CONSECO, INC.
(an Indiana Corporation)
$450,000,000 8.5% Notes due October 15, 2002
$550,000,000 9.0% Notes due October 15, 2006
Underwriting Agreement
October 18, 1999
CONSECO, INC.
(an Indiana Corporation)
$450,000,000 8.5% Notes due October 15, 2002
$550,000,000 9.0% Notes due October 15, 2006
Underwriting Agreement
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October 18, 1999
CHASE SECURITIES INC.
XXXXXX BROTHERS
as Representatives of the several Underwriters
c/x Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Conseco, Inc., an Indiana corporation (the "Company"), confirms its
agreement with the several underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof) with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $450,000,000 aggregate principal amount of the
Company's 8.5% Notes due October 15, 2002 (the "2002 Notes") and $550,000,000
aggregate principal amount of the Company's 9.0% Notes due October 15, 2006 (the
"2006 Notes" and, together with the 2002 Notes, the "Notes"), to be issued
pursuant to an indenture dated as of November 13, 1997 (the "Indenture"),
between the Company and The Bank of New York, as successor to LTCB Trust
Company, as trustee (the "Trustee"). Capitalized terms used herein without
definition shall be used as defined in the Prospectus (defined below).
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-83465) and a
registration statement on Form S-3 (No. 333-56611) covering the registration of
securities of the Company, including the Notes, under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary prospectus
or prospectuses, and the offering thereof from time to time in
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accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
this Agreement. Such registration statements, as amended, have been declared
effective by the Commission and the Indenture has been duly the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Registration statement No. 333-83465,
as amended, and registration statement No. 333-56611, as amended, including the
exhibits and schedules thereto, if any, and the information, if any, deemed to
be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the
"Rule 430A Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule
434 Information") are referred to herein as the "Registration Statement" and the
"Previous Registration Statement", respectively, and the final prospectus and
the prospectus supplement relating to the offering of the Notes, in the form
first furnished to the Underwriters by the Company for use in connection with
the offering of the Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement", the "Previous Registration Statement" and the "Prospectus" shall be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of this Agreement; provided, further, that if the Company files a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (a "Rule 462(b) Registration Statement"), then after such
filing, all references to the "Registration Statement" or the "Previous
Registration Statement", as the case may be, shall be deemed to include the Rule
462(b) Registration Statement; and provided, further, that if the Company elects
to rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall be deemed to include the final or preliminary prospectus and
the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as the
case may be, in the form first furnished to the Underwriters by the Company in
reliance upon Rule 434 of the 1933 Act Regulations, and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet. A
"preliminary prospectus" shall be deemed to refer to any prospectus used before
the applicable registration statement became effective and any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was
used after such effectiveness and prior to the execution and delivery of the
applicable underwriting agreement. For purposes of this Agreement, all
references to the Registration Statement, the Previous Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, the
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Previous Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, the Previous
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Previous Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement, the Previous Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as of the
date hereof (such date being hereinafter referred to as the "Representation
Date") that:
(i) No stop order suspending the effectiveness of the Registration
Statement or the Previous Registration Statement has been issued and no
proceeding for that purpose has been initiated or, to the knowledge and
information of the Company, threatened by the Commission.
(ii) The Company meets, and at the respective times of the
commencement and consummation of the offering of the Notes will meet, the
requirements for the use of Form S-3 under the 1933 Act. Each of the
Registration Statement, the Previous Registration Statement, and any Rule 462(b)
Registration Statement has become effective under the 1933 Act. At the
respective times the Registration Statement, the Previous Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Representation Date and at the
Closing Time (as defined herein), the Registration Statement, the Previous
Registration Statement, any Rule 462 Registration Statement and any amendments
and supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the "1939
Act Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date of the
Prospectus and at the Closing Time, the Prospectus and any amendments and
supplements thereto did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances
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under which they were made, not misleading. If the Company elects to rely upon
Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to (A) statements in or omissions
from the Registration Statement, the Previous Registration Statement or the
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing by an Underwriter through Xxxxxx Brothers Inc. and Chase
Securities Inc. (each a "Representative" and collectively the "Representatives")
expressly for use in the Registration Statement, the Previous Registration
Statement or the Prospectus or (B) the part of the Registration Statement and
the Previous Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the 1939 Act.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement or the Previous Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering of Notes
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Previous Registration Statement or
the Prospectus, at the time they were or hereafter are filed with the
Commission, or last amended, as the case may be, complied and will comply in all
material respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"), and at
the time of filing or as of the time of any subsequent amendment, did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were or are made, not
misleading; and any additional documents deemed to be incorporated by reference
in the Registration Statement, the Previous Registration Statement or the
Prospectus will, if and when such documents are filed with the Commission, or
when amended, as appropriate, comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use in the Registration Statement, the Previous
Registration Statement or the Prospectus.
