ACE LIMITED
(a Cayman Islands Company)
11,000,000 Ordinary Shares
(Par Value $0.041666667 Per Share)
UNDERWRITING AGREEMENT
----------------------
September 6, 2000
BANC OF AMERICA SECURITIES LLC
600 Montgomery Street
San Francisco, California 91444
Ladies and Gentlemen:
1. Introductory. ACE Limited, a Cayman Islands company ("Company"),
proposes to issue and sell from time to time 11,000,000 shares of its
ordinary shares (par value $0.041666667) (the "Initial Ordinary Shares")
and grant to the Underwriters (as defined below), acting severally and not
jointly, an option to purchase up to an additional 1,250,000 shares of its
ordinary shares (par value $0.041666667) (the "Option Ordinary Shares" and,
together with the Initial Ordinary Shares, the "Offered Securities").
Particular offerings of the Offered Securities will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with
terms of offering determined at the time of sale.
The firm or firms which agree to purchase the Offered Securities
are hereinafter referred to as the "Underwriters" of such securities, and
the representative or representatives of the Underwriters, if any,
specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives," provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Sections 2(a)
and 6(c) and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters as of the
date hereof and on the date of each Terms Agreement referred to in Section 3,
as of the Closing Date (as defined below) and, if applicable, as of each Date
of Delivery (as defined below) (in each case, a "Representation Date),
that:
(a) Compliance with Registration Requirements. A registration statement
(No. 333-78841) relating to, among other things, the Offered Securities,
including a form of prospectus, has been filed with the Securities and
Exchange Commission ("Commission") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, including all material incorporated by reference,
is hereinafter referred to as the "Registration Statement," and the
prospectus included in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of offering of the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of
1933, as amended (the "Securities Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus." No stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information with
respect to the Registration Statement (or any document incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) has been complied with. No document has been or will
be prepared or distributed in reliance on Rule 434 under the Securities
Act.
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At the respective times the Registration Statement and any
post-effective amendments thereto (including the filing of the Company's
Annual Report on Form 10-K for the year ended December 31, 1999 with the
Commission) became effective and at each Representation Date, the
Registration Statement and any amendments thereto complied and will comply
in all material respects to the requirements of the Securities Act and the
rules and regulations of the Commission ("Rules and Regulations") and did
not include and will 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 not misleading. At the date of the Prospectus
and at each Representation Date, neither the Prospectus nor any amendments
and supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement (or any
amendment thereto) or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives, if any, expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
and, when read together with the other information in the Prospectus, at
the date of the Prospectus and at each Representation Date, did not and
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) Independent Accountants. The accountants who certified or shall
certify the financial statements and any supporting schedules thereto of the
Company included in the Registration Statement and the Prospectus are
independent public accountants with respect to the Company and its subsidiaries
as required by the Securities Act and the Rules and Regulations
(d) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements, schedules
and notes of any other entity included therein, present fairly the financial
position of the Company and its consolidated subsidiaries, or such other
entity, as the case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, for
the periods specified. Such financial statements have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved,
except as indicated therein or in the notes thereto. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information required
to be stated therein. The selected financial data and the summary financial
information, if any, included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the related audited financial statements included in the
Registration Statement and the Prospectus. The pro forma financial
statements of the Company and its subsidiaries and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the basis described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
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(e) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein (i) neither the Company
nor any of its subsidiaries has sustained any material loss or material
interference with its business from any action, notice, order or decree
from an insurance regulatory authority and (ii) there has been (A) no
material adverse change in case reserves or losses or loss expense of the
Company and its consolidated subsidiaries and (B) no material adverse
change, nor any development or event involving a prospective material
adverse change, in the financial condition, business, or results of
operations of the Company and its subsidiaries considered as one
enterprise, in either case whether or not arising in the ordinary course of
business (a "Material Adverse Change").
(f) Good Standing of the Company. The Company has been duly organized
and is subsisting and in good standing under the laws of the Cayman Islands,
with corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus; and the Company is
duly qualified to transact business as a foreign corporation and is in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to so qualify or be in good standing would not reasonably
be expected to result in a Material Adverse Change.
(g) Good Standing of Corporate Subsidiaries. Each subsidiary of the
Company, other than such subsidiaries as would not, individually or in the
aggregate, constitute a "significant subsidiary" as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a
"Significant Subsidiary") which is a corporation has been duly incorporated
or organized and is an existing corporation in good standing (with respect
to jurisdictions which recognize such concept) under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus; and each such Significant Subsidiary of the
Company is duly qualified to transact business as a foreign corporation and
is in good standing (with respect to jurisdictions which recognize such
concept) in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to so qualify or be in good standing would not reasonably
be expected to result in a Material Adverse Change; all of the issued and
outstanding capital stock of each such Significant Subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable; and all of the issued and outstanding capital stock of each
such Significant Subsidiary is owned by the Company, directly or through
subsidiaries, except for de minimis shareholdings as required to comply
with applicable law, and such capital stock is owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity
(except for restrictions on transferability of the shares of insurance
subsidiaries under applicable law).
(h) Good Standing of Partnership Subsidiaries. Each Significant
Subsidiary of the Company which is a partnership has been duly formed and is an
existing partnership in good standing (with respect to jurisdictions which
recognize such concept) under the laws of the jurisdiction of its
formation, with power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; and
each such Significant Subsidiary of the Company is duly qualified to
transact business and is in good standing (with respect to jurisdictions
which recognize such concept) in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify or be in good
standing would not reasonably be expected to result in a Material Adverse
Change; all of the outstanding equity interests of each such Significant
Subsidiary of the Company have been duly authorized and validly issued; and
all of the equity interests of each such Significant Subsidiary are owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity
(other than immaterial amounts necessary to comply with applicable law).
