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EXHIBIT 99.7
DEALER MANAGER AGREEMENT
November__, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Superior National Insurance Group, Inc., a corporation incorporated
under the laws of the State of Delaware (the "Company"), proposes to distribute
(i) to holders of record as of the close of business on , 1998 of shares of its
common stock, par value $.01 per share (the "Common Stock") (excluding Insurance
Partners, L.P. and Insurance Partners Offshore (Bermuda), L.P. and outstanding
warrants to purchase Common Stock (excluding certain warrant holders), one
transferable subscription right (a "Right" and, together with the Common Stock
issuable upon exercise of Rights, the "Securities") to subscribe for and
purchase a share of Common Stock for a price of $16.75 for each share of Common
Stock or warrant held (the "Rights Offering") and (ii) to each employee and
consultant of the Company holding vested and unvested stock options, or granted
shares of restricted Common Stock, the same form of Right issued in the Rights
Offering, excepting contractual restrictions on transferability (the "Employee
Participation," and, together with the Rights Offering, the "Stock Offering").
The closing of the Stock Offering is conditioned upon the simulatenous closing
of the Acquisition (as defined below) and other related financing transactions.
The time and date of such simulatenous closings are hereinafter referred to as
the "Closing Date."
The Company hereby confirms its agreement with Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation (the "Dealer Manager") as follows:
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), an amended registration statement on Form S-3 to Form S-1, including a
prospectus, relating to the Securities. The registration statement, as amended
at the time it became effective is hereinafter referred to as the "Registration
Statement"; and the prospectus in the form first used to confirm the
distribution of Rights and the sale of Common Stock is hereinafter referred to
as the "Prospectus" (including, in the case of all references to the
Registration Statement and the Prospectus, documents incorporated therein by
reference). If the Company has filed or is required pursuant to the terms hereof
to file a registration statement pursuant to Rule 462(b) under the Act
registering additional Securities (a "Rule 462(b) Registration Statement"),
then, unless otherwise specified, any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462(b) Registration Statement.
The terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect to the Registration Statement or the Prospectus shall include all
documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference in this Prospectus.
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2. Agreements of the Company. The Company agrees with you as follows:
(a) To advise you promptly and, if requested by you, confirm
such advice in writing, (i) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information, (ii) of the issuance
by the Commission of any stop order suspending the qualification or
exemption from qualification of any of the Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purpose by the Commission or other regulatory authority, (iii) when any
amendment to the Registration Statement becomes effective, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after
the effectiveness of this Agreement, when the Rule 462(b) Registration
Statement has become effective and (v) (A) of the happening of any
event that makes any statement of a material fact made in the
Registration Statement or Prospectus untrue or that requires the making
of any additions to or changes in the Registration Statement or
Prospectus in order to make the statements therein, in light of the
circumstances under which they are made, not misleading and (B) of the
issuance of any quarterly, annual or other financial statements by the
Company (copies of which shall be delivered to you within three
business days after the date of issuance). The Company shall use its
best efforts to prevent the issuance of any stop order or order
suspending the effectiveness of the Registration Statement, and if at
any time the Commission or other regulatory authority shall issue an
order suspending the effectiveness of the Registration Statement, the
Company shall use its best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time.
(b) To furnish to you two signed copies of the Registration
Statement as first filed with the Commission and of each amendment to
it, including all exhibits and documents incorporated therein by
reference, and to furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits but including documents incorporated therein by reference, as
you may reasonably request.
(c) To effect the inclusion of the Securities on the Nasdaq
National Market.