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(iv) PricewaterhouseCoopers LLP and KPMG LLP, which certified the
financial statements and supporting schedules of the Company and Green Tree
Financial Corporation ("Green Tree"), respectively, included or incorporated by
reference in the Registration Statement, the Previous Registration Statement and
the Prospectus, each are independent public accountants as required by the 1933
Act and the 1933 Act Regulations with respect to the Company and Green Tree,
respectively.
(v) The financial statements of the Company and of Green Tree
included or incorporated by reference in the Registration Statement, the
Previous Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company and
its consolidated subsidiaries and Green Tree and its consolidated
subsidiaries, respectively, as of the dates indicated and the results of their
respective operations for the periods specified. Except as otherwise stated
therein such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included or
incorporated by reference in the Registration Statement, the Previous
Registration Statement and the Prospectus present fairly the information
required to be stated therein. The ratio of earnings to fixed charges (and the
ratio of earnings to fixed charges and preferred stock dividends) included in
the Prospectus have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission. Any selected financial information and summary financial
data included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement, the Previous Registration
Statement and the Prospectus. Any pro forma financial statements and the related
notes thereto included in the Registration Statement, the Previous Registration
Statement and the Prospectus present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(vi) The statutory financial statements of each of the Company's
insurance subsidiaries, from which certain ratios and other statistical data
contained in the Registration Statement and the Previous Registration Statement
have been derived, have for each relevant period been prepared in accordance
with accounting practices prescribed or permitted by the National Association of
Insurance Commissioners, and with respect to each insurance subsidiary, the
appropriate Insurance Department of the state of domicile of such insurance
subsidiary, and such accounting practices have been applied on a consistent
basis throughout the periods involved.
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(vii) Since the respective dates as of which information is given
in the Registration Statement, the Previous Registration Statement and the
Prospectus, and except as otherwise stated therein, (A) there has been no
material adverse change and no development which could reasonably be expected to
result in a material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those arising in the ordinary course of business, which are material with
respect to the Company and its subsidiaries, considered as one enterprise, and
(C) except for regular dividends on the Common Stock or Preferred Stock of the
Company in amounts per share that are consistent with past practice or the
applicable charter document or supplement thereto, respectively, there has been
no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(viii) The Company has been incorporated, is validly existing as a
corporation and its status is active under the laws of the State of Indiana,
with corporate power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Agreement and the Indenture. The Company is 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 where the
failure to so qualify or be in good standing would not have a Material Adverse
Effect.
(ix) Each "significant subsidiary" of the Company within the
meaning of Rule 1-02 of Regulation S-X promulgated under the 1933 Act is listed
on Schedule B hereto, and each such subsidiary, and each of the other
subsidiaries listed for purposes of this Agreement on Schedule B hereto (each of
such subsidiaries listed on Schedule B, for purposes of this Agreement, a
"Significant Subsidiary") has been incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Prospectus, and is 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 where the failure to so qualify or
be in good standing would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement, the Previous Registration
Statement and the Prospectus, all of the issued and outstanding shares of
capital stock of each Significant Subsidiary of the Company have been authorized
and validly issued, are fully paid and non-assessable and all such shares are
owned by the Company, directly or through
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its subsidiaries, free and clear of any material security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(x) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus; since the date indicated in the
Prospectus there has been no change in the consolidated capitalization of the
Company and its subsidiaries (other than changes in outstanding Common Stock of
the Company resulting from (A) incentive compensation plan, employee or agent
benefit plan or dividend reinvestment and stock purchase plan transactions,
including, without limitation, the purchase of shares of Common Stock of the
Company or cancellation of options in connection therewith, or (B) the exercise
of conversion or exchange rights with respect to securities outstanding as of
the date of the Prospectus); and all of the issued and outstanding capital stock
of the Company has been authorized and validly issued, is fully paid and
non-assessable and conforms to the descriptions thereof contained in the
Prospectus.
(xi) The Indenture has been authorized by the Company and
qualified under the 1939 Act and, at the Closing Time, has been executed and
delivered and constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the "Bankruptcy
Exceptions"); the Indenture conforms in all material respects to the description
thereof contained in the Prospectus.
