacities as such and delivered, pursuant to this
Agreement or in connection with the payment of the purchase price and delivery
of the certificates for the Shares, to the Managers or counsel for the Managers
shall be deemed a representation and warranty by the Company to the Managers as
to the matters covered thereby.
-21-
(ee) To the knowledge of the Company and each of its subsidiaries,
neither the Company nor any of its subsidiaries has violated any foreign,
federal, state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, or any law relating to discrimination in the hiring,
promotion or pay of employees or any applicable wages and hours laws.
(ff) KPMG Peat Marwick, who certified the financial statements and
supporting schedules included in the Registration Statement, is the independent
public accountant with respect to the Company as required by the Act and the
Rules and Regulations.
(gg) Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in all material respects in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
United States generally accepted accounting principles and with statutory
accounting principles, as the case may be, and to maintain accountability for
assets; (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 existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(hh) Any tax returns required to be filed by the Company or any of its
subsidiaries in any jurisdiction have been filed, and any material taxes,
including any withholding 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.
(ii) The Company and each of its subsidiaries owns or has valid and
adequate rights to use all patents, trademarks, trademark registration, service
marks, service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights owned by it or necessary for the conduct of
its respective business, free and clear of all liens, claims, security
interests,
-22-
encumbrances and restrictions that may materially interfere with the conduct of
its business, and neither the Company nor any of its subsidiaries is aware of
any claim to the contrary or any challenge by any other person to the rights of
the Company or any of its subsidiaries with respect to the foregoing.
(jj) As of the Closing Date, LaSalle Re, LaSalle Re (Services) Limited
("LaSalle Services") and LaSalle Re Capital will be the only "subsidiaries" of
the Company within the meaning of Rule 405 under the Act.
(kk) There are no currency exchange control laws or withholding taxes
imposed in Bermuda or the United Kingdom that are applicable to the payment of
dividends (i) on the Shares by the Company or (ii) by any subsidiary of the
Company, except in the United Kingdom to the extent that dividends payable are
subject to the payment at the same time of Advance Corporation Tax under the
laws of the United Kingdom.
(ll) Neither the Managers nor any subsequent purchasers of the Shares
is subject to any stamp duty, excise or similar tax imposed in Bermuda in
connection with the offering, sale or purchase of the Shares.
(mm) The Company and each of its subsidiaries have validly appointed
CT Corporation Systems as its authorized agent to receive service of process in
any suit, action or proceeding as contemplated in Section 5(p) above.
(nn) Each document filed or to be filed by the Company pursuant to the
Exchange Act so long as, in the written opinion of counsel for the Managers (a
copy of which shall be delivered to the Company), a prospectus is required to be
delivered in connection with sales by any Manager or dealer, complied or will
comply when so filed in all material respects with the Exchange Act and the
Rules and Regulations.
8. Representations and Warranties of the Selling Shareholders. Each Selling
Shareholder, severally and not jointly, represents and warrants to each Manager
that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder and is a valid
-23-
and binding agreement of such Selling Shareholder, enforceable against such
Selling Shareholder in accordance with its terms.
(b) Such Selling Shareholder now has, and on the Closing Date will
have, the legal right and power, and all necessary consents, approvals and
authorizations, to enter into this Agreement, the Custody Agreement and the
Power of Attorney and on the Closing Date, such Selling Shareholder will have
the legal right and power, and all necessary consents, approvals and
authorizations, to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder in the manner provided in this Agreement, such Selling
Shareholder has complied with all of the provisions under the Company's
Memorandum of Association and Bye-Laws in order to sell, transfer and deliver
the Shares to the Managers in the manner provided in this Agreement, and no such
action will conflict with or result in a breach or violation of the terms and
provisions of or constitute a default under any contract, indenture, mortgage,
loan agreement, note, lease or other instrument or agreement to which such
Selling Shareholder is a party or by which it may be bound, nor will any such
action conflict with or result in a breach or violation of the terms and
provisions of or constitute a default under (i) the charter or by-laws or other
organizational documents of such Selling Shareholder or (ii) any statute, rule,
regulation or administrative or court decree or order of any governmental agency
or body or any court or arbitrator, which is applicable to such Selling
Shareholder; and no consent, approval, authorization, order, filing,
registration, qualification or other action of or with any court, regulatory
body, arbitrator, administrative body or other governmental authority or agency
is required for the execution and delivery of this Agreement, the Custody
Agreement or the Power of Attorney, the sale, transfer and delivery of the
Shares or the consummation by such Selling Shareholder of the transactions
contemplated by this Agreement, the Custody Agreement and the Power of Attorney,
except such as may be required and have been obtained under the Act, the
Exchange Act or the Rules and Regulations or as may be required under state
securities (including state insurance securities laws) in connection with the
purchase and distribution of the Shares by the Managers.
