EXHIBIT 1
PLATINUM UNDERWRITERS HOLDINGS, LTD.
PLATINUM UNDERWRITERS FINANCE, INC.
5,000,000
EQUITY SECURITY UNITS
-------------
UNDERWRITING AGREEMENT
October __, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
▇.▇. ▇▇▇▇▇▇ Securities Inc.
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Platinum Underwriters Holdings, Ltd., a Bermuda company (the "Company")
proposes, subject to the terms and conditions stated herein, to enter into the
Purchase Contracts (the "Purchase Contracts") with you on behalf of the
Underwriters named in Schedule I hereto (the "Underwriters"). The Purchase
Contracts are evidenced by the Unit Certificates and are referred to in the
Purchase Contract Agreement, to be dated as , 2002 (the "Purchase Contract
Agreement"), between the Company and JPMorgan Chase Bank, as Purchase Contract
Agent (the "Purchase Contract Agent"), underlying an aggregate of 5,000,000
Equity Security Units with a stated amount of $25 (the "Firm Units"). In
connection therewith, the Company and its indirect subsidiary, Platinum
Underwriters Finance, Inc., a Delaware corporation ("Platinum Finance"),
propose, subject to the terms and conditions stated herein, that Platinum
Finance issue and sell to the Underwriters an aggregate of $125,000,000 of __%
senior notes (the "Senior Notes"), guaranteed by the Company on a senior,
unsecured basis (the "Guarantee"). The Senior Notes and the Guarantee will be
issued pursuant to an Indenture, dated as of October 10, 2002 (the "Base
Indenture"), between the Company, Platinum Finance and JPMorgan Chase Bank, as
Trustee (the "Trustee"), as supplemented by the First Supplemental Indenture, to
be dated as of , 2002 (the "First Supplemental
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Indenture and, together with the Base Indenture, the "Indenture") between the
Company, Platinum Finance and the Trustee.
In connection with the Purchase Contract Agreement, pursuant to the Pledge
Agreement, to be dated as of , 2002 (the "Pledge Agreement"), among the
Company, the Purchase Contract Agent and State Street Bank and Trust Company, as
collateral agent, custodial agent and securities intermediary (the "Collateral
Agent"), the Senior Notes issued hereunder initially will be pledged by the
Purchase Contract Agent on behalf of the holders of the Units to secure such
holders' obligations to the Company under the Purchase Contracts underlying such
Units. The rights to purchase newly issued Common Shares, par value $0.01 per
share, of the Company (the "Issuable Common Shares") under a Purchase Contract,
together with an ownership interest in a Pledged Note or Pledged Treasury
Consideration or a Pledged Treasury Security securing such Purchase Contract,
subject to (a) the obligations owed to the Company under such Purchase Contract
and (b) the pledge arrangements under the Pledge Agreement securing the
foregoing obligations, collectively constitute an Equity Security Unit (a
"Unit"). Unless the context otherwise requires, for purposes of this Agreement,
the act of entering into a Purchase Contract underlying a Unit and purchasing an
ownership interest in a Note underlying a Unit shall be referred to as a
"purchase" of such Unit. In addition to the purchase of Firm Units subject to
the terms and conditions herein, the Company and Platinum Finance propose to
grant the Underwriters an option to purchase up to 750,000 additional Units (the
"Optional Units"). The Firm Units and any Optional Units purchased by the
Underwriters are herein called the "Units".
Concurrently with the public offering of the Units, the Company is making
an initial public offering of 30,040,000 Common Shares (the "Firm Shares") and,
at the election of the underwriters of such offering (the "Common Shares
Underwriters"), up to an additional 4,506,000 Common Shares (the "Optional
Shares" and, together with the Firm Shares, the "Shares"), by means of a
separate prospectus (the "Common Shares Prospectus") and pursuant to a separate
underwriting agreement (the "Common Shares Underwriting Agreement").
Concurrently with the public offering of the Units, the Company has agreed
to (i) sell to Renaissance Re Holdings, Ltd., a Bermuda company ("RenRe"), and
RenRe has agreed to purchase, (A) 3,960,000 Common Shares at the First Time of
Delivery (as defined in Section 5 hereof) and (B) up to 594,000 additional
Common Shares (as determined by RenRe) in the event the Underwriters elect to
purchase Optional Shares (collectively, the "RenRe Investment Shares") pursuant
to the RenRe Investment Agreement (as defined in Schedule II hereof) and (ii)
grant RenRe an option to purchase up to an additional 2,500,000 Common Shares
(the "RenRe Investment Option," and together with the RenRe Investment Shares,
the "RenRe Private Offering Securities"), pursuant to the RenRe Option Agreement
(as defined in Schedule II hereof).
On or prior to the First Time of Delivery or immediately thereafter, (i)
The St. ▇▇▇▇ Companies, Inc., a Minnesota corporation ("St. ▇▇▇▇"), and its
subsidiaries that are engaged in the reinsurance business will (A) contribute
$ million in cash and (B) retrocede certain reinsurance agreements, and
contribute certain assets specified in Section 2.01 of the Formation and
Separation Agreement (as defined in Schedule II hereof) (such reinsurance
agreements and such assets collectively, the "Business"), to the Company and its
subsidiaries and (ii) the Company will (A) issue to St. ▇▇▇▇ (X) 6,000,000
Common Shares at the First Time of Delivery and (Y) up to 900,000 additional
Common Shares (as determined by St. ▇▇▇▇) in the event the Underwriters elect to
purchase Optional Shares (collectively, the "St. ▇▇▇▇ Investment Shares") and
(B) grant to St. ▇▇▇▇ an option to purchase up to
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an additional 6,000,000 Common Shares (the "St. ▇▇▇▇ Investment Option," and
together with the St. ▇▇▇▇ Investment Shares, the "St. ▇▇▇▇ Private Offering
Securities") (the actions described in the foregoing clauses (i) and (ii), the
"Transaction"). The Company will conduct the Business through its wholly-owned
operating subsidiaries, Platinum Underwriters Reinsurance, Inc., a Maryland
corporation that, prior to the First Time of Delivery, is indirectly owned by
St. ▇▇▇▇ ("Platinum US"), Platinum Re (UK) Limited, a U.K. company ("Platinum
UK"), and Platinum Underwriters Bermuda, Ltd., a Bermuda company ("Platinum
Bermuda"). The Company will own Platinum US and Platinum UK through its
wholly-owned intermediate holding subsidiary, Platinum Regency Holdings, an
Ireland company ("Platinum Ireland" and, together with Platinum UK and Platinum
Bermuda, the "Non-U.S. Subsidiaries"). Platinum US will be owned directly by
Platinum Finance, which is a wholly-owned subsidiary of Platinum Ireland. As
used in this Agreement, the "Filed Agreements" shall mean those agreements set
forth on Schedule II hereto, each of which has been or will be executed and
delivered in connection with the Transaction.
It is understood and agreed that ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the "Lead
Underwriters") are joint book-running managers for the offering of the Units
contemplated hereby and any determinations or other actions to be made under
this Agreement by the Underwriters shall require the concurrence of ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc.
Capitalized terms used herein without definition shall be used as defined
in the Purchase Contract Agreement (as defined herein).
1. The Company and Platinum Finance, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File Nos. 333-99019 and
333-99019-01) (the "Initial Registration Statement") in respect of the Units,
the Purchase Contracts and the Senior Notes underlying the Units, the Guarantee
and the Issuable Common Shares (collectively, the "Securities"), has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated
or, to the knowledge of the Company, threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 6(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective (but excluding Form
T-1), each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if
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any, became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; and such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission; each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and, in each case, the rules and regulations of the
Commission thereunder, and did not 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, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company or
Platinum Finance by an Underwriter through the Lead Underwriters expressly for
use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and, in each case, the rules and regulations of the
Commission thereunder, and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto, and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company or Platinum
Finance by an Underwriter through the Lead Underwriters expressly for use
therein;
(d) None of the Company, any of its subsidiaries or the Business has
sustained since December 31, 2001, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital stock
or the capital or surplus or long-term debt of the Company, any of its
subsidiaries or the Business or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, or of the
Business, otherwise than as set forth or contemplated in the Prospectus;
(e) At the First Time of Delivery, the Company and its subsidiaries will
have good title to all personal property described in the Prospectus as being
owned by them upon consummation of the Transaction, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and at the First Time of Delivery,
any real property and buildings held under lease by the Company and its
subsidiaries will be held by them under valid, subsisting and enforceable
sub-leases and assignments of leases with such exceptions as are not material
and do not materially
4
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries. The Company does not own any real
property;
(f) The Company has been duly incorporated and is validly existing as a
company in good standing under the laws of Bermuda, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation or a company in good standing under the laws of its
jurisdiction of organization, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business, or will own or lease property or conduct
business at the First Time of Delivery, so as to require such qualification, or
is subject to no material liability or disability by reason of the failure to be
so qualified in any such jurisdiction;
(g) Each of this Agreement, the Jurisdiction Agreement, dated as of the
date hereof (the "Units Jurisdiction Agreement"), among the Company, Platinum
Finance, St. ▇▇▇▇ and the Underwriters, the Common Shares Underwriting Agreement
and the Jurisdiction Agreement, dated as of the date hereof (the "Common Shares
Jurisdiction Agreement" and together with the Units Jurisdiction Agreement, the
"Jurisdiction Agreements"), among the Company, St. ▇▇▇▇ and the Common Shares
Underwriters, has been duly authorized, executed and delivered by the Company;
and each of this Agreement and the Units Jurisdiction Agreement has been duly
authorized, executed and delivered by Platinum Finance;
(h) Except as described in the Prospectus, each of the Company and its
subsidiaries (i) was formed solely for the purpose of engaging in the
Transaction and the transactions contemplated hereby and by the Common Shares
Underwriting Agreement and the Filed Agreements and operating the Business after
the First Time of Delivery and (ii) has not engaged in any business activities,
conducted any operations, entered into any agreements or contracts, incurred any
liabilities, or owned any assets or property, other than in connection with the
Transaction and the transactions contemplated hereby and by the Common Shares
Underwriting Agreement and the Filed Agreements;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
conform in all material respects to the description of the capital stock
contained in the Prospectus; all of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and will be owned directly or indirectly by the
Company at the First Time of Delivery, free and clear of all liens,
encumbrances, equities or claims; except as described in the Prospectus under
the captions "Certain Relationships and Related Transactions--St. ▇▇▇▇
Investment--Formation and Separation Agreement--Pre-Emptive Rights," "Certain
Relationships and Related Transactions--St. ▇▇▇▇ Investment--St. ▇▇▇▇ Option
Agreement," "Certain Relationships and Related Transactions--The RenaissanceRe
Investment--Pre-Emptive Rights," "Certain Relationships and Related
Transactions--The RenaissanceRe Investment--RenaissanceRe Option Agreement," and
"Description of the Equity Security Units," the holders of outstanding shares of
capital stock of the Company are not entitled to
5
preemptive or other rights to acquire the Shares; there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or options
to purchase from the Company, or obligations of the Company to issue, Common
Shares or any other class of capital stock of the Company (except for the Units
and as set forth in the Prospectus under the captions "Management", "Certain
Relationships and Related Transactions--St. ▇▇▇▇ Investment--St ▇▇▇▇ Option
Agreement," "Certain Relationships and Related Transactions--the RenaissanceRe
Investment--RenaissanceRe Option Agreement" and "Underwriting"); there are no
restrictions on subsequent transfers of the Shares under the laws of Bermuda or
the United States (other than, pursuant to the securities laws of the United
States, by affiliates of the Company and other than as described in the
Prospectus under the caption "Description of Platinum Holdings' Common Shares");
and no party has the right to require the Company to register securities except
as disclosed in the Prospectus;
(j) All of (i) the Shares to be issued and sold by the Company to the
Common Shares Underwriters under the Common Shares Underwriting Agreement (ii)
the St. ▇▇▇▇ Private Offering Securities and (iii) the RenRe Private Offering
Securities have been duly authorized and, when issued and delivered against
payment therefor as provided in the Common Shares Underwriting Agreement, the
Formation and Separation Agreement and the RenRe Investment Agreement,
respectively, will be validly issued and fully paid and non-assessable and will
conform in all material respects to the description of the Common Shares
contained in the Prospectus; and the Issuable Common Shares have been duly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement, will be validly issued and fully paid and
non-assessable and will conform in all material respects to the description of
the Common Shares contained in the Prospectus or to any amended or supplemented
description of the Common Shares contained in a then effective report or
registration statement filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the issuance of Issuable Common Shares will
not be subject to any preemptive or other similar right;
(k) The Units have been duly authorized and, when duly executed,
authenticated and delivered against payment therefor as provided herein and in
the Purchase Contract Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles, and will be in the form contemplated by, and will be
entitled to the benefits of, the Purchase Contract Agreement; at the First Time
of Delivery, the Units will conform in all material respects to the description
thereof contained in the Prospectus; and the issuance of the Units is not
subject to preemptive or other similar rights;
(l) The Purchase Contracts underlying the Units have been duly authorized
by the Company and, when duly executed, authenticated and delivered as provided
herein and in the Purchase Contract Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; at the First
Time of Delivery, the Purchase Contracts will conform in all material respects
to the description thereof contained in the Prospectus; and the issuance of the
Purchase Contracts is not subject to any preemptive or similar rights;
6
(m) The Indenture has been duly qualified under the Trust Indenture Act;
and at the First Time of Delivery, the Indenture will conform in all material
respects to the description thereof contained in the Prospectus;
(n) The Senior Notes have been duly authorized by Platinum Finance and,
when the Senior Notes are duly executed, authenticated, issued and delivered as
provided herein and in the Indenture, the Senior Notes will constitute valid and
legally binding obligations of Platinum Finance, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and will be in the
form contemplated by, and will be entitled to the benefits of, the Indenture;
and at the First Time of Delivery, the Senior Notes will conform in all material
respects to the description thereof contained in the Prospectus;
(o) The Guarantee has been duly authorized by the Company and, upon the
due execution, authentication, issuance and delivery of the Senior Notes and the
due endorsement of the Guarantee thereon, such Guarantee will have been duly
executed and delivered and will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and will be entitled to the benefits of the Indenture; and at the
First Time of Delivery, the Guarantees will conform in all material respects to
the description thereof contained in the Prospectus;
(p) The Remarketing Agreement to be entered into by the Company, Platinum
Finance, the Purchase Contract Agent and the Remarketing Agent, has been duly
authorized by each of the Company and Platinum Finance and, when executed and
delivered by each of the Company and Platinum Finance, will be duly executed and
delivered by each of the Company and Platinum Finance; and at the time of such
execution and delivery, the Remarketing Agreement will conform in all material
respects to the description thereof contained in the Prospectus;
(q) The Pledge Agreement creates, as collateral security for the
performance when due by the holders from time to time of the Units of their
respective obligations under the Purchase Contracts constituting part of such
Units, a valid and perfected security interest (as defined in the Uniform
Commercial Code, as adopted and in effect in the State of New York (the "New
York UCC")) in favor of the Collateral Agent for the benefit of the Company, in
the right, title and interest of such holders in the securities and other assets
and interests pledged to the Collateral Agent pursuant to the Pledge Agreement
(the "Pledged Securities");
(r) The Units and the Issuable Common Shares have been approved for
listing on the New York Stock Exchange (the "Exchange"), subject to notice of
issuance, and at each Time of Delivery, the Units issued at or prior to such
Time of Delivery, and the Issuable Common Shares relating to such Units, upon
notice of issuance, will be listed on the Exchange;
(s) The issue and sale of the Securities, the Shares, the St. ▇▇▇▇ Private
Offering Securities and the RenRe Private Offering Securities, the compliance by
each of the Company and Platinum Finance with all of the provisions of this
Agreement and the Units Jurisdiction Agreement, the compliance by the Company
with all of the provisions of the Common Shares Underwriting Agreement and the
Common Shares Jurisdiction Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give rise to a right of termination under (i) the
7
memorandum of association or bye-laws or other organizational document of the
Company or any of its subsidiaries, (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, except, in
the case of clause (ii) or (iii), as would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries (taken as a whole) following the First Time of Delivery, or affect
the due authorization and valid issuance of the Securities, the Shares, the St.