(xii) The Notes have been duly authorized by the Company and, at
the Closing Time, will have been executed by the Company and, when authenticated
in the manner provided for in the Indenture and delivered against payment
therefor as described in the Prospectus, will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions, and will be in the form
contemplated by, and entitled to the benefits of, the Indenture and will conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(xiii) Neither the Company nor any of its Significant Subsidiaries
is in violation of its articles of incorporation or by-laws. Neither the Company
nor any of its Significant Subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, note, lease, loan or credit agreement or any
other agreement or instrument (the "Agreements and Instruments") to which the
Company or any of its Significant Subsidiaries is a party or by which any of
them may be bound, or to which any of the property or assets of the Company or
any Significant Subsidiary is subject,
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or in violation of any applicable law, rule or regulation or any judgment, order
or decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their respective properties or assets, which violation or
default would, singly or in the aggregate, have a Material Adverse Effect.
(xiv) The offer of the Notes as contemplated herein and in the
Prospectus; the execution, delivery and performance of this Agreement and the
Indenture, and the consummation of the transactions contemplated herein, therein
and in the Registration Statement and the Previous Registration Statement
(including the issuance and sale of the Notes and the use of proceeds from the
sale of the Notes as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder and
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of any of the
terms or provisions of, or constitute a default or Repayment 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 subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its Significant Subsidiaries, or any of
their assets, properties or operations (except for such violations that would
not result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
Significant Subsidiary. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness of the Company or any Significant Subsidiary (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
Significant Subsidiary.
(xv) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body, domestic or
foreign (including, without limitation, any proceeding to revoke or deny renewal
of any Insurance Licenses (as defined below)), now pending or to the knowledge
of the Company threatened against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration Statement,
the Previous Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material Adverse
Effect, or which might be reasonably expected to materially and adversely affect
the consummation of this Agreement, the Indenture or the transactions
contemplated herein, therein or in the Registration Statement, the Previous
Registration Statement or the Prospectus. The aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary thereof is a
party or of which any of their
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respective properties or operations is the subject which are not described in
the Registration Statement, the Previous Registration Statement or the
Prospectus, including ordinary routine litigation incidental to the business or
the Company or any of its subsidiaries, could not reasonably be expected to
result in a Material Adverse Effect; and there are no contracts or documents of
the Company or any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement or the Previous Registration Statement,
or to be incorporated by reference therein, by the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations, which have not been so
filed or incorporated by reference.
(xvi) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies (including,
without limitation, insurance licenses from the insurance departments of the
various states where the subsidiaries write insurance business (the "Insurance
Licenses")) that are material to the Company and its subsidiaries taken as a
whole and are necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and conditions of
all such Insurance Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect; all of the
Insurance Licenses 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 result in a Material Adverse Effect;
and neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Insurance
Licenses which, singly or in the aggregate, may reasonably be expected to result
in a Material Adverse Effect.
(xvii) No authorization, approval, consent, order, registration or
qualification of or with any court or governmental authority or agency
(including, without limitation, any Insurance regulatory agency or body) is
required in connection with the offering, issuance and sale of the Notes or the
consummation by the Company of any other transactions contemplated hereby,
except such as have been obtained and made under the federal securities laws or
state Insurance laws and such as may be required under state or foreign
securities or Blue Sky laws.
(xviii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xix) Neither the Company nor any of its Significant Subsidiaries
is, and upon the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
be, an "investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
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(xx) None of the Company, its Significant Subsidiaries or any of
their respective directors, officers or controlling persons, has taken, directly
or indirectly, any action resulting in a violation of Regulation M under the
1934 Act, or designed to cause or result in, or that has constituted or that
reasonably might be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Notes or the Common Stock of the Company, in each case in violation of
applicable law.
(xxi) No "forward looking statement" (as defined in Rule 175 under
the 1933 Act) contained in the Registration Statement, any preliminary
prospectus or the Prospectus was made or reaffirmed without a reasonable basis
or was disclosed other than in good faith.
(b) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter severally and not jointly agrees
to purchase from the Company, (i) at the price of 99.527% of the principal
amount thereof, the principal amount of 2002 Notes set forth in Schedule A
hereto opposite the name of such Underwriter in the column designated "Principal
Amount of 2002 Notes", plus any additional principal amount of 2002 Notes which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof and (ii) at the price of 98.885% of the principal amount
thereof, the principal amount of 2006 Notes set forth in Schedule A hereto
opposite the name of such Underwriter in the column designated "Principal Amount
of 2006 Notes", plus any additional principal amount of 2006 Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) The initial public offering price of the 2002 Notes shall be
99.977% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance. The interest rate on the 2002 Notes shall be 8.5% per annum.
