-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T/K3Qypxbrj5xbWCx5MO4ZnJZnY6Ef50QwBuU4EzNzeQrEZaXtbFoybtZHkGTT4/ l8IH2VI6PwU6wK+PprF5ng== 0000909567-04-001077.txt : 20040730 0000909567-04-001077.hdr.sgml : 20040730 20040730072039 ACCESSION NUMBER: 0000909567-04-001077 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20040730 GROUP MEMBERS: 1109519 ONTARIO LIMITED GROUP MEMBERS: 810679 ONTARIO LIMITED GROUP MEMBERS: CLEARWATER INSURANCE COMPANY GROUP MEMBERS: CRC (BERMUDA) REINSURANCE LIMITED GROUP MEMBERS: CRUM & FORSTER HOLDING INC. GROUP MEMBERS: CRUM & FORSTER HOLDINGS CORP. GROUP MEMBERS: FAIRFAX FINANCIAL HOLDINGS LIMITED GROUP MEMBERS: FAIRFAX INC. GROUP MEMBERS: FFHL GROUP LTD. GROUP MEMBERS: ODYSSEY AMERICA REINSURANCE CORPORATION GROUP MEMBERS: ODYSSEY RE HOLDINGS CORP. GROUP MEMBERS: THE NORTH RIVER INSURANCE COMPANY GROUP MEMBERS: THE SIXTY TWO INVESTMENT COMPANY LIMITED GROUP MEMBERS: TIG HOLDINGS, INC. GROUP MEMBERS: TIG INSURANCE COMPANY GROUP MEMBERS: TIG INSURANCE GROUP GROUP MEMBERS: UNITED STATES FIRE INSURANCE COMPANY GROUP MEMBERS: V. PREM WATSA SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ZENITH NATIONAL INSURANCE CORP CENTRAL INDEX KEY: 0000109261 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 952702776 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32229 FILM NUMBER: 04940527 BUSINESS ADDRESS: STREET 1: 21255 CALIFA ST CITY: WOODLAND HILLS STATE: CA ZIP: 91367 BUSINESS PHONE: 8187131000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FAIRFAX FINANCIAL HOLDINGS LTD/ CAN CENTRAL INDEX KEY: 0000915191 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 000000000 STATE OF INCORPORATION: A6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 95 WELLINGTON ST WEST STREET 2: STE 800 CITY: TORONTO ONTARIO CANA STATE: A6 BUSINESS PHONE: 4163674941 MAIL ADDRESS: STREET 1: FAIRFAX FINANCIAL HOLDINGS LTD STREET 2: 95 WELLINGTON ST WEST STE 800 CITY: TORONTO ONTARIO CANA STATE: A6 FORMER COMPANY: FORMER CONFORMED NAME: FAIRFAX FINANCIAL HOLDINGS LTD DATE OF NAME CHANGE: 19931122 SC 13D/A 1 t13704sc13dza.txt AMENDMENT NO. 3 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 3 TO SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 Zenith National Insurance Corp. ------------------------------- (Name of Issuer) Common Stock, $1.00 Par Value ------------------------------ (Title of Class of Securities) 989390109 -------------- (CUSIP Number) Eric P. Salsberg Vice President, Corporate Affairs Fairfax Financial Holdings Limited 95 Wellington Street West, Suite 800 Toronto, Ontario, Canada, M5J 2N7 Telephone: (416) 367-4941 ------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) - With a copy to - Brice T. Voran Shearman & Sterling LLP Commerce Court West 199 Bay Street, Suite 4405 Toronto, Ontario M5L 1E8 Telephone (416) 360-8484 July 27, 2004 ------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule became of Rule 13d-1(b)(3) or (4), check the following box [ ]. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 2 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person V. PREM WATSA - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization CANADIAN - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,921,545 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,921,545 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,921,545 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 29.0% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- 2 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 3 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person 1109519 ONTARIO LIMITED - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization ONTARIO, CANADA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,921,545 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,921,545 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,921,545 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 29.0% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 3 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 4 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person THE SIXTY TWO INVESTMENT COMPANY LIMITED - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization BRITISH COLUMBIA, CANADA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,921,545 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,921,545 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,921,545 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 29.0% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 4 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 5 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person 810679 ONTARIO LIMITED - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization ONTARIO, CANADA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,921,545 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,921,545 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,921,545 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 29.0% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 5 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 6 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person FAIRFAX FINANCIAL HOLDINGS LIMITED - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization CANADA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,921,545 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,921,545 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,921,545 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 29.0% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 6 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 7 of 57 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person CRC (BERMUDA) REINSURANCE LIMITED - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization BERMUDA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 323,574 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 323,574 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 323,574 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 1.7% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 7 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 8 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person FFHL GROUP LTD. - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization CANADA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,597,971 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,597,971 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,597,971 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 27.4% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 8 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 9 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person FAIRFAX INC. - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization WYOMING - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 5,597,971 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 5,597,971 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 5,597,971 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 27.4% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 9 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 10 of 57 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person TIG HOLDINGS, INC. - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 2,357,524 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 2,357,524 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,357,524 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 11.6% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 10 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 11 of 58 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person TIG INSURANCE GROUP - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization CALIFORNIA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 2,357,524 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 2,357,524 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,357,524 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 11.6% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 11 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 12 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person TIG INSURANCE COMPANY - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization CALIFORNIA - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 0 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 0 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 0% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 12 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 13 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person ODYSSEY RE HOLDINGS CORP. - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 2,357,524 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 2,357,524 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,357,524 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 11.6% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 13 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 14 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person ODYSSEY AMERICA REINSURANCE CORPORATION - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization CONNECTICUT - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 2,357,524 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 2,357,524 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 2,357,524 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 11.6% (see Item 5) - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 14 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 15 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person CLEARWATER INSURANCE COMPANY - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 1,083,224 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 1,083,224 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 1,083,224 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 5.6% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 15 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 16 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person CRUM & FORSTER HOLDINGS CORP. - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 3,240,447 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 3,240,447 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 3,240,447 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 16.9% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 16 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 17 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person CRUM & FORSTER HOLDING INC. - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 3,240,447 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 3,240,447 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 3,240,447 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 16.9% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 17 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 18 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person UNITED STATES FIRE INSURANCE COMPANY - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 3,240,447 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 3,240,447 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 3,240,447 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 16.9% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 18 - -------------------------------------------------------------------------------- CUSIP No. 989390109 Page 19 of 56 Pages - -------------------------------------------------------------------------------- (1) Name of Reporting Person THE NORTH RIVER INSURANCE COMPANY - -------------------------------------------------------------------------------- (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [X] - -------------------------------------------------------------------------------- (3) SEC Use Only - -------------------------------------------------------------------------------- (4) Source of Funds WC - -------------------------------------------------------------------------------- (5) Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e). [ ] - -------------------------------------------------------------------------------- (6) Citizenship or Place of Organization NEW JERSEY - -------------------------------------------------------------------------------- (7) Sole Voting Power Number of Shares Beneficially ----------------------------------------- Owned (8) Shared Voting Power 0 by Each Reporting ----------------------------------------- Person With (9) Sole Dispositive Power ----------------------------------------- (10) Shared Dispositive Power 0 - -------------------------------------------------------------------------------- (11) Aggregate Amount Beneficially Owned by Each Reporting Person 0 - -------------------------------------------------------------------------------- (12) Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] - -------------------------------------------------------------------------------- (13) Percent of Class Represented by Amount in Row (11) 0% - -------------------------------------------------------------------------------- (14) Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- 19 This Amendment No. 3 amends the Statement on Schedule 13D filed with the Securities and Exchange Commission (the "Commission") on July 6, 1999 by Fairfax Financial Holdings Limited ("Fairfax"), Hamblin Watsa Investment Counsel Ltd., The Sixty Two Investment Company Limited and V. Prem Watsa relating to the purchase of 6,574,445 shares of common stock, par value $1.00 per share (the "Common Stock"), of Zenith National Insurance Corp., a Delaware insurance holding company ("Zenith"), pursuant to a Stock Purchase Agreement (the "1999 Stock Purchase Agreement") dated as of June 25, 1999 between Fairfax and Reliance Insurance Company, which Statement on Schedule 13D (such schedule, as amended, being the "Schedule 13D") was amended by (i) Amendment No. 1 to the Statement on Schedule 13D relating to the Stock Purchase Agreement (the "2001 Stock Purchase Agreement") dated as of November 21, 2001 between Clearwater Insurance Company ("Clearwater"), a Delaware corporation, formerly known as Odyssey Reinsurance Corporation, and Zenith, providing for the purchase and sale of 1,000,000 shares of Common Stock of Zenith and (ii) Amendment No. 2 to the Statement on Schedule 13D relating to the purchase on March 21, 2003 by Odyssey America Reinsurance Corporation ("Odyssey America"), a Connecticut corporation, of $30,000,000 aggregate principal amount of 5.75% convertible senior notes due 2023 of Zenith (the "Senior Notes"), which Senior Notes are currently convertible, as described below in Item 5, into 1,200,000 shares of Common Stock of Zenith. This Amendment No. 3 relates to the sale (the "Transaction") of 3,100,000 shares of Common Stock of Zenith by certain subsidiaries of Fairfax pursuant to an underwriting agreement (the "Underwriting Agreement"), dated as of July 27, 2004, among the underwriters named in Schedule A thereto (the "Underwriters"), Zenith and certain subsidiaries of Fairfax, as selling stockholders, in connection with the sale of such shares in a public offering pursuant to a registration statement on Form S-3 (the "Registration Statement") filed by Zenith with the Commission. The closing of the Transaction is expected to occur on or about July 30, 2004, and is subject to customary conditions. The following amendments to Items 2, 4, 5, 6 and 7 of the Schedule 13D are hereby made. ITEM 2. IDENTITY AND BACKGROUND Item 2 of the Schedule 13D is hereby amended in its entirety to read as follows: "This statement is being jointly filed by the following persons (collectively, the "Reporting Persons"): 1. V. Prem Watsa, an individual, is a citizen of Canada. Mr. Watsa's business address is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; 2. 1109519 Ontario Limited ("1109519"), a corporation incorporated under the laws of Ontario, is controlled by V. Prem Watsa. The principal business of 1109519 is as an investment holding company. The principal business address and principal office address of 1109519 is 95 Wellington Street West, Suite 800, Toronto, Ontario, M5J 2N7; 20 3. The Sixty Two Investment Company Limited ("Sixty Two"), a corporation incorporated under the laws of British Columbia, is controlled by V. Prem Watsa. The principal business of Sixty Two is as an investment holding company. The principal business address and principal office address of Sixty Two is 1600 Cathedral Place, 925 West Georgia St., Vancouver, British Columbia, Canada, V6C 3L3; 4. 810679 Ontario Limited ("810679"), a corporation incorporated under the laws of Ontario, is controlled by V. Prem Watsa. The principal business of 810679 is as an investment holding company. The principal business address and principal office address of 810679 is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; 5. Fairfax, a corporation incorporated under the laws of Canada, is controlled by Sixty Two, 1109519, and V. Prem Watsa. Fairfax is a financial services holding company. The principal business and principal office address of Fairfax is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; 6. CRC (Bermuda) Reinsurance Limited ("CRC (Bermuda)"), a corporation incorporated under the laws of Bermuda, is a wholly-owned subsidiary of Fairfax. The principal business of CRC (Bermuda) is reinsurance. The principal business address and principal office address of CRC (Bermuda) is c/o Westbrook Limited, Richmond House, 12 Par-la-Ville Road, P.O. Box HM 1022 Hamilton, HM DX Bermuda. 7. FFHL Group Ltd., a corporation incorporated under the laws of Canada, is a wholly-owned subsidiary of Fairfax. The principal business of FFHL Group Ltd. is as a holding company. The principal business address and principal office address of FFHL Group Ltd. is 95 Wellington Street West, Suite 800, Toronto, Ontario, Canada, M5J 2N7; 8. Fairfax Inc., a corporation incorporated under the laws of Wyoming, is a wholly-owned subsidiary of Fairfax. The principal business of Fairfax Inc. is as a holding company. The principal business address and principal office address of Fairfax Inc. is 300 First Stamford Place, Stamford, CT 06902; 9. TIG Holdings, Inc., a corporation incorporated under the laws of Delaware, is a wholly-owned subsidiary of Fairfax. The principal business of TIG Holdings, Inc. is as a holding company. The principal business address and principal office address of TIG Holdings, Inc. is 5205 North O'Connor Blvd., Irving, Texas 75039; 10. TIG Insurance Group, a corporation incorporated under the laws of California, is a majority-owned subsidiary of Fairfax. The principal business of TIG Insurance Group is as a holding company. The principal 21 business address and principal office address of TIG Insurance Group is 5205 North O'Connor Blvd., Irving, Texas 75039; 11. TIG Insurance Company ("TIG"), a corporation incorporated under the laws of California, is a majority-owned subsidiary of Fairfax. The principal business of TIG is property/casualty insurance. The principal business address and principal office address of TIG is 5205 North O'Connor Blvd., Irving, Texas 75039; 12. Odyssey Re Holdings Corp. ("OdysseyRe"), a corporation incorporated under the laws of Delaware, is a majority-owned subsidiary of Fairfax. The principal business of OdysseyRe is as a holding company. The principal business address and principal office address of OdysseyRe is 140 Broadway, 39th Floor, New York, New York 10005; 13. Odyssey America, a corporation incorporated under the laws of Connecticut, is a wholly-owned subsidiary of OdysseyRe. The principal business of Odyssey America is reinsurance. The principal business address and principal office address of Odyssey America is 300 First Stamford Place, Stamford, Connecticut 06902; 14. Clearwater, a corporation incorporated under the laws of Delaware, formerly known as Odyssey Reinsurance Corporation, is a wholly-owned subsidiary of Odyssey America. The principal business of Clearwater is reinsurance and insurance. The principal business address and principal office address of Clearwater is 300 First Stamford Place, Stamford, Connecticut 06902; 15. Crum & Forster Holdings Corp., a corporation incorporated under the laws of Delaware, is a wholly-owned subsidiary of Fairfax. The principal business of Crum & Forster Holdings Corp. is as a holding company. The principal business address and principal office address of Crum & Forster Holdings Corp. is 305 Madison Avenue, P.O. Box 1943, Morristown, New Jersey 07962; 16. Crum & Forster Holding Inc., a corporation incorporated under the laws of Delaware, is a wholly-owned subsidiary of Fairfax. The principal business of Crum & Forster Holding Inc. is as a holding company. The principal business address and principal office address of Crum & Forster Holding Inc. is 305 Madison Avenue, P.O. Box 1943, Morristown, New Jersey 07962; 17. United States Fire Insurance Company ("US Fire"), a corporation incorporated under the laws of Delaware, is a wholly-owned subsidiary of Fairfax. The principal business of US Fire is insurance. The principal business address and principal office address of US Fire is 305 Madison Avenue, P.O. Box 1943, Morristown, New Jersey 07962; and 22 18. The North River Insurance Company ("North River"), a corporation incorporated under the laws of New Jersey, is a wholly-owned subsidiary of Fairfax. The principal business of North River is insurance. The principal business address and principal office address of North River is 305 Madison Avenue, P.O. Box 1943, Morristown, New Jersey 07962. Neither the filing of this Schedule 13D nor the information contained herein shall be deemed to constitute an affirmation by V. Prem Watsa, 1109519, Sixty Two, 810679, Fairfax, CRC (Bermuda), FFHL Group Ltd., Fairfax Inc., TIG Holdings, Inc., TIG Insurance Group, TIG, OdysseyRe, Odyssey America, Clearwater, Crum & Forster Holdings Corp., Crum & Forster Holding Inc., US Fire or North River that such person is the beneficial owner of the shares of Common Stock of Zenith referred to herein for purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or for any other purpose, and such beneficial ownership is expressly disclaimed. The name, present principal occupation or employment and name, principal business and address of any corporation or other organization in which such employment is conducted and the citizenship of each director and executive officer of each of the Reporting Persons (other than V. Prem Watsa, an individual) are set forth in Annex A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P or Q, as the case may be, and such Annexes are incorporated herein by reference. Pursuant to Rule 13d-1(k) under the Exchange Act, the Reporting Persons have agreed to file jointly one statement with respect to their ownership of the shares of Common Stock of Zenith. During the last five years, none of the Reporting Persons, and, to the best of each such Reporting Person's knowledge, none of the executive officers or directors of such Reporting Person have been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws." ITEM 4. PURPOSE OF TRANSACTION Item 4 of the Schedule 13D is hereby amended in its entirety to read as follows: "The shares of Common Stock of Zenith referred to herein and the Senior Notes have been acquired by the Reporting Persons for investment purposes and not for the purposes of, or in connection with, or as a participant in, any transaction having the purpose of changing or influencing the control of Zenith. Fairfax and Zenith have entered into a standstill agreement dated as of June 30, 1999 (the "Original Standstill Agreement") as amended by Amendment No. 1 to the Standstill Agreement dated March 21, 2003 (the "Standstill Amendment", and together with the Original Standstill Agreement, the "Standstill Agreement") which prohibits Fairfax, subject to the terms and conditions set forth in the Standstill Agreement, from acquiring any additional securities or assets of Zenith until the earlier of (i) December 31, 2006 or (ii) the date 23 on which Stanley R. Zax is no longer the full-time President and Chairman of the Board of Directors of Zenith. In addition, Fairfax has entered into a Proxy Agreement dated March 28, 2002 (the "Proxy Agreement") appointing John Clark (the "Trustee") as its proxy with respect to all matters for which Fairfax and all of its subsidiary corporations have the right to vote shares of Common Stock of Zenith. Under the Proxy Agreement, the Trustee shall vote such shares in the same proportion as the vote ultimately cast by all other voting stockholders. In the event that a proxy contest not supported by management occurs while the Standstill Agreement remains in effect, the Trustee shall vote as recommended by management of Zenith. Fairfax determined to effect the Transaction so that TIG, which as a run-off operation pays claims but earns only minimum premium revenue, could benefit from monetizing its investment holding of 2,966,449 shares of Common Stock of Zenith. The sale of a small additional number of the Reporting Persons' shares of Common Stock of Zenith will lower Fairfax's investment to less than 25% of the outstanding shares of Common Stock of Zenith, as a result of which Zenith may be able to lower its deductible under the Terrorism Risk Insurance Act of 2002. The Reporting Persons have the following plans and proposals: (a) The Reporting Persons have no current intention to acquire or dispose of securities of Zenith, but may formulate plans to do so in the future. The Reporting Persons intend to review, on a continuous basis, various factors related to their direct or indirect investment, as the case may be, in Zenith, including the price and availability of the securities of Zenith, subsequent developments affecting Zenith's business, other investment and business opportunities available to the Reporting Persons and general stock market and economic conditions. Based upon these and other factors, the Reporting Persons may decide to purchase additional securities of Zenith or may decide in the future to sell all or part of their investment in Zenith; (b) The Reporting Persons have no plans or proposals to cause Zenith to enter into any extraordinary corporate transaction, such as a merger, reorganization or liquidation of Zenith or any of its subsidiaries; (c) The Reporting Persons have no plans or proposals to cause Zenith or any of its subsidiaries to sell or transfer a material amount of assets; (d) The Reporting Persons have no plans or proposals which would result in a change in the present board of directors or management of Zenith, whether through a change in the number or term of directors or otherwise; (e) The Reporting Persons have no plans to make any material change in the present capitalization or dividend policy of Zenith; (f) The Reporting Persons have no plans or proposals to cause Zenith to make any other material change in its business or corporate structure; 24 (g) The Reporting Persons have no plans or proposals to cause Zenith to change its certificate of incorporation or bylaws or to take other actions which may impede the acquisition of control of Zenith by any person; (h) The Reporting Persons have no plans or proposals to cause the shares of Common Stock of Zenith to be delisted from any securities exchange or cease to be authorized to be quoted in an inter-dealer quotation system; (i) The Reporting Persons have no plans or proposals to cause the shares of Common Stock of Zenith to become eligible for termination of registration pursuant to Section 12(g) of the Exchange Act; and (j) The Reporting Persons have no plans or proposals to take any actions similar to those enumerated above. The descriptions in this Item 4 of the Standstill Agreement and the Proxy Agreement are qualified in their entirety by reference to the Standstill Agreement and the Proxy Agreement, copies of which have been filed as Exhibits to this Schedule 13D." ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 of the Schedule 13D is hereby amended in its entirety to read as follows: "(a) Based on the most recent information available, the aggregate number and percentage of the shares of Common Stock of Zenith (the securities identified pursuant to Item 1 of this Schedule 13D) that are beneficially owned by each of the Reporting Persons (including, where applicable, shares of Common Stock of Zenith issuable upon conversion of the Senior Notes, which are currently convertible as described below) are set forth in boxes 11 and 13 of the second part of the cover page to this Schedule 13D for each of the Reporting Persons, and such information is incorporated herein by reference. The Senior Notes are convertible at any time prior to March 30, 2023 following the occurrence of any of the following events: (i) during any fiscal quarter (beginning with the third quarter of 2003) if the sale price of Zenith's Common Stock for at least 20 trading days in the 30 trading-day period ending on the last trading day of the immediately preceding fiscal quarter exceeds 120% of the conversion price on that 30th trading day; (ii) after the 30th day following the initial issuance of the Senior Notes, if, and so long as, the Senior Notes are rated by Standard & Poor's Rating Services below "BB-" (or an equivalent successor rating), or the credit rating assigned to the Senior Notes is suspended or withdrawn; (iii) if Zenith has called the Senior Notes for redemption; or (iv) upon the occurrence of certain corporate events. The Senior Notes are currently convertible into shares of Common Stock of Zenith as of the date of filing this Schedule 13D and have therefore been included, where applicable, in the aggregate number and percentage of the shares of Common Stock of Zenith reported in this Schedule 13D as beneficially owned by the Reporting Persons, as required by Rule 13d-3(d)(1)(i) under the Exchange Act. Whether the Senior Notes will be convertible in the future will depend upon the occurrence of the events specified above. 25 Not including shares of Common Stock of Zenith issuable upon conversion of the Senior Notes, the following Reporting Persons beneficially own the aggregate number and percentage of the shares of Common Stock of Zenith set forth below.