▇▇▇▇ Private Offering Securities or the RenRe Private Offering Securities;
(t) Neither the Company nor any of its subsidiaries is in violation of its
memorandum of association or bye-laws or other organizational documents or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(u) The statements set forth in the Prospectus under the captions
"Business--Regulation", "St. ▇▇▇▇ Investment, RenaissanceRe Investment and
Principal Shareholders", "Certain Relationships and Related Transactions",
"Description of Platinum Holdings' Common Shares", "Description of the Equity
Security Units", "Description of the Senior Notes", "Certain Tax Considerations"
and "Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are true and complete in all material
respects;
(v) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, any of its subsidiaries
or the Business is a party or of which any property of the Company, any of its
subsidiaries or the Business is the subject which, if determined adversely to
the Company, any of its subsidiaries or the Business, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, or of the Business following the First Time of
Delivery; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(w) Each of the Filed Agreements when executed and delivered prior to the
First Time of Delivery will have been duly authorized, executed and delivered by
the Company or a subsidiary of the Company, as the case may be, and, assuming
that parties to the Filed Agreements other than the Company and its subsidiaries
have the power and authority to enter into and perform such agreements and that
such agreements have been duly authorized, executed and delivered by such
parties and constitute valid and binding agreements of such parties, will
constitute a valid and binding agreement of the Company and each of its
subsidiaries, as the case may be, enforceable against the Company and each of
its subsidiaries, in accordance with its terms, except that (i) such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium, or other
laws now or hereafter in effect affecting creditors' rights generally, (ii) the
enforceability thereof is subject to the general principles of equity (whether
such enforceability is considered in a proceeding in equity or at law), and
(iii) no representation or warranty is made with respect to the enforceability
of indemnification and contribution provisions relating to violations under the
Act contained in the Formation and Separation Agreement (as defined in Schedule
II hereto), the Registration Rights Agreement (as defined in
8
Schedule II hereto) and the Transfer Restrictions and Registration Rights
Agreement (as defined in Schedule II hereto);
(x) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any governmental agency
or body or any court is required to be obtained or made by the Company or any of
its subsidiaries for the issue and sale of the Securities, the Shares, the St.
▇▇▇▇ Private Offering Securities and the RenRe Private Offering Securities, the
consummation of the Transaction and the transactions contemplated by this
Agreement, the Common Shares Underwriting Agreement, the Jurisdiction Agreements
and the Filed Agreements, except (i) the registration under the Act of the
Shares and the Securities and the Exchange Act of the Shares and the Units, (ii)
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities, Blue Sky or insurance securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters and the Shares by the Common Shares Underwriters under the Common
Shares Underwriting Agreement, (iii) the filing of the Prospectus under the
Bermuda Companies Act 1981 in connection with the issue and sale of the Shares,
(iv) such consents, approvals, authorizations, registrations or qualifications
as may be required and have been obtained from the Bermuda Monetary Authority,
(v) such consents, approvals, authorizations, registrations or qualifications
that have been obtained or made under the Trust Indenture Act or the Insurance
Laws (as defined below) of the State of Maryland, Bermuda and Ireland and (vi)
such consents, approvals, authorizations, registrations or qualifications the
failure of which to obtain or make would not, individually or in the aggregate
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery, or affect
the due authorization and valid issuance of the Securities, the Shares, the St.
▇▇▇▇ Private Offering Securities or the RenRe Private Offering Securities;
(y) The execution, delivery and performance of each of the Filed
Agreements by each of the parties thereto and the consummation of the
Transaction and the transactions therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give rise to a right of termination under (i) the
memorandum of association or bye-laws or other organizational document of the
Company or any of its subsidiaries, (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, except, in
the case of clause (ii) or (iii), as would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery, or affect
the due authorization and valid issuance of the Securities, the Shares, the St.
▇▇▇▇ Private Offering Securities or the RenRe Private Offering Securities;
(z) Neither the Company nor Platinum Finance is or, after giving effect to
the offering and sale of the Shares, the St. ▇▇▇▇ Private Offering Securities,
the RenRe Private Offering Securities and the Units, will be an "investment
company", as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
9
(aa) Except as described in the Prospectus, each of the Company and its
subsidiaries is duly licensed as an insurance holding company or as an insurer
or reinsurer, as the case may be, under the insurance laws (including laws that
relate to companies that control insurance companies) and the rules, regulations
and interpretations of the insurance regulatory authorities thereunder
(collectively, "Insurance Laws"), of each jurisdiction in which the conduct of
its business as described in the Prospectus requires such licensing, except for
such jurisdictions in which the failure of the Company and its subsidiaries to
be so licensed would not, individually or in the aggregate, have a material
adverse effect on the consolidated financial position, shareholder's equity or
results of operations of the Company and its subsidiaries, taken as a whole,
following the First Time of Delivery. Each of the Company and its subsidiaries
has made all required filings under applicable holding company statutes or other
Insurance Laws in each jurisdiction where such filings are required, except for
such jurisdictions in which the failure to make such filings would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder's equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery. Except as described in the Prospectus, each of the Company and its
subsidiaries has all other necessary authorizations, approvals, orders,
consents, certificates, permits, registrations and qualifications of and from
all insurance regulatory authorities necessary to conduct their respective
businesses as described in the Prospectus and all of the foregoing are in full
force and effect, except where the failure to have such authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications or their failure to be in full force and effect would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder's equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery. None of the Company or any of its subsidiaries has received any
notification from any insurance regulatory authority or other governmental
authority in the United States, Bermuda, Ireland, the United Kingdom or
elsewhere to the effect that any additional authorization, approval, order,
consent, certificate, permit, registration or qualification is needed to be
obtained by either the Company or any of its subsidiaries; and no insurance
regulatory authority has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by the Company or any of its subsidiaries;
(bb) On or prior to the First Time of Delivery or immediately thereafter,
the Company and its subsidiaries will own or possess or will be licensed to use,
or will be able to acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, services marks and trade names that are
necessary for the Company and its subsidiaries to be able to conduct the
business of reinsurance in the manner and to the extent described in the
Prospectus, and none of the Company or any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing, except for those which, if determined adversely
to the Company or any of its subsidiaries, would not have a material adverse
effect on the consolidated financial position, shareholder's equity or results
of operations of the Company and its subsidiaries taken as a whole following the
First Time of Delivery;
(cc) Each of the Company and its subsidiaries has filed all statutory
financial returns, reports, documents and other information required to be filed
pursuant to the applicable Insurance Laws of the United States and the various
states thereof, Bermuda, Ireland, the United Kingdom and each other jurisdiction
applicable thereto, and has duly paid all taxes (including franchise taxes and
similar fees) it is required to have paid under the applicable Insurance Laws of
the United States and the various
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each other jurisdiction
applicable thereto, except where the failure, individually or in the aggregate,
to file such return, report, document or information or to pay such taxes would
not have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, following the First Time of Delivery; and each
of the Company and its subsidiaries maintains its books and records in
accordance with, and is otherwise in compliance with, the applicable Insurance
Laws of the United States and the various states thereof, Bermuda, Ireland, the
United Kingdom and each other jurisdiction applicable thereto, except where the
failure to so maintain its books and records or be in compliance would not
individually or in the aggregate have a material adverse effect on the
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, following the First Time
of Delivery;
(dd) 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, excise 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;
(ee) The Company and Platinum Bermuda 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 Common Shares Prospectus
under the caption "Certain Tax Considerations--Taxation of the Company, Platinum
US, Platinum UK, Platinum Bermuda and Platinum Ireland--Bermuda," and the
Company has not received any notification to the effect (and is not otherwise
aware) that such assurance may be revoked or otherwise not honored by the
Bermuda government;
(ff) The Company and its subsidiaries have not taken, and have no plan or
intention to take, directly or indirectly, any action that would or would be
reasonably expected to cause or result in (i) the Company and/or any Non-U.S.
Subsidiary being treated as engaged in a trade or business within the United
States for purposes of the Internal Revenue Code of 1986, as amended (the
"Code"), (ii) the Company and/or any Non-U.S. Subsidiary being treated as a
passive foreign investment company within the meaning of section 1297 of the
Code, (iii) the Company and/or any Non-U.S. Subsidiary being treated as a
controlled foreign corporation within the meaning of section 957 of the Code or
(iv) any shareholder of the Company having "related party insurance income"
inclusions for U.S. federal income tax purposes as a result of being a
shareholder of the Company;
(gg) No stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of the
Underwriters to Bermuda or any political subdivision or taxing authority thereof
or therein in connection with the sale and delivery by the Company of the
Securities to or for the respective accounts of the Underwriters or the sale and
delivery outside Bermuda by the Underwriters of the Securities to the initial
purchasers thereof; and no registration, documentary, recording, transfer or
other similar tax, fee or charge by any Bermuda government authority is payable
in connection with the execution, delivery, filing, registration or performance
of this Agreement;
(hh) It is not necessary to register under the Act the St. ▇▇▇▇ Private
Offering Securities or the RenRe Private Offering Securities to be sold to St.
▇▇▇▇, because the issuance of such securities will be exempt from registration
under the Act;
11
(ii) There are no currency exchange control laws or withholding taxes, in
each case of Bermuda, the United Kingdom or Ireland (or any political
subdivision or taxing authority thereof), that would be applicable to the
payment of dividends (i) on the Shares by the Company (other than as may apply
to residents of Bermuda for Bermuda exchange control purposes) or (ii) by any of
the Company's subsidiaries to the Company. The Bermuda Monetary Authority has
designated the Company and Platinum Bermuda as nonresident for exchange control
purposes and has granted permission for the issue and transfer of the Shares
(including permission for the issue or transfer of up to 20% of the Company's
shares in issue from time to time to persons resident in Bermuda for exchange
control purposes), subject to the condition that the Common Shares of the
Company shall be listed on the Exchange or any other appointed stock exchange.
Such permission has not been revoked and is in full force and effect, and the
Company has no knowledge of any proceedings planned or threatened for the
revocation of such permission. The Company and Platinum Bermuda are "exempted
companies" under Bermuda law and have not (i) acquired and do not hold any land
in Bermuda, other than that held by way of lease or tenancy for terms of not
more than 21 years, without the express authorization of the Bermuda
legislature, (ii) taken mortgages on land in Bermuda to secure an amount in
excess of $50,000, without the consent of the Bermuda Minister of Finance, (iii)
acquired any bonds or debentures secured by any land in Bermuda (other than
certain types of Bermuda government securities), or (iv) conducted their
business in a manner that is prohibited for "exempted companies" under Bermuda
law. Neither the Company nor Platinum Bermuda has received notification from the
Bermuda Monetary Authority or any other Bermuda governmental authority of
proceedings relating to the modification or revocation of its designation as
nonresident for exchange control purposes, its permission to issue and transfer
the Shares, or its status as an "exempted company";
(jj) Under the Units Jurisdiction Agreement, each of the Company and
Platinum Finance has validly and irrevocably submitted to the non-exclusive
jurisdiction of any United States Federal or State court in the Borough of
Manhattan, the City of New York, State of New York (a "New York Court") with
respect to suits, actions or proceedings brought by any Underwriter or by any
person who controls such Underwriter within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act against the Company arising out of or
in connection with violations of United States federal securities laws relating
to offers and sales of the Units and has validly and irrevocably waived, to the
fullest extent permitted by law, any objections that it may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought in
any New York Court based on or arising under this Agreement or any claims that
any such suit, action or proceeding brought in any New York Court has been
brought in an inconvenient forum; and, under the Units Jurisdiction Agreement,
the Company has duly and irrevocably appointed CT Corporation System as its
agent to receive service of process with respect to actions arising out of or in
connection with any such suit, action or proceeding, and service of process on
CT Corporation System effected in the manner set forth in the Units Jurisdiction
Agreement will be effective under the laws of Bermuda to confer personal
jurisdiction over the Company;
(kk) Immediately following the First Time of Delivery, St. ▇▇▇▇ will have
transferred to the Company and its subsidiaries those assets, liabilities and
businesses that, together with the Filed Agreements, are necessary for the
Company and its subsidiaries to be able to conduct the Business in the manner
and to the extent described in the Prospectus;
(ll) The Company has not taken, directly or indirectly, any action that has
constituted or that was designed to or which has constituted or which might
reasonably be expected to cause or result in,
12
under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of St. ▇▇▇▇ or the Company to facilitate the sale or
resale of the Units;
(mm) The historical financial statements and schedules of Predecessor (as
defined in the Prospectus) included in the Prospectus and the Registration
Statement (i) present fairly in all material respects the identifiable
underwriting assets and liabilities of The St. ▇▇▇▇ Companies, Inc. Reinsurance
Underwriting Segment as of December 31, 2001, 2000 and 1999, and its
underwriting results and its identifiable underwriting cash flows for each of
the years in the three-year period ended December 31, 2001 in conformity with
accounting principles generally accepted in the United States of America, and
(ii) comply as to form in all material respects with the applicable accounting
requirements of the Act;
(nn) Immediately following the First Time of Delivery, the Company will
repurchase and cancel the Common Shares held by Codan Trust Company Limited, and
immediately following such repurchase and cancellation, St. ▇▇▇▇ and the holders
of the Shares will be the only holders of issued and outstanding Common Shares;
and
(oo) KPMG, LLP, who have certified certain financial statements of the
Company, its subsidiaries and the Business, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
2. St. ▇▇▇▇ represents and warrants to, and agrees with, each of the
Underwriters that:
(a) St. ▇▇▇▇ has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Minnesota; and each
subsidiary of St. ▇▇▇▇ that is a party to a Filed Agreement has been duly
incorporated and is validly existing as a corporation or a company in good
standing under the laws of its jurisdiction of organization, with corporate
power and authority to own its properties and conduct its business as described
in the Prospectus;
(b) Each of this Agreement, the Common Shares Underwriting Agreement and
the Jurisdiction Agreements has been duly authorized, executed and delivered by
St. ▇▇▇▇;
(c) All consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any court or governmental agency or
body having jurisdiction over St. ▇▇▇▇ or any of its subsidiaries or any of
their properties required for the execution and delivery by St. ▇▇▇▇ of this
Agreement, the Common Shares Underwriting Agreement and the Jurisdiction
Agreements to be duly and validly authorized have been obtained or made and are
in full force and effect;
(d) The compliance by St. ▇▇▇▇ with all applicable provisions of this
Agreement, the Common Shares Underwriting Agreement and the Jurisdiction
Agreements and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give rise to a
right of termination under (i) the certificate of incorporation or bylaws of St.