The initial public offering price of the 2006 Notes shall be 99.510% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance. The interest rate on the 2006 Notes shall be 9.0% per annum. The Notes
will be redeemable as a whole or in part at the option of the Company at any
time, at a redemption price equal to the greater of (i) 100% of the principal
amount thereof and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon from the redemption date to the
maturity date, computed by discounting such payments, in each case, to the
redemption date on a
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semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate (as defined in the Prospectus) plus 25 basis points plus, in
each case, accrued interest on the principal amount thereof to the date of
redemption.
(c) Delivery of certificates for the Notes against payment of the
purchase price for such Notes shall be made at the offices of LeBoeuf, Lamb,
Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at
such other place as shall be agreed upon by the Underwriters and the Company, at
9:00 a.m. (New York City time) on the third business day after execution of this
Agreement (or, if pricing of the Notes occurs after 4:30 p.m., New York City
time, on the fourth full business day thereafter), or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
referred to herein as the "Closing Time"). Payment for the Notes purchased by
the Underwriters shall be made by wire transfer of immediately available funds,
payable to the Company, against delivery to the respective accounts of the
Underwriters of the Notes to be purchased by them. Delivery of, and payment for,
the Notes shall be made through the facilities of the Depository Trust Company.
Certificates for the Notes, if any, shall be in such denominations and
registered in such names as the Underwriters may request in writing at least two
full business days before the Closing Time. Each Representative, individually
and not as a representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Notes, if any, to be purchased by
any Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Notes will be made available for examination by the
Underwriters no later than 10:00 a.m. (New York City time) on the last business
day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company agrees with the
Underwriters as follows:
(a) Promptly following the execution of this Agreement, the Company
will cause the Prospectus to be filed with the Commission pursuant to Rule 424
of the 1933 Act Regulations and the Company will promptly advise the
Underwriters when such filing has been made. Prior to the filing, the Company
will cooperate with the Underwriters in the preparation of the prospectus
supplement to assure that the Underwriters have no reasonable objection to the
form or content thereof when filed or mailed.
(b) The Company, subject to Section 3(c), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations if and as applicable, and will notify the Underwriters
immediately of (i) the effectiveness of any post-
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effective amendment to the Registration Statement or the Previous Registration
Statement or the filing of any supplement or amendment to the Prospectus, (ii)
the receipt of any comments from the Commission, (iii) any request by the
Commission for any amendment to the Registration Statement or the Previous
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the Previous
Registration Statement or the initiation of any proceedings for that purpose and
(v) the issuance by any state securities commission or other regulatory
authority of any order suspending the qualification or the exemption from
qualification of the Notes under state securities or Blue Sky laws or the
initiation or threatening of any proceeding for such purpose. The Company will
make all reasonable efforts to prevent the issuance of any stop order and, if
any stop order is issued, to promptly obtain the lifting thereof.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement or the Previous
Registration Statement (including any post-effective amendment and any filing
under Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement or the Previous Registration Statement at the time it became effective
or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise; will furnish the Underwriters with copies of any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision a
reasonable amount of time prior to such proposed filing or use, as the case may
be; and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment, supplement or revision to which the Underwriters or counsel for the
Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives and counsel for the
Underwriters, without charge, conformed copies of the Registration Statement and
the Previous Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and conformed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement and the Previous Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. If applicable, the copies of the Registration Statement and the
Previous Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) The Company has delivered to each Underwriter, without charge, as
many copies of any preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby
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consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriter will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Company will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Notes as contemplated in this Agreement
and in the Registration Statement, the Previous Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933 Act or
the 1934 Act to be delivered in connection with sales of the Notes, any event
shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or the Previous Registration Statement, as the case may
be, in order that the Registration Statement or the Previous Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or the Previous
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(c),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, the Previous Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as
the Representatives may designate; provided, however, that the Company shall not
be obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified or subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject.
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(h) The Company will make generally available to its securityholders as
soon as practicable, but not later than 45 days (or 90 days, in the case of a
period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company and its subsidiaries (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by it from the sale
of the Notes in the manner specified in the Prospectus under "Use of Proceeds."