(c) On the Closing Date, such Selling Shareholder will have, good and
valid title to the Shares to be sold by such Selling Shareholder, free and clear
of any security interests, adverse
-24-
claims, liens, equities, preferential arrangements and other encumbrances.
(d) Prior to the Closing Date, certificates in negotiable form for the
Shares to be sold by such Selling Shareholder will have been placed in custody,
for delivery pursuant to the terms of this Agreement, under the Custody
Agreement, in the form heretofore furnished to you, which Custody Agreement,
prior to the Closing Date, shall have been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder; the Power of Attorney in
the form heretofore furnished to you has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder; and the Custody
Agreement and such Power of Attorney are valid and binding obligations of such
Selling Shareholder, enforceable against such Selling Shareholder in accordance
with their respective terms.
(e) Delivery of the certificates and executed Share transfers for the
Shares to be sold by such Selling Shareholder pursuant to this Agreement and the
register in the Register of Members of the entities designated by the Managers
will pass good and valid title to such Shares to such entities free and clear of
any security interests, adverse claims, liens, equities, preferential
arrangements and other encumbrances.
(f) All information furnished in writing by or on behalf of such
Selling Shareholder for use in the Registration Statement and Prospectuses is,
and on the Closing Date will be, true, correct and complete, and does not, and
on the Closing Date will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make such information not
misleading.
(g) Unless otherwise noted on Schedule I, such Selling Shareholder is
not an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act. If, as specified on Schedule
I, such Selling Shareholder falls within either of the categories set forth in
the preceding sentence, such Selling Shareholder is in compliance in all
material respects with the provisions of the Investment Company Act.
(h) Other than as permitted by the Act or the Rules and Regulations,
such Selling Shareholder has not distributed and will not distribute, prior to
completion of the distribution of the
-25-
Shares, any prospectus or other offering material in connection with the
offering and sale of the Shares.
(i) Other than as set forth in this Agreement, there is no broker,
finder or other party that is entitled to receive from such Selling Shareholder
any brokerage commission, finder's fee or other like payment as a result of any
of the transactions contemplated by this Agreement.
(j) Any certificate signed by or on behalf of such Selling Shareholder
(or any of the Attorneys-in-Fact) and delivered, pursuant to this Agreement, or
in connection with the payment of the purchase price and delivery of the
certificates for the Shares, to the Managers or counsel for the Managers shall
be deemed a representation and warranty by such Selling Shareholder to the
Managers as to the matters covered thereby.
(k) Each of the Selling Shareholders that is a non-U.S. person (as
contemplated by the Power of Attorney) has validly submitted to the jurisdiction
of any federal or state court sitting in The City of New York, has validly and
irrevocably waived, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court based on or arising under this Agreement
and any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum, and has validly and irrevocably
appointed CT Corporation System as its authorized agent to receive service of
process in any such suit, action or proceeding.
(l) Except as set forth in Schedule B to each Power of Attorney, the
undersigned is neither a member of the National Association of Securities
Dealers, Inc. (the "NASD") nor "affiliated" with nor a "person associated with"
such a member as contemplated by the rules of the NASD.
(m) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of such Selling Shareholder, contemplated or threatened against such
Selling Shareholder, or any injunction, restraining order or order of any nature
by a court of competent jurisdiction, arising out of or in connection with the
consummation of the transactions contemplated by this Agreement.
-26-
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless you and each
other Manager and each person, if any, who controls any Manager within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable legal fees and expenses and reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any International Prepricing Prospectus or in the
Registration Statement or the International Prospectus or in any amendment or
supplement thereto, or arising out of or based upon 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, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Manager or any U.S. Underwriter furnished
in writing to the Company by or on behalf of any Manager through a Lead Manager
or by any U.S. Underwriter expressly for use in connection therewith; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any International Prepricing Prospectus or the International Prospectus shall
not inure to the benefit of any Manager (or to the benefit of any person
controlling such Manager) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Shares by such Manager to any person if
a copy of the International Prospectus (as then amended or supplemented) shall
not have been delivered or sent to such person within the time required by the
Act and the Rules and Regulations, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
International Prepricing Prospectus or the International Prospectus was
corrected in the International Prepricing Prospectus or the International
Prospectus (as then amended or supplemented), provided that the Company has
delivered the International Prepricing Prospectus or the International
Prospectus (as then amended or supplemented) to the several Managers in
requisite quantity on a timely basis to permit such delivery or sending.