▇▇▇▇, (ii) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which St. ▇▇▇▇ is a party or by which St. ▇▇▇▇ is
bound or to which any of the properties or assets of St. ▇▇▇▇ is subject, or
(iii) any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over St. ▇▇▇▇ or any of its properties,
except, in the case of clause (ii) or (iii), as would not, individually or in
the aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of St. ▇▇▇▇ and its
subsidiaries, taken as a whole, or of the Business;
13
(e) Each of the Filed Agreements when executed and delivered prior to the
First Time of Delivery will have been duly authorized, executed and delivered by
St. ▇▇▇▇ or a subsidiary of St. ▇▇▇▇, as the case may be, and, assuming that
parties to the Filed Agreements other than St. ▇▇▇▇ and its subsidiaries have
the power and authority to enter into and perform such agreements and that such
agreements have been duly authorized, executed and delivered by such parties and
constitute valid and binding agreements of such parties, will constitute a valid
and binding agreement of St. ▇▇▇▇ and its subsidiaries, enforceable against St.
▇▇▇▇ and its subsidiaries, as the case may be, in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other laws now or hereafter in effect affecting
creditors' rights generally, (ii) the enforceability thereof is subject to the
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), and (iii) no representation or warranty is made
with respect to the enforceability of the indemnification and contribution
provisions relating to violations under the Act contained in the Formation and
Separation Agreement, the Registration Rights Agreement and the Transfer
Restrictions and Registration Rights Agreement;
(f) Except as described in the Prospectus, no consent, approval,
authorization, registration or qualification of or with any governmental agency
or body or any court is required to be obtained or made by St. ▇▇▇▇ or any of
its subsidiaries for the consummation of the Transaction and the transactions
contemplated by this Agreement, the Common Shares Underwriting Agreement, the
Jurisdiction Agreements and the Filed Agreements, except (i) such as have been
obtained or made under the Insurance Laws of the State of Maryland, Bermuda and
Ireland and (ii) such consents, approvals, authorizations, registrations or
qualifications the failure of which to obtain or make would not, individually or
in the aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of St. ▇▇▇▇ and its
subsidiaries, taken as a whole, or of the Business;
(g) The execution, delivery and performance of each of the Filed
Agreements by St. ▇▇▇▇ or any of its subsidiaries party thereto and the
consummation of the Transaction and the transactions therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a right of
termination under (i) the certificate of incorporation or bylaws or other
organizational documents of St. ▇▇▇▇ or any of its subsidiaries, (ii) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which St. ▇▇▇▇ or any of its subsidiaries is a party or by which
St. ▇▇▇▇ or any of its subsidiaries is bound or to which any of the properties
or assets of St. ▇▇▇▇ or its subsidiaries is subject, or (iii) any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over St. ▇▇▇▇, any of its subsidiaries, or any of their properties,
except, in the case of clause (ii) or (iii), as would not, individually or in
the aggregate, have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of St. ▇▇▇▇ and its
subsidiaries, taken as a whole, or of the Business;
(h) The historical financial statements and schedules of Predecessor
included in the Prospectus and the Registration Statement present fairly in all
material respects the underwriting results of Predecessor as of the dates and
for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein);
14
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which St. ▇▇▇▇ or any of its subsidiaries in
respect of the Business is a party or of which any property of St. ▇▇▇▇ or any
of its subsidiaries in respect of the Business is the subject which, if
determined adversely to St. ▇▇▇▇ or any of its subsidiaries in respect of the
Business, would individually or in the aggregate have a material adverse effect
on the consolidated financial position, shareholders' equity or results of
operations of St. ▇▇▇▇ and its subsidiaries, taken as a whole, or of the
Business; and to St. Paul's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(j) St. ▇▇▇▇ and its subsidiaries in respect of the Business have not
sustained since December 31, 2001, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; and,
since December 31, 2001, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management or results of operations of St. ▇▇▇▇ or any of its
subsidiaries in respect of the Business, otherwise than as set forth or
contemplated in the Prospectus;
(k) Under the Units Jurisdiction Agreement, St. ▇▇▇▇ has validly and
irrevocably submitted to the non-exclusive jurisdiction of any New York Court
with respect to suits, actions or proceedings arising out of or in connection
with violations of United States federal securities laws relating to offers and
sales of the Units and has validly and irrevocably waived, to the fullest extent
permitted by law, any objections that it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in any New York Court
based on or arising under this Agreement or any claims that any such suit,
action or proceeding brought in any New York Court has been brought in an
inconvenient forum; and
(l) KPMG, LLP, who have certified certain financial statements of
St. ▇▇▇▇, its subsidiaries and the Business, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder.
3. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Underwriters, severally and not jointly, agree to enter into the
Purchase Contracts underlying the number of Firm Units set forth opposite the
name of such Underwriter in Schedule I hereto, (b) Platinum Finance agrees that
it will issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from Platinum Finance, at a
purchase price of ____% of the principal amount thereof, the principal amount of
Senior Notes underlying the number of Firm Units set forth opposite the name of
such Underwriter in Schedule I hereto, and (c) in the event and to the extent
that the Underwriters shall exercise the election to enter into additional
Purchase Contracts underlying Optional Units as provided below, (i) the Company
and each of the Underwriters, severally and not jointly, agree to enter into
that number of additional Purchase Contracts as to which such election shall
have been exercised (to be adjusted by you so as to eliminate fractional
Purchase Contracts) determined by multiplying the aggregate number of additional
Purchase Contracts the Underwriters elect to purchase by a fraction, the
numerator of which is the maximum number of Optional Units set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which
is the maximum number of Optional Units set forth in total opposite the names of
all such Underwriters in Schedule I hereto and (ii) Platinum Finance agrees that
it will issue and sell to each of the Underwriters and each of the Underwriters
agrees, severally and not jointly, to purchase
15
from Platinum Finance at the purchase price set forth in clause (a) of this
Section 3, an aggregate amount of Senior Notes underlying such additional
Optional Units.
The Company hereby grants to the Underwriters the right to enter into,
at their election, Purchase Contracts underlying up to 750,000 Optional Units
and Platinum Finance hereby grants the Underwriters the right to purchase
from Platinum Finance at their election up to an aggregate of $18,750,000
principal amount of Senior Notes underlying such Optional Units, for the sole
purpose of covering overallotments in the sale of the Firm Units; provided,
however, that the Underwriters may exercise such overallotment elections only
in integral multiples of 40 Optional Units. Any such election to enter into
such additional Purchase Contracts and purchase such Senior Notes may be
exercised only by written notice from you to the Company and Platinum
Finance, given within a period beginning on the date hereof and ending 13
calendar days after the First Time of Delivery and setting forth the
aggregate number of such additional Purchase Contracts to be entered into and
principal amount of Senior Notes to be purchased and the date on which the
related Optional Units are to be delivered, as determined by you but in no
event later than 13 calendar days after the First Time of Delivery nor
earlier than the First Time of Delivery (as defined in Section 5 hereof) or,
unless you, the Company and Platinum Finance otherwise agree in writing,
earlier than two or later than ten business days after the date of such
notice.
4. (a) Upon the authorization by you of the release of the Firm Units,
the several Underwriters propose to offer the Firm Units for sale upon the terms
and conditions set forth in the Prospectus.
(b) Each Underwriter agrees that it will not offer, sell or deliver any of
the Units in any jurisdiction outside the United States except under
circumstances that will result in compliance by the Company, Platinum Finance
and the several Underwriters with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase and
resale of the Units in such jurisdictions. Each Underwriter understands that no
action has been taken to permit a public offering in any jurisdiction outside
the United States where action would be required for such purpose. Each
Underwriter agrees not to cause any advertisement of the Units to be published
in any newspaper or periodical or posted in any public place and not to issue
any circular relating to the Units, except in any case with the Lead
Underwriters' express written consent and then only at its own expense.
(c) Each Underwriter represents, warrants and agrees that: (i) it has not
offered or sold and, prior to the expiry of a period of six months from the
closing of the offering of the Units, will not offer or sell any Units to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received
by it in connection with the issue or sale of any Units in circumstances in
which section 21(1) of the FSMA does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Units in, from or otherwise involving
the United Kingdom.
5. (a) The Units to be purchased by each Underwriter hereunder, in
definitive form and registered in the name of Cede & Co., shall be delivered by
or on behalf of the Company and Platinum
16
Finance to the Lead Underwriters, through the facilities of The Depository Trust
Company ("DTC"), for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by Platinum Finance to the
Lead Underwriters at least forty-eight hours in advance. [The Company will cause
the certificates representing the Units to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of [▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇] [DTC or its designated custodian] (the
"Designated Office").] The time and date of such delivery and payment shall be,
with respect to the Firm Units, 9:30 a.m., New York City time, on _____________,
2002 or such other time and date as the Lead Underwriters, the Company and
Platinum Finance may agree upon in writing, and, with respect to the Optional
Units, 9:30 a.m., New York time, on the date specified by the Lead Underwriters
in the written notice given by the Lead Underwriters of the Underwriters'
election to purchase such Optional Units, or such other time and date as the
Lead Underwriters, the Company and Platinum Finance may agree upon in writing.
Such time and date for delivery of the Firm Units is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Units, if not
the First Time of Delivery, is herein called the "Second Time of Delivery", and
each such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 9 hereof, including the
cross receipt for the Units and any additional documents requested by the
Underwriters pursuant to Section 9 hereof, will be delivered at the offices
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Closing Location"), and the Units will be delivered at the offices of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, all at such Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 5, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
6. The Company and Platinum Finance agree, jointly and severally, with
each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or suspending
17
any such qualification, promptly to use its reasonable best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply in all material
respects with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith neither
the Company nor Platinum Finance shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or become subject to taxation in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New York
City in such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Units and if at such time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act or the Trust Indenture Act, to notify
you and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Units at any time nine months
or more after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any Units, Purchase Contracts, Senior Notes, Common Shares or any securities of
the Company or Platinum Finance that are substantially similar to the Units,
Purchase Contracts, Senior Notes or Common Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that represent
the right to receive, Common Shares or any such substantially similar securities
(other than (i) the Shares issued pursuant to the Common Stock Underwriting
Agreement, (ii) the St. ▇▇▇▇ Private Offering Securities and the RenRe Private
Offering Securities, and (iii) securities issued pursuant to any director or
employee stock option or benefit plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of, the date
of this Agreement), without the prior written consent of the Lead Underwriters;
18
(f) To make available to its shareholders all information as required by
the Exchange Act;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional non-confidential information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in reports
furnished to its shareholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Units
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance, the
Units and the Issuable Common Shares on the Exchange;
(j) To file with the Commission such information on Form 10-Q or Form 10-K
as may be required by Rule 463 under the Act;
(k) If the Company and Platinum Finance elect to rely upon Rule 462(b),
the Company and Platinum Finance shall file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company and Platinum Finance
shall at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
(l) Prior to or contemporaneously with the First Time of Delivery, use
commercially reasonable efforts to consummate the Transaction;
(m) Immediately upon receipt of payment for the Firm Shares, the Company
shall cause all of the Common Shares held by Codan Trust Company Limited to be
repurchased and cancelled;
(n) To reserve and keep available at all times, free of preemptive rights,
Issuable Common Shares to satisfy the obligation of the Company to issue Common
Shares pursuant to the Purchase Contracts; and
(o) To enter into the Remarketing Agreement with a nationally recognized
investment banking firm at least one month prior to , 2005, such Remarketing
Agreement to contain provisions that are consistent in all material respects
with the descriptions in the Prospectus of the rights and obligations of each of
the Company, Platinum Finance, the Purchase Contract Agent and the Remarketing
Agent under the Remarking Agreement.
7. St. ▇▇▇▇ agrees with each of the Underwriters that, during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, it will not offer, sell, contract to sell or
otherwise dispose of any Common Shares, Units, Purchase Contracts, Senior Notes
or any securities of the Company or Platinum Finance that are substantially
similar to the Common Shares, Units, Purchase Contracts or Senior Notes
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive,
19
Common Shares or any such substantially similar securities, without the prior
written consent of the Lead Underwriters.
8. The Company, Platinum Finance and St. ▇▇▇▇ covenant and agree with the
several Underwriters that the Company, Platinum Finance and St. ▇▇▇▇ will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
counsel and accountants of the Company and Platinum Finance in connection with
the registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 6(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey; (iv) all
fees and expenses in connection with listing the Units and the Issuable Common
Shares on the Exchange; (v) the filing fees incident to, and the reasonable fees
and disbursements of counsel for the Underwriters in connection with, securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost and charges of any
transfer agent or registrar; (vii) any fees charged by securities rating
services for rating the Units; (viii) the cost of preparing the Securities and
any certificates thereof and any agreements, documents and instruments incident
thereto; (ix) the fees and expenses of the Purchase Contract Agent and
Collateral Agent, and any agent of the Purchase Contract Agent and the
Collateral Agent, and the fees and disbursements of any counsel for the Purchase
Contract Agent, Collateral Agent or Remarketing Agent in connection with the
Purchase Contract Agreement, Pledge Agreement or Remarketing Agreement; (x) the
fees and expenses of the Trustee under the Indenture, and any agent of the
Trustee, and the fees and disbursements of any counsel for the Trustee in
connection with the Indenture and the Notes; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 10 and 13 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Units by them, and
any advertising expenses connected with any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Units to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company, Platinum Finance and St. ▇▇▇▇ herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company, Platinum Finance and
St. ▇▇▇▇ shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 6(a) hereof;
if the Company and Platinum Finance have elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
20
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions (a
draft of each such opinion is attached as Annex II(a) hereto), dated such Time
of Delivery in a form or forms acceptable to you, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to render such opinion or opinions;
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company and Platinum Finance,
shall have furnished to you their written opinion or opinions (a draft of such
opinion or opinions are attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Assuming each of this Agreement, the Common Shares
Underwriting Agreement and the Jurisdiction Agreements has been duly
authorized, executed and delivered by the Company under Bermuda law,
each of this Agreement, the Common Shares Underwriting Agreement and
the Jurisdiction Agreements has been duly executed and delivered by
the Company.
(ii) Each of this Agreement, the Common Shares Underwriting
Agreement and the Jurisdiction Agreements has been duly authorized,
executed and delivered by St. ▇▇▇▇.
(iii) Platinum US has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Maryland, with corporate power and authority to conduct its business
as described in the Prospectus.
(iv) All of the outstanding shares of Platinum US's common
stock have been duly authorized and validly issued and are fully paid
and non-assessable. Platinum Finance is the registered owner of 50,000
shares of Platinum US's common stock, and such shares constitute all
of the outstanding shares of Platinum US's capital stock.
(v) Platinum Finance has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to conduct its business
as described in the Prospectus.
(vi) All of the outstanding shares of Platinum Finance's
common stock have been duly authorized and validly issued and are
fully paid and non-assessable. Platinum Ireland is the registered
owner of 100 shares of Platinum Finance's common stock, and such
shares constitute all of the outstanding shares of Platinum Finance's
capital stock.