Aggregate Amount Percent of Class Represented by Name of Reporting Person Beneficially Owned Such Amount - ------------------------------------------------------------------------------------------------------- Odyssey America, OdysseyRe, TIG 1,157,524 6.0% Insurance Group and TIG Holdings, Inc. - ------------------------------------------------------------------------------------------------------- Fairfax Inc. and FFHL Group Ltd. 4,397,971 22.9% - ------------------------------------------------------------------------------------------------------- Fairfax, 810679, Sixty Two, 1109519 and 4,721,545 24.6% V. Prem Watsa
(b) The numbers of shares of Common Stock of Zenith as to which each of the Reporting Persons has sole voting power, shared voting power, sole dispositive power and shared dispositive power are set forth in boxes 7, 8, 9 and 10, respectively, on the second part of the cover page to this Schedule 13D for each of the Reporting Persons, and such information is incorporated herein by reference. (c) Except as described herein, none of the Reporting Persons, nor, to the best knowledge of the Reporting Persons, any person listed in Annex A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P or Q, beneficially owns, or during the last 60 days has acquired or disposed of, any shares of Common Stock of Zenith. (d) No person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, shares of Common Stock of Zenith held by the Reporting Persons other than each of the Reporting Persons. (e) Not applicable." ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 of the Schedule 13D is hereby amended in its entirety to read as follows: "Except as described in this Schedule 13D, none of the persons named in Item 2, nor to the best knowledge of each of the Reporting Persons any person listed in Annex A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P or Q, has any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to any securities of Zenith, including, but not limited to, transfer or voting of any securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. In connection with the Transaction, TIG, Clearwater, US Fire and North River (the "Selling Stockholders") have entered into the Underwriting Agreement pursuant to which 26 the Selling Stockholders agreed to sell to the Underwriters 3,100,000 shares of Common Stock of Zenith. As well, under the Underwriting Agreement, each of Clearwater and US Fire granted an option to the Underwriters to purchase up to an additional 200,000 shares of Common Stock of Zenith (for a total of up to 400,000 shares) to cover over-allotments, if any. The closing of the sale of shares of Common Stock pursuant to the Underwriting Agreement is expected to occur on or about ?, 2004 and is subject to customary conditions. In addition, Fairfax and OdysseyRe have entered into agreements (the "Lock-up Agreements") prohibiting Fairfax and its subsidiaries from directly or indirectly transferring any of their shares of Common Stock of Zenith for a period of 180 days following the date of the Underwriting Agreement, without the consent of Banc of America Securities LLC. Further, Fairfax and Zenith have entered into a Registration and Indemnification Agreement (the "Registration and Indemnification Agreement"), dated as of June 14, 2004, pursuant to which Zenith agreed to file the Registration Statement, Fairfax agreed to reimburse Zenith for certain fees and expenses related thereto, and Fairfax and Zenith agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act of 1933, as amended. The descriptions in this Schedule 13D of the Underwriting Agreement, the Lock-up Agreements, the Registration and Indemnification Agreement, the Proxy Agreement, the Standstill Amendment, the Original Standstill Agreement, the 1999 Stock Purchase Agreement and the 2001 Stock Purchase Agreement are qualified in their entirety by reference to such agreements, copies of which have been filed as exhibits to this Schedule 13D." ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 of the Schedule 13D is hereby amended by the addition of the following exhibits to the end thereof: "3.1 Joint Filing Agreement dated as of July 29, 2004 among V. Prem Watsa, 1109519 Ontario Limited, The Sixty Two Investment Company Limited, 810679 Ontario Limited, Fairfax Financial Holdings Limited., CRC (Bermuda) Reinsurance Limited, FFHL Group Ltd., Fairfax Inc., TIG Holdings, Inc., TIG Insurance Group, TIG Insurance Company, Odyssey Re Holdings Corp., Odyssey America Reinsurance Corporation, Clearwater Insurance Company, Crum & Forster Holdings Corp., Crum & Forster Holding Inc., United States Fire Insurance Company, and The North River Insurance Company. 3.2 Underwriting Agreement dated as of July 27, 2004 among Zenith National Insurance Corp., the underwriters named in Schedule A thereto and the selling stockholders named in Schedule B thereto. 3.3 Registration and Indemnification Agreement dated as of June 14, 2004 between Zenith National Insurance Corp. and Fairfax Financial Holdings Limited. 27 3.4 Lock-up Agreement dated July 27, 2004 of Fairfax Financial Holdings Limited. 3.5 Lock-up Agreement dated July 27, 2004 of Odyssey Re Holdings Corp. 3.6 Powers of Attorney with respect to Zenith National Insurance Corp. Schedule 13D." 28 SIGNATURE After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this Schedule 13D with respect to the undersigned is true, complete and correct. IN WITNESS WHEREOF, the undersigned has executed this Schedule 13D as of the 29th day of July , 2004. V. Prem Watsa /s/ V. P. Watsa ---------------------------------------- 1109519 Ontario Limited By: /s/ V. P. Watsa ------------------------------------ Name: V. Prem Watsa Title: President The Sixty Two Investment Company Limited By: /s/ V. P. Watsa ------------------------------------ Name: V. Prem Watsa Title: President 29 810679 Ontario Limited By: /s/ V. P. Watsa ----------------------------------------- Name: V. Prem Watsa Title: President Fairfax Financial Holdings Limited By: /s/ Eric P. Salsberg ----------------------------------------- Name: Eric P. Salsberg Title: Vice President, Corporate Affairs CRC (Bermuda) Reinsurance Limited By: /s/ Ronald Schokking ----------------------------------------- Name: Ronald Schokking Title: Vice President FFHL Group Ltd. By: /s/ Eric P. Salsberg ----------------------------------------- Name: Eric P. Salsberg Title: Vice President 30 Fairfax Inc. By: /s/ Eric P. Salsberg ------------------------------------ Name: Eric P. Salsberg Title: Vice President TIG Holdings, Inc. By: /s/ V.P. Watsa ------------------------------------ Name: V. Prem Watsa Title: Chairman TIG Insurance Group Inc. By: /s/ Eric P. Salsberg ------------------------------------ Name: Eric P. Salsberg Title: Vice President By: /s/ Michael J. Sluka ------------------------------------ Name: Michael J. Sluka Title: Senior Vice President, Chief Financial Officer and Treasurer TIG Insurance Company By: /s/ Michael J. Sluka ------------------------------------ Name: Michael J. Sluka Title: Senior Vice President, Chief Financial Officer 31 Odyssey Re Holdings Corp. By: /s/ Donald L. Smith -------------------------------------- Name: Donald L. Smith Title: Senior Vice President, General Counsel and Corporate Secretary Odyssey America Reinsurance Corporation By: /s/ Donald L. Smith -------------------------------------- Name: Donald L. Smith Title: Senior Vice President Clearwater Insurance Company By: /s/ Donald L. Smith -------------------------------------- Name: Donald L. Smith Title: Senior Vice President Crum & Forster Holdings Corp. By: /s/ Mary Jane Robertson -------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer 32 Crum & Forster Holding Inc. By: /s/ Mary Jane Robertson ------------------------------------ Name: Mary Jane Robertson Title: Senior Executive Vice President & Treasurer United States Fire Insurance Company By: /s/ Mary Jane Robertson ------------------------------------ Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer The North River Insurance Company By: /s/ Mary Jane Robertson ------------------------------------ Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer 33 ANNEX INDEX
ANNEX DESCRIPTION - ----- ----------- A Directors and Executive Officers of 1109519 Ontario Limited B Directors and Executive Officers of The Sixty Two Investment Company Limited C Directors and Executive Officers of 810679 Ontario Limited D Directors and Executive Officers of Fairfax Financial Holdings Limited E Directors and Executive Officers of CRC (Bermuda) Reinsurance Limited F Directors and Executive Officers of FFHL Group Ltd. G Directors and Executive Officers of Fairfax Inc. H Directors and Executive Officers of TIG Holdings, Inc. I Directors and Executive Officers of TIG Insurance Group J Directors and Executive Officers of TIG Insurance Company K Directors and Executive Officers of Odyssey Re Holdings Corp. L Directors and Executive Officers of Odyssey America Reinsurance Corporation M Directors and Executive Officers of Clearwater Insurance Company N Directors and Executive Officers of Crum & Forster Holdings Corp. O Directors and Executive Officers of Crum & Forster Holding Inc. P Directors and Executive Officers of United States Fire Insurance Company Q Directors and Executive Officers of The North River Insurance Company
34 ANNEX A DIRECTORS AND EXECUTIVE OFFICERS OF 1109519 ONTARIO LIMITED The following table sets forth certain information with respect to the directors and executive officers of 1109519 Ontario Limited.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP - ---- ----------------------- ----------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (President and Director) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Eric P. Salsberg Vice President, Corporate Affairs, Canadian (Assistant Secretary and Director) Fairfax Financial Holdings Limited
35 ANNEX B DIRECTORS AND EXECUTIVE OFFICERS OF THE SIXTY TWO INVESTMENT COMPANY LIMITED The following table sets forth certain information with respect to the directors and executive officers of The Sixty Two Investment Company Limited.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER NAME ORGANIZATION IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ---- ----------------------- ----------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (President and Director) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Eric P. Salsberg Vice President, Corporate Affairs, Canadian (Assistant Secretary and Director) Fairfax Financial Holdings Limited
36 ANNEX C DIRECTORS AND EXECUTIVE OFFICERS OF 810679 ONTARIO LIMITED The following table sets forth certain information with respect to \ the directors and executive officers of 810679 Ontario Limited.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP - ---- ----------------------- ----------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (President and Director) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Eric P. Salsberg Vice President, Corporate Affairs, Canadian (Assistant Secretary and Director) Fairfax Financial Holdings Limited
37 ANNEX D DIRECTORS AND EXECUTIVE OFFICERS OF FAIRFAX FINANCIAL HOLDINGS LIMITED The following table sets forth certain information with respect to the directors and executive officers of Fairfax Financial Holdings Limited.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP - ---- ----------------------- ----------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (Chairman and Chief Executive Fairfax Financial Holdings Limited Officer) 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Frank B. Bennett President, Artesian Management Inc. United States (Director) 301 Carlson Parkway, Suite 120 Minnetonka, MN 55305 Robbert Hartog President, Robhar Investments Ltd. Canadian (Director) R.R. #1 Perkinsfield, Ontario L0L 2J0 Anthony Griffiths Independent Business Consultant Canadian (Director) Toronto, Ontario, Canada Brandon W. Sweitzer Senior Advisor to the President of the United States (Director) Chamber of Commerce of the United States 1615 H Street, NW Washington, DC 20062 Trevor J. Ambridge Vice President and Chief Canadian (Vice President and Chief Financial Financial Officer, Fairfax Officer) Financial Holdings Limited
38
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP - ---- ----------------------- ----------- Eric P. Salsberg Vice President, Corporate Affairs, Canadian (Vice President, Corporate Affairs) Fairfax Financial Holdings Limited
39 ANNEX E DIRECTORS AND EXECUTIVE OFFICERS OF CRC (BERMUDA) REINSURANCE LIMITED The following table sets forth certain information with respect to the directors and executive officers of CRC (Bermuda) Reinsurance Limited.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP - ---- ----------------------- ----------- Sam Chan Vice President Canadian (Director and President) Fairfax Financial Holdings Limited 95 Wellington Street West, Ste. 800 Toronto, ON Charles Collis Attorney British/Bermudian (Director) Conyers Dill & Pearman Clarendon House, Church Street Hamilton, Bermuda Christopher Garrod Attorney British/Bermudian (Director) Conyers Dill & Pearman Clarendon House, Church Street Hamilton, Bermuda Ronald Schokking Vice President, Finance Canadian (Vice President Fairfax Financial Holdings Limited Treasurer, and Chairman) Bradley P. Martin Vice President Canadian (Vice President) Fairfax Financial Holdings Limited Eric P. Salsberg Vice President, Corporate Affairs Canadian (Vice President) Fairfax Financial Holdings Limited
40 ANNEX F DIRECTORS AND EXECUTIVE OFFICERS OF FFHL GROUP LTD. The following table sets forth certain information with respect to the directors and executive officers of FFHL Group Ltd.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- James F. Dowd President and Chief Executive Officer, United States (Chairman) Fairfax Inc. 305 Madison Avenue Morristown, NJ 07962 Eric P. Salsberg Vice President, Corporate Affairs, Canadian (Vice President and Director) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Bradley P. Martin Vice President, Canadian (Vice President and Secretary) Fairfax Financial Holdings Limited V. Prem Watsa Chairman and Chief Executive Officer, Canadian (Vice President and Director) Fairfax Financial Holdings Limited Ronald Schokking Vice President, Finance Canadian (Vice President) Fairfax Financial Holdings Limited M. Jane Williamson Vice President, Canadian (Director) Fairfax Financial Holdings Limited