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(i) Capitalization. The authorized, issued and outstanding shares of
capital stock of the Company are as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances thereof, if any, pursuant to reservations, agreements
or employee benefit plans or pursuant to the exercise of convertible
securities or options). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder of
the Company.
(j) Authorization and Description of the Offered Securities. The
Offered Securities have been duly authorized and, when the Offered
Securities have been delivered and paid for in accordance with the Terms
Agreement on the Closing Date and each Date of Delivery, if any, such
Offered Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities.
(k) No Agreements to Register. There are no contracts, agreements or
understandings between the Company and any person requiring the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Securities
Act.
(l) Listing. The Offered Securities have been approved for listing
on the New York Stock Exchange Inc. subject to notice of issuance.
(m) Absence of Further Requirements. No consent, approval,
authorization, or order of, or filing with, any governmental agency or body
or any court, domestic or foreign, is required for the consummation of the
transactions contemplated by the Terms Agreement in connection with the
issuance, offering and sale of the Offered Securities by the Company,
except such as have been obtained or made prior to the Closing Date, such
as have been obtained and made under the Securities Act, such filing of the
Prospectus as has been made with the Bermuda Registrar of Companies under
the Companies Act 1981 of Bermuda and such as may be required under state
securities laws.
(n) Non-Taxation of Current Payments. Except as disclosed in the
Prospectus, under current laws and regulations of the Cayman Islands and
Bermuda and any political subdivision thereof, all dividends and other
distributions declared and payable on the Offered Securities may be paid by
the Company to the holder thereof in United States dollars and freely
transferred out of the Cayman Islands or Bermuda and all such payments made
to holders thereof or therein who are non-residents of the Cayman Islands or
Bermuda will not be subject to income, withholding or other taxes under
laws and regulations of the Cayman Islands or Bermuda or any political
subdivision or taxing authority thereof or therein and will otherwise be
free and clear of any other tax, duty, withholding or deduction in the
Cayman Islands or Bermuda or any political subdivision or taxing authority
thereof or therein and without the necessity of obtaining any governmental
authorization in the Cayman Islands or Bermuda or any political subdivision
or taxing authority thereof or therein.
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(o) Absence of Defaults and Conflicts. None of the Company or any
subsidiary thereof is in violation of its charter or by-laws, partnership
agreement or other constitutive documents or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any subsidiary thereof is a party or by which it or any of them
may be bound, or to which any of the assets, properties or operations of
the Company or any subsidiary thereof is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not reasonably be
expected to result in a Material Adverse Change. The execution, delivery
and performance of the Terms Agreement (including the provisions of this
Agreement), the issuance and sale of the Offered Securities as contemplated
herein and in the Prospectus, the consummation of the transaction
contemplated herein and in the Registration Statement and the Prospectus
(including, without limitation, the issuance and sale of the Offered
Securities, and the use of the proceeds from the sale of the Offered
Securities as described under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder and thereunder do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or operations
of the Company or any subsidiary thereof pursuant to, any Agreements and
Instruments (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that would not reasonably be
expected to result in a Material Adverse Change); provided, however, that
(i) the use of the proceeds for purposes other than the repayment of the
Auction Rate Reset Preferred Securities (the "RHINOS") issued by ACE RHINOS
Trust within 90 days after the Closing Date would, unless waived,
constitute a violation of the instruments governing the RHINOS and the
underlying subordinated notes, and (ii) the pledge of securities in support
of the Company's guaranty of the subordinated notes underlying the RHINOS
would, unless waived, constitute a violation of covenants under the
Company's bank credit facilities; nor will such action result in any
violation of the provisions of the charter or by-laws, partnership
agreement or other constitutive documents of the Company or any subsidiary
thereof or, to the best knowledge of the Company, any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary thereof or over any
of their assets, properties or operations, except for such violations under
any applicable law, statute, rule, regulation, judgement, order, writ or
decree as would not reasonably be expected to result in a Material Adverse
Change. As used herein, a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary thereof.
(p) Authorization of the Terms Agreement. The Terms Agreement
(including the provisions of this Agreement) has been duly authorized,
executed and delivered by the Company.
(q) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to so possess any such Governmental Licenses would not, singly or
in aggregate, reasonably be expected to result in a Material Adverse
Change. The Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Change. Neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material Adverse
Change.
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(r) Insurance Laws. Each of the Company and its insurance subsidiaries
(including insurance holding companies) is duly registered, licensed or
admitted as an insurer or an insurance holding company (as applicable) in
each jurisdiction where it is required to be so licensed or admitted to
conduct its business as presently conducted, except where the failure to be
so registered, licensed or admitted would not reasonably be expected to
result in a Material Adverse Change; each of the Company and its insurance
subsidiaries has all other necessary authorizations, approvals, orders,
certificates and permits, of and from, and has made all declarations and
filings with, all insurance authorities, commissions or other insurance
regulatory bodies to conduct their respective businesses as described in
the Prospectus, except for where the failure to have such authorizations,
approvals, orders, certificates and permits, or to make such declarations
and filings, would not have a Material Adverse Change; all of such
authorizations, approvals, orders, certificates and permits are in full
force and effect, except where the failure to be in full force and effect
would not have a Material Adverse Change; and neither the Company nor its
insurance subsidiaries has received any notification from any insurance
authority, commission or other insurance regulatory body to the effect that
any additional authorization, approval, order, license, certificate or
permit from such authority, commission or body is needed to be obtained by
any of the Company or its insurance subsidiaries, except for any
authorization, approval, order, license, certificate or permit from any
such authority, commission or body the failure of which to obtain, singly
or in the aggregate, would not have a Material Adverse Change.
Each of the Company and its insurance subsidiaries is in
compliance with all applicable insurance statutes and regulations and has
filed all reports, documents or other information required to be filed
under such statutes and regulations, except where the failure to comply or
file would not have a Material Adverse Change; and each of the Company and
its insurance subsidiaries is in compliance with the insurance laws and
regulations of other jurisdictions which are applicable to the Company and
its insurance subsidiaries (as the case may be), except where the failure
to comply would not have a Material Adverse Change.