(vii) To such counsel's knowledge, the only agreements in
which the Company has agreed to register any securities are the
Registration Rights Agreement and the Transfer Restrictions and
Registration Rights Agreement.
(viii) Assuming that each of the Formation and Separation
Agreement and the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company under Bermuda law,
the Formation and Separation Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by the
Company, and constitute valid and legally binding obligations of the
Company enforceable
21
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, except that such counsel expresses no
opinion as to the enforceability of any indemnification or
contribution provisions relating to violations under any federal or
state securities laws contained in the Formation and Separation
Agreement and the Registration Rights Agreement.
(ix) The Formation and Separation Agreement and the
Registration Rights Agreement have been duly authorized, executed and
delivered by St. ▇▇▇▇ and constitute valid and legally binding
obligations of St. ▇▇▇▇ enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, except that such
counsel expresses no opinion as to the enforceability of any
indemnification or contribution provisions relating to violations
under any federal or state securities laws contained in the Formation
and Separation Agreement and the Registration Rights Agreement.
(x) Assuming that each of the Filed Agreements (other than
the Formation and Separation Agreement and the Registration Rights
Agreement) that is governed by New York law and to which the Company
is a party has been duly authorized, executed and delivered by the
Company under Bermuda law, each of such agreements has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(xi) Each of the Filed Agreements (other than the Formation
and Separation Agreement and the Registration Rights Agreement) that
is governed by New York law and to which St. ▇▇▇▇ is a party, has been
duly authorized, executed and delivered by St. ▇▇▇▇ and constitutes a
valid and legally binding obligation of St. ▇▇▇▇ enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(xii) Each of the Filed Agreements that is governed by New
York law and to which Platinum Finance is a party has been duly
authorized, executed and delivered by Platinum Finance and constitutes
a valid and legally binding obligation of Platinum Finance enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(xiii) Each of this Agreement and the Units Jurisdiction
Agreement has been duly authorized, executed and delivered by Platinum
Finance.
(xiv) Each of the Filed Agreements that is governed by New
York law and to which Platinum US is a party has been duly authorized,
executed and delivered by Platinum US and constitutes a valid and
legally binding obligation of Platinum US enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability
relating to or affecting creditors'
22
rights and to general equity principles, except that such counsel
expresses no opinion as to the enforceability of any leases,
sub-leases or assignments of leases or other agreements relating to
real property constituting a Filed Agreement.
(xv) Each of the Filed Agreements that is governed by New
York law and to which St. ▇▇▇▇ Fire and Marine Insurance Company, a
Minnesota corporation and a wholly owned subsidiary of St. ▇▇▇▇ ("Fire
and Marine"), is a party, has been duly authorized, executed and
delivered by Fire and Marine and constitutes a valid and legally
binding obligation of Fire and Marine enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(xvi) No consent, approval, authorization or order of, or
qualification with, any United States federal or New York State
governmental body or agency is required for the issue and sale of the
Units, the Shares, the St. ▇▇▇▇ Private Offering Securities or the
RenRe Private Offering Securities, except such as may be required by
the Act, the Exchange Act, the Trust Indenture Act and the securities
or Blue Sky laws of the State of New York.
(xvii) (a) The issuance by the Company of the Units and the
Common Shares, (b) the sale by the Company of the Units to you
pursuant to the Underwriting Agreement and of the Common Shares
pursuant to the Common Shares Underwriting Agreement, (c) the
performance by the Company of its obligations under the Underwriting
Agreement and the Common Shares Underwriting Agreement, (d) the
issuance by the Company of the St. ▇▇▇▇ Private Offering Securities
to St. ▇▇▇▇ and (e) the issuance by the Company of the RenRe Private
Offering Securities to RenRe will not (i) result in a default under
or a breach of any of the Filed Agreements that is governed by New
York law to which the Company is a party, or (ii) violate any
Federal law of the United States or law of the State of New York
or the Delaware General Corporation Law applicable to the Company;
provided, however, that, for the purposes of this paragraph (xvii),
such counsel may express no opinion with respect to Federal or state
securities laws, other antifraud laws or fraudulent transfer laws;
and provided, further, that insofar as performance by the Company
of its obligations under such agreements is concerned, such counsel
expresses no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
(xviii) The execution, delivery and performance by St. ▇▇▇▇
of its obligations under the Underwriting Agreement and the Common
Shares Underwriting Agreement will not violate any Federal law of
the United States or law of the State of New York or the Delaware
General Corporation Law applicable to St. ▇▇▇▇; provided, however,
that, for the purposes of this paragraph (xviii), such counsel
expresses no opinion with respect to Federal or state securities
laws, other antifraud laws or fraudulent transfer laws; and
provided, further, that insofar as performance by St. ▇▇▇▇ of its
obligations under such agreements is concerned, such counsel
expresses no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
23
(xix) The execution, delivery and performance by Platinum US
of its obligations under each of the Filed Agreements to which it is a
party will not (a) violate Platinum US's certificate of incorporation
or by-laws, (b) result in a default under or breach of any of the
Filed Agreements to which it is a party, or (c) violate any Federal
law of the United States or law of the State of New York applicable to
Platinum US; provided, however, that, for the purposes of this
paragraph (xix), such counsel expresses no opinion with respect to
Federal or state securities laws, other antifraud laws or fraudulent
transfer laws; provided, further, that insofar as performance by
Platinum US of its obligations under such agreements is concerned,
such counsel expresses no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights.
(xx) (a) The issuance by Platinum Finance of the Senior Notes
in accordance with the Indenture and the First Supplemental Indenture
relating to the Senior Notes, (b) the sale by Platinum Finance of the
Senior Notes to the Underwriters pursuant to the Underwriting
Agreement and (iii) the performance by Platinum Finance of its
obligations under the Underwriting Agreement will not (i) violate
Platinum Finance's certificate of incorporation or by-laws, (ii)
result in a default under or breach of any of the Filed Agreements
to which it is a party, or (iii) violate any Federal law of the
United States or law of the State of New York or the Delaware
General Corporation Law applicable to Platinum Finance; provided,
however, that, for the purposes of this paragraph (xx), such counsel
expresses no opinion with respect to Federal or state securities
laws, other antifraud laws or fraudulent transfer laws; and
provided, further, that insofar as performance by Platinum Finance
of its obligations under such agreements is concerned, such counsel
expresses no opinion as to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights.
(xxi) The Remarketing Agreement to be entered into by the
Company, Platinum Finance, the Purchase Contract Agent and the
Remarketing Agent, has been duly authorized by Platinum Finance, and
the Senior Notes will entitle holders thereof to the benefits of
the Remarketing Agreement and the Purchase Contract Agreement, in each
case in respect of the remarketing of the Senior Notes;
(xxii) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated October ___, 2002, approving
or acknowledging that no regulatory approval is required for, inter
alia, the transactions contemplated by the Filed Agreements to which
the Company or Platinum US is a party, and the issuance to Platinum US
by the New York State Insurance Department of a license to engage in
the reinsurance business, all statutory and regulatory consents,
authorizations, approvals and filings required to be obtained or made
by or on behalf of the Company and Platinum US under the insurance
laws of the State of Maryland and the insurance laws of the State of
New York to consummate the transactions contemplated by the Filed
Agreements to which the Company or Platinum US is a party, and in the
case of Platinum US, to conduct its business as described in the
Prospectus, have been obtained or made.
(xxiii) Assuming that the Units have been duly authorized,
executed, authenticated, issued and delivered by the Company under
Bermuda law, the Units have been duly authorized, executed,
authenticated, issued and
24
delivered by the Company, and assuming due execution by the Purchase
Contract Agent as attorney-in-fact of the holders thereof and due
authentication by the Purchase Contract Agent, such Units constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and are in the
form contemplated by, and are entitled to the benefits of, the
Purchase Contract Agreement;
(xxiv) Assuming the Purchase Contracts underlying the Units
have been duly authorized, issued and delivered by the Company under
Bermuda law, the Purchase Contracts underlying the Units have been
duly authorized, issued and delivered and constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(xxv) The Indenture has been duly qualified under the Trust
Indenture Act;
(xxvi) The Senior Notes underlying the Units have been duly
authorized, executed, authenticated, issued and delivered by
Platinum Finance and constitute valid and legally binding
obligations of Platinum Finance, enforceable against Platinum
Finance in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; the Senior Notes are in the form
contemplated by, and are entitled to the benefits of, the Indenture;
(xxvii) Assuming the Guarantees underlying the Units have been
duly authorized by the Company under Bermuda law, the Guarantees
have been duly authorized, issued and delivered and will constitute
valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and are entitled to the benefits of the
Indenture;
(xxviii) Under the NY UCC in effect at such Time of Delivery, the
Pledge Agreement creates, as collateral security for the performance
when due by the holders of the Units under the respective Purchase
Contracts, a valid security interest (as that term is defined in the
New York UCC) in favor of the Collateral Agent for the benefit of
the Company, in the right, title and interest of such holders in all
of the Pledged Securities that constitute "securities" (as that term
is defined in Section 8-102(a)(15) of the New York UCC); and in the
case of such Pledged Securities that are certificated (as defined in
the New York UCC), such security interest shall be perfected upon
delivery of such certificates (endorsed in blank) to the Collateral
Agent and, assuming that neither the
25
Collateral Agent nor the Company has notice on or prior to the date of
such delivery of an adverse claim with respect to such Pledged
Securities, the Collateral Agent has acquired a security interest in
the Pledged Securities free of any adverse claim (as that term in
defined in the New York UCC); in the case of Pledged Securities that
are credited by a securities intermediary (as defined in the New York
UCC) to a securities account (as defined in the New York UCC) in the
name of a Collateral agent, the Collateral Agent shall have a
perfected security interest in all security entitlements (as defined
in the New York UCC) relating to such Pledged Securities;
(xxix) Under the laws of the State of New York relating to
submission to jurisdiction, pursuant to the Units Jurisdiction
Agreement, (i) each of the Company, Platinum Finance and St. ▇▇▇▇ has
validly and irrevocably submitted to the non-exclusive jurisdiction of
any United States Federal or New York State court and has validly
and irrevocably waived any objection to the venue of a proceeding in
any such court, and (ii) the Company has validly and irrevocably
appointed CT Corporation System as its authorized agent for the
purpose and to the extent described in the Units Jurisdiction
Agreement, and service of process effected on such agent in the
manner set forth therein will be effective to confer valid personal
jurisdiction over the Company, assuming, in each of clauses (i)
and (ii), (a) with respect to the Company only, the validity of
such actions under Bermuda law and (b) the due authorization,
execution and delivery of this Agreement by or on behalf of the
Underwriters.
(xxx) Registration of the Company or Platinum Finance under
the Investment Company Act is not required.
(xxxi) No registration of the Private Offering Securities under
the Act is required for the issuance and delivery of the Private
Offering Securities in the manner contemplated by the Formation and
Separation Agreement and the RenRe Investment Agreement, respectively;
provided, however, that such counsel may express no opinion as to when
and under what circumstances any Private Offering Securities may be
reoffered or resold.
(xxxii) The statements made under the captions "Business--Our
Business--U.S. Regulation--U.S. Insurance Holding Company Regulation
of Platinum Holdings, Platinum Ireland and Platinum Finance" and "--
-- --State Insurance Regulation of Platinum US" in the Prospectus
insofar as they relate to summaries of the provisions of the insurance
laws of the State of Maryland therein described, are accurate, fair
and complete.
Such counsel shall also furnish to you its written opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of the
date of the Prospectus, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act, the Trust Indenture Act
and the applicable rules and regulations of the Commission thereunder. Further,
nothing that came to such counsel's attention in the course of its review has
caused such counsel to believe that 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 or that the Prospectus, as of the date of the
Prospectus, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. Also,
nothing that has come to such counsel's attention has caused such counsel to
believe that the Prospectus, as of the
26
date and time of delivery of this letter, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel shall state that they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those made
under the captions "Description of the Equity Security Units" and "Descriptions
of the Senior Notes", insofar as they purport to constitute a summary of the
terms of the Securities and the Filed Agreements relating to the Securities,
under the captions "U.S. Federal Income Tax Consequences", insofar as they
purport to describe the provisions of United States federal tax laws referred to
therein, and in the first and second paragraphs under the caption "St. ▇▇▇▇
Investment, RenaissanceRe Investment and Principal Shareholders" and under the
caption "Certain Relationships and Related Transactions" and "Underwriting"
insofar as they relate to provisions of documents therein described.
Such counsel may state that its opinions are solely for the benefit of the
several Underwriters and may not be relied upon by any other person.
(d) ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, outside Bermuda counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Each of the Company and Platinum Bermuda is a limited
liability company duly incorporated and existing under the laws of Bermuda
in good standing ("good standing" meaning solely that it has not failed to
make any filing with any Bermuda governmental authority or to pay any
Bermuda government fee or tax which would make it liable to be struck off
the Register of Companies and thereby cease to exist under the laws of
Bermuda).
(ii) Each of the Company and Platinum Bermuda has the power and
capacity to acquire by purchase or otherwise and hold, sell, dispose of and
deal in real property situated outside Bermuda and in personal property of
all kinds wheresoever situated.
(iii) The Company has the necessary corporate power and authority,
pursuant to its Memorandum of Association, to carry on its business as
described in the Registration Statement. Platinum Bermuda has the necessary
corporate power and authority, pursuant to its Memorandum of Association,
to carry on its business as described in the Registration Statement,
including its insurance and reinsurance business as described in the
Registration Statement, and was registered as a Class 4 insurer in terms of
the Insurance ▇▇▇ ▇▇▇▇ effective [ ] 2002 and subject to Platinum Bermuda
being capitalized with US $[ ] is authorized to carry on business in that
capacity as described in the Registration Statement subject to the
provisions of the Insurance Act, 1978 and the regulations promulgated
thereunder, and the conditions set out in Schedule I to the Certificate of
Registration, issued by the Registrar of Companies to Platinum Bermuda,
dated [ ] 2002. No further approvals of the insurance regulatory,
governmental or administrative body or authority of Bermuda are required
for the conduct of such business by each of the Company and Platinum
Bermuda respectively.
(iv) Each of the Company and Platinum Bermuda has the necessary
corporate power and authority to enter into and perform its obligations
under the Documents (as
27
defined in Annex II(c) hereto). The execution and delivery of the Documents
by the Company and Platinum Bermuda and the performance by the Company and
Platinum Bermuda of their respective obligations thereunder including, but
not limited to, in the case of the Company, the issue and sale of the
Shares, the St. ▇▇▇▇ Private Offering Securities, the RenRe Private
Offering Securities and the Units (and the Purchase Contracts and the
Guarantees underlying such Units) and the Issuable Common Shares and the
performance of the transactions contemplated by the Documents and the
Registration Statement, will not violate the memorandum of association or
bye-laws of the Company or of Platinum Bermuda nor any applicable law,
regulation, order or decree in Bermuda.
(v) Each of the Company and Platinum Bermuda has taken all
corporate action required to authorize its execution, delivery and
performance of the Documents. The Documents have been duly executed and
delivered by or on behalf of the Company or Platinum Bermuda, as
applicable, and constitute the valid, binding and enforceable obligations
of the Company or Platinum Bermuda, as applicable, in accordance with the
terms thereof.