(j) If, at the time that the Registration Statement or the Previous
Registration Statement became (or in the case of a post-effective amendment
becomes) effective, any information shall have been omitted therefrom in
reliance upon Rule 430A or Rule 434 of the 1933 Act Regulations, then
immediately following the execution of this Agreement, the Company will prepare,
and file or transmit for filing with the Commission in accordance with such Rule
430A or Rule 434 and Rule 424(b) of the 1933 Act Regulations, copies of an
amended Prospectus, or Term Sheet, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement or the Previous
Registration Statement (including an amended Prospectus), containing all
information so omitted.
(k) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933
Act Regulations by the earlier of (i) 10:00 p.m. New York City time on the date
of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(l) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(m) Between the date of the Prospectus and the Closing Time, the
Company will not, without the prior written consent of the Representatives,
directly or indirectly, issue, sell, offer or contract to sell, grant any option
for the sale of, or otherwise transfer or dispose of, any debt securities of the
Company (other than the Notes or commercial paper in the ordinary course of
business).
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(n) The Company, during a period of one year from the Closing Time,
will make generally available to the Underwriters copies of all reports and
other communications (financial or other) mailed to stockholders, and deliver to
the Underwriters promptly after they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
(such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission).
(o) Neither the Company nor its subsidiaries will take, directly or
indirectly, any action resulting in a violation of Regulation M under the 1934
Act, or designed to cause or result in, or that reasonably might be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Notes or the Common Stock of
the Company, in each case, in violation of applicable law.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including,
without limitation, expenses related to the following, if incurred: (i) the
preparation, delivery, printing and filing of the Registration Statement, the
Previous Registration Statement and Prospectus as originally filed (including
financial statements and exhibits) and of each amendment thereto; (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement Among Underwriters, the Indenture and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Notes; (iii) the preparation, issuance and delivery of the certificates for the
Notes; (iv) the fees and disbursements of the Company's counsel, accountants and
other advisors or agents (including the transfer agents and registrars), as well
as fees and disbursements of the Trustee and any Depositary, and their
respective counsel (except as provided for in the Prospectus); (v) the
qualification of the Notes under securities laws in accordance with the
provisions of Section 3(g), including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Survey and any Legal Investment
Survey; (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement and the Previous Registration Statement as originally
filed and of each amendment thereto, of each preliminary prospectus, any Term
Sheet and of the Prospectus and any amendments or supplements thereto; (vii) the
printing and delivery to the Underwriters of copies of any Blue Sky Survey and
any Legal Investment Survey; (viii) any fees payable in connection with the
rating of the Notes by nationally recognized statistical rating organizations;
(ix) the filing fees incident to, and the fees and disbursements of counsel to
the Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the
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Notes; (x) any fees payable in connection with any listing of Notes on any
securities exchange or quotation system; and (xi) any fees payable to the
Commission.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.,
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Notes pursuant to this Agreement
are subject to the accuracy of the representations and warranties of the Company
herein contained or in certificates of any officer of the Company or any
subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder, and to the following further
conditions:
(a) The Registration Statement and the Previous Registration Statement,
including any Rule 462(b) Registration Statement, shall have become effective
under the 1933 Act not later than 5:30 p.m., New York City time, on the date
hereof, and on the date hereof and at the Closing Time, no stop order suspending
the effectiveness of the Registration Statement or the Previous Registration
Statement or any part thereof shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Notes, the specific
method of distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of Xx.
Xxxx X. Xxxx, Executive Vice President, General Counsel and Secretary of the
Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana.
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(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) The Company is 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 where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus (including information
which is incorporated by reference therein) (except for subsequent
issuances, if any, pursuant to (x) incentive compensation plan,
employee or agent benefit plan or dividend reinvestment and stock
purchase plan transactions, including, without limitation, the purchase
of shares of Common Stock of the Company or cancellation of options in
connection therewith, or (y) the exercise of conversion or exchange
rights with respect to securities outstanding as of the date of the
Prospectus), and all the issued and outstanding capital stock of the
Company has been authorized and validly issued and is fully paid and
non-assessable and conforms to the descriptions thereof contained in
the Prospectus.