41 ANNEX G DIRECTORS AND EXECUTIVE OFFICERS OF FAIRFAX INC. The following table sets forth certain information with respect to the directors and executive officers of Fairfax Inc.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- Eric P. Salsberg Vice President, Corporate Affairs, Canadian (Vice President and Director) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 James F. Dowd Chairman, President and Chief United States (Chairman, President & CEO) Executive Officer, Fairfax Inc. 305 Madison Avenue Morristown, NJ 07962 Ronald Schokking Vice President, Finance, Canadian (Vice President) Fairfax Financial Holdings Limited Roland W. Jackson Vice President, Treasurer and Director, United States (Vice President, Treasurer Fairfax Inc. and Director) Trevor J. Ambridge Vice President and Chief Financial Canadian (Vice President) Officer, Fairfax Financial Holdings Limited
42 ANNEX H DIRECTORS AND EXECUTIVE OFFICERS OF TIG HOLDINGS, INC. The following table sets forth certain information with respect to the directors and executive officers of TIG Holdings, Inc.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (Chairman and Director) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Trevor J. Ambridge Vice President and Chief Canadian (Director) Financial Officer, Fairfax Financial Holdings Limited Dennis C. Gibbs Chief Executive Officer and Director, United States (Chief Executive Officer and Director) TIG Insurance Company R. Scott Donovan President and Director, United States (President and Director) TIG Insurance Company Michael J. Sluka Senior Vice President, Chief Financial United States (Senior Vice President, Chief Officer, and Treasurer and Director, Financial Officer and Treasurer TIG Insurance Company
43 ANNEX I DIRECTORS AND EXECUTIVE OFFICERS OF TIG INSURANCE GROUP The following table sets forth certain information with respect to the directors and executive officers of TIG Insurance Group.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- R. Scott Donovan President and Director, United States (President and Director) TIG Insurance Company Dennis C. Gibbs Chief Executive Officer and Director, United States (Chief Executive Officer and TIG Insurance Company Director) Charles G. Ehrlich Senior Vice President and Director, United States (Senior Vice President, TIG Insurance Company General Counsel and Secretary) Michael J. Sluka Senior Vice President, Chief Financial United States (Senior Vice President, Chief Officer, Treasurer and Director, Financial Officer, Treasurer, TIG Insurance Company and Director) William J. Gillett Managing Director -- Europe United States (Director) RiverStone Holdings Limited
44 ANNEX J DIRECTORS AND EXECUTIVE OFFICERS OF TIG INSURANCE COMPANY The following table sets forth certain information with respect to the directors and executive officers of TIG Insurance Company.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- Dennis C. Gibbs Chairman, Chief Executive Officer and United States (Chairman, Chief Executive Director, Officer and Director) TIG Insurance Company R. Scott Donovan President and Director, United States (President and Director) TIG Insurance Company Charles G. Ehrlich Senior Vice President and Director, United States (Senior Vice President and TIG Insurance Company Director) John M. Parker Senior Vice President, General United States (Senior Vice President, Counsel,and Secretary, General Counsel, and TIG Insurance Company Secretary) Robert L. Gossett Senior Vice President and Director, United States (Senior Vice President and TIG Insurance Company Director) Michael J. Sluka Senior Vice President, Chief Financial United States (Senior Vice President, Chief Officer, Treasurer and Director, Financial Officer, Treasurer TIG Insurance Company and Director)
45 ANNEX K DIRECTORS AND EXECUTIVE OFFICERS OF ODYSSEY RE HOLDINGS CORP. The following table sets forth certain information with respect to the directors and executive officers of Odyssey Re Holdings Corp.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (Chairman) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 James F. Dowd President and Chief Executive Officer, United States (Vice Chairman) Fairfax Inc. 305 Madison Avenue Morristown, NJ 07962 Andrew Barnard President, Chief Executive Officer, United States (President, Chief Executive and Director Officer and Director) Odyssey Re Holdings Corp. 140 Broadway Avenue, 39th Floor New York, NY 10005 Michael G. Wacek Executive Vice President, United States (Executive Vice President) Odyssey Re Holdings Corp. Charles D. Troiano Executive Vice President and Chief United States (Executive Vice President and Financial Officer, Chief Financial Officer) Odyssey Re Holdings Corp. Anthony J. Narciso, Jr. Senior Vice President and Controller, United States (Senior Vice President and Odyssey Re Holdings Corp. Controller)
46
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- Donald L. Smith Senior Vice President, United States (Senior Vice President, General Counsel and Corporate General Counsel and Secretary, Corporate Secretary ) Odyssey Re Holdings Corp. Frank B. Bennett President, Artesian Management Inc. United States (Director) 301 Carlson Parkway, Suite 120 Minnetonka, MN 55305 Anthony F. Griffiths Independent Consultant and Corporate Canadian (Director) Director, 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Robbert Hartog President, Robhar Investments Ltd. Canadian (Director) R.R. #1 Perkinsfield, Ontario L0L 2J0 Brandon W. Sweitzer Senior Advisor to the President of the United States (Director) Chamber of Commerce of the United States 1615 H Street, NW Washington, DC 20062
47 ANNEX L DIRECTORS AND EXECUTIVE OFFICERS OF ODYSSEY AMERICA REINSURANCE CORPORATION The following table sets forth certain information with respect to the directors and executive officers of Odyssey America Reinsurance Corporation.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- Andrew A. Barnard President, Chief Executive Officer,and United States (Chairman, Chief Executive Director Officer and Director) Odyssey Re Holdings Corp. 140 Broadway Avenue, 39th Floor New York, NY 10005 James F. Dowd President and Chief Executive Officer, United States (Director) Fairfax Inc. 305 Madison Avenue Morristown, NJ 07962 Michael G. Wacek Executive Vice President, United States (President and Director) Odyssey Re Holdings Corp. Mark W. Hinkley Executive Vice President, United States (Executive Vice President and Odyssey America Reinsurance Director) Corporation 300 First Stamford Place Stamford, CT 06902 James E. Migliorini Senior Vice President, United States (Senior Vice President and Odyssey America Reinsurance Director) Corporation Donald L. Smith Senior Vice President, General United States (Senior Vice President and Counsel and Corporate Secretary, General Legal Counsel and Odyssey Re Holdings Corp. Director)
48
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- Brian D. Young Executive Vice President, United States (Executive Vice President and Odyssey America Reinsurance Director) Corporation Charles D. Troiano Executive Vice President and Chief United States (Chief Operating Officer and Financial Officer, Director) Odyssey Re Holdings Corp.
49 ANNEX M DIRECTORS AND EXECUTIVE OFFICERS OF CLEARWATER INSURANCE COMPANY The following table sets forth certain information with respect to the directors and executive officers of Clearwater Insurance Company.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION NAME IN WHICH SUCH EMPLOYMENT IS CONDUCTED CITIZENSHIP - ------------- -------------------------------------- -------------- Andrew A. Barnard President, Chief Executive Officer,and United States (Chairman, Chief Executive Director Officer and Director) Odyssey Re Holdings Corp. 140 Broadway Avenue, 39th Floor New York, NY 10005 James F. Dowd President and Chief Executive Officer, United States (Director) Fairfax Inc. 305 Madison Avenue Morristown, NJ 07962 Michael G. Wacek Executive Vice President, United States (President and Director) Odyssey Re Holdings Corp. Mark W. Hinkley Executive Vice President, United States (Executive Vice President and Odyssey America Reinsurance Director) Corporation 300 Stamford Place Stamford, CT 06902 James E. Migliorini Senior Vice President, United States (Senior Vice President and Odyssey America Reinsurance Director) Corporation Donald L. Smith Senior Vice President, General United States (Vice President, General Counsel and Corporate Secretary, Counsel, Corporate Secretary Odyssey Re Holdings Corp. and Director)
50
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP ---- ---------------------------------- ------------- Brian D. Young Executive Vice President, United States (Senior Vice President and Director) Odyssey America Reinsurance Corporation Charles D. Troiano Executive Vice President and Chief United States (Chief Operating Officer and Director) Financial Officer, Odyssey Re Holdings Corp.
51 ANNEX N DIRECTORS AND EXECUTIVE OFFICERS OF CRUM & FORSTER HOLDINGS CORP. The following table sets forth certain information with respect to the directors and executive officers of Crum & Forster Holdings Corp.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP ---- -------------------------------------- ------------- V. Prem Watsa Chairman and Chief Executive Officer, Canadian (Chairman) Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario M5J 2N7 Nikolas Antonopoulos Chief Executive Officer and President, United States (Chief Executive Officer and Crum & Forster Holdings Corp. and President) various other insurance subsidiaries 305 Madison Avenue Morristown, NJ 07962 Mary Jane Robertson Senior Executive Vice President, Chief United States (Senior Executive Vice President, Financial Officer and Treasurer, Chief Financial Officer and Treasurer) Crum & Forster Holdings Corp. and various other insurance subsidiaries Frank B. Bennett President, Artesian Management Inc. United States (Director) 301 Carlson Parkway, Suite 120 Minnetonka, MN 55305 Robbert Hartog President, Robhar Investments Ltd. Canadian (Director) R.R. #1 Perkinsfield, Ontario L0L 2J0 Anthony Griffiths Independent Business Consultant Canadian (Director) Toronto, Ontario, Canada
52 ANNEX O DIRECTORS AND EXECUTIVE OFFICERS OF CRUM & FORSTER HOLDING INC. The following table sets forth certain information with respect to the directors and executive officers of Crum & Forster Holding Inc.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP ---- -------------------------------------- ------------- Nikolas Antonopoulos Chief Executive Officer and President, United States (Chief Executive Officer, President Crum & Forster Holdings Corp. and and Director) various other insurance subsidiaries 305 Madison Avenue Morristown, NJ 07962 Mary Jane Robertson Senior Executive Vice President, Chief United States (Senior Executive Vice President, Financial Officer and Treasurer, Treasurer and Director) Crum & Forster Holdings Corp. and various other insurance subsidiaries Douglas M. Libby President, United States (Senior Vice President and Director) Seneca Insurance Company 160 Water Street New York, NY 10038
53 ANNEX P DIRECTORS AND EXECUTIVE OFFICERS OF UNITED STATES FIRE INSURANCE COMPANY The following table sets forth certain information with respect to the directors and executive officers of United States Fire Insurance Company.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP ---- -------------------------------------- ------------- Nikolas Antonopoulos Chief Executive Officer and President, United States (Chief Executive Officer, President Crum & Forster Holdings Corp. and and Director) various other insurance subsidiaries 305 Madison Avenue Morristown, NJ 07962 Mary Jane Robertson Senior Executive Vice President, Chief United States (Senior Executive Vice President, Financial Officer and Treasurer, Chief Financial Officer, Treasurer and Crum & Forster Holdings Corp. and Director) various other insurance subsidiaries Dennis J. Hammer Senior Vice President and Controller, United States (Senior Vice President and Controller) United States Fire Insurance Company Joseph F. Braunstein, Jr. Executive Vice President, United States (Executive Vice President) United States Fire Insurance Company
54 ANNEX Q DIRECTORS AND EXECUTIVE OFFICERS OF THE NORTH RIVER INSURANCE COMPANY The following table sets forth certain information with respect to the directors and executive officers of The North River Insurance Company.
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND THE NAME, PRINCIPAL BUSINESS AND ADDRESS OF ANY CORPORATION OR OTHER ORGANIZATION IN WHICH SUCH NAME EMPLOYMENT IS CONDUCTED CITIZENSHIP ---- -------------------------------------- ------------- Nikolas Antonopoulos Chief Executive Officer and President, United States (Chief Executive Officer, President Crum & Forster Holdings Corp. and and Director) various other insurance subsidiaries 305 Madison Avenue Morristown, NJ 07962 Mary Jane Robertson Senior Executive Vice President, Chief United States (Senior Executive Vice President, Financial Officer and Treasurer, Chief Financial Officer, Treasurer and Crum & Forster Holdings Corp. and Director) various other insurance subsidiaries Dennis J. Hammer Senior Vice President and Controller, United States (Senior Vice President and Controller) United States Fire Insurance Company Joseph F. Braunstein, Jr. Executive Vice President, United States (Executive Vice President) United States Fire Insurance Company
55 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 3.1 Joint Filing Agreement dated as of July 29, 2004 among V. Prem Watsa, 1109519 Ontario Limited, The Sixty Two Investment Company Limited, 810679 Ontario Limited, Fairfax Financial Holdings Limited., CRC (Bermuda) Reinsurance Limited, FFHL Group Ltd., Fairfax Inc., TIG Holdings, Inc., TIG Insurance Group, TIG Insurance Company, Odyssey Re Holdings Corp., Odyssey America Reinsurance Corporation, Clearwater Insurance Company, Crum & Forster Holdings Corp., Crum & Forster Holding Inc., United States Fire Insurance Company, and The North River Insurance Company. 3.2 Underwriting Agreement dated as of July 27, 2004 among Zenith National Insurance Corp., the underwriters named in Schedule A thereto and the selling stockholders named in Schedule B thereto. 3.3 Registration and Indemnification Agreement dated as of June 14, 2004 between Zenith National Insurance Corp. and Fairfax Financial Holdings Limited. 3.4 Lock-up Agreement dated July 27, 2004 of Fairfax Financial Holdings Limited. 3.5 Lock-up Agreement dated July 27, 2004 of Odyssey Re Holdings Corp. 3.6 Powers of Attorney with respect to Zenith National Insurance Corp. Schedule 13D.