-27-
(b) If any action, suit or proceeding shall be brought against any
Manager or any person controlling any Manager in respect of which indemnity may
be sought against the Company, such Manager or such controlling person shall
promptly notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses; however, the omission to notify the indemnifying party shall relieve
the indemnifying party from liability only to the extent prejudiced thereby.
Such Manager or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Manager or such controlling person unless (i) the indemnifying
parties have agreed in writing to pay such fees and expenses, (ii) the
indemnifying parties have failed to assume the defense and employ counsel within
a reasonable period of time after being notified of such action, suit or
proceeding, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Manager or such controlling
person and the indemnifying parties and such Manager or such controlling person
shall have been advised by its counsel in writing that representation of such
indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Manager or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Managers and controlling persons, which firm
shall be designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and that all such fees and
expenses shall be reimbursed as they are incurred. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the indemnifying parties
-28-
agree to indemnify and hold harmless any Manager, to the extent provided in the
preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Manager agrees, severally and not jointly, to indemnify and
hold harmless the Company, the directors and officers of the Company who sign
the Registration Statement and any person who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Manager, but
only with respect to information relating to such Manager furnished in writing
by or on behalf of such Manager through you expressly for use in the
Registration Statement, the International Prospectus or any International
Prepricing Prospectus, or any amendment or supplement thereto. If any action,
suit or proceeding shall be brought against the Company, any of the Company's
directors, any such officer or any such controlling person based on the
Registration Statement, the International Prospectus or any International
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Manager pursuant to this paragraph
(c), such Manager shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Manager shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Manager's expense), and the Company,
the Company's directors, any such officer and any such controlling person shall
have the rights and duties given to the Managers by paragraph (b) above.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and each of the Selling Shareholders on the one hand and the Managers on
the other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is
-29-
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders
on the one hand and the Managers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Managers on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Selling Shareholders bear to the
total underwriting discounts and commissions received by the Managers, in each
case as set forth in the table on the cover page of the International
Prospectus. The relative fault of the Company and the Selling Shareholders on
the one hand and the Managers on the other hand 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 the Selling
Shareholders on the one hand or by the Managers on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Selling Shareholders and the Managers agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by a pro rata allocation (even if the Managers 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 paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
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 any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 9, no Manager shall
be required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Manager 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 Act) shall be entitled to contribution from any person
who was not guilty of such
-30-
fraudulent misrepresentation. The Managers' obligations to contribute pursuant
to this Section 9 are several in proportion to the respective numbers of Shares
set forth opposite their names in Schedule II hereto (or such numbers of Shares
increased as set forth in Section 12 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or 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 action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Shareholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Manager or any
person controlling any Manager, the Company, the Company's directors or
officers or the Selling Shareholders, any director, officer or partner of a
Selling Shareholder or any person controlling the Company or any Selling
Shareholder, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Manager or any
person controlling any Manager, or to the Company, the Company's directors or
officers or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 9.
10. Conditions of Managers' Obligations. The several obligations of the
Managers to purchase the Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the
-31-
offering of the Shares may commence, the Registration Statement or such
post-effective amendment shall have become effective not later than 5:30 P.M.
New York City time, on the date hereof, or at such later date and time as shall
be consented to in writing by you, and all filings, if any, required by Rules
424 and 430A under the Act shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Company or any Manager, threatened by the Commission, and any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectuses or otherwise) shall have been
complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, that would have a material adverse effect on the condition, financial or
otherwise, earnings, business, prospects, or results of operations of the
Company and its subsidiaries taken as a whole, not contemplated by the
Prospectuses, which in your opinion, as Lead Managers of the several Managers,
would materially adversely affect the market for the Shares, or (ii) any event
or development relating to or involving the Company or any officer or director
of the Company or any Selling Shareholder which makes any statement made in the
Prospectuses untrue or which, in the opinion of the Company and its counsel or
the Managers and their counsel, requires the making of any addition to or
change in the Prospectuses in order to state a material fact required by the
Act or any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the
Prospectuses to reflect such event or development would, in your opinion, as
Lead Managers for the several Managers, materially adversely affect the market
for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company and LaSalle Re, dated the Closing Date
and addressed to you, as Lead Managers for the several Managers, to the effect
that:
(i) This Agreement is a valid and binding agreement of the
Company.