(s) Governmental Authorization. Except as set forth in the Registration
Statement and the Prospectus, no authorization, approval or consent of any
governmental authority agency is required (other than any license as an
insurer or insurance holding company and other than those which have
already been obtained) under the laws of any jurisdiction in which the
Company or any of its subsidiaries conduct their respective businesses in
connection with the ownership, directly or indirectly, by the Company of
equity interests in any subsidiary or the repatriation of any amount from
or to the Company or any of its subsidiaries, except to the extent that the
failure to obtain such authorization, approval or consent would not
reasonably be expected to result in a Material Adverse Change.
(t) Absence of Proceedings. Except as disclosed in the Prospectus,
there are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Change, or
would materially and adversely affect the ability of the Company to perform
its obligations under the Terms Agreement (including the provisions of this
Agreement) or which are otherwise material in the context of the sale of
the Offered Securities; and no such actions, suits or proceedings are, to
the Company's knowledge, threatened or contemplated.
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(u) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(v) Reserves. The description of the Company's reserves and reserving
methodology and assumptions described in the Prospectus is accurate and
fairly presents the information set forth therein in all material respects
and, since December 31, 1999, no loss experience has developed which would
require or make it appropriate for the Company to alter or modify such
methodology.
(w) Investment Company Act. The Company is not and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Prospectus, will
not be an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
3. Purchase, Sale and Delivery of Offered Securities.
(a) Initial Ordinary Shares. The obligation of the Underwriters to
purchase the Initial Ordinary Shares will be evidenced by an agreement or
exchange of other written communications (the "Terms Agreement") at the
time the Company determines to sell the Initial Ordinary Shares. The Terms
Agreement will incorporate by reference the provisions of this Agreement,
except as otherwise provided therein, and will specify the firm or firms
which will be Underwriters, the names of any Representatives, the number of
shares to be purchased by each Underwriter and the purchase price to be
paid by the Underwriters. The Terms Agreement will also specify the time
and date of delivery and payment (such time and date, or such other time
not later than seven full business days thereafter as the Underwriter first
named in the Terms Agreement (the "Lead Underwriter") and the Company agree
as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of offering that should be reflected
in the prospectus supplement relating to the offering of the Initial
Ordinary Shares. For purposes of Rule l5c6-1 under the Exchange Act, the
Closing Date (if later than the otherwise applicable settlement date) shall
be the date for payment of funds and delivery of securities for all the
Initial Ordinary Shares sold pursuant to the offering. The obligations of
the Underwriters to purchase the Initial Ordinary Shares will be several
and not joint. It is understood that the Underwriters propose to offer the
Initial Ordinary Shares for sale as set forth in the Prospectus.
(b) Option Ordinary Shares. On the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase at their election up
to an additional 1,250,000 Option Ordinary Shares, at the price per Option
Ordinary Shares set forth in the Terms Agreement. The option will expire
automatically at the close of business on the 30th calendar day after the
date of the Terms Agreement and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Ordinary Shares upon notice by the Underwriters to the Company setting
forth the aggregate number of additional Option Ordinary Shares as to which
the several Underwriters are then exercising the option and the time, date
and place of payment and delivery for such Option Ordinary Shares. Any such
time and date of payment and delivery (a "Date of Delivery") shall be
determined by the Underwriters and the Company, but shall not be later than
seven full business days after the exercise of said options, nor in any
event prior to the Closing Date, unless otherwise agreed upon by the
Underwriters and the Company. If the option is exercised as to all or any
portion of the Option Ordinary Shares, each of the Underwriters, severally
and not jointly, will purchase that proportion of the total number of
Option Ordinary Shares then being purchased which the number of Initial
Ordinary Shares each such Underwriter has severally agreed to purchase
bears to the total number of Initial Ordinary Shares, subject to such
adjustments as the Underwriters in their discretion shall make to eliminate
any sales or purchases of a fractional number of Option Ordinary Shares.
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(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Ordinary Shares shall be made at the offices of Brown & Wood LLP, One
World Trade Center, New York, New York, or at such other place as shall be
agreed upon by the Underwriters and the Company and set forth in the Terms
Agreement. In addition, in the event that the Underwriters have exercised
their option to purchase any or all of the Option Ordinary Shares, payment of
the purchase price for, and delivery of such Option Ordinary Shares, shall be
made at the above-mentioned offices of Brown & Wood LLP, or at such other place
as shall be agreed upon by the Underwriters and the Company, on the relevant
Date of Delivery as specified in the notice from the Underwriters to the
Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Underwriters for the respective accounts of the
Underwriters of the Offered Securities to be purchased by them. It is
understood that each Underwriter has authorized Banc of America Securities
LLC, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Offered Securities which it has severally
agreed to purchase. Banc of America Securities LLC, individually and not as
representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial Ordinary Shares or the
Option Ordinary Shares, if any, to be purchased by any Underwriter whose
funds have not been received by the Closing Date or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Offered Securities and
certificates for the Offered Securities shall be in such denominations and
registered in such names as the Lead Underwriter may request in writing at
least one full business day prior to the Closing Date or the relevant Date
of Delivery, as the case may be. The Offered Securities and certificates
for the Offered Securities will be made available for examination and
packaging by the Underwriters in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Date or the
relevant Date of Delivery, as the case may be.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) Compliance with Securities Regulations. The Company will file the
Prospectus with the Commission pursuant to and in accordance with
subparagraph (2) (or, if applicable, subparagraph (5)) of Rule 424(b) not
later than the second business day following the execution and delivery of
the Terms Agreement.
(b) Filing of Amendments. The Company will advise the Lead Underwriter
promptly of any proposal to amend or supplement the Registration Statement
or the Prospectus and will afford the Lead Underwriter a reasonable
opportunity to review and comment upon such proposed amendment or
supplement; and the Company will also advise the Lead Underwriter promptly
of the filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of a Registration
Statement and will use its reasonable best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting, if
issued.