56 EX-3.1 2 t13704exv3w1.txt EX-3.1 CUSIP No. 989390109 AGREEMENT CONCERNING JOINT FILING OF SCHEDULE 13D The undersigned agree as follows: (i) each of them is individually eligible to use the Schedule 13D to which this Exhibit is attached, and such Schedule 13D is filed on behalf of each of them; and (ii) each of them is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other person making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument. Dated: July 29, 2004 V. PREM WATSA /s/ V. P. Watsa ----------------------------------------------- 1109519 ONTARIO LIMITED By: /s/ V. P. Watsa ------------------------------------------- Name: V. Prem Watsa Title: President THE SIXTY TWO INVESTMENT COMPANY LIMITED By: /s/ V. P. Watsa ------------------------------------------- Name: V. Prem Watsa Title: President 810679 ONTARIO LIMITED By: /s/ V. P. Watsa ------------------------------------------- Name: V. Prem Watsa Title: President FAIRFAX FINANCIAL HOLDINGS LIMITED By: /s/ Eric P. Salsberg ------------------------------------------- Name: Eric P. Salsberg Title: Vice President, Corporate Affairs CRC (BERMUDA) REINSURANCE LIMITED By: /s/ Ronald Schokking ------------------------------------------- Name: Ronald Schokking Title: Vice President FFHL GROUP LTD. By:/s/ Eric P. Salsberg ------------------------------------------- Name: Eric P. Salsberg Title: Vice President FAIRFAX INC. By: /s/ Eric P. Salsberg ------------------------------------------- Name: Eric P. Salsberg Title: Vice President TIG HOLDINGS, INC. By: /s/ V. P. Watsa ------------------------------------------- Name: V. Prem Watsa Title: Chairman TIG INSURANCE GROUP INC. By: /s/ Michael J. Sluka ------------------------------------------- Name: Michael J. Sluka Title: Senior Vice President, Chief Financial Officer and Treasurer TIG INSURANCE COMPANY By: /s/ Richard F. Coerver IV ------------------------------------------- Name: Richard F. Coerver IV Title: Vice President ODYSSEY RE HOLDINGS CORP. By: /s/ Donald L. Smith ------------------------------------------- Name: Donald L. Smith Title: Senior Vice President, General Counsel and Corporate Secretary ODYSSEY AMERICA REINSURANCE CORPORATION By: /s/ Donald L. Smith ------------------------------------------- Name: Donald L. Smith Title: Senior Vice President CLEARWATER INSURANCE COMPANY By: /s/ Donald L. Smith ------------------------------------------- Name: Donald L. Smith Title: Vice President CRUM & FORSTER HOLDINGS CORP. By: /s/ Mary Jane Robertson ------------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer CRUM & FORSTER HOLDING INC. By: /s/ Mary Jane Robertson ------------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, & Treasurer UNITED STATES FIRE INSURANCE COMPANY By: /s/ Mary Jane Robertson ------------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer THE NORTH RIVER INSURANCE COMPANY By: /s/ Mary Jane Robertson ------------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer EX-3.2 3 t13704exv3w2.txt EX-3.2 EXECUTION COPY ZENITH NATIONAL INSURANCE CORP. 3,100,000 Shares Common Stock UNDERWRITING AGREEMENT dated July 27, 2004 BANC OF AMERICA SECURITIES LLC J.P. MORGAN SECURITIES INC. LEHMAN BROTHERS INC. DOWLING & PARTNERS SECURITIES, L.L.C. FERRIS, BAKER WATTS, INCORPORATED TABLE OF CONTENTS
PAGE ---- SECTION 1. Representations and Warranties of the Company and the Selling Stockholders.................. 2 SECTION 2. Purchase, Sale and Delivery of the Common Shares............................................ 12 SECTION 3. Additional Covenants of the Company and the Selling Stockholders............................ 14 SECTION 4. Payment of Expenses......................................................................... 17 SECTION 5. Conditions of the Obligations of the Underwriters........................................... 18 SECTION 6. Reimbursement of Underwriters' Expenses..................................................... 21 SECTION 7. Effectiveness of this Agreement............................................................. 22 SECTION 8. Indemnification............................................................................. 22 SECTION 9. Contribution................................................................................ 26 SECTION 10. Default of One or More of the Several Underwriters.......................................... 28 SECTION 11. Termination of this Agreement............................................................... 28 SECTION 12. Representations and Indemnities to Survive Delivery......................................... 29 SECTION 13. Notices..................................................................................... 29 SECTION 14. Successors.................................................................................. 31 SECTION 15. Partial Unenforceability.................................................................... 31 SECTION 16. Governing Law Provisions.................................................................... 31 SECTION 17. General Provisions.......................................................................... 31 SCHEDULE A List of Underwriters.............................................................................. A-1 SCHEDULE B List of Selling Stockholders...................................................................... B-1 SCHEDULE C List of Designated Subsidiaries................................................................... C-1 SCHEDULE D List of Persons Subject to Lock-Up................................................................ D-1 EXHIBIT A-1 Opinion of Counsel for the Company............................................................... A-1-1 EXHIBIT A-2 Opinion of In-house Counsel for the Company...................................................... A-2-1 EXHIBIT B-1 Opinion of Counsel for the Selling Stockholders.................................................. B-1-1 EXHIBIT B-2 Opinion of In-house Counsel for the Selling Stockholders......................................... B-2-1 EXHIBIT C Form of Lock-Up Letter............................................................................. C-1-1
UNDERWRITING AGREEMENT July 27, 2004 BANC OF AMERICA SECURITIES LLC J.P. MORGAN SECURITIES INC. LEHMAN BROTHERS INC. DOWLING & PARTNERS SECURITIES, L.L.C. FERRIS, BAKER WATTS, INCORPORATED As Representatives of the several Underwriters named in Schedule A hereto c/o BANC OF AMERICA SECURITIES LLC 9 West 57th Street New York , NY 10019 Ladies and Gentlemen: The stockholders of Zenith National Insurance Corp., a Delaware corporation (the "Company"), named in Schedule B (collectively, the "Selling Stockholders") severally propose to sell to the underwriters named in Schedule A (the "Underwriters") an aggregate of 3,100,000 shares (the "Firm Common Shares") of Common Stock, par value $1.00 per share (the "Common Stock"), of the Company. In addition, certain of the Selling Stockholders have severally granted to the Underwriters an option to purchase up to an additional 400,000 shares (the "Optional Common Shares") of Common Stock, as provided in Section 2 hereof, each Selling Stockholder selling up to the amount set forth opposite such Selling Stockholder's name in Schedule B. The Firm Common Shares and, if and to the extent such option is exercised, the Optional Common Shares are collectively referred to herein as the "Common Shares". Banc of America Securities LLC ("BAS"), J.P. Morgan Securities Inc., Lehman Brothers Inc., Dowling & Partners Securities, L.L.C. and Ferris, Baker Watts, Incorporated have agreed to act as representatives of the Underwriters (in such capacity, the "Representatives") in connection with the offering and sale of the Common Shares. The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (File No. 333-116516), which contains a form of prospectus to be used in connection with the public offering and sale of the Common Shares. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, in the form in which it was declared effective by the Commission under the Securities Act of 1933 and the rules and regulations promulgated thereunder (collectively, the "Securities Act"), including all documents incorporated or deemed to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A or Rule 434 under the Securities Act or the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder (collectively, the "Exchange Act"), is referred to herein as the "Registration Statement". Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is referred to herein as the "Rule 462(b) Registration Statement", and from and after the date and time of filing of the Rule 462(b) Registration Statement the term "Registration Statement" shall include the Rule 462(b) Registration Statement. Such prospectus, in the form first used by the Underwriters to confirm sales of the Common Shares, is referred to herein as the "Prospectus"; provided, however, that if the Company has, with the consent of BAS, elected to rely upon Rule 434 under the Securities Act, the term "Prospectus" shall mean the Company's prospectus subject to completion (each, a "preliminary prospectus") dated July 21, 2004 (such preliminary prospectus is referred to herein as the "Rule 434 preliminary prospectus"), together with the applicable term sheet (the "Term Sheet") prepared and filed by the Company with the Commission under Rules 434 and 424(b) under the Securities Act and all references in this Agreement to the date of the Prospectus shall mean the date of the Term Sheet. All references in this Agreement to the Registration Statement, the Rule 462(b) Registration Statement, a preliminary prospectus, the Prospectus or the Term Sheet, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the Exchange Act which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be. The Company and the Selling Stockholders hereby confirm their respective agreements with the Underwriters as follows: SECTION 1. Representations and Warranties of the Company and the Selling Stockholders. A. Representations and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter as follows: (a) Compliance with Registration Requirements. The Registration Statement and any Rule 462(b) Registration Statement have been declared effective by the Commission under the Securities Act. The Company has complied with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. 2 Each preliminary prospectus and the Prospectus when filed complied in all material respects with the Securities Act and, if filed by electronic transmission pursuant to EDGAR (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Common Shares. Each of the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto, at the time it became effective and at all subsequent times, complied and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus (including any Prospectus wrapper), as amended or supplemented, as of its date and at all subsequent times, did not and will not contain any untrue statement of a material fact or omit to state a material fact (except, in the case of a preliminary prospectus, for pricing and other financial terms intentionally left blank) necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by the Representatives expressly for use therein. (b) Offering Materials Furnished to Underwriters. The Company has delivered to the Representatives one complete manually signed copy of the Registration Statement and of each consent and certificate of experts filed as a part thereof, and conformed copies of the Registration Statement (without exhibits) and preliminary prospectuses and the Prospectus, as amended or supplemented, in such quantities and at such places as the Representatives have reasonably requested for each of the Underwriters. (c) Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the later of the Second Closing Date (as defined below) and the completion of the Underwriters' distribution of the Common Shares, any offering material in connection with the offering and sale of the Common Shares other than a preliminary prospectus, the Prospectus (including any Prospectus wrapper) or the Registration Statement. (d) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company. (e) No Applicable Registration or Other Similar Rights. Except as described in the Prospectus or with respect to rights granted pursuant to the purchase agreement dated as of February 4, 1981 among Reliance Insurance Company ("Reliance"), Zenith National Insurance Corp., Eugene V. Klein, Daniel Schwartz, Harvey L. Silbert, and the parties set forth on Exhibit A thereto and pursuant to a stock purchase agreement dated June 25, 1999 between Reliance and Fairfax Financial Holdings Limited ("Fairfax"), there are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, other than the Selling Stockholders with respect to the Common Shares included in the Registration Statement. 3 (f) No Material Adverse Change. Except as otherwise disclosed in the Prospectus, subsequent to the respective dates as of which information is given in the Prospectus: (i) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business, operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity (any such change is called a "Material Adverse Change"); (ii) the Company and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction or agreement not in the ordinary course of business; (iii) except for regular quarterly dividends on the Common Stock in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock. (g) Independent Accountants. PricewaterhouseCoopers LLP, who have expressed their opinion with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) filed with the Commission as a part of the Registration Statement and included in the Prospectus, are independent registered public accountants as required by the Securities Act and the Exchange Act. (h) Preparation of the Financial Statements. The financial statements filed with the Commission as a part of the Registration Statement and included in the Prospectus present fairly the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. The supporting schedules, if any, included in the Prospectus present fairly in accordance with generally accepted accounting principles ("GAAP") the information required to be stated therein. Such financial statements and supporting schedules have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements or supporting schedules are required to be included in the Registration Statement. The financial data set forth in the Prospectus under the captions "Summary -- Summary Historical Consolidated Financial Data," "Capitalization" and "Management's Discussion and Consolidated Analysis of Financial Condition and Results of Operations" fairly present the information set forth therein on a basis consistent with that of the audited financial statements contained in the Registration Statement. (i) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company and its "significant subsidiaries (as such term is defined in Rule 1-02(w) of Regulation S-X) and each subsidiary listed on Schedule C hereto (each a "Designated Subsidiary" and, collectively, the "Designated Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and, in the case of the Company, to enter into and perform its obligations under this Agreement. Each of the Company and each Designated Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions (other than the State of California) where the failure to so qualify or to be in good standing would not be reasonably expected to result, individually or in the aggregate, in a Material Adverse Change. All of the 4 issued and outstanding capital stock of each subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2003. (j) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" (other than for subsequent issuances or acquisitions, if any, pursuant to employee benefit plans described in the Prospectus or upon exercise of outstanding options described in the Prospectus). The Common Stock (including the Common Shares) conforms in all material respects to the description incorporated by reference in the Prospectus. All of the issued and outstanding shares of Common Stock (including the shares of Common Stock owned by Selling Stockholder) have been duly authorized and validly issued, are fully paid and nonassessable and have been issued in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its subsidiaries other than those accurately described in the Prospectus. The description of the Company's stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, incorporated by reference in the Prospectus accurately and fairly presents the information required to be shown with respect to such plans, arrangements, options and rights. (k) Listing. The Common Shares are listed on the New York Stock Exchange. (l) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws or is in default (or, with the giving of notice or lapse of time, would be in default) ("Default") under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an "Existing Instrument"), except for such Defaults as would not be reasonably expected to result, individually or in the aggregate, in a Material Adverse Change. The Company's execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus (i) have been duly authorized by all necessary corporate action and will not result in any violation of the provisions of the charter or by-laws of the Company or any subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or any subsidiary, except, with respect to each of clauses (i), (ii) and (iii) above, for such violations, conflicts, breaches, Defaults, liens, charges or encumbrances as would not be reasonably 5 expected to result, individually or in the aggregate, in a Material Adverse Change. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency, is required for the Company's execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby and by the Prospectus, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable state securities or blue sky laws and from the National Association of Securities Dealers, Inc. (the "NASD") and except where the failure to make any such filing or to obtain any such authorization, approval, consent, license, order, registration qualification or decree would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Change. As used herein, a "Debt Repayment Triggering Event" means any event or condition which gives, or with the giving of notice or lapse of time would give, 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 of its subsidiaries. (m) No Material Actions or Proceedings. There are no legal or governmental actions, suits or proceedings pending or, to the Company's knowledge, threatened (i) against or affecting the Company or any of its subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned or leased by, the Company or any of its subsidiaries or (iii) relating to environmental or discrimination matters, where in any such case (A) there is a reasonable possibility that such action, suit or proceeding might be determined adversely to the Company or such subsidiary and (B) any such action, suit or proceeding, if so determined adversely, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change or adversely affect the consummation of the transactions contemplated by this Agreement. No material labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Company's knowledge, is threatened or imminent that may, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change. (n) Intellectual Property Rights. The Company and its subsidiaries own or possess, or can acquire on reasonable terms, sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets and other similar rights (collectively, "Intellectual Property Rights") reasonably necessary to conduct their businesses as now conducted; and the expected expiration of any of such Intellectual Property Rights would not, individually 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 infringement or conflict with asserted Intellectual Property Rights of others, which infringement or conflict, if the subject of an unfavorable decision, would reasonably be expected to result in a Material Adverse Change. (o) All Necessary Permits, etc. The Company and each subsidiary possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not reasonably be expected to result in a Material Adverse Change, and neither the Company nor any subsidiary has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, individually or in the 6 aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material Adverse Change. (p) Title to Properties. The Company and each of its subsidiaries has good and marketable title to all the real properties and good title to all the personal property and owns the other assets reflected as owned in the financial statements referred to in Section 1(A)(i) above, in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except such as do not materially and adversely affect the value of such property and do not materially interfere with the use made or proposed to be made of such property by the Company or such subsidiary. All of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Prospectus, are in full force and effect (assuming compliance therewith by the other parties thereto), and neither the Company nor any of its subsidiaries has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any of its subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of such the Company or any subsidiary thereof to the continued possession of the leased or subleased premises under any such lease or sublease. (q) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal, state and foreign income and franchise tax returns and have, to the Company's knowledge, paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them other than those (i) currently payable without penalty or interest or (ii) being contested in good faith and for which, in the case of both clauses (i) and (ii), adequate reserves have been established on the books and records of the Company and its subsidiaries. The Company has made adequate charges, accruals and reserves in the applicable financial statements referred to in Section 1 (A)(i) above in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or any of its subsidiaries has not been finally determined. (r) Company Not an "Investment Company". The Company is not an "investment company" within the meaning of Investment Company Act. (s) No Price Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares. (t) Related Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary or any other person required to be described in the Prospectus which have not been described (or incorporated by reference) as required. (u) Disclosure Controls and Procedures. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-14 under the Exchange Act), which (i) are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company's principal executive 7 officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared, (ii) have been evaluated for effectiveness as of a date within 90 days prior to the filing of the Company's most recent annual or quarterly report filed with the Commission and (iii) are effective in all material respects to perform the functions for which they were established. Based on the evaluation of the Company's disclosure controls and procedures described above, the Company is not aware of (a) any significant deficiency in the design or operation of internal controls which could adversely affect the Company's ability to record, process, summarize and report financial data or any material weaknesses in internal controls or (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls. Since the most recent evaluation of the Company's disclosure controls and procedures described above, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls. (v) Company's Accounting System. The Company maintains a system of accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (w) Compliance with Environmental Laws. Except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries is in violation of any statute or any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "environmental laws"), owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation, contamination, liability or claim would individually or in the aggregate reasonably be expected to result in a Material Adverse Change; and the Company is not aware of any pending investigation which would reasonably be expected to lead to such a claim. (x) ERISA Compliance. Each of the Company and its subsidiaries has fulfilled their respective obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974 ("ERISA") and the regulations and published interpretations thereunder with respect to each "plan" (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Company or any of its subsidiaries are eligible to participate and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations, other than such non-fulfillment or non-compliance that would not reasonably be expected to result in a Material Adverse Change. The Company and its subsidiaries have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title 8 IV of ERISA, except for such liability as would not be reasonably expected to result in a Material Adverse Change. (y) Brokers. Except as otherwise disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder's fee or other fee or commission as a result of any transactions contemplated by this Agreement. (z) No Outstanding Loans or Other Indebtedness. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the executive officers or directors of the Company, except as disclosed in the Prospectus. (aa) No Material Changes in Insurance Reserving Practices. Except as disclosed in the Prospectus, the Company and its subsidiaries have made no material changes in their insurance reserving practices since the most recent audited financial statements included in the Prospectus. (bb) Validity of Reinsurance Treaties. All reinsurance treaties and arrangements to which any subsidiary is a party are in full force and effect (assuming compliance therewith by the other parties thereto) and no subsidiary is in violation of or in default in the performance, observance or fulfillment of, any obligation, agreement, covenant or condition contained therein; no subsidiary has received any notice from any of the other parties to such treaties, contracts or agreements that such other party intends not to perform such treaty and, to the best knowledge of the Company, the Company and the subsidiaries have no reason to believe that any of the other parties to such treaties or arrangements will be unable to perform such treaty or arrangement; except, in each of the above cases, (A) to the extent adequately and properly reserved for in the consolidated financial statements of the Company included in the Prospectus and (B) as would not reasonably be expected to result in a Material Adverse Change. (cc) Statutory Statements. The statutory financial statements of the Company's subsidiaries required to file such statutory financial statements and the statutory balance sheets and income statements included in such statutory financial statements, most recently filed in each jurisdiction, have been prepared in all material respects in conformity with required or permitted or prescribed statutory accounting principles or practices applied on a consistent basis, except as may otherwise be indicated in the notes thereto, and present fairly the financial position of such subsidiaries (on a statutory basis) for the period covered thereby. (dd) Ratings. The various ratings assigned to the Company's subsidiaries as of July 23, 2004 have not been lowered or, to the Company's knowledge, threatened to be lowered by A.M. Best Company, Inc. ("A.M. Best"), Fitch, Inc. ("Fitch"), Standard & Poor's Ratings Services, a division of McGraw Hill, Inc. ("S&P") or Moody's Investors Service, Inc. ("Moody's"), as applicable, nor, to the Company's knowledge, have such ratings been placed under surveillance or review by A.M. Best, S&P, Fitch, or Moody's, as applicable. (ee) Exchange Act Compliance. The documents incorporated or deemed to be incorporated by reference in 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, when read together with the other information in the Prospectus, at the time 9 the Registration Statement and any amendments thereto become effective and at the First Closing Date and the Second Closing Date, as the case may be, 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, in the light of the circumstances under which they were made, not misleading. Any certificate signed by or on behalf of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters covered thereby. The Company acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 5 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance. B. Representations and Warranties of the Selling Stockholder. Each of the Selling Stockholders, severally and not jointly, as to itself represents, warrants and covenants to each Underwriter as follows: (a) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. (b) Title to Common Shares to be Sold; All Authorizations Obtained. Such Selling Stockholder has, and on the First Closing Date and the Second Closing Date (as defined below) will have, good and valid title to all of the Common Shares which may be sold by such Selling Stockholder pursuant to this Agreement on such date and the legal right and power, and all authorizations and approvals required by law and under its charter or by-laws or other organizational documents to enter into this Agreement, to sell, transfer and deliver all of the Common Shares which may be sold by such Selling Stockholder pursuant to this Agreement and to comply with its other obligations hereunder and thereunder. (c) Delivery of the Common Shares to be Sold. Delivery of the Common Shares which are sold by such Selling Stockholder pursuant to this Agreement will pass good and valid title to such Common Shares, free and clear of any security interest, mortgage, pledge, lien, encumbrance or other claim. (d) Non-Contravention; No Further Authorizations or Approvals Required. The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, this Agreement will not contravene or conflict with, result in a breach of, or constitute a Default under, or require the consent of any other party to, the charter or by-laws or other organizational documents of such Selling Stockholder or any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound or 10 under which it is entitled to any right or benefit, any provision of applicable law or any judgment, order, decree or regulation applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder, except for such violations, conflicts, Defaults or breaches as would not be reasonably expected to have, individually or in the aggregate, a material adverse effect on such Selling Stockholder's ability to consummate the transactions contemplated by this Agreement. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental authority or agency, is required for the consummation by such Selling Stockholder of the transactions contemplated in this Agreement except under the Securities Act, applicable state securities or blue sky laws and from the NASD and except where the failure to make any such filing or to obtain any such authorization, approval, consent, license, order, registration qualification or decree would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on such Selling Stockholder's ability to consummate the transactions contemplated by this Agreement. (e) No Registration or Other Similar Rights. Such Selling Stockholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as are described in the Prospectus and pursuant to a stock purchase agreement dated June 25, 1999 between Reliance and Fairfax and, in the case of Clearwater, except for rights pursuant to the stock purchase agreement, dated as of November 21, 2001, between the Company and Clearwater. (f) No Further Consents, etc. Except for the consent of such Selling Stockholder to the respective number of Common Shares to be sold by such Selling Stockholder pursuant to this Agreement, no consent, approval or waiver is required under any instrument or agreement to which such Selling Stockholder is a party or by which it is bound or under which it is entitled to any right or benefit, in connection with the offering, sale or purchase by the Underwriters of any of the Common Shares which may be sold by such Selling Stockholder under this Agreement or the consummation by such Selling Stockholder of any of the other transactions contemplated hereby. (g) Disclosure Made by Such Selling Stockholder in the Prospectus. All information furnished by such Selling Stockholder or on behalf of such Selling Stockholder by any of its representatives in writing for use in the Registration Statement and Prospectus is, and on the First Closing Date and the Second Closing Date will be, true, correct, and complete in all material respects, and does not, and on the First Closing Date and the Second Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading. Such Selling Stockholder confirms as accurate the number of shares of Common Stock set forth opposite such Selling Stockholder's name in the Prospectus under the caption "Selling Stockholders" (both prior to and after giving effect to the sale of the Common Shares). (h) No Price Stabilization or Manipulation. Such Selling Stockholder has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Common Shares. 11 (i) No Additional Information. Such Selling Stockholder is not prompted to sell shares of Common Stock by any material information concerning the Company which is not set forth in the Registration Statement and the Prospectus. Any certificate signed by any Selling Stockholder or by any representative on behalf of such Selling Stockholder and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by such Selling Stockholder to each Underwriter as to the matters covered thereby. Such Selling Stockholder acknowledges that the Underwriters and, for purposes of the opinion to be delivered pursuant to Section 5 hereof, counsel to the Company and counsel to the Underwriters, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance. SECTION 2. Purchase, Sale and Delivery of the Common Shares. (a) The Firm Common Shares. The Selling Stockholders agree to sell to the several Underwriters the Firm Common Shares upon the terms set forth herein. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Selling Stockholders the respective number of Firm Common Shares set forth opposite their names on Schedule A. The purchase price per Firm Common Share to be paid by the several Underwriters to the Selling Stockholders shall be $41.1510 per share. (b) The First Closing Date. Delivery of certificates for the Firm Common Shares to be purchased by the Underwriters and payment therefor shall be made at the offices of BAS, 9 West 57th Street New York NY (or such other place as may be agreed to by the Company, the Selling Stockholders and the Representatives) at 9:00 a.m. New York time, on July 30, 2004 or such other time and date not later than 1:30 p. m. New York time, on July 30, 2004 as the Representatives shall designate by notice to the Company and the Selling Stockholders (the time and date of such closing are called the "First Closing Date"). The Company and the Selling Stockholders hereby acknowledge that circumstances under which the Representatives may provide notice to postpone the First Closing Date as originally scheduled include, but are in no way limited to, any determination by the Company, the Selling Stockholders or the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 10. (c) The Optional Common Shares; the Second Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, Clearwater Insurance Company ("Clearwater") and United States Fire Insurance Company (collectively with Clearwater, the "Option Selling Stockholders") each hereby grants, severally and not jointly, an option to the several Underwriters to purchase from it up to an aggregate of 200,000 Optional Common Shares (collectively, 400,000 Optional Common Shares) at the purchase price per share to be paid by the Underwriters for the Firm Common Shares. The option granted hereunder is for use by the Underwriters solely in covering any over-allotments in connection with the sale and distribution of the Firm Common Shares. The option granted hereunder may be exercised at any time (but not more than once) upon notice 12 by the Representatives to the Option Selling Stockholders (with a copy to the Company), which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Common Shares as to which the Underwriters are exercising the option, (ii) the names and denominations in which the certificates for the Optional Common Shares are to be registered and (iii) the time, date and place at which such certificates will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in such case the term "First Closing Date" shall refer to the time and date of delivery of certificates for the Firm Common Shares and the Optional Common Shares). Such time and date of delivery, if subsequent to the First Closing Date, is called the "Second Closing Date" and shall be determined by the Representatives and shall not be earlier than three nor later than five full business days after delivery of such notice of exercise. If any Optional Common Shares are to be purchased, (a) each Underwriter agrees, severally and not jointly, to purchase the number of Optional Common Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Common Shares to be purchased as the number of Firm Common Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Common Shares and (b) each Option Selling Stockholder agrees, severally and not jointly, to sell the number of Optional Common Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Common Shares to be sold as the number of Optional Common Shares set forth in Schedule B opposite the name of such Selling Stockholder bears to the total number of Optional Common Shares. The Representatives may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Selling Stockholders (with a copy to the Company). (d) Offering of the Common Shares. The Representatives hereby advise the Company and the Selling Stockholders that the Underwriters intend to offer for sale to the public in the United States, as described in the Prospectus, and privately in Canada their respective portions of the Common Shares as soon after this Agreement has been executed and the Registration Statement has been declared effective as the Representatives, in their sole judgment, has determined is advisable and practicable. (e) Payment for the Common Shares. Payment for the Common Shares to be sold by the Selling Stockholders shall be made at the First Closing Date (and, if applicable, at the Second Closing Date) by wire transfer of immediately available funds to the order of the Selling Stockholders. It is understood that the Representatives have been authorized, for their own account and the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Firm Common Shares and any Optional Common Shares the Underwriters have agreed to purchase. BAS, individually and not as the Representative of the Underwriters, may (but shall not be obligated to) make payment for any Common Shares to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the First Closing Date or the Second Closing Date, as the case may be, for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement. 13 Each Selling Stockholder hereby agrees that it will pay all stock transfer taxes, stamp duties and other similar taxes, if any, payable upon the sale or delivery of the Common Shares to be sold by such Selling Stockholder to the several Underwriters, or otherwise in connection with the performance of such Selling Stockholder's obligations hereunder. (f) Delivery of the Common Shares. The Selling Stockholders shall deliver, or cause to be delivered, to the Representatives for the accounts of the several Underwriters certificates for the Firm Common Shares to be sold by the Selling Stockholders at the First Closing Date, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The Option Selling Stockholders shall also deliver, or cause to be delivered, to the Representatives for the accounts of the several Underwriters, certificates for the Optional Common Shares the Underwriters have agreed to purchase from the Selling Stockholders at the First Closing Date or the Second Closing Date, as the case may be, against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The certificates for the Common Shares shall be in definitive form and registered in such names and denominations as the Representatives shall have requested at least two full business days prior to the First Closing Date (or the Second Closing Date, as the case may be) and shall be made available for inspection on the business day preceding the First Closing Date (or the Second Closing Date, as the case may be) at a location in New York City as the Representatives may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters. (g) Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m. on the second business day following the date the Common Shares are first released by the Underwriters for sale to the public, the Company shall deliver or cause to be delivered, copies of the Prospectus in such quantities and at such places as the Representatives shall request. SECTION 3. Additional Covenants of the Company and the Selling Stockholders. A. Covenants of the Company. The Company further covenants and agrees with each Underwriter as follows: (a) Representatives' Review of Proposed Amendments and Supplements. During such period beginning on the date hereof and ending on the later of the First Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer (the "Prospectus Delivery Period"), prior to amending or supplementing the Registration Statement (including any registration statement filed under Rule 462(b) under the Securities Act) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall consult with the Representatives before filing, and provide the Representatives the opportunity to review and comment on, each such proposed amendment or supplement. (b) Securities Act Compliance. After the date of this Agreement, the Company shall promptly advise the Representatives and, if requested by the Representatives, confirm such advice in writing (i) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (ii) of the time and date of any filing of any post-effective 14 amendment to the Registration Statement or any amendment or supplement to any preliminary prospectus or the Prospectus, (iii) of the time and date that any post-effective amendment to the Registration Statement becomes effective and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its reasonable best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A and 434, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under such Rule 424(b) were received in a timely manner by the Commission. (c) Amendments and Supplements to the Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if in the opinion of the Representatives or counsel for the Underwriters it is otherwise necessary to amend or supplement the Prospectus to comply with law, the Company agrees to promptly prepare (subject to Section 3 (A)(a) hereof), file with the Commission and furnish to the Underwriters and to dealers, without charge, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. (d) Copies of any Amendments and Supplements to the Prospectus. The Company agrees to furnish the Representatives, without charge, during the Prospectus Delivery Period, as many copies of the Prospectus and any amendments and supplements thereto as the Representatives may reasonably request. (e) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Common Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those U.S. jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Common Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Common Shares for offering, sale or trading in any U.S. jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment. 15 (f) Transfer Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Common Stock. (g) Earnings Statement. As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement (which need not be audited) covering the twelve-month period ending June 30, 2005 that satisfies the provisions of Section 11(a) of the Securities Act. (h) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act. Additionally, the Company shall report the use of proceeds from the issuance of the Common Shares as may be required under Rule 463 under the Securities Act. (i) Company to Provide Interim Financial Statements. Prior to the Closing Date, the Company will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement and the Prospectus. (j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the date hereof and ending on the 90th day following the date hereof, the Company will not, without the prior written consent of BAS, directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any shares of Common Stock, options or warrants to acquire shares of the Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Common Shares); provided, however, that the Company may issue shares of its Common Stock or options to purchase its Common Stock, or Common Stock upon exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Prospectus. (k) Future Reports to the Representatives. During the period of two years hereafter the Company will furnish to the Representatives at 9 West 57th Street, New York, NY 10022 Attention: Thomas M. Morrison: (i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements of income, stockholders' equity and cash flows for the year then ended and the opinion thereon of the Company's independent public or certified public accountants; (ii) as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission pursuant to the Exchange Act (other than any specific sections of such reports that are the subject of a pending request for confidential treatment or for which the Commission has agreed to afford confidential treatment); and (iii) as soon as available, copies of any report or communication of the Company mailed generally to holders of its capital stock; provided, however, that the Company shall not be required to provide the Representatives with any such information, reports or similar forms that 16 have been filed or furnished with the Commission by an electronic transmission pursuant to the Electronic Data Gathering Analysis and Retrieval System (EDGAR) or an equivalent electronic database authorized by the Commission. (l) Exchange Act Compliance. During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act. (m) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company. B. Covenants of the Selling Stockholders. Each Selling Stockholder further covenants and agrees with each Underwriter: (a) Agreement Not to Offer or Sell Additional Securities. Such Selling Stockholder will not, without the prior written consent of BAS, directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of any shares of Common Stock (other than by selling shares of Common Stock in the offering contemplated by the Registration Statement), options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under Securities Exchange Act of 1934, as amended) by the undersigned, or publicly announce the undersigned's intention to do any of the foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 180 days after the date hereof. (b) Delivery of Forms W-8 and W-9. To deliver to the Representatives prior to the First Closing Date a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States person) or Form W-9 (if the Selling Stockholder is a United States Person). BAS, on behalf of the several Underwriters, may, in its sole discretion, waive in writing the performance by the Company or any Selling Stockholder of any one or more of the foregoing covenants or extend the time for their performance, as applicable. Notwithstanding the foregoing, BAS, for the benefit of each of the other Underwriters, agrees not to consent to any action proposed to be taken by the Company, any Selling Stockholder or any other holder of the Company's securities that would otherwise be prohibited by, or to waive compliance by the Company, any Selling Stockholder or any such other security holder with the provisions of, Section 3A(k) or 3B(a) above or any lock-up agreement delivered pursuant to Section 6(k) below without giving each of the other Underwriters at least 17 days prior notice (or such shorter notice as BAS may deem acceptable, if at all, to permit compliance with applicable provisions of NYSE Rule 472(f) restricting publication and distribution of research and public appearances by research analysts before and after the expiration, waiver or termination of a lock-up agreement). SECTION 4. Payment of Expenses. The Selling Stockholders, severally and not jointly, agree to pay their pro rata share of all costs, fees and expenses incurred in connection with the 17 performance of the obligations of the Company and such Selling Stockholder hereunder and in connection with the transactions contemplated hereby (whether or not consummated), including without limitation (i) all reasonable expenses incident to the delivery of the Common Shares, (ii) all reasonable fees and expenses of the registrar and transfer agent of the Common Stock, (iii) all necessary transfer and other stamp taxes in connection with the sale of the Common Shares to the Underwriters, (iv) all reasonable fees and expenses of the Company's counsel, independent public or certified public accountants and other advisors, (v) all reasonable costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each preliminary prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, (vi) all filing fees, reasonable attorneys' fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Common Shares for offer and sale under the state securities or blue sky laws, as applicable, (vii) the filing fees incident to, and the reasonable fees and expenses of counsel for the Underwriters in connection with, the NASD's review and approval of the Underwriters' participation in the offering and distribution of the Common Shares and (viii) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement. Except as provided in this Section 4, Section 6, Section 8 and Section 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel. Notwithstanding the foregoing, the Underwriters have agreed to reimburse the Selling Stockholders on or before the First Closing Date for their pro rata actual out-of-pocket expenses incurred in connection with the offering, in an amount not to exceed $400,000. Each Selling Stockholder further agrees with each Underwriter to pay (directly or by reimbursement) all reasonable fees and expenses incident to the performance of such Selling Stockholder's obligations under this Agreement which are not otherwise specifically provided for herein, including but not limited to (i) reasonable fees and expenses of counsel and other advisors for such Selling Stockholders and (ii) expenses and taxes incident to the sale and delivery of the Common Shares to be sold by such Selling Stockholder to the Underwriters hereunder. This Section 4 shall not affect or modify any separate, valid agreement relating to the allocation of payment of expenses between the Company, on the one hand, and the Selling Stockholders, or any of their affiliates, on the other hand. SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Common Shares as provided herein on the First Closing Date and, with respect to the Optional Common Shares, the Second Closing Date, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders set forth in Sections 1(A) and 1(B) hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Common Shares, as of the Second Closing Date as though then made, to the timely performance by the Company and the Option Selling Stockholders of their respective covenants and other obligations hereunder, and to each of the following additional conditions: 18 (a) Accountants' Comfort Letter. On the date hereof, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountant's "comfort letters" to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement and the Prospectus (and the Representatives shall have received an additional four conformed copies of such accountants' letter for each of the several Underwriters). (b) Compliance with Registration Requirements; No Stop Order; No Objection from NASD. For the period from and after effectiveness of this Agreement and prior to the First Closing Date and, with respect to the Optional Common Shares, the Second Closing Date: (i) the Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective; or, if the Company elected to rely upon Rule 434 under the Securities Act and obtained the Representatives' consent thereto, the Company shall have filed a Term Sheet with the Commission in the manner and within the time period required by such Rule 424(b); (ii) no stop order suspending the effectiveness of the Registration Statement, any Rule 462(b) Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission; and (iii) the NASD shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements. (c) No Material Adverse Change. For the period from and after the date of this Agreement and prior to the First Closing Date and, with respect to the Optional Common Shares, the Second Closing Date, in the judgment of the Representatives there shall not have occurred any Material Adverse Change. (d) Opinion of Counsel for the Company. On each of the First Closing Date and the Second Closing Date the Representatives shall have received the favorable opinion, dated as of such Closing Date, of (i) Skadden, Arps, Slate, Meagher & Flom, LLP, counsel for the Company, together with signed copies of such letter for the Representatives substantially to the effect set forth in Exhibit A-1 hereto and (ii) of John J. Tickner, Esq., Senior Vice President and Secretary of the Company, together with signed copies of such letter for the Representatives substantially to the effect set forth in Exhibit A-2. 