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(ii) On the Closing Date, all of the outstanding shares of capital
stock of the Company and LaSalle Re (including the Shares) conformed in all
material respects to the description thereof contained in the Prospectuses; to
the knowledge of such counsel, the Shares are not subject to any contractual
pre-emptive or other similar rights; the form of certificates for the Shares
conforms to the requirements of the Nasdaq National Market; and the Shares have
been approved for quotation on the Nasdaq National Market.
(iii) To the knowledge of such counsel there is no legal or
governmental action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, contemplated or threatened
against the Company or any of its subsidiaries or any injunction, restraining
order or order of any nature by a court of competent jurisdiction, arising out
of or in connection with the consummation of the transactions contemplated by
this Agreement.
(iv) The Registration Statement and each post-effective amendment, if
any, is effective under the Act and the Rules and Regulations and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof or preventing or suspending the use
of any Prepricing Prospectus has been issued under the Act or the Rules and
Regulations or proceedings therefor initiated or threatened or are pending or
contemplated by the Commission, and any required filing of the Prospectuses
pursuant to Rule 424(b) has been made in accordance with such rule.
(v) Statements set forth in the Prospectuses under the headings "Risk
Factors", "Management's Discussion and Analysis of Financial Condition and
Results of Operations", "Business", "Management", "Certain Transactions",
"Description of Capital Stock" and in the Registration Statement under Items 14
and 15 of Part II of the Registration Statement, insofar as such statements
constitute a summary of the legal matters, documents or proceedings or refer to
statements of regulation, law or legal conclusions referred to therein fairly
present the information called for with respect to such legal matters, documents
or proceedings and statements, and are accurate in all material respects.
-33-
(vi) No consent, approval, authorization, order, filing, registration,
qualification or other action of or with any court, regulatory body, arbitrator,
administrative body or other governmental authority or agency is required for
the issue and sale of the Shares or the consummation of the transactions
contemplated by this Agreement, except such as may be required and have been
obtained under the Act, the Exchange Act and the Rules and Regulations, or as
may be required under state securities laws (including state insurance
securities laws) in connection with the distribution of the Shares by the
Underwriters and other than the Form SR required to be filed under the Act and
the Rules and Regulations; and the issue and sale of the Shares, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument or agreement to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject and which is listed on Exhibit A to such opinion, nor will any such
action conflict with or result in a breach or violation of the terms and
provisions of or constitute a default under any material statute, rule,
regulation or administrative or court decree or order of any governmental agency
or body or any court or arbitrator, which is applicable to the Company or any of
its subsidiaries or any of their respective properties.
(vii) The Company and each of its subsidiaries have validly appointed
CT Corporation Systems as its authorized agent to receive service of process in
any suit, action or proceeding as contemplated in Section 5(p) above.
(viii) To the knowledge of such counsel no (i) legal or governmental
action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, contemplated or threatened against the
Company or any of its subsidiaries; (ii) statute, rule, regulation or order that
has been enacted, adopted or issued by any governmental agency or body,
domestic or foreign, or (iii) injunction, restraining order or order of any
nature by a court of competent jurisdiction that has been
-34-
issued, any of the foregoing of which (a) is required to be disclosed in the
Registration Statement or the Prospectuses and is not so disclosed; or (b) in
any manner seek to challenge the validity of this Agreement or the Shares; and,
after due inquiry, such counsel is not aware of any material contract or other
document that is required to be described in the Registration Statement or the
Prospectuses or to be filed as an exhibit to the Registration Statement that is
not so described or filed as required.
(ix) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act.