(c) Continued Compliance with Securities Laws. If, at any time when a
prospectus relating to the Offered Securities is required to be delivered
under the Securities Act in connection with sales by any Underwriter or
dealer, any event occurs 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 to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Securities Act, the Company will promptly notify the Lead
Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
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(d) Earnings Statement. As soon as practicable, but not later than 16
months, after the date of each Terms Agreement, the Company will make
generally available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the effective
date of the registration statement relating to the Offered Securities, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the
Securities Act.
(e) Delivery of Registration Statement and Prospectuses. The Company
will furnish to the Representatives copies of the Registration Statement (two
of which will be signed and will include all exhibits), any related
preliminary prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as the Lead Underwriter requests. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of the Terms
Agreement. All other documents shall be so furnished as soon as available.
The Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) Blue Sky Qualification. The Company will arrange for the
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Lead Underwriter designates and will continue such
qualifications in effect so long as required for the distribution provided that
the Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the Offered
Securities) or subject itself to any taxation in respect of doing business.
(g) Delivery of Annual Report. During the period of two years after
the date of any Terms Agreement, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to the
Representatives as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders.
(h) Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Lead Underwriter designates and the printing of
memoranda relating thereto, for the filing fee incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(i) Documentary, Stamp or Similar Issue Taxes. The Company will
indemnify and hold harmless the Underwriters against any documentary, stamp or
similar issue tax, including any interest and penalties, on the creation,
issue and sale of the Offered Securities and on the execution and delivery
of the Terms Agreement (including the provisions of this Agreement). All
payments to be made by the Company hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Company is compelled
by law to deduct or withhold such taxes, duties or charges. In that event,
the Company shall pay such additional amounts as may be necessary in order
that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made.
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(j) Restriction on Sale of Securities. For a period of 90 days after
the date of the initial public offering of any Offered Securities, the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any additional Ordinary
Shares or securities convertible into or exchangeable or exercisable for
any Ordinary Shares, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of the Lead Underwriter, other than (x) issuances of Ordinary
Shares, options, or other securities or rights pursuant to any employee or
director compensation, options, savings, benefit or other plan of the
company, (y) any issuance upon exercise, conversion or exchange of any
securities or obligations outstanding on the date hereof and (z) any
issuances of equity securities as consideration for an acquisition.
(k) Delivery of Tax Information to Shareholders. The Company will use
its best efforts to provide to shareholders the information required by
shareholders to complete their U.S. income tax returns in the manner
specified in the Prospectus and, to that end, to (i) send a letter shortly
after the end of each fiscal year asking each corporate policyholder to
represent whether the insured or any director or officer of the insured was
a U.S. shareholder of the Company, within the meaning of Section
953(c)(1)(A) of the Internal Revenue Code of 1986 (the "Code"), or related
to a U.S. shareholder of the Company at any time during the preceding 12
months or to use another method which the Company reasonably believes will
elicit similar information; (ii) if the gross "related person insurance
income" ("RPII") of any of its insurance subsidiaries for any fiscal year
is 20% or more of such insurance subsidiary's gross insurance income within
the meaning of Section 953(c)(3)(B) of the Code, send a letter shortly
after the end of such fiscal year to all record owners (other than The
Depository Trust Company ("DTC") and DTC participants) asking them to
notify the Company's transfer agent (on a form attached to the letter)
within 30 days of the percentage of shares held by them that are
beneficially owned by U.S. persons, the percentage that are beneficially
owned by non-U.S. persons, and the percentage for which beneficial ownership
is not known; and (iii) if the gross RPII of any of its insurance
subsidiaries for any fiscal year is 20% or more of such insurance
subsidiary's gross insurance income within the meaning of Section
953(c)(3)(B) of the Code, (A) prepare IRS Form 5471 (or any successor form)
with all insurance subsidiary information and (B) as soon as practicable
after the end of such fiscal year, send copies of Form 5471 and a letter
instructing U.S. shareholders how to complete Form 5471 to all record
owners (other than DTC and DTC participants).
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities
will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder in all material respects and to the following additional
conditions precedent:
(a) On or prior to the date of the Terms Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act and the related published Rules
and Regulations;
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(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii) above,
a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of the Terms Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any dereases, as compared with the corresponding period of
the previous year, in consolidated net sales, net operating income
or in the total or per share amounts of consolidated net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Registration Statements for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this Agreement
prior to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission.