(vi) The Remarketing Agreement to be entered into by the Company,
Platinum Finance, the Purchase Contract Agent and the Remarketing Agent,
has been duly authorized by the Company and, when executed and delivered by
the Company, will be duly executed and delivered by the Company; and at
the time of such execution and delivery, the Remarketing Agreement will
conform in all material respects to the description thereof contained in
the Prospectus;
(vii) The Guarantees have been duly authorized by the Company.
(viiii) The Company has taken all corporate action required to duly
authorize its execution and delivery to the SEC of the Registration
Statement.
(ix) No order, consent, approval, licence, authorisation or
validation of, registration with or exemption by any government or public
body or authority of Bermuda or any sub-division thereof is required to
authorise or is required in connection with the execution, delivery,
performance and enforcement of the Documents, except such as have been duly
obtained in accordance with Bermuda law.
(x) No order, consent, approval, license, authorization or
validation of, registration with or exemption by any government or public
body or authority of Bermuda or any sub-division thereof is required to
authorize or is required in connection with the valid issue and sale of the
Shares, the St. ▇▇▇▇ Private Offering Securities, the RenRe Private
Offering Securities and the Units, except such as have been duly obtained
in accordance with Bermuda law.
(xi) It is not necessary or desirable to ensure the enforceability
in Bermuda of the Documents that they be registered in any register kept
by, or filed with, any governmental authority or regulatory body in
Bermuda.
(xii) The Company has an authorized share capitalization as
described in the Registration Statement. Upon payment in cash or in kind by
the Common Shares Underwriters, the Underwriters, St. ▇▇▇▇ and RenRe for
the Shares, the Units, the St. ▇▇▇▇ Private Offering Securities and the
RenRe Private Offering Securities, respectively, in
28
accordance with the Common Shares Underwriting Agreement, this Agreement,
the Formation and Separation Agreement and the RenRe Investment Agreement,
respectively, the Common Shares, the Units, the St. ▇▇▇▇ Private Offering
Securities and the RenRe Private Offering Securities will be duly
authorized and validly issued, fully paid and nonassessable
("nonassessable" meaning that no further sums are required to be paid by
the holders thereof in connection with the issue thereof). The issuance of
each of the Units and the Purchase Contracts is not subject to pre-emptive
or similar rights.
(xiii) Based solely on such counsel's review of the bye-laws of the
Company and the Register of Members of the Company, and except as disclosed
in the Prospectus under the captions "Certain Relationships and Related
Transactions - Agreements between Platinum and St. ▇▇▇▇ - Formation and
Separation Agreement - Pre-Emptive Rights", "Certain Relationships and
Related Transactions - Agreements between Platinum and St. ▇▇▇▇ - St. ▇▇▇▇
Option Agreement", "Certain Relationships and Related Transactions - The
RenaissanceRe Investment - Investment Agreement -Transfer Restrictions,
Registration Rights and Standstill Agreement - Pre-Emptive Rights,"
"Certain Relationships and Related Transactions - The RenaissanceRe
Investment - RenaissanceRe Option Agreement," "Description of the Equity
Security Units", "Management" and "Underwriting", the Company has no (i)
outstanding securities or other obligations convertible into or
exchangeable or exercisable for shares in the authorized share capital of
the Company, or (ii) outstanding rights to subscribe for or purchase, or
options for the purchase of, or agreement providing for the issuance
(contingent or otherwise) of, or calls, commitments or claims of any
character relating to, any shares in the authorized share capital of the
Company, or (iii) securities convertible into or exchangeable or
exercisable for any shares in the authorized share capital of the Company,
or (iv) obligation (in the nature of the existence of a pre-emptive or
similar right) to offer the shares in the authorized share capital of the
Company to any shareholder of the Company prior to the sale of the Units,
the Shares, the St. ▇▇▇▇ Private Offering Securities or the RenRe Private
Offering Securities.
(xiv) Subject to the requirement that shares of the Company are
listed on the New York Stock Exchange or on another appointed stock
exchange (as defined in section 2(1) of the Companies ▇▇▇ ▇▇▇▇, the Company
has received permission under the Exchange Control ▇▇▇ ▇▇▇▇ (and
Regulations made thereunder) from the Bermuda Monetary Authority for: (i)
the issue and subsequent free transferability of the Company's shares, up
to the amount of its authorised capital from time to time, to and among
persons non-resident of Bermuda for exchange control purposes; (ii) the
issue and subsequent free transferability of up to 20% of the Company's
shares in issue from time to time to persons resident in Bermuda for
exchange control purposes; and (iii) the issue of options, warrants,
depository receipts, rights, loan notes and other securities of the Company
and the subsequent free transferability thereof.
(xv) The Shares, the St. ▇▇▇▇ Private Offering Securities, the
RenRe Private Offering Securities and the Issuable Common Shares conform to
the description of the Company's Common Shares found in the Prospectus
under the caption "Description of Platinum Holdings' Common Shares".
29
(xvi) The issue and sale of the Shares, the St. ▇▇▇▇ Private
Offering Securities, the RenRe Private Offering Securities and the Units by
the Company pursuant to the Documents will not constitute unlawful
financial assistance by the Company under Bermuda law.
(xvii) The form of certificates for the Shares and the St. ▇▇▇▇
Investment Shares conforms to the requirements of Bermuda law.
(xviii) Based solely on such counsel's review of a certified copy of
the Register of Members of Platinum Bermuda dated [ ] 2002, all of the
issued common shares of Platinum Bermuda have been duly authorised and
validly issued, fully paid and non-assessable (as such term is defined
above) and are registered in the name of the Company.
(xix) Based solely on such counsel's review of a certified copy of
the Register of Members of the Company dated [ ] 2002, all of the issued
Common Shares of the Company have been duly authorised and validly issued,
fully paid and non-assessable (as such term is defined above) and are
registered in the name of Codan Trust Company Limited (the "Purpose
Trust").
(xx) The Company has a contractual right to and has taken all
necessary corporate action other than the payment of the repurchase price
of US$120,000 to effect the repurchase of the Common Shares held by the
Purpose Trust and upon the receipt of the payment of the repurchase price
of US$120,000 by the Purpose Trust, the Company shall be entitled, without
any further action by the Company or the Purpose Trust, to cancel the
Common Shares held by the Purpose Trust by making the appropriate entry in
the Register of Members of the Company, and thereafter the Purpose Trust
will not have any rights as a member of the Company.
(xxi) The Documents will not be subject to ad valorem stamp duty in
Bermuda and no registration, documentary, recording, transfer or other
similar tax, fee or charge is payable in Bermuda in connection with the
execution, delivery, filing, registration or performance of the Documents
or the issue and delivery of the Shares, the Units, the St. ▇▇▇▇ Private
Offering Securities and the RenRe Private Offering Securities to the Common
Shares Underwriters, the Underwriters, St. ▇▇▇▇ and RenRe, respectively,
pursuant to the Common Shares Underwriting Agreement, the Units
Underwriting Agreement, the Formation and Separation Agreement and the
RenRe Investment Agreement, respectively.
(xxii) Under current Bermuda law there is no Bermuda income tax,
withholding tax, capital gains tax, capital transfer tax, estate or
inheritance tax, payable by investors who are not resident in Bermuda (or
are deemed not to be resident in Bermuda for Bermuda exchange purposes).
(xxiii) The Company and Platinum Bermuda have received from the
Bermuda Minister of Finance an assurance under The Exempted Undertakings
Tax Protection Act 1966 of Bermuda to the effect that in the event Bermuda
enacts any legislation imposing tax computed on profits or income, or
computed on any capital asset, gain or appreciation, or any tax in the
nature of estate duty or inheritance tax, then such tax will not apply to
the Company and Platinum Bermuda or to any of their operations or their
shares, debentures
30
or other obligations, until March 28, 2016. This assurance will not prevent
the application of any tax or duty on persons ordinarily resident in
Bermuda or the application of any tax payable in accordance with the
provisions of The Land Tax Act 1967 of Bermuda or otherwise payable in
relation to any property leased to the Company or Platinum Bermuda.
(xxiv) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Pro Forma Financial Condition and
Underwriting Results - Liquidity and Capital Resources - Restrictions on
Dividend Payments from our Operating Subsidiaries - Bermuda", "Business -
Regulation - Bermuda", "Description of Platinum Holdings' Common Shares",
the fourth paragraph set forth under the caption "Risk Factors - Risks
Related to Our Common Shares - There are limitations on the ownership,
transfers and voting rights of our Common Shares", and, the first and
second paragraphs under "Item 14. Indemnification of Directors and
Officers" in Part II of the Registration Statement insofar as such
statements constitute summaries of the legal matters referred to therein,
fairly present the information called for with respect to such legal
matters and documents and fairly summarize the matters referred to therein.
(xxv) The Company can ▇▇▇ and be sued in its own name under the
laws of Bermuda.
(xxvi) The choice of the Foreign Laws (as defined in Annex II(c)
hereto) as the governing law of the Documents is a valid choice of law and
would be recognized and given effect to in any action brought before a
court of competent jurisdiction in Bermuda, except for those laws (i) which
such court considers to be procedural in nature, (ii) which are revenue or
penal laws or (iii) the application of which would be inconsistent with
public policy, as such term is interpreted under the laws of Bermuda. The
submission in the Documents to the non-exclusive jurisdiction of the
Foreign Courts (as defined in Annex II(c) hereto) is valid and binding upon
the Company.
(xxvii) The courts of Bermuda would recognise as a valid judgment, a
final and conclusive judgment in personam obtained in the Foreign Courts
against the Company based upon the Documents under which a sum of money is
payable (other than a sum of money payable in respect of multiple damages,
taxes or other charges of a like nature or in respect of a fine or other
penalty) and would give a judgment based thereon provided that (a) such
courts had proper jurisdiction over the parties subject to such judgment,
(b) such courts did not contravene the rules of natural justice of Bermuda,
(c) such judgment was not obtained by fraud, (d) the enforcement of the
judgment would not be contrary to the public policy of Bermuda, (e) no new
admissible evidence relevant to the action is submitted prior to the
rendering of the judgment by the courts of Bermuda and (f) there is due
compliance in seeking validation of such judgment with the correct
procedures under the laws of Bermuda.
(xxviii) Under Section 16 of the Companies ▇▇▇ ▇▇▇▇, the bye-laws of
the Company shall bind the Company and the members of the Company to the
same extent as if such bye-laws had been signed and sealed by each such
member, and contain covenants on the part of each such member to observe
all the provisions of the bye-laws of the Company, except, as provided in
Section 17 of the Companies ▇▇▇ ▇▇▇▇, no member of the Company shall be
bound by an alteration made in the bye-laws after the date on which
31
he became a member, if and so far as the alteration requires him to take or
subscribe for more shares than the number held by him at the date on which
the alteration is made, or in any way increases his liability as at that
date to contribute to the share capital of, or otherwise to pay money to,
the Company (unless the member agrees in writing, either before or after
the alteration is made, to be bound thereby).
(xxix) Based solely on a search of the Register of Charges,
maintained by the Registrar of Companies pursuant to Section 55 of the
Companies ▇▇▇ ▇▇▇▇, conducted at [ ] on [ ], there are no registered
charges registered against the Company or Platinum Bermuda.
(xxx) Based solely upon a search of the Cause Book of the Supreme
Court of Bermuda conducted at [ ] on [ ], there are no judgments, nor
legal or governmental proceedings pending in Bermuda to which either of the
Company or Platinum Bermuda is a party.
(xxxi) Neither the Underwriters, the Units Underwriters, St. ▇▇▇▇
nor RenRe will be deemed to be resident, domiciled or carrying on business
in Bermuda by reason only of the execution, performance and enforcement of
the Documents.
(xxxii) Each of the Underwriters, the Units Underwriters, St. ▇▇▇▇
and RenRe has standing to bring an action or proceedings before the
appropriate courts in Bermuda for the enforcement of the Documents. It is
not necessary or advisable in order for any Underwriter, Units Underwriter,
St. ▇▇▇▇ or RenRe to enforce its rights under the Documents, including the
exercise of remedies thereunder, that it be licensed, qualified or
otherwise entitled to carry on business in Bermuda.
(xxxiii) The Company and Platinum Bermuda have been designated as
non-resident for the purposes of the Exchange Control Act, 1972 and as such
are free to acquire, hold and sell foreign currency and securities. No
currency exchange control laws or withholding taxes of Bermuda apply to the
payment of dividends (a) on the Common Shares by the Company or (b) by
Platinum Bermuda to the Company, except in each case as described in or
contemplated by the Registration Statement; and Platinum Bermuda is not
currently prohibited by any Bermuda law or governmental authority, directly
or indirectly, from paying any dividends to the Company, from making any
other distributions on its capital stock, from repaying to the Company any
loans or advances to it from the Company or from transferring any of its
property or assets to the Company, except as summarized in the Registration
Statement.
(xxxiv) Neither the Company nor Platinum Bermuda is entitled to any
immunity under the laws of Bermuda, whether characterized as sovereign
immunity or otherwise, from any legal proceedings to enforce the Documents
in respect of itself or its property.
(xxxv) The procedure for the service of process on the Company
through C.T. Corporation System in New York, New York, United States of
America, acting as agent for the Company, as set out in Section 1 (jj) of
this Agreement and in the Jurisdiction Agreements, would be effective, in
so far as Bermuda law is concerned, to constitute valid service of the
proceedings on the Company.
32
(e) ▇▇▇▇▇▇▇▇▇ & May, outside U.K. counsel for the Company, shall
have furnished to you their written opinion or opinions (a draft of such opinion
or opinions attached as Annex II(d) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Each of Platinum UK and St. ▇▇▇▇ Reinsurance Company Limited,
a wholly-owned subsidiary of St. ▇▇▇▇ ("St. ▇▇▇▇ Re UK"), is a validly
existing limited liability company duly incorporated under the laws of
England and registered in England and has power and authority under its
Memorandum of Association to own leasehold property and conduct its
business as described in the Prospectus. St. ▇▇▇▇ Management Limited, a
wholly-owned subsidiary of St. ▇▇▇▇ ("SPML") is a validly existing limited
liability company duly incorporated under the laws of England and
registered in England.
(ii) Platinum Ireland is the duly registered holder of [two]
ordinary shares of [one pound] each in Platinum UK and such shares are all
of the issued shares of Platinum UK and all such shares have been duly and
validly authorized and issued.
(iii) Provided that each of the Underwriters complies with its
obligations under Sections 4(b) and 4(c) of this Agreement (notwithstanding
Section 9 of this Agreement), the issue and sale of the Units being
delivered at each Time of Delivery in the manner described in the
Prospectus, the issue and sale of the Shares, the St. ▇▇▇▇ Investment
Shares and the RenRe Investment Shares, the grant of the St. ▇▇▇▇
Investment Option and the RenRe Investment Option and the compliance by the
Company, Platinum Finance and St. ▇▇▇▇ with all of the provisions of this
Agreement and the Common Shares Underwriting Agreement, as applicable, and
the consummation of the transactions herein and therein contemplated will
not conflict with or result in any violation of the provisions of (i) the
Memorandum or Articles of Association of Platinum UK, St. ▇▇▇▇ Re UK or
SPML, or (ii) any statute or statutory instrument of the United Kingdom, or
(iii) any rule or regulation of the Financial Services Authority set out in
the Financial Services Authority Handbook.