(v) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus, and 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 where the failure to so qualify or be in
good standing would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each such Significant
Subsidiary of the Company has been authorized and validly issued, is
fully paid and non-assessable and, except as set forth in the
Prospectus, all such shares are owned by the Company, directly or
through its subsidiaries, free and clear of any material security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(vi) All legally required proceedings in connection with the
authorization and valid issuance of the Notes and the sale of such
Notes in accordance with this Agreement (other than the filing of
post-issuance reports, the non-filing of which would not render the
Notes invalid) have been taken and all legally required orders,
consents or other authorizations or approvals of any other public
boards or bodies
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(including, without limitation, any insurance regulatory agency or
body) in connection with the authorization and valid issuance of the
respective Notes and the sale of such Notes in accordance with this
Agreement (other than in connection with or in compliance with the
provisions of the securities or Blue Sky laws of any jurisdictions, as
to which no opinion need be expressed) have been obtained and are in
full force and effect.
(vii) Each of the Registration Statement and the Previous
Registration Statement is effective under the 1933 Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or the Previous Registration Statement
has been issued under the 1933 Act, and no proceedings therefor have
been initiated or threatened by the Commission.
(viii) Each of the Registration Statement and the Previous
Registration Statement, as of its respective effective date, and the
Prospectus, and each amendment or supplement thereto as of its issue
date (in each case, other than the financial statements and the notes
thereto, the financial schedules, and any other financial data included
or incorporated by reference therein, as to which such counsel need
express no belief), complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations; and the
Indenture complied as to form in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
(ix) Each of the documents incorporated by reference in the
Registration Statement, the Previous Registration Statement or the
Prospectus at the time they were filed or last amended (other than the
financial statements and the notes thereto, the financial schedules,
and any other financial data included or incorporated by reference
therein and the Statements of Eligibility on Form T-1 filed with the
Commission as part of the Registration Statement or the Previous
Registration Statement, as to which such counsel need express no
belief), complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, as
applicable.
(x) The information in the Prospectus under the captions
"Description of the Notes," to the extent it involves matters of law,
summaries of legal matters, documents or proceedings or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
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(xii) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming authorization, execution, and
delivery thereof by the Trustee, constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the Indenture
has been duly qualified under the 1939 Act and conforms in all material
respects to the description thereof contained in the Prospectus.
(xiii) The 2002 Notes and the 2006 Notes are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Trustee in the
manner provided for in the Indenture and delivered against payment
therefor by the Company, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and
such Notes conform in all material respects to the description thereof
contained in the Prospectus.
(xiv) The offer of the Notes as contemplated herein and in
the Prospectus; the execution, delivery and performance of this
Agreement and the Indenture, and the consummation of the transactions
contemplated herein, therein and in the Registration Statement and the
Previous Registration Statement (including the issuance and sale of the
Notes and the use of proceeds from the sale of the Notes as described
in the prospectus under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder and thereunder have been
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of any of the terms or
provisions of, or constitute a default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Significant
Subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of
their assets, properties, or operations (except for such violations
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company or any Significant Subsidiary.
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(xv) To such counsel's knowledge, there are no statutes
required to be described in or incorporated by reference in the
Registration Statement or the Previous Registration Statement which are
not described or incorporated by reference; and there are no legal or
governmental proceedings pending or, to such counsel's knowledge,
threatened which are required to be disclosed or incorporated by
reference in the Registration Statement or the Previous Registration
Statement, other than those disclosed or incorporated by reference
therein.
(xvi) To such counsel's knowledge, there are no contracts,
indentures, mortgages, agreements, notes, leases or other instruments
required to be described or referred to or incorporated by reference in
the Registration Statement or the Previous Registration Statement or to
be filed as exhibits thereto other than those described or referred to
or incorporated by reference therein or filed as exhibits thereto; and
the descriptions thereof or references thereto are true and correct in
all material respects.
(xvii) No authorization, approval, consent, order,
registration or qualification of or with any court or federal or state
governmental authority or agency (including, without limitation, any
insurance regulatory agency or body) is required for the issuance and
sale of the Notes by the Company to the Underwriters or the performance
by the Company of its obligations under this Agreement, the Indenture
and the Notes except such as has been obtained and made under the
federal securities laws or state insurance laws or such as may be
required under state or foreign securities or Blue Sky laws.
(xviii) The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies (including, without limitation, the Insurance Licenses) that
are material to the Company and its subsidiaries taken as a whole and
are necessary to conduct the business now operated by them; the Company
and its subsidiaries are in compliance with the terms and conditions of
all such Insurance Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse
Effect; all of the Insurance Licenses are valid and in full force and
effect, except where the invalidity of such Insurance Licenses or the
failure of such Insurance Licences to be in full force and effect would
not result in a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Insurance Licenses which,
singly or in the aggregate, may reasonably be expected to result in a
Material Adverse Effect.