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(c) Subsequent to the execution and delivery of the Terms Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the financial condition, business or
results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. federal, New York or
Bermuda authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress
or any other substantial national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters including
the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(d) The Representatives shall have received on the Closing Date a
signed opinion of Maples and Calder, Cayman Islands counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing
and in good standing as an exempted company, under the laws of the
Cayman Islands, and has the corporate power and corporate
authority to own, lease and operate its property, and to conduct
its business, as described in the Registration Statement and the
Prospectus, and to enter into and perform its obligations under,
or as contemplated under, the Terms Agreement, including the
provisions of this Agreement;
(ii) the authorized share capital of the Company, as set out in
its Memorandum and Articles of Association, conforms as to legal
matters to the description thereof contained in the Registration
Statement and the Prospectus. All of the Company's Ordinary Shares
have been duly and validly authorized and issued by the Company and
are registered in the books of the Company as fully paid. On the basis
that the contractual subscription price of all such Ordinary Shares
is fully paid in cash (or equivalent consideration approved by the
Directors), such Ordinary Shares issued may properly be credited as
fully paid under Cayman Islands law and, as the Company has been
established on the basis that the liability of its shareholders is
limited to the amount, if any, unpaid on their shares (see Clause 5 of
the Memorandum and Articles of Association), there is no rule of
Cayman Islands law that would impose any further liability on persons
holding Ordinary Shares in the Company, merely by reason of such
shareholding. So far as Cayman Islands law is concerned, the
registered holders have good and valid title to their respective
Ordinary Shares on the assumption that they have not entered into any
liens, encumbrances, equities or claims which could give rise to any
equitable interest on the part of any third party in respect of such
Ordinary Shares. The holders of Ordinary Shares are not subject to any
pre-emptive rights under the laws of the Cayman Islands or the
Company's Memorandum and Articles of Association;
(iii) the Terms Agreement, including the provisions of this
Agreement, have been duly authorized, executed and delivered by the
Company;
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(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Terms
Agreement, including the provisions of this Agreement, and the
consummation by the Company, of the transactions contemplated by the
Terms Agreement, including the provisions of this Agreement, do not
and will not (A) violate any provision of the Memorandum and Articles
of Association of the Company; (B) contravene any provision of any law,
public rule or regulation of the Cayman Islands applicable to the
Company; (C) to the best of such counsel's knowledge, contravene any
existing published order or decree of the courts of the Cayman Islands
by which the Company is bound or by which its properties or assets may
be affected; or (D) require any consent, approval or authorization or
order of, or qualification with, any Cayman Islands governmental
agency in connection with the offer and sale of the Offered Securities;
(v) to the best of such counsel's knowledge, but based only upon a
search of the cause list at the offices of the Grand Courts of the
Cayman Islands, there was no action, suit or proceeding to which
the Company is a party or to which the assets, properties or
operations of the Company is subject, before the courts of the
Cayman Islands at the close of business on a recent date to be
specified in such opinion;
(vi) all statements made in the Prospectus with regard to statutes,
regulations, rules, treaties and other laws of the Cayman Islands
(including, but not limited to, insurance, regulatory and tax
matters and the Companies Law (2000 Revision) of the Cayman
Islands) and enforcement of judgments in the Cayman Islands are
accurate;
(vii) pursuant to this Agreement, and to the extent that the laws
of the Cayman Islands are relevant, the Company has legally, validly,
effectively and irrevocably submitted to the jurisdiction of the
United States Federal and New York State courts sitting in the
Borough of Manhattan in The City of New York, State of New York,
and has legally, validly and effectively appointed ACE USA, Inc.
as the authorized agent of the Company for the purposes described
in Section 14 of this Agreement assuming this to be the case as a
matter of the applicable United States Federal and New York State
laws;
(viii) the choice of the laws of the State of New York, United
States of America as the governing law of the Terms Agreement,
including the provisions of this Agreement, is a valid and effective
choice of law and in an action brought before a court of competent
jurisdiction in the Cayman Islands, the laws of the State of New York
would, to the extent specifically pleaded and proved as a fact by
expert evidence, be recognized and applied by such court to all issues
concerning the formal and essential validity of the Terms Agreement,
including the provisions of this Agreement, and the interpretation
thereof, except that in any such action such court will apply those
laws of the Cayman Islands as such court characterizes as procedural
and will not apply those laws of New York as such court characterizes
as procedural;
(ix) although there is no statutory enforcement in the Cayman
islands of a judgment obtained in New York, the courts of the Cayman
Islands will recognize and enforce a foreign judgment of a court of
competent jurisdiction, based on the principle that a judgment of a
competent foreign court imposes upon the judgment debtor an obligation
to pay the sum for which judgment has been given provided such
judgment is final, for a liquidated sum, not in respect of taxes or a
fine or penalty, and was not obtained in a manner and is not of a kind
the enforcement of which is contrary to the public policy of the
Cayman Islands. A Cayman Islands court may stay proceedings if
concurrent proceedings are being brought elsewhere. For the purposes
of enforcement of a judgment granted against the Company in respect of
the Terms Agreement, including the provisions of this Agreement, a
court in the Cayman Islands would recognize the jurisdiction of the
applicable federal or state court to the jurisdiction of which the
Company has submitted rendering such judgment if service of process on
the Company is effected pursuant to and in accordance with the
provisions of this Agreement; and
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(x) on the basis that the Company carries on its business as set
forth in the Prospectus, there is no requirement that it be licensed
under the Insurance Law, 1979, as amended of the Cayman Islands.