(iv) Each of the UK Agreements (as defined in Annex II(d) hereto)
to which Platinum UK is a party has been duly authorized and executed by
Platinum UK, and constitutes a valid and binding agreement of Platinum UK
enforceable against Platinum UK.
(v) Each of the UK Agreements to which St. ▇▇▇▇ Re UK is a party
has been duly authorized and executed by St. ▇▇▇▇ Re UK, and constitutes a
valid and binding agreement of St. ▇▇▇▇ Re UK enforceable against St. ▇▇▇▇
Re UK.
(vi) Each of the UK Agreements to which SPML is a party has been
duly authorized and executed by SPML, and constitutes a valid and binding
agreement of SPML enforceable against SPML.
(vii) Assuming that each of the UK Agreements to which a person
other than Platinum UK, St. ▇▇▇▇ Re UK or SPML is a party has been duly
authorized and executed by such person, each such UK Agreement constitutes
a valid and binding agreement of such person enforceable against such
person.
33
(viii) Except as provided in the Prospectus, neither Platinum UK,
St. ▇▇▇▇ Re UK nor SPML is required to obtain any consent, approval,
authorization or order of, or make any filing with, the Financial Services
Authority or any other regulatory body in the United Kingdom in order to
perform their respective obligations under the UK Agreements and, in the
case of Platinum UK and except as provided in the Prospectus, to conduct
its business as described in the Prospectus.
(ix) The execution, delivery and performance by Platinum UK of
each of the UK Agreements to which Platinum UK is a party and the
consummation of the transactions therein contemplated will not conflict
with or result in any violation of (i) the Memorandum or Articles of
Association of Platinum UK, or (ii) any statute or statutory instrument of
the United Kingdom, or (iii) any rule or regulation of the Financial
Services Authority set out in the Financial Services Authority Handbook.
(x) The execution, delivery and performance by St. ▇▇▇▇ Re UK of
each of the UK Agreements to which St. ▇▇▇▇ Re UK is a party and the
consummation of the transactions therein contemplated will not conflict
with or result in any violation of (i) the Memorandum or Articles of
Association of St. ▇▇▇▇ Re UK, or (ii) any statute or statutory instrument
of the United Kingdom, or (iii) any rule or regulation of the Financial
Services Authority set out in the Financial Services Authority Handbook.
(xi) The execution, delivery and performance by SPML of each of
the UK Agreements to which SPML is a party and the consummation of the
transactions therein contemplated will not conflict with or result in any
violation of (i) the Memorandum or Articles of Association of SPML, or (ii)
any statute or statutory instrument of the United Kingdom, or (iii) any
rule or regulation of the Financial Services Authority set out in the
Financial Services Authority Handbook.
(xii) The statements set forth in the Prospectus and listed in
Schedule 2 to Annex II(d) hereof, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
fair.
(f) A&L Goodbody, outside Irish counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(e) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Platinum Ireland has been duly incorporated under the laws of
Ireland. Based only on searches carried out in the Irish Companies Office
and the Central Office of the High Court on [ ], 2002 Platinum Ireland is
validly existing under the laws of Ireland and no steps have been taken or
are being taken to appoint a receiver, examiner or liquidator over it or to
wind it up and Platinum Ireland has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact its business in Ireland.
34
(ii) All of the issued shares of Platinum Ireland have been duly
and validly authorized and issued, are fully paid and are not subject to
calls for any additional payments. Ten thousand (10,000) shares have been
issued, nine thousand, nine hundred and ninety nine (9,999) registered in
the name of the Company and one registered in the name of Platinum Bermuda.
To the best of such counsel's knowledge, based on a Certificate of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, all the issued shares are free and clear of all liens,
encumbrances, equities or claims.
(iii) Based only on the Certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
searches carried out in the Central Office of the High Court, such counsel
does not know of any legal or governmental proceedings pending or
threatened in Ireland to which Platinum Ireland is a party or to which any
of the properties of Platinum Ireland is subject.
(iv) Based on the Certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, there is no
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Platinum Ireland is a party or by which Platinum
Ireland is bound or to which any of the property or assets of Platinum
Ireland is subject, nor is such counsel actually aware of any such
agreement referred to in this paragraph.
(v) Based only on the Certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Platinum
Ireland is not in violation of its Certificate of Incorporation or its
Memorandum or Articles of Association.
(vi) Based only on the description of the Transaction in the
Prospectus, Platinum Ireland is not required under Irish law to obtain any
consent, approval, authorization or order of, or make any filling with, any
governmental agency or body or any court in Ireland to conduct its
business, pay any dividends or consummate the Transaction and based only on
the description thereof in the Prospectus, the transactions contemplated by
the Filed Agreements.
(vii) Based only on the description of the Transaction in the
Prospectus, the consummation of the Transaction and based only on the
description thereof in the Prospectus, the transactions contemplated in the
Filed Agreements will not result in any violation of the Certificate of
Incorporation or the Memorandum and Articles of Association of Platinum
Ireland, any Irish statute, any rule or regulation of any governmental
agency or body of Ireland having general application, or based only on the
Certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and on searches in the Central Office of
the High Court on [ ], any order of any court of Ireland.
(viii) Based only on the descriptions in the Prospectus and the
Common Shares Prospectus, the issue and sale of the Units being delivered
at such Time of Delivery by the Company and by Platinum Finance, the issue
and sale of the Shares, the St. ▇▇▇▇ Private Offering Securities and the
RenRe Private Offering Securities and the compliance by the Company,
Platinum Finance and St. ▇▇▇▇ with all of the provisions of this Agreement
and the Common Shares Underwriting Agreement, as applicable, and the
consummation of the transactions herein and therein contemplated will not
result in any violation of the Certificate of Incorporation or the
Memorandum and Articles of Association of Platinum Ireland, any Irish
statute, any rule or regulation of any governmental agency or body of
Ireland having general application or based only on the Certificate of
▇▇▇▇▇▇ ▇.
35
Faddenand on searches in the Central Office of the High Court on [ ], 2002,
any order of any court of Ireland.
(ix) The statements in the Prospectus under the captions
"Management's Discussion and Analysis of Pro Forma Financial Condition and
Underwriting Results--Liquidity and Capital Resources--Restrictions on
Dividend Payments from our Operating Subsidiaries--Ireland" and
"Business--Regulation--Ireland Regulation" insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the requirements of Irish law with
respect to such legal matters, documents and proceedings and fairly
summaries the matters referred to therein.
(x) Based only on the Certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Platinum
Ireland has not received any notification from any insurance regulatory
authority or other governmental authority to the effect that any
authorization not already held by Platinum Ireland, approval, order,
consent, certificate, permit, registration or qualification is needed to be
obtained, to conduct its business as described in the Prospectus or to pay
any dividends.
(xi) Based only on the Certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
searches carried out in the Irish Companies Office, Platinum Ireland has
filed all statutory financial returns, reports, documents and other
information required to be filed under Irish law and Platinum Ireland
maintains its books and registers required by the Companies Acts 1963 to
2001 of Ireland in accordance with those Acts.
(g) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and Corporate Secretary of
St. ▇▇▇▇, shall have furnished to you his written opinion (a draft of such
opinion is attached as Annex II(f) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Each of St. ▇▇▇▇ and Fire and Marine has been duly
incorporated and is an existing corporation in good standing under the laws
of the State of Minnesota.
(ii) Fire and Marine has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification or is subject to
no material liability or disability by reason of failure to be so qualified
in any such jurisdiction.
(iii) Each of this Agreement, the Common Shares Underwriting
Agreement and the Jurisdiction Agreements has been duly authorized,
executed and delivered by St. ▇▇▇▇.
(iv) Assuming that each of the Filed Agreements that is governed
by a law other than Minnesota law or New York law and to which St. ▇▇▇▇ or
Fire and Marine is a party has been duly executed and delivered under the
applicable law, each such Filed Agreement has been duly authorized,
executed and delivered by St. ▇▇▇▇ or Fire and Marine, as the case may be.
(v) Each of the Filed Agreements that is governed by New York law
and to which St. ▇▇▇▇ is a party has been duly authorized, executed and
delivered by St. ▇▇▇▇.
36
(vi) Each of the Filed Agreements that is governed by Minnesota
law and to which Fire and Marine is a party has been duly authorized,
executed and delivered by Fire and Marine and constitutes a valid and
legally binding obligation of Fire and Marine enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(vii) Assuming that each of the Filed Agreements that is governed
by Minnesota law and to which Platinum US is a party has been duly
authorized, executed and delivered by Platinum US under the laws of the
State of Maryland, each such Filed Agreement has been duly authorized,
executed and delivered by Platinum US and constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(viii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which St. ▇▇▇▇ or Fire and Marine, in
each case in respect of the Business, is a party or of which the Business
is the subject, which, if determined adversely to St. ▇▇▇▇ or Fire and
Marine, as the case may be, would individually or in the aggregate (after
giving effect to any applicable insurance, reinsurance or reserves
therefor) have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of Platinum and its
subsidiaries taken as a whole at the First Time of Delivery; and, to such
counsel's knowledge, no such proceedings are threatened by governmental
authorities or by others.
(ix) The compliance by St. ▇▇▇▇ with the provisions of the Filed
Agreements to which St. ▇▇▇▇ is a party and the consummation of the
transactions contemplated in such agreements will not (i) result in a
default under or breach of any agreement or instrument known to me to which
St. ▇▇▇▇ is a party or by which St. ▇▇▇▇ is bound or to which any of the
property or assets of St. ▇▇▇▇ is subject, (ii) violate the provisions of
St. Paul's Restated Articles of Incorporation, as amended, or By-laws, as
amended, or (iii) violate any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over St. ▇▇▇▇ or any of its properties, provided that such
counsel is expressing no opinion under this clause (iii) with respect to
the indemnification and contribution provisions relating to federal and
state securities laws contained in the Formation and Separation Agreement
and the Registration Rights Agreement.
(x) The compliance by St. ▇▇▇▇ with the provisions of each of
this Agreement, the Common Shares Underwriting Agreement and the
Jurisdiction Agreements and the consummation of the transactions therein
contemplated will not (i) result in a default under or breach of any
agreement or instrument known to such counsel to which St. ▇▇▇▇ is a party
or by which St. ▇▇▇▇ is bound or to which any of the property or assets of
St. ▇▇▇▇ is subject, or (ii) violate the provisions of St. Paul's Restated
Articles of Incorporation, as amended, or By-laws, as amended.
(xi) The compliance by Fire and Marine with the provisions of the
Filed Agreements to which Fire and Marine is a party and the consummation
of the transactions
37
therein contemplated will not (i) result in a default under or breach of
any agreement or instrument known to such counsel to which Fire and Marine
is a party or by which Fire and Marine is bound or to which any of the
property or assets of Fire and Marine is subject, (ii) violate the
provisions of the Articles of Incorporation, as amended, or By-laws, as
amended, of Fire and Marine, or (iii) violate any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over Fire and Marine or any of its
properties.
(xii) Neither St. ▇▇▇▇ nor Fire and Marine is in violation of its
Restated Articles of Incorporation, as amended, or its Articles of
Incorporation, as amended, respectively, or its By-laws, as amended, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument known to
such counsel to which it is a party or by which it or any of its properties
is or may be bound, except where any such default does not have or would
not reasonably be expected to have a material adverse effect on Platinum
and its subsidiaries taken as a whole.
(xiii) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated October ___, 2002, approving or
acknowledging that no regulatory approval is required for, inter alia, the
transactions contemplated by the Filed Agreements to which St. ▇▇▇▇ or Fire
and Marine is a party, and the issuance to Platinum US by the New York
State Insurance Department of a license to engage in the reinsurance
business, no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the consummation by St. ▇▇▇▇ or Fire and Marine of the
transactions contemplated by the Underwriting Agreement or the Filed
Agreements to which either is a party, except the registration under the
Act of the Common Shares, the Purchase Contracts, the Senior Notes, the
Guarantees and the Units and under the Exchange Act of the Common Shares
and the Units and the qualification of the Indenture under the Trust
Indenture Act, and such consents, approvals, authorizations, registrations
or qualifications as may be required under Maryland insurance laws and New
York insurance laws, which have been obtained, or such as may be required
under other state insurance laws or foreign laws or as may be required by
state securities or Blue Sky laws in connection with the purchase and
distribution of the Units by the Underwriters and of the Common Shares by
the Common Shares Underwriters.
(xiv) All statutory and regulatory consents, authorizations,
approvals and filings required to be obtained or made by or on behalf of
St. ▇▇▇▇ and Fire and Marine under the insurance laws of the State of
Minnesota to consummate the transactions contemplated by the Filed
Agreements to which St. ▇▇▇▇ or Fire and Marine are a party have been
obtained or made.
(xv) To such counsel's knowledge, neither St. ▇▇▇▇ nor Fire and
Marine has received any notification from any insurance authority,
commission or other insurance regulatory body to the effect that any
license from such authority, commission or body is needed to be obtained by
St. ▇▇▇▇ or Fire and Marine, in each case in respect of the Business, or
that St. ▇▇▇▇ or Fire and Marine is not in compliance with any applicable
insurance laws, in each case in respect of the Business, except where such
failure to
38
obtain such license or to be in such compliance would not, individually or
in the aggregate (after giving effect to any applicable insurance,
reinsurance or reserves therefor), have a material adverse effect on the
consolidated financial position or shareholders' equity of Platinum and its
subsidiaries taken as a whole at the First Time of Delivery.
Such counsel may state that his opinion is solely for the benefit of the
several Underwriters and may not be relied upon by any other person.
(h) ▇▇▇▇▇ ▇▇▇▇, Vice President-Corporate, Legal Services of St. ▇▇▇▇,
shall have furnished to you his written opinion (a draft of such opinion is
attached as Annex II (g) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that (all capitalized terms used
but not defined in the subparagraphs of this Section 9(h) have the meanings
specified in such opinion):
(i) Each of USF&G and Platinum US has been duly incorporated and
is an existing corporation in good standing under the laws of the State of
Maryland and, in the case of Platinum US, has corporate power and authority
to conduct its business as described in the Prospectus.
(ii) All of the issued shares of capital stock of Platinum US have
been duly authorized and validly issued, are fully paid and non-assessable,
and , immediately prior to the First Time of Delivery, were owned by USF&G,
free and clear of all liens, encumbrances, equities or claims.
(iii) Each of the Filed Agreements to which Platinum US is a party
has been duly authorized, executed and delivered by Platinum US.
(iv) Each of the Filed Agreements that is governed by Maryland law
and to which Platinum US is a party constitutes a valid and legally binding
obligation of Platinum US enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(v) Assuming that each of the Filed Agreements that is governed
by Maryland law has been duly authorized, executed and delivered by each
party thereto (other than Platinum US) under the laws of jurisdiction where
such party is domiciled, each such Filed Agreement has been duly
authorized, executed and delivered by each party thereto and constitutes a
valid and legally binding obligation of such party enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which USF&G or Platinum US is a party,
which, if determined adversely to USF&G or Platinum US, as the case may be,
would individually or in the aggregate (after giving effect to any
applicable insurance, reinsurance or reserves therefor) have a material
adverse effect on the consolidated financial position, shareholders' equity
or results of operations of Platinum and its subsidiaries, taken as a
whole, following the First Time of Delivery (as such term is defined in the
Underwriting Agreement); and, to such
39
counsel's knowledge, no such proceedings are threatened by governmental
authorities or by others.