(x) Such counsel (1) is of the opinion that the Registration
Statement, as of the date it became effective, any amendment to the Registration
Statement, as of its effective date, and the Prospectuses, as of their date
(other than the financial statements and schedules included therein, as to which
no opinion need be expressed) complies as to form in all material respects with
the requirements of the Act and the Rules and Regulations, and (2) shall also
state that nothing has come to their attention that leads them to believe that
(other than the financial statements and schedules included therein, as to which
no belief need be expressed) the Registration Statement, as of the date it
became effective, or any amendment to the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and that the Prospectuses, as of their dates,
as of the date of any amendments or supplements thereto, and as amended or
supplemented at the Closing Date, contained or contains any untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(xi) The discussion of tax matters set forth under the heading
"Certain Tax Considerations" in the Prospectuses accurately reflects such
counsel's opinion as to such tax laws (subject to the qualifications and
assumptions set forth in such discussion).
-35-
Such opinion shall also state that such counsel has participated in
the preparation of the Registration Statement and the Prospectuses and has
participated in conferences with officers and other representatives of the
Company and its subsidiaries, at which the contents of the Registration
Statement and Prospectuses were discussed. With respect to subparagraph (x) of
paragraph (c) above, such counsel may state they are not passing upon the
adequacy or accuracy of the financial or statistical data contained in the
Registration Statement or Prospectuses. Regarding matters relating to Bermuda
law, such counsel shall be entitled to rely on the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, Bermuda counsel to the Company.
(d) You shall have received a favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, Bermuda counsel for the Company, LaSalle Re and LaSalle Re Capital,
dated the Closing Date, to the effect that:
(i) Each of the Company, LaSalle Re and LaSalle Re Capital is
incorporated and validly existing as an exempted company, and has been duly
organized (meaning that the provisional directors meeting and the statutory
members meeting required by the Companies ▇▇▇ ▇▇▇▇ have been held), under the
laws of Bermuda and is in good standing under the laws of Bermuda (meaning that
it has not failed to make any required filing with any Bermuda government
authority or to pay any Bermuda government fee or tax, the failure of which
would make such company liable to be struck off the register of companies and
thereby cease to exist under the laws of Bermuda) with all requisite corporate
power and authority and has all necessary permits of Bermuda government
authorities (including regulatory authorities) which remain in full force and
effect, to carry on its business and to own, lease and operate its properties as
both are described in the Registration Statement and the Prospectuses.
(ii) Based solely upon certified copies of the respective members
registers, the minutes, resolutions, memoranda of association and Bye-laws of
the Company, LaSalle Re and LaSalle Re Capital which we have examined and
searches of the register of charges maintained by the Bermuda Registrar of
Companies: (a) all of the issued shares in the capital of the Company, including
the Shares to be sold by the Selling Shareholders, have been duly and validly
authorized and issued and are fully paid and non-assessable (which term when
used in such opinion shall mean that no further sums are required to be paid by
the holders thereof in connection with the issue of such shares); and (b) each
of LaSalle Re and
-36-
LaSalle Re Capital is a subsidiary of the Company. The Shares are not subject
to any statutory pre-emptive rights (or similar statutory rights), and the form
of share certificates relating thereto conforms with the requirements of
Bermuda law.
(iii) LaSalle Re is duly registered as an insurer under The Insurance
▇▇▇ ▇▇▇▇ and the regulations promulgated thereunder (together, the "Insurance
Act") and as so registered, LaSalle Re may conduct the insurance business as
described in the Prospectuses; and, based solely on Certificates of Compliance
issued by the Bermuda Registrar of Companies and without independent enquiry,
LaSalle Re has filed with the appropriate Bermuda governmental authority
(including regulatory authority) all reports, documents or other information
required to be filed under the Insurance Act.
(iv) The Company has taken all corporate action required to authorize
its due execution, delivery and performance of this Agreement. This Agreement
has been duly authorised and executed by the Company and when delivered will
constitute the valid and binding obligations thereof enforceable in accordance
with its terms.
(v) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement and the consummation by
the Company of the transactions contemplated by this Agreement do not and will
not:
(a) violate any provision of the Memorandum of Association or
Bye-laws of the Company or LaSalle Re;
(b) contravene any provision of any of the laws, rules and
regulations of Bermuda;
(c) based solely upon a search of the Cause Book maintained in
the registry of the Bermuda Supreme Court, and without
further enquiry, contravene any judgment, order or decree by
the Bermuda Supreme Court against the Company LaSalle Re; or
(d) require any consent, approval, authorisation, qualification
or order of, or filing or registration with, any Bermuda
Court or Bermuda governmental agency (including regulatory and
-37-
administrative), except such as have been obtained or such
as may relate to the effect of the indemnity provisions of
this Agreement on LaSalle Re's statutory solvency margins.