(e) The Representatives shall have received on the Closing Date a
signed opinion of Conyers Dill & Pearman, Bermuda counsel for the Company,
dated the Closing Date, to the effect that:
(i) each of ACE Bermuda Insurance Ltd., Corporate Officers and
Directors Assurance Ltd. and Tempest Reinsurance Company Limited
(collectively, the "Bermuda Insurance Subsidiaries") (A) is validly
existing under the laws of Bermuda as a company with limited liability
and is in good standing under the laws of Bermuda (meaning that such
company has not failed to make any filing with any Bermuda government
authority or to pay any Bermuda government fee or tax, the failure of
which would make such company immediately liable to be struck off the
Register of Companies and thereby cease to exist under the laws
of Bermuda) and (B) the corporate objects and powers contained in the
Memorandum of Association of each of the Bermuda Insurance Subsidiaries
are sufficient to allow them to carry on their business and to own,
lease and operate its properties as both are described in the
Prospectus;
(ii) the Company is validly registered under the Companies Act 1981
as a Permit Company and is in good standing under the laws of Bermuda
(meaning that such company has not failed to make any filing with
any Bermuda government authority or to pay any Bermuda government
fee or tax which is required to be paid in respect of Permit
Companies in Bermuda);
(iii) based solely upon a certified copy of the Register
of Members for each of the Bermuda Insurance Subsidiaries, and
without further inquiry, (A) all of the issued shares in the share
capital of each of the Bermuda Insurance Subsidiaries have been
duly and validly authorized and issued and are fully paid and
nonassessable (meaning that no further sums are required to be
paid by the holders thereof in connection with the issue of such
shares); and (B) the Company is the registered holder of all the
issued shares of each of the Bermuda Insurance Subsidiaries;
(iv) each of the Bermuda Insurance Subsidiaries is duly registered
as an insurer under the Insurance Act of 1978 (Bermuda) and the
regulations promulgated thereunder (together, the "Insurance Act")
and, as so registered, each Bermuda Insurance Subsidiary may
conduct the insurance business as described in the Prospectus; and
based solely on the Certificates of Compliance and without
independent inquiry, each of the Bermuda Insurance Subsidiaries
has filed with the appropriate Bermuda governmental authority all
reports, documents or other information required to be filed under
the Insurance Act;
(v) the Company is not registered as an insurer under the Insurance
Act and is therefore not required to comply with the requirements of
the Insurance Act applicable to registered insurers;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Terms
Agreement, including the provisions of this Agreement and the
consummation by the Company of the transactions contemplated by the
Terms Agreement, including the provisions of this Agreement, do not
and will not (A) violate any provision of the Memorandum of Association
or By-laws of any of the Bermuda Insurance Subsidiaries or any
applicable law, regulation, order or decree in Bermuda; (B) based
solely upon the Cause Book, contravene any judgment, order or decree
by the Bermuda Supreme Court against the Company or the Bermuda
Insurance Subsidiaries; or (C) require any consent, approval or
authorization or order of, or qualification with, any Bermuda
governmental agency;
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(vii) based solely upon the Cause Book and without further inquiry,
there is no action, suit or proceeding now pending before the
Bermuda Supreme Court against the Company or the Bermuda Insurance
Subsidiaries or any of their respective properties; and
(viii) all statements made in the Prospectus with respect to
statutes, regulations, rules, treaties and other laws of Bermuda
(including, but not limited to, statements made with respect to the
Insurance Act and Bermuda tax matters) fairly and accurately present
the information set forth therein and such counsel's opinion as to
such matters.
(ix) The choice of the Foreign Laws as the governing law
of the Terms Agreement, including the provisions of this
Agreement, 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 (A) which such
courts considers to be procedural in nature, (B) which are revenue
or penal laws or (C) the application of which would be
inconsistent with public policy, as such term is interpreted under
the laws of Bermuda. The submission in the Terms Agreement,
including the provisions of this Agreement, to the non-exclusive
jurisdiction of the Foreign Courts is valid and binding upon the
Company.
(f) The Representatives shall have received on the Closing Date a
signed opinion of Peter N. Mear, Esq., General Counsel of the Company, dated
the Closing Date, to the effect that:
(i) the Company is qualified to do business, and is in good
standing, as a foreign corporation, under the laws of each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or to be in good standing, would
not singly or in the aggregate have a Material Adverse Change;
(ii) each of ACE Bermuda Insurance Ltd., Tempest Reinsurance
Company Limited, ACE USA, Inc. and ACE INA Holdings Inc. is qualified
to transact business and is in good standing (with respect to
jurisdictions which recognize such concept) in each jurisdiction
in which it owns or leases real property or in which the conduct
of its business requires such qualification, except where the
failure to be so qualified or to be in good standing (with respect
to jurisdictions which recognize such concept) would not singly or
in the aggregate result in a Material Adverse Change;
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(iii) except as set forth in the Registration Statement and the
Prospectus, such counsel does not know of any outstanding (A)
securities or obligations of the Company convertible into or
exchangeable for any shares of capital stock of the Company or any
of its subsidiaries; (B) rights, warrants or options to acquire or
purchase from the Company any shares of capital stock of the
Company or any such convertible or exchangeable securities or
obligations; or (C) obligations or understandings of the Company
to issue or sell any shares of capital stock of the Company or any
of its subsidiaries, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or
obligations; and
(iv) to the best of such counsel's knowledge, and other than as
disclosed in the Prospectus, there are no threatened legal
proceedings against the Company or any of its subsidiaries which,
if determined adversely to the Company or such subsidiary, would
result in a Material Adverse Change.
(g) The Representatives shall have received on the Closing Date a
signed opinion of Mayer, Brown & Platt, United States counsel for the Company,
dated the Closing Date, to the effect that:
(i) each of ACE INA Holdings Inc. and ACE USA, Inc. is duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its respective obligations under, the
Terms Agreement, including the provisions of this Agreement, and any
other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the transactions
contemplated by the Registration Statement and the Prospectus and the
consummation by the Company of the transactions contemplated by the
Terms Agreement, including the provisions of this Agreement, do not
and will not (A) contravene any provision of any United States
federal or New York State law, rule or regulation, in each case which,
in such counsel's opinion, based on such counsel's experience, are
normally applicable to transactions of the type contemplated by this
Agreement ("United States Applicable Laws"), except that such counsel
need not express any opinion in this paragraph with respect to state
securities laws; (B) contravene any judgment, order or decree known
to such counsel without independent inquiry of any United States
federal or New York State court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or by which
the Company or any of its subsidiaries is bound or by which their
properties or assets may be affected; (C) conflict with, result in any
breach of or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or give rise
to any right to accelerate the maturity or require the prepayment of
any indebtedness or the purchase of any capital stock under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or any of its
subsidiaries, pursuant to the terms of any agreement or instrument
filed as an exhibit to the Company's Annual Report on Form 10K for the
fiscal year ended December 31, 1999 or any agreement or instrument
otherwise known to such counsel to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the assets, properties or operations of the Company or
any of its subsidiaries is subject, or the certificate of
incorporation or by-laws of ACE INA Holdings Inc. or ACE USA, Inc.,
except for such conflicts, breaches, violations, defaults,
accelerations, repayments, repurchases, liens, charges or encumbrances
that would not singly or in the aggregate result in a Material Adverse
Change; provided, however, that (i) the use of the proceeds for
purposes other than the repayment of the Auction Rate Reset Preferred
Securities (the "RHINOS") issued by ACE RHINOS Trust within 90 days