(vii) The compliance by Platinum US with the provisions of the
Filed Agreements to which Platinum US is a party and the consummation of
the transactions therein contemplated will not (i) result in a default
under or breach of any agreement or instrument known to such counsel to
which Platinum US is a party or by which Platinum US is bound or to which
any of the property or assets of Platinum US is subject, (ii) violate the
provisions of Platinum US's Articles of Incorporation, as amended, or
By-laws, as amended, or (iii) violate any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over Platinum US or any of their properties.
(viii) Neither USF&G nor Platinum US is in violation of its articles
of incorporation or by laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument known to such counsel to which it is a party or by
which it or any of its properties is or may be bound, except where any such
default does not have or would not reasonably be expected to have a
material adverse effect on Platinum and its subsidiaries taken as a whole.
(ix) Based on such counsel's examination of the Order of the
Maryland Insurance Administration, dated October __, 2002, approving or
acknowledging that no regulatory approval is required for, INTER ALIA, the
transactions contemplated by the Filed Agreements to which Platinum US is a
party, no statutory or regulatory consent, authorization, approval or
filing is required to be obtained or made under the laws of Maryland in
connection with such transactions or the transactions contemplated by the
Underwriting Agreement or the Formation and Separation Agreement other than
such as have been obtained or made, and other than such as may be required
under Maryland securities or Blue Sky laws.
(x) Each of USF&G and Platinum US is, and, in the case of
Platinum US, will continue to be immediately following the First Time of
Delivery, a duly licensed insurance company under the insurance laws of the
State of Maryland.
(xi) To such counsel's knowledge, Platinum US has not received any
notification from any insurance authority, commission or other insurance
regulatory body to the effect that Platinum US is not in compliance with
any applicable insurance laws.
(xii) The statements made under the captions "Business--Our
Business--Regulation--U.S. Regulation--U.S. Insurance Holding Company
Regulation of Platinum Holdings, Platinum, Ireland and Platinum Finance"
and "- State Insurance Regulation of Platinum US" in the Prospectus insofar
as they relate to summaries of provisions of the insurance laws of the
State of Maryland therein described are accurate, fair and complete.
Such counsel may state that his opinion is solely for the benefit of the
several Underwriters and may not be relied upon by any other person.
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, General Counsel of the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached as
Annex II(h) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
40
To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on
the consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(j) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, KPMG, LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the execution
of this Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective amendment to
the Registration Statement and as of each Time of Delivery is attached as Annex
I(b) hereto);
(k) (i)(A) Neither the Company nor any of its subsidiaries shall have
sustained since April 24, 2002, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (B) since April 24, 2002, there shall not have been any change in the
capital stock, capital or surplus or long-term debt of the Company or any
of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (A) or (B), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Units being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(ii)(A) Neither St. ▇▇▇▇ nor any of its subsidiaries in respect of the
Business shall have sustained since December 31, 2001, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (B) since December 31, 2001, there
shall not have been any change, or any development involving a prospective
change, in or affecting the general affairs, management or results of
operations of St. ▇▇▇▇ and its subsidiaries in respect of the Business,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (A) or (B), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Units being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
41
(l) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or the Company's financial
strength or claims paying ability by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or the
Company's financial strength or claims paying ability;
(m) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities in New York or London declared by the relevant
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States or the United Kingdom;
(iv) a change or development involving a prospective change in Bermuda taxation
affecting the Company or the Shares or the transfer thereof; (v) the outbreak or
escalation of hostilities involving the United States, the United Kingdom or
Bermuda or the declaration by the United States, the United Kingdom or Bermuda
of a national emergency or war or (vi) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions in the
United States, the United Kingdom, Bermuda or elsewhere, if the effect of any
such event specified in clause (v) or (vi) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Units being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(n) The Units to be sold at such Time of Delivery and the Issuable Common
Shares related thereto shall have been duly listed, subject to notice of
issuance, on the Exchange;
(o) The Company has obtained and delivered to the Underwriters executed
copies of the agreements required by Section 9(o) of the Common Shares
Underwriting Agreement;
(p) The Company and Platinum Finance shall have complied with the
provisions of Section 6(c) hereof with respect to the furnishing of prospectuses
on the New York Business Day next succeeding the date of this Agreement;
(q) Each of the Company and Platinum Finance shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and Platinum Finance, respectively, reasonably satisfactory to
you as to the accuracy of the representations and warranties of the Company and
Platinum Finance, as applicable, herein at and as of such Time of Delivery, as
to the performance by the Company and Platinum Finance of all of their
respective obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (k)(i) of this
Section 9 and as to such other matters as you may reasonably request;
(r) St. ▇▇▇▇ shall have furnished or caused to be furnished to you at such
Time of Delivery certificates of officers of St. ▇▇▇▇ reasonably satisfactory to
you as to the accuracy of the representations and warranties of St. ▇▇▇▇ herein
at and as of such Time of Delivery, as to the performance by St. ▇▇▇▇ of all of
its obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsection (k)(ii) of this Section 9 and as to
such other matters as you may reasonably request;
42
(s) All conditions to the consummation of the Transaction, as set forth in
the Filed Agreements, shall have been satisfied or waived prior to the First
Time of Delivery; and
(t) The closing of the offering of the Shares under the Common Shares
Underwriting Agreement and the sale of the RenRe Private Offering Securities
pursuant to the RenRe Investment Agreement shall have occurred simultaneously
with the closing of the offering of Units hereunder.
10. (a) The Company and Platinum Finance, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; PROVIDED, HOWEVER, that neither
the Company nor Platinum Finance shall be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company or Platinum Finance by any
Underwriter through the Lead Underwriters expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company,
Platinum Finance and St. ▇▇▇▇ against any losses, claims, damages or liabilities
to which the Company, Platinum Finance or St. ▇▇▇▇, as the case may be, may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and Platinum Finance by such Underwriter
through the Lead Underwriters expressly for use therein; and will reimburse the
Company, Platinum Finance and St. ▇▇▇▇ for any legal or other expenses
reasonably incurred by the Company, Platinum Finance or St. ▇▇▇▇, as the case
may be, in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party and St. ▇▇▇▇ in
writing of the commencement thereof; but the omission so to notify the
indemnifying party and St. ▇▇▇▇ shall not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
43
indemnified party and it shall notify the indemnifying party and St. ▇▇▇▇ of the
commencement thereof, the indemnifying party (and, if it is reasonably likely
that St. ▇▇▇▇ will be liable to make any payment pursuant to Section 10(e)
hereof, St. ▇▇▇▇ at its own expense) shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party (and, if the indemnifying
party is the Company, St. ▇▇▇▇) shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and Platinum Finance on the one hand and the Underwriters on the
other from the offering of the Units. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and Platinum
Finance (which for purposes of this subsection (d) shall include the fault of
St. ▇▇▇▇) on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and
Platinum Finance on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and Platinum Finance bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault 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 Platinum Finance (which for purposes of this subsection (d) shall be
deemed to include, without limitation, the information described in Schedule III
hereto) on the one hand or the Underwriters on the other and the Company's and
Platinum Finance's (which for purposes of this subsection (d) shall include St.
Paul's), on the one hand, and the Underwriter's, on the other, relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and Platinum Finance and the Underwriters
agree that it would not be just
44
and equitable if contributions pursuant to this subsection (d) were determined
by PRO RATA allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Units underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) In the event that the Company and Platinum Finance fail to fulfill
when due any of their payment obligations under subsections (a) or (d) of this
Section 10 because they have not obtained the necessary funds from internal
sources (due to insurance regulatory or other legal restrictions) or external
sources, St. ▇▇▇▇ agrees to make all such payments to the same extent as the
Company or Platinum Finance is obligated to do so; provided, however, that
notwithstanding anything to the contrary in this Section 10, (i) St. Paul's
aggregate liability to the Underwriters under this subsection (e) and to the
Common Shares Underwriters under Section 10(e) of the Common Shares Underwriting
Agreement, taken together, shall not exceed the excess of (I) $400 million over
(II) the sum of (x) any indemnification, contribution or reimbursement of
expense payments paid or payable by St. ▇▇▇▇ to the Company pursuant to Section
10.02 of the Formation and Separation Agreement (including with respect to any
"Damages" owed by the Company to RenRe pursuant to Section 10.13 of the RenRe
Investment Agreement), (y) any amount paid or payable by St. ▇▇▇▇ to RenRe in
connection with the RenRe Investment and/or (z) any damages or other amounts
paid or payable by St. ▇▇▇▇ to investors purchasing Units pursuant to the
Prospectus, and any amendment or supplement thereto, or Common Shares pursuant
to the Common Shares Prospectus, and any amendment or supplement thereto, and
(ii) St. Paul's obligation to make a payment under this subsection (e) shall
arise only in the event, and to the extent, that the related obligation of the
Company or Platinum Finance to make a payment to the Underwriters under
subsections (a) and (d) of this Section 10 relates to the information described
in Schedule III hereto and Schedule III to the Common Shares Underwriting
Agreement. The Company, Platinum Finance, St. ▇▇▇▇ and the Underwriters
understand that the identification of items in Schedule III hereto is made
solely for the purposes of defining St. Paul's obligations to the Underwriters
pursuant to this subsection (e) and for no other purpose. St. ▇▇▇▇ must advise
the Lead Underwriters in writing 60 days prior to paying or agreeing to pay an
amount pursuant to clauses (i)(II)(x) or (y) of the second preceding sentence
that would reduce St. Paul's remaining aggregate potential liability to the
Underwriters pursuant to clause (ii) to below $100 million. The Company, St.
▇▇▇▇ and the Underwriters further understand that in the event the Company is
obligated under Section 10.02 of the Formation and Separation Agreement to
indemnify RenRe with respect to "Damages" pursuant to Section 10.13 of the RenRe
Investment Agreement arising out of "St. ▇▇▇▇ Information" or "Shared
Information" (each as defined in the Formation and Separation Agreement), (i)
the payment by St. ▇▇▇▇ to the Company of any amounts so owing shall be
segregated from other
45
indemnification payments (if any) made by St. ▇▇▇▇ to the Company under Section
10.02 of the Formation and Separation Agreement so that they may be available to
RenRe (such segregated amounts not to exceed $40 million), and (ii) no payments
shall be made by St. ▇▇▇▇ to any "Company Registration Indemnitees" (as defined
in the Formation and Separation Agreement) or others that in the aggregate
exceed $360 million prior to the satisfaction by St. ▇▇▇▇ of any obligation to
indemnify the Company in order to satisfy indemnification of any "Damages" prior
to the termination (pursuant to Section 10.06 of the Formation and Separation
Agreement) of St. Paul's obligation under Section 10.02 of the Formation and
Separation Agreement.
(f) The obligations of the Company, Platinum Finance and St. ▇▇▇▇ under
this Section 10 shall be in addition to any liability which the Company,
Platinum Finance and St. ▇▇▇▇ ▇▇▇ otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 10 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company, Platinum Finance and
St. ▇▇▇▇ (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to each
person, if any, who controls the Company within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Units which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Units on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Units,
then the Company and Platinum Finance shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to you to purchase such Units on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
Platinum Finance that you have so arranged for the purchase of such Units, or
the Company and Platinum Finance notify you that they have so arranged for the
purchase of such Units, you or the Company and Platinum Finance shall have the
right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company and Platinum Finance agree to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Units.
(b) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Company and
Platinum Finance as provided in subsection (a) above, the aggregate number of
such Units which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Units to be purchased at such Time of Delivery, then
the Company and Platinum Finance shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Units which such Underwriter agreed to purchase
hereunder) of the Units of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
46
(c) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Company and
Platinum Finance as provided in subsection (a) above, the aggregate number of
such Units which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Units to be purchased at such Time of Delivery, or if the
Company and Platinum Finance shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Units of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase
and of the Company and Platinum Finance to sell the Optional Units) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company and Platinum Finance, except for the expenses to be
borne by the Company and Platinum Finance and the Underwriters as provided in
Section 8 hereof and the indemnity and contribution agreements in Section 10
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, Platinum Finance, St. ▇▇▇▇ and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter, or any officer or director or
controlling person of any Underwriter, the Company, Platinum Finance or St.
▇▇▇▇, or any officer or director or controlling person of the Company, Platinum
Finance or St. ▇▇▇▇, and shall survive delivery of and payment for the Units.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither the Company nor Platinum Finance shall then be under any liability to
any Underwriter except as provided in Sections 8 and 10 hereof; but, if for any
other reason, any Units are not delivered by or on behalf of the Company and
Platinum Finance as provided herein, the Company and Platinum Finance will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Units not so delivered, but neither the Company nor Platinum
Finance shall then be under any further liability to any Underwriter except as
provided in Sections 8 and 10 hereof.
14. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in currency (the "judgment currency") other
than United States dollars, the party against whom such judgment or order has
been given or made will indemnify each party in whose favor such judgment or
order has been given or made (the "Indemnitee") against any loss incurred by the
Indemnitee as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
the Indemnitee is able to purchase United States dollars with the amount of the
judgment currency actually received by such Indemnitee. The foregoing indemnity
shall constitute a separate and independent obligation of the Company and the
Underwriters and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
15. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by the Lead Underwriters on behalf of you.
47
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of (i) ▇▇▇▇▇▇▇,
Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department, (ii) ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: _________,
and (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention:________; and if to the Company shall be delivered or sent by
mail to the address of the Company set forth in the Registration Statement,
Attention: Secretary; and if to Platinum Finance shall be delivered or sent by
mail to the address of Platinum Finance set forth in the Registration Statement;
and if to St. ▇▇▇▇ shall be delivered to The St. ▇▇▇▇ Companies, Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 10(c) hereof
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company and Platinum Finance by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
16. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, Platinum Finance and St. ▇▇▇▇ and, to the
extent provided in Sections 10 and 12 hereof, the officers and directors of the
Company, Platinum Finance and St. ▇▇▇▇ and each person who controls the Company,
Platinum Finance, St. ▇▇▇▇ or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Units from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS RULES
OF SUCH STATE.
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
20. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
[SIGNATURE PAGE FOLLOWS]
48
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the
Company, Platinum Finance and St. ▇▇▇▇. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
--------------------------------------
Name:
Title:
PLATINUM UNDERWRITERS FINANCE, INC.
By:
--------------------------------------
Name:
Title:
THE ST. ▇▇▇▇ COMPANIES, INC.
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BY:
-------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
BY:
-------------------------------------
(▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated)
BY:
-------------------------------------
(▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.)
On behalf of each of the Underwriters
2
SCHEDULE I
NUMBER OF OPTIONAL
UNITS TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM UNITS MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- ----------------- ------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.................................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated...........................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc............................................
Banc of America Securities LLC......................................
Credit Suisse First Boston Corporation..............................
▇.▇. ▇▇▇▇▇▇ Securities Inc..........................................
1
SCHEDULE II
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS HOLDINGS, LTD., A BERMUDA COMPANY (THE "COMPANY"), IS A GOVERNING
PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- Formation and Separation Agreement, dated as of the date hereof (the "FORMATION AND SEPARATION New York
AGREEMENT"), between the Company and St. ▇▇▇▇ (as defined herein).