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(xix) Neither the Company nor any of its subsidiaries is, and
upon the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will be, an "investment company" as such term is defined in
the 1940 Act.
Moreover, such counsel shall confirm that nothing has come to such
counsel's attention that causes such counsel to believe that the
Registration Statement or the Previous Registration Statement,
including any information provided pursuant to Rule 430A and related
schedules and Rule 434 (except for financial statements and the notes
thereto, the financial schedules and any other financial data included
or incorporated by reference therein, and the Statements of Eligibility
on Form T-1 filed with the Commission as part of the Registration
Statement or the Previous Registration Statement as to which such
counsel need express no opinion), at the time it became effective or at
the Representation Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and the notes thereto, the
financial schedules, and any other financial data included or
incorporated by reference therein, as to which such counsel need
express no opinion), at the Representation Date (unless the term
"Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of
the Notes which differs from the Prospectus on file at the Commission
at the time the Registration Statement and the Previous Registration
Statement became effective, in which case at the time it is first
provided to the Underwriters for such use) or at the Closing Time,
included (or includes) 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 the light of the circumstances under which
they were made, not misleading.
(2) The favorable opinion, dated as of the Closing Time, of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the Underwriters, in form
and substance satisfactory to the Underwriters, with respect to the issuance and
sale of the Notes, and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, XxXxxxx, Xxxx, Xxxxxx & XxxXxx, L.L.P. may rely as to
matters governed by the laws of Indiana upon the opinion referred to in Section
5(b)(1) hereto.
(c) Between the date of this Agreement and prior to the Closing Time,
no material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not in
the ordinary course of business.
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(d) At the Closing Time, the Underwriters shall have received a
certificate of the President or a Vice-President of the Company and of the Chief
Financial Officer or Chief Accounting Officer of the Company, dated as of the
Closing Time, to the effect that (i) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not in the ordinary course of business, (ii) the
representations and warranties in Section 1 hereof are true and correct as
though expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement or the Previous
Registration Statement has been issued and no proceedings for that purpose have
been initiated or, to the knowledge of such officers, threatened by the
Commission.
(e) At the time of the execution of this Agreement, the Underwriters
shall have received from PricewaterhouseCoopers LLP a "comfort letter", with
respect to the financial information of the Company, dated such date in form and
substance satisfactory to the Underwriters and counsel to the Underwriters.
(f) At the time of the execution of this Agreement, the Underwriters
shall have received from KPMG LLP a "comfort letter", with respect to the
financial information of Green Tree, dated such date in form and substance
satisfactory to the Underwriters and counsel to the Underwriters.
(g) At the Closing Time, the Underwriters shall have received from each
of PricewaterhouseCoopers LLP, with respect to the Company, and KPMG LLP, with
respect to Green Tree, a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letters furnished pursuant to
subsections (e) and (f) of this Section and other customary matters, except that
(i) such statements shall include any financial statements and pro forma
financial information incorporated by reference in the Registration Statement,
the Previous Registration Statement and the Prospectus which are filed
subsequent to the date of this Agreement and prior to the Closing Time and (ii)
the specified date referred to shall be a date not more than five days prior to
the Closing Time.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company in
connection with the
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issuance and sale of the Notes as herein contemplated shall be satisfactory in
form and substance to the Underwriters and counsel for the Underwriters.
(i) At the Closing Time, the Notes shall be rated at least BBB+ by Duff
& Xxxxxx Credit Rating Agency and BBB+ by Standard & Poor's Ratings Service, and
the Company shall have delivered to the Underwriters a letter, dated the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Notes have such ratings; and between the
Representation Date and the Closing Time (i) there shall not have occurred any
decrease in the rating assigned to the Notes or any securities of the Company or
of the financial strength or claims paying ability of the Company by any
"nationally recognized statistical rating organization," as defined for purposes
of Rule 436(g)(2) under the 1933 Act Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review, without
indicating an improvement, its rating of the Notes or any securities of the
Company or of the financial strength or claims paying ability of the Company.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time at or prior to the
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Previous Registration Statement (or any amendment
thereto), including the Rule 434 Information deemed to be part thereof,
if applicable, 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 or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), 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;
-23-
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever arising out of or based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided, that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of or based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the extent
arising out of or based upon any untrue statement or omission or
alleged untrue statement or omission (A) made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Previous Registration Statement (or any
amendment thereto), including the Rule 434 Information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), (B) made in any
Statement of Eligibility on Form T-1 filed as an exhibit to the
Registration Statement or the Previous Registration Statement or (C)
made in any preliminary prospectus supplement and corrected in the
Prospectus, as supplemented, where the person asserting any such loss,
liability, claim, damage or expense purchased the Notes that are the
subject thereof, and it shall have been established (i) that there was
not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by
reference) in any case where such delivery is required by the 1933 Act
and (ii) the Company shall have previously furnished copies thereof in
sufficient quantities to such Underwriter.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement or the Previous Registration Statement (or any amendment
thereto), including the Rule
-24-
434 Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use in the
Registration Statement or the Previous Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by the Representatives, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance
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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 Section 6(a)(ii) affected without its
consent if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such request to be
reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand, and the Underwriters, on the other hand, from the offering of the Notes
pursuant to this Agreement or (ii) if the allocation provided by 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 Company on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by Company on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Notes
pursuant to this Agreement shall in each case be deemed to be in the same
respective proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company and the total underwriting
discount received by the Underwriters in respect of such Notes, in each case as
set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of such Notes as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
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The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 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 Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate principal amount of Notes set forth opposite their
respective names in Schedule A to this Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of and
payment for the Notes to the Underwriters.