(vi) Based solely upon our search of the Cause Book maintained in the
registry of the Bermuda Supreme Court and without further enquiry, there is no
action, suit, proceeding, injunction, restraining order or other order now
pending before any Bermuda Court against the Company, LaSalle Re or LaSalle Re
Capital or any of their respective properties.
(vii) Based solely upon a search of the register of charges maintained
by the Bermuda Registrar of Companies, and without further enquiry, there are no
registered liens, encumbrances, equities or claims in such register of charges
in respect of those shares issued in the Company, LaSalle Re and LaSalle Re
Capital other than: (a) a Mortgage of Shares dated as of 1 December 1995 between
the Company and Chemical Bank; and (b) a Deed dated as of 1 December 1995
between the Company and Chemical Bank.
(viii) All statements made in the Registration Statement and
Prospectuses with respect to statutes, regulations, rules, treaties and other
laws of Bermuda fairly and accurately present the information set forth therein
and such counsel's opinion as to such matters.
(ix) Based upon an assumption that there are reasonable grounds for
believing that immediately before and after entering this Agreement the Company
(a) is able to pay its liabilities as they fall due and (b) has assets with a
realisable value equal to or greater than the sum of its respective liabilities,
issued share capital and share premium account, the consummation of the
transactions contemplated by this Agreement (including but not limited to any
actions taken pursuant to the indemnification and contribution provisions
contained herein) will not constitute unlawful financial assistance by the
Company under Bermuda law.
(x) Each of the Company and LaSalle Re has received from the Bermuda
Minister of Finance an assurance pursuant to the Exempted Undertakings Tax
Protection ▇▇▇ ▇▇▇▇ to the effect set
-38-
forth in the Prospectuses under the heading "Certain Tax Considerations -
Taxation of the Company and its Subsidiaries - Bermuda."
(xi) The Managers and subsequent purchasers of the Shares purchased
pursuant to this Agreement are not subject to any stamp duty, excise or similar
tax imposed in Bermuda in connection with the offering, sale or purchase of such
Shares, and there are no currency exchange control laws or withholding taxes
that are applicable to the payment of dividends by the Company, LaSalle Re or
LaSalle Re Capital.
(xii) There are no statutes or Bermuda government rules, regulations
or orders which seek to challenge the validity of this Agreement or the Shares.
(xiii) The discussion of tax matters relating to Bermuda set forth
under the heading "Certain Tax Considerations" in the Prospectuses accurately
reflects the opinion of such counsel as to such matters (subject to the
qualifications and assumptions set forth in such discussion).
(xiv) Upon delivery of the share certificates and share transfer forms
duly executed in favour of the Managers' designees in respect of the Shares to
be sold by the Selling Shareholders, and the entry in the Company's register of
members of such designees, such designees will be the registered owners of legal
title to such Shares.
(e) You shall have received a favorable opinion of ▇▇▇▇▇ & Co.,
United Kingdom counsel for the Company and LaSalle Services, dated the Closing
Date, to the effect that:
(i) LaSalle Services has been duly incorporated and organized and is
validly existing as a corporation under the laws of the United Kingdom, with all
requisite power and authority (corporate and otherwise) to own, lease and
operate its properties and conduct its business as described in the Registration
Statement and the Prospectuses; all of the issued and outstanding capital stock
of LaSalle Services has been duly authorized and validly issued and is fully
paid and non-assessable and, all of such capital stock (except as otherwise
described in the Registration Statement of the Prospectuses) will be owned by
the Company, directly or
-39-
through one or more of its subsidiaries and, to the knowledge of such counsel,
free and clear of any mortgage, pledge, lien, encumbrance, security interest,
adverse claim or equity.
(ii) There are no currency exchange control laws or withholding taxes
that are applicable to the payment of dividends by LaSalle Services, except to
the extent that dividends payable are subject to the payment at the same time of
Advance Corporation Tax under the tax laws of the United Kingdom.
(iii) The discussion set forth under the heading "Certain Tax
Consideration--Taxation of the Company and its Subsidiaries--United Kingdom" in
the Prospectuses is accurate (subject to the qualifications, limitations and
assumptions set forth in such discussion).