after the Closing Date would, unless waived, constitute a violation of
the instruments governing the RHINOS and the underlying subordinated
notes, and (ii) the pledge of securities in support of the Company's
guaranty of the subordinated notes underlying the RHINOS would, unless
waived, constitute a violation of covenants under the Company's bank
credit facilities; or (D) based upon such counsel's review of the
United States Applicable Laws, require any consent, approval or
authorization or order of, or qualification with, any United States
federal or state governmental agency or authority or court, except such
as have been obtained under the Securities Act and such as may be
required under state securities or blue sky laws or state insurance
laws in connection with the offer and sale of the Offered Securities;
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(iii) this Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company;
(iv) the Offered Securities and this Agreement conform in
all material respects to the statements relating thereto contained
in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to
the Registration Statement;
(v) such counsel does not know, after inquiry of Company officers
and based solely on such inquiry, of any action, suit or proceeding
before or by any United States federal or state government,
governmental instrumentality or court now pending or threatened
against or affecting the Company or any of its subsidiaries or any of
their respective properties that is required to be described in the
Registration Statement or the Prospectus and is not so described or
of any contract or other document that is required to be described in
the Registration Statement or the Prospectus, or to be filed as an
exhibit to the Registration Statement, that is not described or filed,
as required;
(vi) the Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding
the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial
statements and supporting schedules and other financial data
included therein or omitted therefrom, as to which such counsel
need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Rules
and Regulations of the Commission thereunder;
(vii) the documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules and other financial data included therein or omitted
therefrom, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act , as
applicable, and the Rules and Regulations of the Commission
thereunder;
(vii) the statements in the Registration Statement and the
prospectus insofar as they are descriptions of contracts, agreements,
instruments or proceedings, or constitute statements or summaries
of United States federal or New York State laws or legal
conclusions with respect thereto, are accurate and present fairly
the information required to be shown; and
(viii) the Company is not, and upon the issuance and sale
of the Offered Securities as contemplated in this Agreement and
the application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning
of the 1940 Act.
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Such counsel shall also state that it has been advised by the
Commission that the Registration Statement became effective under the
Securities Act; that any required filings of the Prospectus pursuant to
Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b); and that, based solely on conversations with the
Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for the purpose have been
instituted, are pending or, to such counsel's knowledge, are contemplated
under the Securities Act.
Such counsel shall also state that they have examined various
documents and participated in conferences with representatives of the
Company and its accountants and with representatives of the Underwriter and
its counsel at which times the contents of the Registration Statement and
the Prospectus and related matters were discussed, and that, although they
are not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or making any representation that they have
independently verified or checked the accuracy, completeness or fairness of
such statements, except as set forth above, no facts have come to such
counsel's attention that cause such counsel to believe that the
Registration Statement or any post-effective amendment thereto, at the time
the Registration Statement or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10-K with the
Commission) became effective or as of the date of this Agreement, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; or that the Prospectus or any amendment or supplement
thereto, at the date of the Prospectus, at the date of any such amendment
or supplement or at the Closing Date, included or includes any untrue
statement of a material fact or omitted or omits 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 (such counsel need not express a belief with respect to the
financial statements and supporting schedules and other financial data
included in or omitted from the Registration Statement or any
post-effective amendment thereto or the Prospectus or any amendment or
supplement thereto).
(h) The Representatives shall have received from Brown & Wood LLP,
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the Registration Statements and the Prospectus and other
related matters as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) The Representatives shall have received a certificate, dated such
Closing Date, of the Chairman, President and Chief Executive Officer or General
Counsel and Secretary of the Company and of the Chief Financial Officer; chief
accounting officer or chief investment officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that: (i) there has not been, since the date of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change, or any development or event involving a prospective
material adverse change, in the financial condition, business or results of
operations of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company in Section 2 are true and correct
with the same force and effect as though expressly made at and as of the Closing
Date, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted, are pending or, to the best of such officers' knowledge, are
threatened by the Commission.
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<PAGE>
(j) The Representatives shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(k) In the event that the Underwriters exercise their option to
purchase all or any portion of the Option Ordinary Shares, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder shall
be true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery the Underwriters shall have received:
(i) The favorable opinions of Maples and Calder, Cayman Islands
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Ordinary Shares and otherwise to the same effect as the opinions
required by Section 6(d) hereof.
(ii) The favorable opinions of Conyers Dill & Pearman, Bermuda
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Ordinary Shares and otherwise to the same effect as the opinions
required by Section 6(e) hereof.
(iii) The favorable opinions of Peter N. Mear, Esq., General
Counsel of the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Ordinary Shares and otherwise to the same effect as the opinions
required by Section 6(f) hereof.
(iv) The favorable opinions of Mayer, Brown & Platt, United States
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Ordinary Shares and otherwise to the same
effect as the opinions required by Section 6(g) hereof.
(v) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, in form and substance reasonably satisfactory to the
Underwriters, dated such Date of Delivery, relating to the Option
Ordinary Shares and otherwise to the same effect as the opinion
required by Section 6(h) hereof.
(vi) A certificate, dated such Date of Delivery, of the Chairman,
President and Chief Executive Officer or General Counsel and
Secretary of the Company and of the Chief Financial Officer; chief
accounting officer or chief investment officer of the Company,
confirming that the certificate delivered at the Closing Date
pursuant to Section 6(i) hereof remains true and correct as of
such Date of Delivery.
(vii) A letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to the Underwriters and dated such Date of
Delivery, substantially the same in form and substance as the letter
furnished to the Underwriters pursuant to Section 6(j) hereof,
except that the "specified date" on the letter furnished pursuant
to this paragraph shall be a date not more than three business
days prior to such Date of Delivery.
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The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. The Lead Underwriter may in its sole
discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder and under the
Terms Agreement.
7. Indemnification and Contribution. (a) The Company 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 Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any, related preliminary
prospectus, 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
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the 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 reliance upon
and in conformity with written information furnished to the company by such
Underwriter through the Representatives specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement.