- Master Services Agreement, dated as of the First Time of Delivery (the "MASTER SERVICES New York
AGREEMENT"), between the Company and St. ▇▇▇▇.
- Transitional Trademark License Agreement, dated as of the First Time of Delivery (the New York
"TRADEMARK LICENSE AGREEMENT"), between the Company and St. ▇▇▇▇.
- Registration Rights Agreement, dated as of the First Time of Delivery (the "REGISTRATION RIGHTS New York
AGREEMENT"), between the Company and St. ▇▇▇▇.
- Option Agreement, dated as of the First Time of Delivery (the "OPTION AGREEMENT"), between the New York
Company and St. ▇▇▇▇.
- Capital Support Agreement, dated as of __________, 2002 (the "CAPITAL SUPPORT AGREEMENT"), New York
between the Company and Platinum US (as defined herein).
- Capital Support Agreement, dated as of __________, 2002 (the "UK CAPITAL SUPPORT AGREEMENT"), England
between the Company and Platinum UK (as defined herein).
- 364-Day Credit Agreement, dated as of June 21, 2002, among the Company, the banks, financial New York
institutions and other institutional lenders listed on the signature pages thereof, JPMorgan
Chase Bank and Bank Of America, N.A., as syndication agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as lead
arranger, and Citibank, N.A., as agent for the lenders.
- Purchase Contract Agreement, dated as of ____________ (the "PURCHASE CONTRACT AGREEMENT"), New York
between the Company and _____________, as Purchase Contract Agent.
- Indenture, dated as of ____________, among the Company (the "BASE INDENTURE"), Platinum Finance New York
(as defined herein) and JPMorgan Chase Bank, as Trustee.
- First Supplemental Indenture, dated as of ____________ (the "SUPPLEMENTAL INDENTURE"), among New York
the Company, Platinum Finance and JPMorgan Chase Bank, as Trustee.
- Pledge Agreement, dated as of _______________ (the "PLEDGE AGREEMENT"), among the Company, New York
_________________, as Collateral Agent, Custodial Agent and Securities Intermediary, and
_________________, as Purchase Contract Agent.
- Investment Agreement, dated as of __________ (the "RENRE INVESTMENT AGREEMENT"), among the New York
Company, St. ▇▇▇▇ and RenRe (as defined herein).
II-1
- Transfer Restrictions and Registration Rights Agreement, dated as of __________ (the "TRANSFER New York
RESTRICTIONS AND REGISTRATION RIGHTS AGREEMENT"), between the Company and RenRe.
- Option Agreement, dated as of ___________ (the "RENRE OPTION AGREEMENT"), between the Company New York
and RenRe.
- Services and Capacity Reservation Agreement, dated as of __________ (the "SERVICES AND CAPACITY [New York]
RESERVATION AGREEMENT"), between the Company and RenRe.
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS FINANCE, INC., A DELAWARE CORPORATION ("PLATINUM GOVERNING
FINANCE"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- Base Indenture New York
- Supplemental Indenture New York
FILED AGREEMENTS TO WHICH PLATINUM UNDERWRITERS REINSURANCE INC., A MARYLAND DOMICILED INSURANCE COMPANY GOVERNING
("PLATINUM US"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------------
- Employee Benefits and Compensation Matters Agreement, dated as of the First Time of Delivery New York
(the "Employee Matters Agreement"), between St. ▇▇▇▇ and Platinum US.
- Run-Off Services Agreement, dated as of the First Time of Delivery (the "US RUN-OFF SERVICES New York
AGREEMENT"), between Platinum US and Fire & Marine (as defined herein).
- Underwriting Management Agreement, dated as of the First Time of Delivery (the "US UNDERWRITING New York
AGREEMENT"), between Platinum US and Fire & Marine.
- Capital Support Agreement New York
- Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "FLORIDA LEASE [not specified]
ASSIGNMENT AGREEMENT"), between Metropolitan Life Insurance Company, Platinum US and St. ▇▇▇▇
Re, Inc. (as defined herein).
- Assignment and Assumption Agreement, dated as of the First Time of Delivery (the "ILLINOIS [not specified]
LEASE ASSIGNMENT AGREEMENT"), between WHCHC Real Estate Limited Partnership, St. ▇▇▇▇ Re, Inc.
and Platinum US.
- Sub Lease Agreement, dated as of the First Time of Delivery (the "SUB LEASE AGREEMENT"), New York
between Platinum US and St. ▇▇▇▇ Re, Inc.
- 100% Quota Share Retrocession Agreement (Traditional), dated as of the First Time of Delivery Minnesota
(the "US QUOTA SHARE TRADITIONAL"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-1), dated as of the First Time of Vermont
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-1"), between Platinum US and Mountain Ridge (as
defined herein).
- 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL A"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL B-1"), between Platinum US and Fire & Marine.
II-2
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-2), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL B-2"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - C), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL C"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-2), dated as of the First Time of Vermont
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-2"), between Platinum US and Mountain Ridge.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D Stop Loss), dated as of the First Vermont
Time of Delivery (the "US QUOTA SHARE NON-TRADITIONAL D STOP LOSS"), between Platinum US and
Mountain Ridge.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D Spread Loss), dated as of the Minnesota
First Time of Delivery (the "US QUOTA SHARE NON-TRADITIONAL D SPREAD LOSS"), between Platinum
US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-3), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-3"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - D-4), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL D-4"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Non-Traditional - E), dated as of the First Time of Minnesota
Delivery (the "US QUOTA SHARE NON-TRADITIONAL E"), between Platinum US and Fire & Marine.
- 100% Quota Share Retrocession Agreement (Traditional), dated as of the First Time of Delivery England
(the "UK QUOTA SHARE TRADITIONAL"), between Platinum US and St. ▇▇▇▇ Re UK (as defined herein).
- 100% Quota Share Retrocession Agreement (Non-Traditional - A), dated as of the First Time of England
Delivery (the "UK QUOTA SHARE NON-TRADITIONAL A"), between Platinum US and St. ▇▇▇▇ Re UK.
- 100% Quota Share Retrocession Agreement (Non-Traditional - B-1), dated as of the First Time of England
Delivery (the "UK QUOTA SHARE NON-TRADITIONAL B-1"), between Platinum US and St. ▇▇▇▇ Re UK.
- Trust Agreement, dated as of the First Time of Delivery (the "FIRE AND MARINE TRUST Maryland
AGREEMENT"), among Platinum US, Fire and Marine and [Name of Trustee Bank].
- Trust Agreement, dated as of the First Time of Delivery (the "MOUNTAIN RIDGE TRUST AGREEMENT"), Maryland
among Platinum US, Mountain Ridge and [Name of Trustee Bank].
- Trust Agreement, dated as of the First Time of Delivery (the "ST. ▇▇▇▇ RE UK TRUST AGREEMENT"), Maryland
among Platinum US, St. ▇▇▇▇ Re UK and [Name of Trustee Bank].
II-3
FILED AGREEMENTS TO WHICH PLATINUM RE (UK) LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER THE GOVERNING
LAWS OF ENGLAND ("PLATINUM UK"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- U.K. Master Services Agreement, dated as of the First Time of Delivery (the "UK MASTER SERVICES England
AGREEMENT"), between St. ▇▇▇▇ Re UK and Platinum UK.
- U.K. Run-off Services Agreement, dated as of the First Time of Delivery (the "UK RUN-OFF England
SERVICES AGREEMENT"), between St. ▇▇▇▇ Re UK and Platinum UK.
- U.K. Underwriting Agency and Underwriting Management Agreement, dated as of the First Time of England
Delivery (the "UK UNDERWRITING AGREEMENT"), between Platinum UK and St. ▇▇▇▇ Re UK.
- U.K. Business Transfer Agreement, dated as of the First Time of Delivery (the "UK BUSINESS England
TRANSFER AGREEMENT"), between Platinum UK and St. ▇▇▇▇ Re UK and St. ▇▇▇▇ Management Limited.
- U.K. Capital Support Agreement England
- [UK Lease]
FILED AGREEMENTS TO WHICH THE ST. ▇▇▇▇ COMPANIES INC., A MINNESOTA CORPORATION GOVERNING
("ST. ▇▇▇▇"), IS A PARTY LAW
------------------------------------------------------------------------------------------------------------------------
- Formation and Separation Agreement New York
- Employee Matters Agreement New York
- Master Services Agreement New York
- Trademark License Agreement New York
- Registration Rights Agreement New York
- Option Agreement New York
- RenRe Investment Agreement New York
FILED AGREEMENTS TO WHICH ST. ▇▇▇▇ FIRE AND MARINE INSURANCE COMPANY, A MINNESOTA DOMICILED INSURANCE GOVERNING
COMPANY ("FIRE & MARINE"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- US Run-Off Services Agreement New York
- US Underwriting Agreement New York
- US Quota Share Traditional Minnesota
- US Quota Share Non-Traditional A Minnesota
- US Quota Share Non-Traditional B-1 Minnesota
- US Quota Share Non-Traditional B-2 Minnesota
- US Quota Share Non-Traditional C Minnesota
- US Quota Share Non-Traditional D Spread Loss Minnesota
- US Quota Share Non-Traditional D-3 Minnesota
- US Quota Share Non-Traditional D-4 Minnesota
- US Quota Share Non-Traditional E Minnesota
- Fire and Marine Trust Agreement Maryland
II-4
FILED AGREEMENTS TO WHICH MOUNTAIN RIDGE INSURANCE COMPANY, A VERMONT DOMICILED INSURANCE COMPANY GOVERNING
("MOUNTAIN RIDGE"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- US Quota Share Non-Traditional D-1 Vermont
- US Quota Share Non-Traditional D-2 Vermont
- US Quota Share Non-Traditional D Stop Loss Vermont
- Mountain Ridge Trust Agreement Maryland
FILED AGREEMENTS TO WHICH ST. ▇▇▇▇ REINSURANCE COMPANY LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED GOVERNING
UNDER THE LAWS OF ENGLAND ("ST. ▇▇▇▇ RE UK"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- UK Quota Share Traditional England
- UK Quota Share Non-Traditional A England
- UK Quota Share Non-Traditional ▇-▇ ▇▇▇▇▇▇▇
- ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- ▇▇ Run-Off Services Agreement England
- UK Underwriting Agreement England
- UK Business Transfer Agreement England
- St. ▇▇▇▇ Re UK Trust Agreement Maryland
- Inter-company Asset Transfer Agreement, dated as of the First Time of Delivery, between St. ▇▇▇▇▇▇▇
▇▇▇▇ Re UK and SPML (as defined herein) (the "UK Inter-Company Asset Transfer Agreement").
- Letter agreement, dated as of the First Time of Delivery, between St. ▇▇▇▇ Re UK and SPML England
regarding services to be provided under the UK Master Services Agreement ("UK Letter
Agreement").
- [UK Lease]
FILED AGREEMENTS TO WHICH ST. ▇▇▇▇ RE, INC., A NEW YORK CORPORATION, IS A PARTY GOVERNING
LAW
------------------------------------------------------------------------------------------------------------------------
- Florida Lease Assignment Agreement [not specified]
- Illinois Lease Assignment Agreement [not specified]
- Sub Lease Agreement New York
FILED AGREEMENTS TO WHICH ST. ▇▇▇▇ MANAGEMENT LIMITED, A LIMITED LIABILITY COMPANY INCORPORATED UNDER GOVERNING
THE LAWS OF ENGLAND ("SPML"), IS A PARTY LAW
----------------------------------------------------------------------------------------------------------------------
- UK Inter-company Asset Transfer Agreement England
- UK Letter Agreement England
FILED AGREEMENTS TO WHICH RENAISSANCE RE HOLDINGS, LTD., A BERMUDA COMPANY ("RENRE"), IS A PARTY GOVERNING
LAW
------------------------------------------------------------------------------------------------------------------------
- RenRe Investment Agreement New York
- Transfer Restrictions and Registration Rights Agreement New York
- RenRe Option Agreement New York
- Services and Capacity Reservation Agreement [New York]
II-5
SCHEDULE III
1. In any Preliminary Prospectus or the Prospectus, or any amendment or
supplement thereto, the following information:
- All information (including both text and tables) in the following
sections: "Pro Forma Financial Information", "Management's Discussion
and Analysis of Pro Forma Financial Condition and Underwriting
Results", "St. ▇▇▇▇ Investment and Principal Shareholders" and "The
Predecessor Business";
- All information (including both text and tables) in the "Prospectus
Summary" section under the captions "--Background and the Transferred
Business", "--St. Paul's Share Ownership", "--Selected Pro Forma
Consolidated Financial Information and Operating Data";
- The information set forth in each table in the "Business" section
under the captions "Our Business--Our Lines of Business" and "Our
Business--Marketing";
- All text of the second paragraph in the "Business" section under the
caption "Our Business--Marketing";
- All information (including both text and tables) on pages [ ];
- The following phrases and sentences:
- "At January 1, 2001, St. ▇▇▇▇ Re had approximately 398
employees" and "from a total of 398 employees who were
employed by St. ▇▇▇▇ Re as of January 1, 2001";
- "The number of underwriting offices was reduced by St. ▇▇▇▇
Re from ten at January 1, 2001 to five as of March 31, 2002";
- "With respect to January 2002 renewals, St. ▇▇▇▇ Re
experienced substantial rate increases, generally ranging
from 20% to 50% depending on the line of business";
- "Commencing January 2002, St. ▇▇▇▇ Re has maintained normal
maximum program limits of $5 million on risk programs, $6
million on casualty clash programs and $20 million on
property catastrophe programs"; and
- "St. ▇▇▇▇ Re has conducted authorized reinsurance activities
in the U.S. and London for many years, and has been well
established as a lead underwriter in excess casualty,
property catastrophe and certain other classes of
reinsurance".
III-1
2. In the Registration Statement, or any amendment or supplement thereto, the
following information:
- In Part II, all information (including both text and tables) set forth
under the captions "Financial Statement Schedules of
Predecessor--Schedule III--Supplementary Insurance Information",
"Financial Statement Schedules of Predecessor--Schedule
IV--Reinsurance", and "Financial Statement Schedules of
Predecessor--Schedule V--Valuation and Qualifying Accounts".
III-2
ANNEX I
Pursuant to Section 9(i) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company and Predecessor (as such term is defined in the Prospectus) for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the representatives of
the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the [unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows] included in the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives and on the basis of specified procedures
including inquiries of officials of the Company and St. ▇▇▇▇ who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that cause them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
[the consolidated results of operations and financial position] of
Predecessor for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the St.
Paul's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
A-1
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of St. ▇▇▇▇, the Company and their respective
subsidiaries, inspection of the minute books of St. ▇▇▇▇, the Company and
their respective subsidiaries since the date of the latest audited
financial statements included in the Prospectus, inquiries of officials of
St. ▇▇▇▇, the Company and their respective subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the [unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows] included in the Prospectus do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the [unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows] included in the Prospectus for them to be in conformity
with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or the capital or surplus, or any increase in the
consolidated long-term debt of the Company and its subsidiaries,
or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included in
A-2
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or
per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
except in each case for decreases or increases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of St. ▇▇▇▇, the Company and their respective
subsidiaries, which appear in the Prospectus, or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of St. ▇▇▇▇, the Company
and their respective subsidiaries and have found them to be in agreement.
A-3