19 (e) Opinion of Counsel for the Underwriters. On each of the First Closing Date and the Second Closing Date the Representatives shall have received the favorable opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Underwriters, dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives (and the Representatives shall have received an additional four conformed copies of such counsel's legal opinion for each of the several Underwriters). In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. (f) Officers' Certificate. On each of the First Closing Date and the Second Closing Date the Representatives shall have received a written certificate executed by the Chairman of the Board, Chief Executive Officer or President of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date, to the effect set forth in subsections (b)(ii) and (c)(ii) of this Section 5, and further to the effect that: (i) for the period from and after the date of this Agreement and prior to such Closing Date, there has not occurred any Material Adverse Change; (ii) the representations, warranties and covenants of the Company set forth in Section 1(A) of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date; and (iii) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date. (g) Bring-down Comfort Letter. On each of the First Closing Date and the Second Closing Date the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (a) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the First Closing Date or Second Closing Date, as the case may be (and the Representatives shall have received an additional four conformed copies of such accountants' letter for each of the several Underwriters). (h) Opinion of Counsel for the Selling Stockholders. On each of the First Closing Date (with respect to the Selling Stockholders) and the Second Closing Date (with respect to the Option Selling Stockholders) the Representatives shall have received the favorable opinion, dated as of such Closing Date, of (i) Shearman & Sterling LLP, counsel for the Selling Stockholders, together with signed copies of such letter for each of the several underwriters substantially to the effect set forth in Exhibit B-1 hereto and (ii) internal counsel for each of the Selling Stockholders, together with signed copies of each such letter for each of the several underwriters substantially to the effect set forth in Exhibit B-2. 20 (i) Selling Stockholders' Certificate. On each of the First Closing Date and, in the case of the Option Selling Stockholders, the Second Closing Date the Representatives shall receive a written certificate executed by each Selling Stockholder or each Option Selling Stockholder, as applicable, dated as of such Closing Date, to the effect that: (i) the representations, warranties and covenants of such Selling Stockholder set forth in Section 1(B) of this Agreement are true and correct with the same force and effect as though expressly made by such Selling Stockholder on and as of such Closing Date; and (ii) such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date. (j) Lock-Up Agreement from Certain Securityholders of the Company Other Than Selling Stockholders. On or prior to the date hereof, the Company shall have furnished to the Representatives an agreement in the form of Exhibit C hereto from those persons listed on Schedule D hereto, and such agreement shall be in full force and effect on each of the First Closing Date and the Second Closing Date. (k) Additional Documents. On or before each of the First Closing Date and the Second Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Common Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company and the Selling Stockholders at any time on or prior to the First Closing Date and, with respect to the Optional Common Shares, at any time prior to the Second Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 4, Section 6, Section 8 and Section 9 shall at all times be effective and shall survive such termination. SECTION 6. Reimbursement of Underwriters' Expenses. If this Agreement is terminated by the Representatives pursuant to Section 5, Section 7, Section 10 or Section 11(v), or if the sale to the Underwriters of the Common Shares on the First Closing Date is not consummated because of any refusal, inability or failure on the part of the Company or the Selling Stockholders to perform any agreement herein or to comply with any provision hereof, the Selling Stockholders agree, severally and not jointly, to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of such Selling Stockholder's Common Shares, including but not limited to reasonable fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. 21 SECTION 7. Effectiveness of this Agreement. This Agreement shall not become effective until the later of (i) the execution of this Agreement by the parties hereto and (ii) notification by the Commission to the Company and the Representatives of the effectiveness of the Registration Statement under the Securities Act. Prior to such effectiveness, this Agreement may be terminated by any party by notice to each of the other parties hereto, and any such termination shall be without liability on the part of (a) the Company or the Selling Stockholders to any Underwriter, except that the Selling Stockholders shall be obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to Sections 4 and 6 hereof, (b) any Underwriter to the Company or the Selling Stockholders, or (c) of any party hereto to any other party except that the provisions of Section 8 and Section 9 shall at all times be effective and shall survive such termination. SECTION 8. Indemnification. (a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and hold harmless each Underwriter, its officers and employees, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Common Shares have been offered, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or any prospectus wrapper material distributed in Canada, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) in whole or in part upon any inaccuracy in the representations and warranties of the Company contained herein; or (iv) in whole or in part upon any failure of the Company to perform its obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Common Stock or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) or (ii) above, provided that the Company shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its bad faith or willful misconduct; and to reimburse each Underwriter and each such controlling person for any and all expenses (including the fees and disbursements of counsel chosen by BAS) as such expenses are reasonably incurred by such Underwriter or such controlling person in connection with investigating, defending, settling, compromising or paying 22 any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Representatives expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); and provided, further, that with respect to any preliminary prospectus, the foregoing indemnity agreement shall not inure to the benefit of any Underwriter from whom the person asserting any loss, claim, damage, liability or expense purchased Common Shares, or any person controlling such Underwriter, if copies of the Prospectus were timely delivered to the Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have. (b) Indemnification of the Underwriters by the Selling Stockholders. Each of the Selling Stockholders, severally and not jointly, agrees to indemnify and hold harmless each Underwriter, its officers and employees, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Common Shares have been offered, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Selling Stockholders), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) or any prospectus wrapper material distributed in Canada, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (iii) in whole or in part upon any inaccuracy in the representations and warranties of such Selling Stockholder contained herein; or (iv) in whole or in part upon any failure of such Selling Stockholder to perform its respective obligations hereunder or under law; or (v) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Common Stock or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i) or (ii) above, provided that such Selling Stockholder shall not be liable under this clause (v) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Underwriter 23 through its bad faith or willful misconduct; and to reimburse each Underwriter and each such controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by BAS) as such expenses are reasonably incurred by such Underwriter or such controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company or any Selling Stockholder by the Representatives expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); and provided, further, that with respect to clauses (i), (ii) and (v) above, each Selling Stockholder shall be liable only to the extent arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by such Selling Stockholder expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto); and provided, further, that with respect to any preliminary prospectus, the foregoing indemnity agreement shall not inure to the benefit of any Underwriter from whom the person asserting any loss, claim, damage, liability or expense purchased Common Shares, or any person controlling such Underwriter, if copies of the Prospectus were timely delivered to the Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Common Shares to such person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense; and provided, further, that the liability of each Selling Stockholder under the foregoing indemnity agreement shall be limited to an amount equal to the initial public offering price of the Common Shares sold by such Selling Stockholder, less the underwriting discount, as set forth on the front cover page of the Prospectus. The Underwriters hereby acknowledge that the only information that the Selling Stockholders have furnished to the Company expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) are the statements relating to such Selling Stockholder set forth in the table in the first paragraph under the caption "Selling Stockholders" in the Prospectus; and such Selling Stockholder confirms that such statements are correct. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that the Selling Stockholders may otherwise have. (c) Indemnification of the Company, its Directors and Officers and the Selling Stockholders. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement, the Selling Stockholders, each of its directors and officers and each person, if any, who controls the Company or any Selling Stockholder within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company, or any such director, officer, Selling Stockholder or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Common Shares have been offered, or at common law or otherwise (including in settlement of any litigation, if such 24 settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or arises out of or is based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any preliminary prospectus, the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company or the Selling Stockholders by the Representatives expressly for use therein; and to reimburse the Company, or any such director, officer, Selling Stockholder or controlling person for any legal and other expense reasonably incurred by the Company, or any such director, officer, Selling Stockholder or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity agreement set forth in this Section 8(c) shall be in addition to any liabilities that each Underwriter may otherwise have. (d) Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing 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 for contribution or otherwise than under the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party's election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local counsel), approved by the indemnifying party (BAS in the case of Section 8(c) and Section 9), 25 representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. (e) Settlements. The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(d) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. Notwithstanding the immediately preceding sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, an indemnifying party shall not be liable for any settlement of the nature contemplated by Sections 8(a) or (b) effected without its consent if such indemnifying party (i) reimburses such indemnified party in accordance with such request to the extent it determines in good faith such request to be reasonable and (ii) provides written notice to the indemnified party substantiating in reasonable detail the unpaid balance as unreasonable, in each case prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could reasonably be expected to be a party and indemnity was or could reasonably be expected to have been sought hereunder by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding. SECTION 9. Contribution. If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, from the offering of the Common Shares pursuant to this Agreement 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 and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions or inaccuracies in the representations and warranties herein which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Stockholders, on the one hand, and the 26 Underwriters, on the other hand, in connection with the offering of the Common Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Common Shares pursuant to this Agreement (before deducting expenses) received by the Company and the Selling Stockholders, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus (or, if Rule 434 under the Securities Act is used, the corresponding location on the Term Sheet) bear to the aggregate initial public offering price of the Common Shares as set forth on such cover. The relative fault of the Company and the Selling Stockholders, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact or any such inaccurate or alleged inaccurate representation or warranty relates to information supplied by the Company or the Selling Stockholders, on the one hand, or the Underwriters, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(d), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 8(d) with respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 9; provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 8(d) for purposes of indemnification. The Company, the Selling Stockholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9. Notwithstanding the provisions of this Section 9, (i) no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Common Shares underwritten by it and distributed to the public and (ii) no Selling Stockholder shall be required to contribute any amount in excess of an amount equal to the public offering price of the Common Shares sold by such Selling Stockholder, less the underwriting discount, as set forth on the front cover page of the Prospectus. 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 to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each officer and employee of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company. 27 SECTION 10. Default of One or More of the Several Underwriters. If, on the First Closing Date or the Second Closing Date, as the case may be, any one or more of the several Underwriters shall fail or refuse to purchase Common Shares that it or they have agreed to purchase hereunder on such date, and the aggregate number of Common Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate number of the Common Shares to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportions that the number of Firm Common Shares set forth opposite their respective names on Schedule A bears to the aggregate number of Firm Common Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase the Common Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the First Closing Date or the Second Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Common Shares and the aggregate number of Common Shares with respect to which such default occurs exceeds 10% of the aggregate number of Common Shares to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Common Shares are not made within 48 hours after such default, this Agreement shall terminate without liability of any non-defaulting Underwriter, any Selling Stockholder or the Company to any other party to this Agreement except that the provisions of Section 4, Section 6, Section 8 and Section 9 shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the right to postpone the First Closing Date or the Second Closing Date, as the case may be, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement and the Prospectus or any other documents or arrangements may be effected. As used in this Agreement, the term "Underwriter" shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. SECTION 11. Termination of this Agreement. Prior to the First Closing Date this Agreement may be terminated by the Representatives by notice given to the Company and the Selling Stockholders if at any time (i) trading or quotation in any of the Company's securities shall have been suspended or limited by the Commission or by the NYSE; (ii) trading in securities generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or the NASD; (iii) a general banking moratorium shall have been declared by any of federal, New York , Delaware or California authorities; (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or any substantial change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States' or international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable to market the Common Shares in the manner and on the terms described in the Prospectus or to enforce contracts for the sale of securities; (v) in the judgment of the Representatives there shall have occurred any Material Adverse Change; or (vi) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such character as in the judgment of 28 the Representatives may interfere materially with the conduct of the business and operations of the Company regardless of whether or not such loss shall have been insured. Any termination pursuant to this Section 11 shall be without liability on the part of (a) the Company or the Selling Stockholders to any Underwriter, except that the Selling Stockholders shall be obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to Sections 4 and 6 hereof, (b) any Underwriter to the Company or the Selling Stockholders, or (c) of any party hereto to any other party except that the provisions of Section 8 and Section 9 shall at all times be effective and shall survive such termination. SECTION 12. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers , of the Selling Stockholders and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its or their partners, officers or directors or any controlling person, or the Selling Stockholders, as the case may be, and will survive delivery of and payment for the Common Shares sold hereunder and any termination of this Agreement. SECTION 13. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows: If to the Representatives: Banc of America Securities LLC 9 West 57th Street New York, NY 10019 Facsimile: (212) 933-2217 Attention: Thomas M. Morrison with a copy to: Banc of America Securities LLC 9 West 57th Street New York, New York 10019 Facsimile: (212) 583-8567 Attention: Legal Department and: LeBoeuf, Lamb, Greene & MacRae, L.L.P. 125 West 55th Street New York, New York 10019 Facsimile: (212) 424-8500 Attention: Alexander M. Dye If to the Company: 29 Zenith National Insurance Corp. 21255 Califa Street Woodland Hills, California 91367 Facsimile: (818) 592-0480 Attention: Chief Financial Officer with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071 Facsimile: (213) 687-5600 Attention: Jerome L. Coben and Jonathan L. Friedman If to the Selling Stockholders: TIG Insurance Company 5205 North O'Connor Boulevard Irving, Texas 75309 Facsimile: (972) 831-5833 Attention: John Parker and Clearwater Insurance Company 300 First Stamford Place Stamford, Connecticut 06902 Facsimile: (203) 965-7995 Attention: Donald L. Smith and United States Fire Insurance Company 305 Madison Avenue Morristown, New Jersey 07962 Facsimile: (973)-490-6849 Attention: Carol Ann Soos, Esq. and The North River Insurance Company 305 Madison Avenue Morristown, New Jersey 07962 Facsimile: (973)-490-6849 Attention: Carol Ann Soos, Esq. with a copy to: 30 Shearman & Sterling LLP Commerce Court West Suite 4405, P.O. Box 247 Toronto, Canada M5L 1E8 Facsimile: (416) 360-2958 Attention: Christopher J. Cummings Any party hereto may change the address for receipt of communications by giving written notice to the others. SECTION 14. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the employees, officers and directors and controlling persons referred to in Section 8 and Section 9, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term "successors" shall not include any purchaser of the Common Shares as such from any of the Underwriters merely by reason of such purchase. SECTION 15. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable. SECTION 16. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE. SECTION 17. General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations among the parties hereto with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Table of Contents and the Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement. Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, any 31 preliminary prospectus and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act. The respective indemnities, contribution agreements, representations, warranties and other statements of the Company, the Selling Stockholders and the several Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, any person controlling any Underwriter, the Company, the officers or employees of the Company, or any person controlling the Company, the Selling Stockholders or any person controlling any Selling Stockholder, (ii) acceptance of the Shares and payment for them hereunder and (iii) termination of this Agreement. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Selling Stockholders, the Underwriters, the Underwriters' officers and employees, any controlling persons referred to herein, the Company's directors and the Company's officers who sign the Registration Statement and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term "successors and assigns" shall not include a purchaser of any of the Shares from any of the several Underwriters merely because of such purchase. 32 If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms. Very truly yours, ZENITH NATIONAL INSURANCE CORP. By: /s/ Stanley R. Zax ---------------------------------- Name: Stanley R. Zax Title: President TIG INSURANCE COMPANY By: /s/ R. Scott Donovan ---------------------------------- Name: R. Scott Donovan Title: President CLEARWATER INSURANCE COMPANY By: /s/ Donald L. Smith ---------------------------------- Name: Donald L. Smith Title: Senior Vice President, General Counsel and Corporate Secretary UNITED STATES FIRE INSURANCE COMPANY By: /s/ Dennis J. Hammer ---------------------------------- Name: Dennis J. Hammer Title: Senior Vice President & Controller THE NORTH RIVER INSURANCE COMPANY By: /s/ Dennis J. Hammer ---------------------------------- Name: Dennis J. Hammer Title: Senior Vice President & Controller The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives in San Francisco, California as of the date first above written. 33 BANC OF AMERICA SECURITIES LLC J.P. MORGAN SECURITIES INC. LEHMAN BROTHERS INC. DOWLING & PARTNERS SECURITIES, L.L.C. FERRIS, BAKER WATTS, INCORPORATED Acting as Representatives of the several Underwriters named in the attached Schedule A. By: BANC OF AMERICA SECURITIES LLC By: /s/ Thomas Morrison ----------------------------- Name: Thomas Morrison Title: Managing Director 34 SCHEDULE A