(iv) Neither the Company nor any of its subsidiaries is required to be
licensed or admitted as an insurer or an insurance holding company, as
applicable, under, or to otherwise comply with, the insurance laws or
regulations of any jurisdiction within the United Kingdom in order to conduct
their respective businesses as described in the Prospectuses, provided that
--------
LaSalle Re Capital must be admitted by Lloyd's to corporate membership in order
to carry on insurance business as a member of Lloyd's syndicates.
(f) You shall have received a favorable opinion of counsel for each
Selling Shareholder, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder and is a valid and binding agreement of
such Selling Shareholder, enforceable against such Selling Shareholder in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(ii) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not conflict with or
result in a breach or violation of the terms and provisions of or constitute a
default under the
-40-
charter or by-laws or other organizational documents of such Selling
Shareholder.
(iii) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by or on behalf of such Selling Shareholder
and are valid and binding obligations of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(iv) Delivery of the certificates and executed Share transfers for
the Shares to be sold by such Selling Shareholder pursuant to this Agreement and
the register in the Register of Members of the entities designated by the
Managers will pass good and valid title to such Shares to such entities free and
clear of any security interests, adverse claims, liens, equities, preferential
arrangements and other encumbrances.
Such counsel shall be satisfactory to the Managers and of good
standing. Regarding matters relating to Bermuda law, such counsel shall be
entitled to rely on the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to
the Company. The opinion of such counsel described above shall be rendered to
the Managers at the request of the Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion of
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Managers, dated the
Closing Date, with respect to such matters as you may reasonably request.
Regarding matters relating to Bermuda law, such counsel shall be entitled to
rely on the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to the Company.
(h) You shall have received from the Chief Executive Officer and the
Chief Financial Officer of the Company a certificate, dated the Closing Date, in
which such officers, to the best of their knowledge and after reasonable
investigation, shall state that there has not been, since the respective dates
as of which information is given in the Registration Statement and the
Prospectuses, (i) any material adverse change in the condition, financial or
otherwise, earnings, business, prospects, or results of
-41-
operations of the Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business, (ii) any material
transaction entered into by the Company or any of its subsidiaries other than
those in the ordinary course of business, or (iii) any material change in the
capital stock of the Company nor any material increase in the short-term or
long-term debt of the Company (other than in the ordinary course of business),
except in the case of clauses (i), (ii) and (iii) as set forth in the
Prospectuses; the representations and warranties of the Company contained in
Section 7 are true and correct with the same force and effect as though made on
and as of the Closing Date and the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened or are contemplated by the Commission.
(i) You shall have received from KPMG Peat Marwick, independent
public accountants, two letters, the first dated the date of this Agreement and
the other dated such Closing Date, addressed to the Managers (with conformed
copies for each of the Managers), substantially in the forms heretofore approved
by you.
(j) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein contained
and required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(k) All the representations and warranties of the Selling
Shareholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date with the same force and effect
as if made on and as of the Closing Date, and you shall have received a
certificate satisfactory to you, dated the Closing Date and signed by or on
behalf of the Selling Shareholders to the effect set forth in this Section 10(l)
and in Section 10(m) hereof.
(l) The Selling Shareholders shall not have failed at or prior to the
Closing Date to have performed or complied with any of their agreements and
satisfied all conditions contained in this Agreement or the U.S. Underwriting
Agreement and required to be
-42-
performed or complied with or satisfied by them at or prior to the Closing
Date.
(m) The Selling Shareholders shall have furnished or caused to be
furnished to you such further certificates and documents as you shall have
reasonably requested.
(n) The Common Shares shall have been listed or approved for listing
on the Nasdaq National Market.
(o) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the Closing Date.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or
any Attorney-in-Fact or any Selling Shareholder and delivered to you, as Lead
Managers for the several Managers, or to counsel for the Managers, shall be
deemed a representation and warranty by the Company, the Selling Shareholders or
the particular Selling Shareholder, as the case may be, to each Manager as to
the statements made therein.
11. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance of the Company's
and the Selling Shareholders' respective obligations hereunder: (i) the
preparation, printing or reproduction, and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto),
each Prepricing Prospectus, the Prospectuses, and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the registration statement, each Prepricing Prospectus, the
Prospectuses, and all amendments or supplements to any of them as may be
reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the
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Shares; (iv) the printing (or reproduction) and delivery of this Agreement, the
U.S. Underwriting Agreement, the Supplemental Agreement Among U.S.