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SECTION 9. Termination of Agreement.
(a) The Underwriters may terminate this Agreement, by notice to the
Company at any time at or prior to the Closing Time, if (i) there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change or any
development which could reasonably be expected to result in a prospective
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation of hostilities or other calamity or crisis, or any
change or development involving a prospective change in national or
international political, financial or economic conditions the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Notes or to enforce contracts for the sale of the Notes, or (iii) if
trading in the Common Stock or any other security of the Company has been
suspended or limited by the Commission, NASD or the New York Stock Exchange, or
if trading generally on either the American Stock Exchange, the New York Stock
Exchange or in the over-the-counter market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of such exchanges or by such
system or by order of the Commission, NASD or any other governmental authority,
or (iv) if a banking moratorium has been declared by either Federal, New York or
Indiana authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Section 4, and provided, further, that Sections 1, 6, 7 and 8 shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Notes which
it or they are obligated to purchase under this Agreement (the "Defaulted
Notes"), the Representatives shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Notes in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the total aggregate principal amount of Notes, the non-defaulting
Underwriters shall be obligated,
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severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10% of
the total aggregate principal amount of the Notes to be purchased on such date,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement, the Previous
Registration Statement or the Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o Chase Securities Inc.,
000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention of Xxxxx
XxXxxx, and to Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, New
York 10285, Attention of Xxxxx X. Xxxxxxxx, with a copy to LeBoeuf, Lamb, Xxxxxx
& XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention of
Xxxxxxx Xxxxx, Esq.; notices to the Company shall be directed to the Company at
Conseco, Inc., 00000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention of
Xxxx X. Xxxx, Esq., Executive Vice President, General Counsel and Secretary. In
addition, copies of any notice pursuant to Section 6(c) hereof shall be sent to
Chase Securities Inc., 0 Xxxxx Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Legal Department.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Underwriters and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein or therein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and
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xxxxxxx and their respective successors and legal representatives, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Notes from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME UNLESS OTHERWISE INDICATED.
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, shall become a binding agreement
among the Company and the Underwriters in accordance with its terms.
Very truly yours,
CONSECO, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
and Chief Financial
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
CHASE SECURITIES INC.
XXXXXX BROTHERS
as Representatives of the several Underwriters
By: XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxx
-------------------------------
Authorized Signatory
By: CHASE SECURITIES INC.
By: /s/ Xxxxx XxXxxx
-------------------------------
Authorized Signatory
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Schedule A
Principal Principal
Amount of Amount of
2002 2006
Underwriters Notes Notes
------------ ------- -----
Chase Securities Inc........................ $157,500,000 $192,500,000
Xxxxxx Brothers Inc......................... 157,500,000 192,500,000
Credit Suisse First Boston Corporation...... 45,000,000 55,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated................. 45,000,000 55,000,000
Warburg Dillon Read LLC..................... 45,000,000 55,000,000
------------ ------------
Total...................... $450,000,000 $550,000,000
============ ============
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Schedule B
Significant Subsidiaries
------------------------
Conseco Life Insurance Company of Texas
CIHC, Incorporated
Bankers Life Insurance Company of Illinois
Bankers Life and Casualty Company
Conseco Annuity Assurance Company
Conseco Senior Health Insurance Company
Wabash Life Insurance Company
Green Tree Financial Corporation
Conseco Health Insurance Company
Conseco Life Insurance Company
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