20
<PAGE>
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel 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 will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company 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 as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. 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 the Underwriters and the parties
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of 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 action or claim
which is the subject of this subsection (d). 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
Offered Securities 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
Securities 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.
21
<PAGE>
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may 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 Securities Act; and the obligations
of the Underwriters under this Section 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 director of the
Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the company within the
meaning of the Securities Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate number of shares of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on the Closing Date, the Lead
Underwriter may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
nondefaulting Underwriters shall be obligated severally, in proportion to
their respective commitments under the Terms Agreement (including the
provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on the Closing Date.
If any Underwriter or Underwriters so default and the aggregate number of
shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total number of shares of Offered Securities that
the Underwriters are obligated to purchase on the Closing Date and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of the Company or its officers and of the several Underwriters set forth in
or made pursuant to the Terms Agreement (including the provisions of this
Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery
of and payment for the Offered Securities. If the Terms Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of
the termination of the Terms Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Company will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by them in connection with the offering of the Offered Securities.
22
<PAGE>
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in the Terms Agreement,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at The ACE Building, 30 Woodbourne Avenue, Hamilton HM 08
Bermuda, Attention: General Counsel and Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and
the Underwriters and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with the financing described in the
Terms Agreement, and any action under the Terms Agreement (including the
provisions of this Agreement) taken by the Representatives jointly or by
the Lead Underwriter will be binding upon all the Underwriters.
13. Counterparts. The Terms Agreement may be executed 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 Agreement.
14. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws. The Company hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in
the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to the Terms Agreement (including the provisions
of this Agreement) or the transactions contemplated thereby. The Company
irrevocably appoints ACE USA, Inc., 1133 Avenue of the Americas, 32nd
Floor, New York, New York 10036 as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any
such suit or proceeding, and agrees that service of process upon such
agent, and written notice of said service to the Company by the person
serving the same to the address provided in Section 10, shall be deemed in
every respect effective service of process upon the Company in any such
suit or proceeding. The Company further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such
agent in full force and effect for a period of seven years from the date of
this Agreement.
The obligation of the Company in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first business day,
following receipt by such Underwriter of any sum adjudged to be so due in
such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States
dollars so purchased are less than the sum originally due to such
Underwriter hereunder, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against
such loss. If the United States dollars so purchased are greater than the
sum originally due to such Underwriter hereunder, such Underwriter agrees
to pay to the Company an amount equal to the excess of the dollars so
purchased over the sum originally due to such Underwriter hereunder.
23
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between the Underwriters and the Company in
accordance with its terms.
Very truly yours,
ACE LIMITED
By:
-----------------------------------
Name: Christopher Z. Marshall
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
-------------------------------
Authorized Signatory
24
<PAGE>
ACE LIMITED
(a Cayman Islands Company)
11,000,000 Ordinary Shares
(Par Value $0.041666667 Per Share)
TERMS AGREEMENT
---------------
September 6, 2000
ACE LIMITED
The ACE Building
30 Woodbourne Avenue
Hamilton HM 08, Bermuda
Ladies and Gentlemen:
The undersigned underwriter (the "Underwriter") understands that ACE
Limited, a Cayman Islands Company (the "Company"), proposes to issue and
sell 12,250,000 shares of its ordinary shares, $0.041666667 par value per
share (the "Offered Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriter offers to
purchase 12,250,000 of Offered Securities at $32.685 per share on the
Closing Date.
The Offered Securities shall have the following terms:
Number of Firm Securities to be issued: 12,250,000
Purchase price: $32.685 per share
Closing Date: 9:00 A.M. (Eastern Time), September 12, 2000
Place of delivery and payment: Brown & Wood LLP
One World Trade Center
New York, New York 10048
Company account for wire transfer of payment: Boston Safe Deposit & Trust
Account No.: 162299
ABA No.: 011001234/Boston Safe
Lock-up pursuant to Section 5(j) of the Underwriting
Agreement (as defined below): yes
At the Closing Date, the Underwriter will pay the Company by wire
transfer to the account specified above $400,391,250.
The following information appearing in the Registration Statement
on Form S-3 (No. 333-78841) (and the related Prospectus dated April 6, 2000
and Prospectus Supplement dated September 6, 2000 relating to the offering
and sale of the Offered Securities, in the form in which the Prospectus and
Prospectus Supplement were filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Securities Act of 1933, as
amended), has been furnished by the Underwriter:
1. The first sentence of the second paragraph under
the caption "Underwriting" on page S-19 of the
Prospectus Supplement.
2. The information in the second paragraph under
the caption "Underwriting--Short Positions" on
pages S-19 and S-20 of the Prospectus
Supplement.
3. The information in the third paragraph under the
caption "Underwriting--Short Positions" on page
S-20 of the Prospectus Supplement, but solely
insofar as it concerns the Underwriter.
No other information in the above mentioned Registration Statement
(and the related Prospectus and Prospectus Supplement) has been furnished
by the Underwriter.
All the provisions contained in the Underwriting Agreement dated
September 6, 2000 between the Company and the Underwriter (the
"Underwriting Agreement") attached hereto as Annex A, are herein
incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used
herein as therein defined.
<PAGE>
Any notice by the Company to the Underwriter pursuant to this
Terms Agreement shall be sufficient if given in accordance with Section 10
of the Underwriting Agreement addressed to: Banc of America Securities LLC,
9 West 57th Street, New York, New York 10019, Attention: Issac Osaki, Esq.,
which shall, for all purposes of this Agreement, be the "Representative."
Very truly yours,
BANC OF AMERICA SECURITIES LLC
By: ________________________________
Authorized Signatory
Accepted:
ACE LIMITED
By:
-------------------------------------------------
Name: Christopher Z. Marshall
Title: Chief Financial Officer
<PAGE>
Annex A
[Underwriting Agreement]
[See Tab 2]