Underwriters, the Agreement Among Managers, the Agreement Between U.S.
Underwriters and Managers, the International Selling Agreement, the Managers'
Questionnaire, the preliminary and supplemental Blue Sky Memoranda and all
other agreements or documents printed (or reproduced) and delivered in
connection with the original issuance and sale of the Shares; (v) the listing
of the Shares on the Nasdaq National Market; (vi) the registration or
qualification of the Shares for offer and sale under the securities laws of the
several jurisdictions as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Managers
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the fees and expenses of the Registrar and Transfer Agent
for the Shares and its counsel; (viii) the filing fees in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc.; (ix) the transportation and other expenses incurred by or on
behalf of representatives of the Company in connection with presentations to
prospective purchasers of the Shares; and (x) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company.
12. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the registration statement or such post-effective
amendment has been released by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying you, or by you, as Lead Managers for the several Managers, by
notifying the Company and the Selling Shareholders.
If any one or more of the Managers shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Manager or Managers are
obligated but fail or refuse to purchase is not more than one-tenth of the
aggregate number of
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Shares which the Managers are obligated to purchase on the Closing Date, each
non-defaulting Manager shall be obligated, severally, in the proportion which
the number of Shares set forth opposite its name in Schedule II hereto bears to
the aggregate number of Shares set forth opposite the names of all
non-defaulting Managers or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of ▇▇▇▇▇
▇▇▇▇▇▇ Inc., to purchase the Shares which such defaulting Manager or Managers
are obligated, but fail or refuse, to purchase. If any one or more of the
Managers shall fail or refuse to purchase Shares which it or they are obligated
to purchase on the Closing Date and the aggregate number of Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Shares which the Managers are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such
Shares by one or more non-defaulting Managers or other party or parties
approved by you and the Company are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Manager or the Company or any Selling Shareholder. In any such
case which does not result in termination of this Agreement, either you or the
Company 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 the Prospectuses or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Manager from liability in respect of any such default of
any such Manager under this Agreement. The term "Manager" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule II hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Manager is obligated, but fails or refuses,
to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Manager to the Company or any Selling Shareholder, by notice to the Company, if
prior to the Closing Date, (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall
have been suspended or materially limited, (ii) a general moratorium on
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commercial banking activities in New York or Bermuda shall have been declared by
either federal or state (or comparable) authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the Shares at the offering price to the public set
forth on the cover page of the International Prospectus or to enforce contracts
for the resale of the Shares by the Managers.
Notice of such termination may be given by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
14. Information Furnished by the Managers. The statements set forth in
the last paragraph on the cover page, the first three legends on the inside
front cover page, and the sentences of the first two paragraphs of text under
the caption "Underwriting" concerning the terms of the offering by the Managers
and the tables thereunder and the third, eighth, ninth, tenth, eleventh,
fourteenth and last paragraphs in such Underwriting section in any International
Prepricing Prospectus and in the International Prospectus constitute the only
information furnished by or on behalf of the Managers through you as such
information is referred to in Sections 7 and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12 and 13
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Selling
Shareholders, at the office of the Company at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ FX Bermuda, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman; or (ii) if
to you, as Lead Managers for the several Managers, care of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the
several Managers, the Company, the Company's directors and officers, the other
controlling persons referred to in Section 9 hereof and the Selling Shareholders
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
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Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any Manager of any of
the Shares in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Shareholders and the several Managers.
Very truly yours,
LASALLE RE HOLDINGS LIMITED
By ______________________________
President and Chief
Executive Officer
Each of the Selling Shareholders
named in Schedule I hereto
By ______________________________
Attorney-in-Fact
By ______________________________
Attorney-in-Fact
By ______________________________
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Managers named in Schedule II
hereto.
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▇▇▇▇▇ ▇▇▇▇▇▇ INC.
LAZARD CAPITAL MARKETS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
As Lead Managers for the Several Managers
By ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By ______________________________
Managing Director
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SCHEDULE I
LASALLE RE HOLDINGS LIMITED
Number
Selling Shareholders of Shares
-------------------- ---------
______________
Total........ ______________
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SCHEDULE II
LASALLE RE HOLDINGS LIMITED
Number
Underwriter of Shares
----------- ---------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇ Capital Markets
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited
---------
Total...... ---------
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