NUMBER OF FIRM COMMON SHARES TO UNDERWRITERS BE PURCHASED - ------------ ---------------- Banc of America Securities LLC. .............................................................. 1,798,000 J.P. Morgan Securities, Inc. ................................................................. 465,000 Lehman Brothers Inc. ......................................................................... 465,000 Dowling & Partners Securities, L.L.C. ........................................................ 217,000 Ferris, Baker Watts, Incorporated............................................................. 155,000 Total................................................................................ 3,100,000
A-1 SCHEDULE B
NUMBER OF FIRM MAXIMUM NUMBER OF COMMON SHARES TO OPTIONAL COMMON SELLING STOCKHOLDER BE SOLD SHARES TO BE SOLD - ------------------- ---------------- ----------------- TIG Insurance Company 5205 North O'Connor Boulevard Irving, Texas 75309 Attention: John Parker............................................ 2,966,449 - Clearwater Insurance Company 300 First Stamford Place Stamford, Connecticut 06902 Attention: Donald L. Smith........................................ 66,776 200,000 United States Fire Insurance Company 305 Madison Avenue Morristown, New Jersey 07962 Attention: Carol Ann Soos, Esq. .................................. 46,775 200,000 The North River Insurance Company 305 Madison Avenue Morristown, New Jersey 07962 Attention: Carol Ann Soos, Esq. .................................. 20,000 - Total.......................................................... 3,100,000 400,000
B-1 SCHEDULE C LIST OF DESIGNATED SUBSIDIARIES Zenith Star Insurance Company (a Texas corporation) C-1 SCHEDULE D List of Persons subject to Lock-up Stanley R. Zax Jack D. Miller Robert E. Meyer William J. Owen John J. Tickner Fairfax Financial Holdings Limited (with respect to the stock held by its subsidiaries) Odyssey Re Holdings Corp. D-1 EXHIBIT A-1 Opinion of outside counsel for the Company to be delivered pursuant to Section 5(d)(i) of the Underwriting Agreement. References to the Prospectus in this Exhibit A-1 include any supplements thereto at the Closing Date. Subject to customary limitations, qualifications, exceptions and assumptions: 1. The Company is validly existing in good standing under the laws of the State of Delaware. 2. The Company has the corporate power and corporate authority to execute and deliver the Underwriting Agreement and consummate the transactions contemplated thereby. 3. The Underwriting Agreement has been duly authorized, executed and delivered by the Company. 4 The statements in Item 15 of the Registration Statement, insofar as such statements purport to summarize certain provisions of the Certificate of Incorporation or Bylaws or the laws referred to therein, fairly summarize such provisions or laws in all material respects. 5. No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of the Underwriting Agreement by the Company or the consummation by the Company of the transactions contemplated thereby. 6 The execution and delivery by the Company of the Underwriting Agreement and the consummation by the Company of the transactions contemplated thereby will not (i) conflict with the Certificate of Incorporation or By-laws, (ii) constitute a violation of, or a breach or default under, the terms of any Applicable Contract; provided, that with respect to the contracts listed as items 9 and 10 on Schedule A, we express no opinion as to any registration rights of stockholders of the Company or (iii) violate or conflict with, or result in any contravention of, any Applicable Law or any Applicable Order. We do not express any opinion, however, as to whether the execution, delivery or performance by the Company of the Underwriting Agreement will constitute a violation of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations of the Company or any of its subsidiaries. 7. The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. 8. Under current United States federal income tax law, although the discussion set forth in the Prospectus under the caption "United States Federal Income Tax Consequences to Non-U.S. Holders" does not purport to summarize all possible United States federal income tax consequences of the purchase, ownership, or disposition of the Securities, such discussion constitutes, in all material respects, a fair and accurate summary of the United States federal A-1-1 income tax consequences that are anticipated to be material to Non-U.S. Holders (as defined in the Prospectus) who purchase the Securities pursuant to the Prospectus. [NOTE: OPINION REGARDING TAX SECTION WILL BE DELIVERED IN A SEPARATE SASMF OPINION.] In addition, set forth in a separate letter and subject to customary limitations, qualifications, exceptions, and assumptions: We have been orally advised by the commission that the Registration Statement, was declared effective under the Securities Act at 2:30 PM EST, on July 23, 2004 and we have been orally advised by the Commission that: (i) no stop order suspending the effectiveness of the Registration Statement has been issues [and (ii) no proceedings for that purpose have been instituted or are pending or threatened by the Commission.] In addition, we have participated in conferences with officers and other representatives of the Company, representatives of the independent registered public accountants for the Company and with representatives of the Underwriters at which the contents of the Registration Statement and the Prospectus and related matters were discussed. We do not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement or the Prospectus and have made no independent check or verification thereof (except to the limited extent referred to in paragraphs 4 and 8 above). On the basis of the foregoing, (i) the Registration Statement, at the time it became effective, the Prospectus, as of its date, and the Incorporated Documents, as of their respective dates, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act, the Exchange Act and the Rules and Regulations, as applicable (except that in each case we do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the exhibits to the Registration Statement), (ii) all required filings of the Prospectus pursuant to Rule 424(b) under the Securities Act have been made in the manner and within the time period required by such Rule 424(b) and (iii) no facts have come to our attention that have caused us to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that in each case we do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the exhibits to the Registration Statement). A-1-2 EXHIBIT A-2 Opinion of outside counsel for the Company to be delivered pursuant to Section 5(d)(i) of the Underwriting Agreement. References to the Prospectus in this Exhibit A-2 include any supplements thereto at the Closing Date. Subject to the customary limitations, qualifications, exceptions and assumptions: 1. The Company and each Designated Subsidiary has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus. 2. The Company is duly qualified as a foreign corporation to transact business and is in good standing in the State of California. 3. Zenith Insurance Company is validly existing and in good legal standing under the laws of the State of California. Zenith Insurance Company is (i) licensed to issue policies and transact the business of insurance in the State of California, (ii) authorized to transact the business of insurance in the State of Florida, (iii) authorized to engage in the insurance business in the State of North Carolina, and (iv) is authorized to transact the business of insurance in the State of Texas. 4. ZNAT Insurance Company is validly existing and in good legal standing under the laws of the State of California. ZNAT Insurance Company is (i) licensed to issue policies and transact the business of insurance in the State of California, and (ii) is authorized to transact the business of insurance in the State of Texas. 5. Zenith Star Insurance Company is validly existing and in good legal standing under the laws of the State of Texas. Zenith Star Insurance Company is authorized to transact the business of insurance in the State of Texas. 6. All of the issued and outstanding shares of capital stock of the Designated Subsidiaries were duly authorized and validly issued and are fully paid and nonassessable. To my knowledge, the Company is the record owner of all of the outstanding shares of the Designated Subsidiaries, either directly, or indirectly through a wholly-owned subsidiary of the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. 7 The authorized, issued and outstanding capital stock of the Company (including the Common Stock) conforms as to legal matters to the descriptions thereof contained or incorporated by reference in the Prospectus. The form of certificate used to evidence the Common Stock complies in all material respects with applicable requirements of the Certificate of Incorporation and By-laws, and the General Corporation Law of the State of Delaware. The shares of capital stock of the Company shown by the Company's stock record books as being issued and outstanding as of the date set forth in the Prospectus have been duly authorized and A-2-1 validly issued and are fully paid and non-assessable, and free and clear of any preemptive rights or any similar rights arising under the General Corporation Law of the State of Delaware, the Certificate of Incorporation or the By-laws. 8. The statements in the Prospectus under the captions "Management's Discussion and Analysis of Consolidated Financial Condition and Results of Operations -- Liquidity and Capital Resources," "Business -- Regulation," and "Business -- Legal Proceedings," insofar as such statements constitute summaries of certain legal proceedings or legal conclusions, or purport to summarize certain provisions of law or the documents referred to therein, fairly summarize such provisions in all material respects. 9. To my knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to have any securities registered pursuant to the Registration Statement, except (i) as set forth in the agreements listed on Schedule A hereto or (ii) as disclosed in the Prospectus. 10. To my knowledge, neither the Company nor any of the Designated Subsidiaries is in violation of its certificate or articles of incorporation, as applicable, or by-laws and no default by the Company or any of the Designated Subsidiaries exists in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Prospectus or incorporated by reference therein, except in the case of any such violation or default that would not reasonably be expected to result in a Material Adverse Change (as defined in the Underwriting Agreement). 11.There are no legal or governmental proceedings pending or, to my knowledge, threatened, to which the Company is a party or to which any property of the Company is subject that are required to be disclosed in the Registration Statement pursuant to Item 103 of Regulation S-K that are not disclosed therein. 12. To my knowledge, except as otherwise disclosed in the Prospectus, (i) the Company and the Designated Subsidiaries that are engaged in the business of insurance or reinsurance (each an "Insurance Subsidiary") possess such insurance licenses, certificates, and permits from governmental authorities and insurance regulatory agencies (the "Insurance Licenses") as are necessary to conduct their respective businesses as described in the Prospectus; (ii) the Company and the Insurance Subsidiaries are in compliance with the terms and conditions of all of the Insurance Licenses, except where the failure to so comply would not reasonably be expected to have a Material Adverse Change; (iii) the Insurance Licenses of the Insurance Subsidiaries are valid and in full force and effect, except where the invalidity of such Insurance Licenses or the failure of such Insurance Licenses to be in full force and effect would not reasonably be expected to result in a Material Adverse Effect; and (iv) there are no pending proceedings relating to revocation, suspension or modification of any such Insurance Licenses that would reasonably be expected to have a Material Adverse Effect. A-2-2 EXHIBIT B-1 The opinion of such counsel pursuant to Section 5(h)(i) shall be rendered to the Representatives at the request of the Company and shall so state therein. References to the Prospectus in this Exhibit B-1 include any supplements thereto at the Closing Date. (i) TIG Insurance Company has the corporate power to execute, deliver and perform the Underwriting Agreement and has taken all corporate action necessary to authorize the execution, delivery and performance of the Underwriting Agreement. (ii) The Underwriting Agreement has been duly executed and delivered by TIG Insurance Company and is the legal valid and binding obligation of each of the Selling Stockholders, enforceable against each of the Selling Stockholders in accordance with its terms. (iii) The execution and delivery by TIG Insurance Company of the Underwriting Agreement do not, and the performance by TIG Insurance Company of its obligations thereunder will not, result in a violation of TIG Insurance Company's articles of incorporation or bylaws. (iv) No authorization, approval or other action by, and no notice to or filing with, any United States federal or New York governmental authority or regulatory body is required for the due execution, delivery or performance by each of the Selling Stockholders of the Underwriting Agreement, except as have been obtained and are in full force and effect under the Securities Act or as may be required under the securities or blue sky laws of any jurisdiction in the United States in connection with the offer and sale of the Shares. (v) Upon the delivery by or on behalf of the Selling Stockholders to The Depositary Trust Company ("DTC") or its agent of the Common Shares (the "Shares"), registered in the name of Cede & Co. ("Cede"), as nominee for DTC, and the crediting by DTC of the Shares to the securities accounts of the several Underwriters with DTC, DTC will be a protected purchaser (as such term is defined in Section 8-303 of the Uniform Commercial Code as in effect in the State of New York (the "NYUCC")) of the Shares and will acquire its interest in such Shares (including, without limitation, all rights that each Selling Stockholder had or has the power to transfer in such Shares) free of any adverse claim (as such term is defined in Section 8-102 of the NYUCC). Upon the payment of the purchase price for the Shares and the crediting by DTC of the Shares to the securities accounts of the several Underwriters with DTC, each of the Underwriters will acquire a valid security entitlement (within the meaning of Section 8-501 of the NYUCC) in respect of the Shares to be purchased by it, and no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on an adverse claim (as such term is defined in Section 8-102 of the NYUCC) to such Shares may be asserted against the Underwriters. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the General Corporation Law of the State of B-1-1 Delaware, the General Corporation Law of the State of New York or the federal law of the United States, to the extent they deem proper and specified in such opinion, upon the opinion (which shall be dated the First Closing Date or the Second Closing Date, as the case may be, shall be satisfactory in form and substance to the Underwriters, shall expressly state that the Underwriters may rely on such opinion as if it were addressed to them and shall be furnished to the Representatives) of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters; provided, however, that such counsel shall further state that they believe that they and the Underwriters are justified in relying upon such opinion of other counsel, and (B) as to matters of fact, to the extent they deem proper, on certificates of such Selling Stockholder and public officials. In addition, in rendering the opinion in clause (v) above, such counsel may assume that (i) each Underwriter is a participant in DTC, and that as such, each Underwriter maintains a customer account with DTC in the name of such Underwriter, and such customer account is the subject of an agreement between DTC and such Underwriter providing, among other things, that: (A) financial assets (as defined in Section 8-102(a)(9) of the NYUCC) (including financial assets consisting of security entitlements with respect to the Shares sold to such Underwriter) may be credited to such customer account; (B) DTC undertakes to treat such Underwriter as entitled to exercise the rights that comprise the financial assets so credited from time to time to such customer account in accordance with Article 8, Part 5 of the NYUCC; and (C) such agreement is governed by the law of the State of New York (such that DTC's "securities intermediary's jurisdiction," as defined in Section 8-110(e) of the NYUCC, is New York), (ii) the Shares are certificated securities in registered form and not held in any securities account or through any securities intermediary, (iii) Cede is acting as DTC's nominee and is not a securities intermediary; and (iv) neither DTC nor the Underwriters or their representatives, nominees or agents has notice of any adverse claim (within the meaning of Section 8-105 of the NYUCC) with respect to the Shares or any security entitlement therein. B-1-2 EXHIBIT B-2 The opinion of such internal counsel pursuant to Section 5(h)(ii) shall be rendered to the Representatives at the request of the Company and shall so state therein. References to the Prospectus in this Exhibit B-2 include any supplements thereto at the Closing Date. (i) The Underwriting Agreement has been duly executed and delivered by such Selling Stockholder. (ii) The execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under, the Underwriting Agreement will not contravene or conflict with, result in a breach of, or constitute a default under, the charter or by-laws, partnership agreement, trust agreement or other organizational documents, as the case may be, of such Selling Stockholder, or, to the best of such counsel's knowledge, violate or contravene any provision of applicable law or regulation, or violate, result in a breach of or constitute a default under the terms of any other agreement or instrument to which such Selling Stockholder is a party or by which it is bound, or any judgment, order or decree applicable to such Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over such Selling Stockholder, except for such violations, contraventions, breaches or defaults as would not, individually or in the aggregate, have a material adverse effect upon the Selling Stockholder's ability to consummate the transactions contemplated by the Underwriting Agreement. (iii) Such Selling Stockholder has the legal right and power, and all authorizations and approvals required under its charter and by-laws or other organizational documents, as the case may be, to enter into the Underwriting Agreement, to sell, transfer and deliver all of the Common Shares which may sold by such Selling Stockholder under the Underwriting Agreement and to comply with its other obligations under the Underwriting Agreement. (iv) To the best of such counsel's knowledge, no consent, approval, authorization or other order of, or registration or filing with, any court or governmental authority or agency, is required for the consummation by such Selling Stockholder of the transactions contemplated in the Underwriting Agreement, except as required under the Securities Act, applicable state securities or blue sky laws, and from the NASD. In rendering such opinion, such internal counsel may rely as to matters involving the application of laws of the State of New York or the federal law of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of Shearman & Sterling LLP. B-2-1 EXHIBIT C [Date] Banc of America Securities LLC J.P. Morgan Securities Inc. Lehman Brothers Inc. Dowling & Partners Securities, L.L.C. Ferris, Baker Watts, Incorporated As Representatives of the Several Underwriters c/o Banc of America Securities LLC 9 West 57th Street New York, NY ,10019 Re: Zenith National Insurance Corp. (the "Company") Ladies and Gentlemen: The undersigned is an owner of record or beneficially of certain shares of Common Stock of the Company ("Common Stock") or securities convertible into or exchangeable or exercisable for Common Stock. Certain stockholders of the Company propose to carry out a public secondary offering of Common Stock (the "Offering") for which you will act as the representatives of the underwriters. The undersigned recognizes that the Offering will be of benefit to the Company. The undersigned acknowledges that you and the other underwriters are relying on the representations and agreements of the undersigned contained in this letter in carrying out the Offering and in entering into underwriting arrangements with the Company with respect to the Offering. In consideration of the foregoing, the undersigned hereby agrees that the undersigned will not, (and will cause any spouse or immediate family member of the spouse or the undersigned living in the undersigned's household not to), without the prior written consent of Banc of America Securities LLC, directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares of Common Stock, options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by the undersigned (or such spouse or family member), or publicly announce an intention to do any of the foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 90 days after the date hereof. The 1 undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock held by the undersigned except in compliance with the foregoing restrictions. Notwithstanding the foregoing, the undersigned may (i) exercise options or warrants to acquire shares of Common Stock or (ii) transfer the Common Stock (w) to the Company to pay withholding taxes, or satisfy the exercise price, applicable to the exercise of options, (x) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound by the restrictions set forth herein, (y) to any trust or partnership for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust or the general partner of the partnership agrees to be bound by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value or (z) with the prior written consent of Banc of America Securities LLC on behalf of the underwriters. For purposes of this letter agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. With respect to the Offering only, the undersigned waives any registration rights relating to registration under the Securities Act of any Common Stock owned either of record or beneficially by the undersigned, including any rights to receive notice of the Offering. This agreement is irrevocable and will be binding on the undersigned and the respective successors, heirs, personal representatives, and assigns of the undersigned. Signature: ___________________________ Printed Name: ________________________ (and indicate capacity of person signing if signing as custodian, trustee, or on behalf of an entity) 2 EX-3.3 4 t13704exv3w3.txt EX-3.3 EXECUTION COPY REGISTRATION AND INDEMNIFICATION AGREEMENT This REGISTRATION AND INDEMNIFICATION AGREEMENT, dated as of June 14, 2004 (the "Agreement"), is between ZENITH NATIONAL INSURANCE CORP., a Delaware corporation (the "Company"), and FAIRFAX FINANCIAL HOLDINGS LIMITED, a Canadian corporation ("Fairfax"). The Company intends to file a registration statement on Form S-3 relating to the sale by subsidiaries of Fairfax in an underwritten public offering, of 3,100,000 shares of common stock, par value $1.00 per share ("Common Stock"), of the Company, plus up to an additional 400,000 shares of Common Stock pursuant to the underwriters' over-allotment option (collectively, the "Shares"). In connection therewith, the Company and Fairfax wish to set forth their agreement regarding certain obligations of the Company and Fairfax with respect to the Registration Statement. The parties agree as follows: 1. DEFINITIONS. The terms defined in this Section 1, whenever used herein, shall have the following meanings for all purposes of this Agreement: "Agreement" shall have the meaning set forth in the preamble hereto. "Business Day" shall mean each day of the year other than a Saturday or Sunday or other day on which banking institutions in the city of New York, New York are required or authorized by law or regulation to close. "Commission" shall mean the United States Securities and Exchange Commission. "Company" shall have the meaning set forth in the preamble hereto. "Effectiveness Date" shall have the meaning set forth in Section 2(a) hereof. "Effectiveness Period" shall have the meaning set forth in Section 2(b) hereof. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Indemnified Stockholder" shall have the meaning set forth in Section 5(a) hereof. "Prospectus" shall mean the prospectus included in the Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. "Registration Statement" shall mean the registration statement filed by the Company relating to the sale of the Shares, as declared effective by the Commission, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such registration statement. "Securities Act" shall mean the Securities Act of 1933, as amended. "Selling Stockholders" shall mean TIG Insurance Company, Clearwater Insurance Company, United States Fire Insurance Company and The North River Insurance Company, or such other subsidiaries of Fairfax as Fairfax shall designate by written notice to the Company at least three business days prior to the Effective Date. "Selling Stockholder Information" shall have the meaning set forth in Section 3(b)(ii) hereof. "Shares" shall have the meaning set forth in the preamble hereto. 2. REGISTRATION. The Company shall: (a) use its reasonable efforts to file and cause the Registration Statement to be declared effective by the Commission as promptly as is practicable (such date upon which the Registration Statement is declared effective being referred to herein as the "Effectiveness Date"); (b) use its reasonable efforts to keep the Registration Statement continuously effective, supplemented and amended to ensure that it (A) is available for sales of the Shares by the Selling Stockholders and (B) conforms with the requirements of this Agreement and the Securities Act and the rules and regulations of the Commission promulgated thereunder as announced from time to time for a period (the "Effectiveness Period") ending on the earliest of: (i) 90 days after the Effectiveness Date, or such other date as otherwise mutually agreed upon by the parties hereto; (ii) the date when all of the Shares are disposed of in accordance with the terms of the Registration Statement; or (iii) the date when all of the Shares have ceased to be outstanding (whether as a result of repurchase, cancellation or otherwise); (c) enter into an underwriting agreement with underwriters selected by the Selling Stockholders which shall include such terms and conditions as are customary for a secondary distribution; provided, however, that such underwriting agreement must be reasonably satisfactory to the Company; and 2 (d) provide such underwriters and the Selling Stockholders with reasonable access to its facilities, books and records, and appropriate officers for the purpose of conducting a reasonable investigation of the disclosure contained in the Registration Statement and for the purpose of conducting a reasonable marketing effort in support of the distribution of the Shares. 3. REGISTRATION PROCEDURES. (a) In connection with the Registration Statement and any Prospectus required by this Agreement to permit the sale of the Shares, the Company shall: (i) subject to any notice given by the Company in accordance with this Section 3(a)(i), use its reasonable efforts to keep the Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not be effective and usable for resale of the Shares during the Effectiveness Period, the Company shall file promptly an appropriate amendment to the Registration Statement, a prospectus supplement or a report filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use its reasonable efforts to cause such amendment to be declared effective and the Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter; provided, however, that notwithstanding the foregoing, the Company may, by written notice to Fairfax, suspend the Selling Stockholders' use of the Prospectus if an event occurs and is continuing as a result of which the Prospectus would, in the Company's reasonable judgment, 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, and the Company reasonably determines in good faith that the disclosure of such event at such time would have a material adverse effect on the business of the Company or any of its subsidiaries; (ii) cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by the Registration Statement during the Effectiveness Period in accordance with the intended method or methods of distribution by the Selling Stockholders set forth in the Registration Statement or supplement to the Prospectus; (iii) advise Fairfax promptly: (A) of any proposal to amend or supplement the Registration Statement or the Prospectus and shall afford Fairfax a reasonable opportunity to review and comment upon such proposed amendment or supplement, and will advise Fairfax promptly of the filing of any such supplement or amendment, and, 3 with respect to the any post-effective amendment, when the same has become effective; (B) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; or (C) of the existence of any fact or the happening of any event, during the Effectiveness Period, that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading; (iv) furnish to each Selling Stockholder as many copies of the Prospectus and any amendment or supplement thereto as Fairfax reasonably may request, and a copy of all transmittal letters or other correspondence relating to the Registration Statement sent to, or received from, the Commission; subject to any notice by the Company in accordance with Section 3(a)(iii) of the existence of any fact or event of the kind described in Section 3(a)(iii)(B) or (C), the Company hereby consents to the use of the Prospectus thereto by each of the Selling Stockholders in connection with the offering and the sale of the Shares covered by the Prospectus; and (v) if at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, use its reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (b) Fairfax agrees that: (i) upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 3(a)(iii)(B) or (C), Fairfax will cause each Selling Stockholder to forthwith discontinue disposition of the Shares pursuant to the Registration Statement until: (A) Fairfax or such Selling Stockholder has received copies of the supplemented or amended Registration Statement contemplated by Section 3(a)(i) hereof; or (B) Fairfax or such Selling Stockholder is notified by the Company that the use of the Prospectus may be resumed. If so directed by the Company, Fairfax will cause each Selling Stockholder to deliver to the Company all copies, other than permanent file copies then in such Selling Stockholder's possession, of the Prospectus covering the Shares that was current at the time of receipt of such notice of suspension; and 4 (ii) at least three business days prior to the Effectiveness Date, it will provide the Company in writing with all information required to be included in the Registration Statement with respect to Fairfax and the Selling Stockholders pursuant to Items 507 and 508 of Regulation S-K, as such items may be amended as of the Effectiveness Date or as of the date of the effectiveness of any post-effective amendment to the Registration Statement (the "Selling Stockholder Information"). 4. REGISTRATION EXPENSES. All expenses incident to the Company's performance of or compliance with this Agreement shall be borne by Fairfax regardless of whether the Registration Statement becomes effective, including, without limitation: (a) all fees and expenses required for compliance with federal securities laws, including all registration and filing fees and expenses; (b) all printing expenses (including printing of Prospectuses), messenger and delivery services, and telephone; (c) all fees and disbursements of counsel to the Company; and (d) all fees and disbursements of the Company's independent registered public accounting firm. Upon request from the Company, Fairfax shall promptly make payment of, or reimburse the Company for any payment made by the Company of, any expenses payable by Fairfax pursuant to this Agreement. The Company shall bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal, accounting or other duties) and those expenses and costs which would have been incurred by the Company notwithstanding this Agreement. 5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify and hold harmless each Selling Stockholder, such Selling Stockholder's directors, officers, employees, representatives, agents and each person, if any, who controls such Selling Stockholder within the meaning of Section 15 of the Securities Act (each, an "Indemnified Stockholder"), from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to resales of the Shares), to which such Indemnified Stockholder may become subject, under the Securities Act or otherwise, insofar as any such loss, claim, damage, liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or Prospectus; or (ii) the omission or alleged omission to state in the Registration Statement any material fact required to be stated therein or necessary to make the 5 statements therein not misleading, or the omission or alleged omission to state in the Prospectus any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and shall reimburse each Indemnified Stockholder promptly upon demand for any legal or other expenses, subject to Section 5(c) below, reasonably incurred by such Indemnified Stockholder in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement or Prospectus in reliance upon and in conformity with the Selling Stockholder Information or any other written information furnished to the Company by or on behalf of Fairfax or any Selling Stockholder specifically for use therein. The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any Indemnified Stockholder. (b) Fairfax shall indemnify and hold harmless the Company, its directors, officers, employees, representatives, agents and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company or any such officer, employee, representative, agent or controlling person may become subject, insofar as any such loss, claim, damage or liability or action arises out of, or is based upon: (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or Prospectus; or (ii) the omission or the alleged omission to state in the Registration Statement any material fact required to be stated therein or necessary to make the statements therein not misleading, or the omission or alleged omission to state in the Prospectus any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but in each case 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 the Selling Stockholder Information or any other written information furnished to the Company by Fairfax or such Selling Stockholder specifically for use therein, and shall reimburse the Company and any such director, officer, employee, representative, agent or controlling person promptly upon demand for any legal or other expenses, subject to Section 5(c) below, reasonably incurred by the Company and any such director, officer, employee, representative, agent or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any 6 liability that Fairfax or any Selling Stockholder may otherwise have to the Company and any such director, officer, employee or controlling person. (c) Promptly after receipt by an indemnified party under this Section 5 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 5, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under this Section 5 except to the extent it has been materially prejudiced by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under this Section 5. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 5 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and its respective directors, employees, officers and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party under this Section 5 if such indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, and in that event the fees and expenses of such separate counsel shall be paid by the indemnifying party. It is understood that the indemnifying party shall not be liable for the fees and expenses of more than one separate firm (in addition to local counsel in each jurisdiction) for all indemnified parties in connection with any proceeding or related proceedings. Each indemnified party, as a condition of the indemnity agreements contained in Sections 5(a) and 5(b), shall use its reasonable efforts to cooperate with the indemnifying party in the defense of any such action or claim. No indemnifying party shall: (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld) effect any settlement of any pending or threatened action in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of such indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party, or 7 (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss of liability by reason of such settlement or judgment in accordance with this Section 5. (d) If the indemnification provided for in this Section 5 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 (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the registration of the Shares pursuant to the Registration Statement, or (ii) if the allocation provided by the foregoing clause (i) 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 indemnifying party or parties on the one hand and the indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties 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 on the one hand or such Selling Stockholder or such other indemnified party, as the case may be, on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such 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 any other provision of this Section 5(d), the Selling Stockholders shall not be required to contribute any amount in excess of the amount by which the gross proceeds received by such Selling Stockholders from the sale of the Shares pursuant to the Registration Statement exceeds the amount of damages which such Selling Stockholders have 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. For purposes of this paragraph (d), each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Company. (e) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Selling Stockholder or any 8 person controlling any Selling Stockholder, or by or on behalf of the Company, its officers or directors or any person controlling the Company, and (iii) any sale of the Shares pursuant to the Registration Statement. 6. MISCELLANEOUS. (a) Amendments. This Agreement may not be amended, modified or supplemented, except by the written agreement of all parties hereto. (b) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telecopier, or air courier guaranteeing overnight delivery: (i) if to the Company: Zenith National Insurance Corp. 21255 Califa Street Woodland Hills, California 91367 Attention: Stanley R. Zax Fax No.: (818) 713-0177 with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue Los Angeles, California 90071 Attention: Jerome L. Coben & Jonathan L. Friedman Fax No.: (213) 687-5600 (ii) if to Fairfax or any of the Selling Stockholders: Fairfax Financial Holdings Limited 95 Wellington Street West Suite 800 Toronto, Ontario, Canada M5J 2N7 Attention: Paul Rivett Fax No.: (416) 367-2201 with a copy to: Shearman & Sterling LLP Commerce Court West Suite 4405, P.O. Box 247 Toronto, Ontario Canada M5l 1E8 Attention: Christopher J. Cummings Fax No.: (416) 360-2958 9 All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied or delivered via facsimile; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery. (c) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (d) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. (f) Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (g) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter; provided, however, that this Agreement shall not supersede the following agreements, which shall remain in full force and effect to the extent of, and in accordance with, their respective terms: (i) the Purchase Agreement, dated February 4, 1981, among Reliance Insurance Company, the Company and the parties set forth on Exhibit A thereto, and (ii) the Stock Purchase Agreement, dated November 21, 2001, between the Company and Clearwater Insurance Company. 10 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. ZENITH NATIONAL INSURANCE CORP. By: /s/ William J. Owen ------------------------------ Name: William J. Owen Title: Chief Financial Officer [Signature page to Registration and Indemnification Agreement] FAIRFAX FINANCIAL HOLDINGS LIMITED By: /s/ Paul C. Rivett ------------------------------- Name: Paul C. Rivett Title: Vice President [Signature page to Registration and Indemnification Agreement] EX-3.4 5 t13704exv3w4.txt EX-3.4 FAIRFAX FINANCIAL HOLDINGS LIMITED July 27, 2004 Banc of America Securities LLC J.P. Morgan Securities Inc. Lehman Brothers Inc. Dowling & Partners Securities, L.L.C. Ferris, Baker Watts, Incorporated As Representatives of the Several Underwriters c/o Banc of America Securities LLC 9 West 57th Street New York, NY ,10019 Re: Zenith National Insurance Corp. (the "Company") Ladies and Gentlemen: Fairfax Financial Holdings Limited ("Fairfax") is the beneficial owner of certain shares of Common Stock of the Company ("Common Stock") or securities convertible into or exchangeable or exercisable for Common Stock. Certain subsidiaries of Fairfax (the "Selling Stockholders") propose to carry out a public secondary offering of Common Stock (the "Offering") for which you will act as the Underwriters. Fairfax recognizes that the Offering will be of benefit to it and the Company. Fairfax acknowledges that you are relying on the representations and agreements of Fairfax contained in this letter in carrying out the Offering and in entering into underwriting arrangements with the Company and the Selling Stockholders with respect to the Offering. In consideration of the foregoing, Fairfax hereby agrees that it will not, (and will cause any entity under its control, including any of its subsidiaries, not to), without the prior written consent of Banc of America Securities LLC, directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares of Common Stock, options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by Fairfax (or such entity under its control), or publicly announce an intention to do any of the foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 180 days after the date hereof. Fairfax also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the 1 transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock held by Fairfax and the Selling Stockholders except in compliance with the foregoing restrictions. Notwithstanding the foregoing, Fairfax may (i) exercise options or warrants to acquire shares of Common Stock or (ii) transfer the Common Stock (w) to the Company to pay withholding taxes, or satisfy the exercise price, applicable to the exercise of options, (x) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound by the restrictions set forth herein, (y) to any entity under Fairfax's control, including any of its subsidiaries, provided that such entity agrees to be bound by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value or (z) with the prior written consent of Banc of America Securities LLC on behalf of the underwriters. This agreement is irrevocable and will be binding on Fairfax and the respective successors, heirs, personal representatives, and assigns of Fairfax. FAIRFAX FINANCIAL HOLDINGS LIMITED By: /s/ Paul C. Rivett ------------------------------------- Name: Paul C. Rivett Title: Vice President 2 EX-3.5 6 t13704exv3w5.txt EX-3.5 ODYSSEY RE HOLDINGS CORP. July 27, 2004 Banc of America Securities LLC J.P. Morgan Securities Inc. Lehman Brothers Inc. Dowling & Partners Securities, L.L.C. Ferris, Baker Watts, Incorporated As Representatives of the Several Underwriters c/o Banc of America Securities LLC 9 West 57th Street New York, NY ,10019 Re: Zenith National Insurance Corp. (the "Company") Ladies and Gentlemen: Odyssey Re Holdings Corp. ("Odyssey") is the beneficial owner of certain shares of Common Stock of the Company ("Common Stock") or securities convertible into or exchangeable or exercisable for Common Stock. Certain subsidiaries of Odyssey (the "Selling Stockholders") propose to carry out a public secondary offering of Common Stock (the "Offering") for which you will act as the Underwriters. Odyssey recognizes that the Offering will be of benefit to it and the Company. Odyssey acknowledges that you are relying on the representations and agreements of Odyssey contained in this letter in carrying out the Offering and in entering into underwriting arrangements with the Company and the Selling Stockholders with respect to the Offering. In consideration of the foregoing, Odyssey hereby agrees that it will not, (and will cause any entity under its control, including any of its subsidiaries, not to), without the prior written consent of Banc of America Securities LLC, directly or indirectly, sell, offer, contract or grant any option to sell (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended, or otherwise dispose of any shares of Common Stock, options or warrants to acquire shares of Common Stock, or securities exchangeable or exercisable for or convertible into shares of Common Stock currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by Odyssey (or such entity under its control), or publicly announce an intention to do any of the foregoing, for a period commencing on the date hereof and continuing through the close of trading on the date 180 days after the date hereof. Odyssey also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the 41 transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock held by Odyssey and the Selling Stockholders except in compliance with the foregoing restrictions. Notwithstanding the foregoing, Odyssey may (i) exercise options or warrants to acquire shares of Common Stock or (ii) transfer the Common Stock (w) to the Company to pay withholding taxes, or satisfy the exercise price, applicable to the exercise of options, (x) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound by the restrictions set forth herein, (y) to any entity under Odyssey's control, including any of its subsidiaries, provided that such entity agrees to be bound by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value or (z) with the prior written consent of Banc of America Securities LLC on behalf of the underwriters. This agreement is irrevocable and will be binding on Odyssey and the respective successors, heirs, personal representatives, and assigns of Odyssey. ODYSSEY RE HOLDINGS CORP. By: /s/ Donald L. Smith ---------------------------------- Name: Donald L. Smith Title: Senior Vice President Counsel and Corporate Secretary 2 EX-3.6 7 t13704exv3w6.txt EX-3.6 POWERS OF ATTORNEY WITH RESPECT TO SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 ZENITH NATIONAL INSURANCE CORP. COMMON STOCK, $1.00 PAR VALUE CUSIP NUMBER 989390109 Each person whose signature appears below constitutes and appoints each of Eric P. Salsberg, Bradley P. Martin and Paul Rivett as his true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to the Schedule 13D with respect to Zenith National Insurance Corp., Common Stock $1.00 Par Value, CUSIP Number 989390109, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. V. PREM WATSA /s/ V. P. Watsa ----------------------------------------- 1109519 ONTARIO LIMITED By: /s/ V. P. Watsa ------------------------------------- Name: V. Prem Watsa Title: President THE SIXTY TWO INVESTMENT COMPANY LIMITED By: /s/ V. P. Watsa ------------------------------------- Name: V. Prem Watsa Title: President 810679 ONTARIO LIMITED By: /s/ V. P. Watsa ------------------------------------- Name: V. Prem Watsa Title: President FAIRFAX FINANCIAL HOLDINGS LIMITED By: /s/ Eric P. Salsberg ------------------------------------- Name: Eric P. Salsberg Title: Vice President, Corporate Affairs CRC (BERMUDA) REINSURANCE LIMITED By: /s/ Ronald Schokking ------------------------------------- Name: Ronald Schokking Title: Vice President FFHL GROUP LTD. By: /s/ Eric P. Salsberg ------------------------------------- Name: Eric P. Salsberg Title: Vice President FAIRFAX INC. By: /s/ Eric P. Salsberg ------------------------------------- Name: Eric P. Salsberg Title: Vice President 2 TIG HOLDINGS, INC. By: /s/ V. P. Watsa ------------------------------------- Name: V. Prem Watsa Title: Chairman By: /s/ Michael J. Sluka ------------------------------------- Name: Michael J. Sluka Title: Senior Vice President, Chief Financial Officer and Treasurer TIG INSURANCE GROUP INC. By: /s/ Michael J. Sluka ------------------------------------- Name: Michael J. Sluka Title: Senior Vice President, Chief Financial Officer and Treasurer TIG INSURANCE COMPANY By: /s/ Richard F. Coerver IV ------------------------------------- Name: Richard F. Coerver IV Title: Vice President ODYSSEY RE HOLDINGS CORP. By: /s/ Donald L. Smith ------------------------------------- Name: Donald L. Smith Title: Senior Vice President, General Counsel and Corporate Secretary ODYSSEY AMERICA REINSURANCE CORPORATION By: /s/ Donald L. Smith ------------------------------------- Name: Donald L. Smith Title: Senior Vice President 3 CLEARWATER INSURANCE COMPANY By: /s/ Donald L. Smith ------------------------------------- Name: Donald L. Smith Title: Senior Vice President CRUM & FORSTER HOLDINGS CORP. By: /s/ Mary Jane Robertson ------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer CRUM & FORSTER HOLDING INC. By: /s/ Mary Jane Robertson ------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, & Treasurer UNITED STATES FIRE INSURANCE COMPANY By: /s/ Mary Jane Robertson ------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer 4 THE NORTH RIVER INSURANCE COMPANY By: /s/ Mary Jane Robertson ------------------------------------- Name: Mary Jane Robertson Title: Senior Executive Vice President, Chief Financial Officer & Treasurer 5 -----END PRIVACY-ENHANCED MESSAGE-----