3. Representations and Warranties of the Company. The Company
(including, for purposes of this Section 3, all references to subsidiaries and
Insurance Subsidiaries (as defined below) shall include the subsidiaries and
Insurance Subsidiaries to be acquired by the Company pursuant to the Stock
Purchase Agreement, dated as of May 5, 1998 (the "Acquisition Agreement"), among
the Company, Insurance Partners, LP., Insurance Partners Offshore (Bermuda),
L.P. and Capital Z Partners, Ltd.) represents and warrants to, and agrees with,
the Dealer Manager that:
(a) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company
after the effectiveness of this Agreement); any Rule 462(b)
Registration Statement filed after the effectiveness of this Agreement
will become effective no later than 10:00 P.M., New York City time, on
the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
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(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act, (ii) The Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not
contain and, as amended, if applicable, 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, (iii) the Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act, (iv) if the Company is required to file a Rule
462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments
thereto, when they become effective (A) 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 and (B) will comply in all material respects with the Act
and (v) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(d) The Company and each of its subsidiaries has been duly
organized, is validly existing as a corporation in good standing under
the laws of its respective jurisdiction of incorporation, has all
requisite corporate power and authority to carry on its business as it
is currently being conducted and as described in the Prospectus, and to
own, lease and operate its properties, and is duly qualified and in
good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification except where the
failure to be so qualified (x) would not reasonably be expected,
individually or in the aggregate, to result in a material adverse
effect on the assets, properties, business, results of operations,
condition (financial or otherwise), affairs or prospects of the Company
and its subsidiaries, taken as a whole, (y) would materially interfere
with or adversely affect the distribution of Rights or issuance of
Common Stock or (z) would draw into question in any material respect
the validity of this Agreement, the Indenture or any other documents
prepared and delivered in connection herewith (any of the events set
forth in clauses (x), (y) or (z), a ("Material Adverse Effect").
(e) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and each of the other documents prepared and delivered in
connection herewith to which it is a party and to consummate the
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transactions contemplated hereby and thereby, including, without
limitation, the corporate power and authority to distribute the Rights
and issue, sell and deliver the Common Stock.
(f) The entities listed on Schedule I hereto are the only
subsidiaries, direct or indirect, of the Company. Except as otherwise
described in the Prospectus, the Company owns, directly or indirectly
through other subsidiaries, the percentage of the outstanding capital
stock or other securities evidencing equity ownership of such
subsidiaries set forth opposite the name of each subsidiary on Schedule
I hereto, free and clear of any security interest, claim, lien,
limitation on voting rights or encumbrance (other than security
interests in favor of The Chase Manhattan Bank, as administrative agent
under the credit agreement dated as of April 11, 1997 ("Credit
Agreement"), among SNTL Acquisition Corp. (currently Superior Pacific
Insurance Group, Inc.), a Delaware corporation, The Chase Manhattan
Bank, as administrative agent (the "Administrative Agent"), and the
lenders named therein, which security interests will be terminated at
Closing, and encumbrances or restrictions created by statute, rule,
regulation or order and applicable to the Company's regulated insurance
subsidiaries); and all of such securities have been duly authorized,
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights. Except as otherwise
described in the Prospectus, there are no outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any such shares of
capital stock or other equity interest of such subsidiaries.
(g) The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable and were not issued in violation of any
preemptive or similar rights. Except as disclosed in the Prospectus,
there are no outstanding subscriptions, rights, warrants, calls,
commitments of sale or options to acquire, or instruments convertible
into or exchangeable for, any such shares of capital stock or other
equity interest of the Company. The Company and its subsidiaries had as
of ____________ __, 1998, an authorized and outstanding consolidated
capitalization as set forth in the Prospectus.
(h) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is the legally valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) and
except as the enforceability hereof may be limited by considerations of
public policy and an implied covenant of good faith and fair dealing.
(i) The Rights have been duly authorized and validly issued
and are fully paid and non-assessable and not subject to any preemptive
or similar rights.
(j) The Common Stock issuable upon exercise of the Rights
has been duly authorized and, when issued and delivered in accordance
with the terms of the Prospectus,
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will be validly issued, fully paid and non-assessable, and the issuance
of such Common Stock will not be subject to any preemptive or similar
rights.
(k) The Company is not (A) in violation of its charter or
by-laws or other organizational documents or (B) in default in the
performance of any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties is subject, or (C)
in violation of any law, statute, rule, regulation, judgment or court
decree applicable to the Company, any of its subsidiaries or their
assets or properties that in the case of clauses (A), (B) and (C)
above, would reasonably be expected to have a Material Adverse Effect.
To the best knowledge of the Company, there exists no condition that,
with notice, the passage of time or otherwise, would constitute a
default under any such document or instrument which default is
reasonably likely to result in a Material Adverse Effect.
(l) The execution, delivery and performance by the Company
of this Agreement and any other documents prepared and delivered in
connection herewith to which it is a party and the distribution of the
Rights and the issuance and sale of the Common Stock, and the
consummation of the transactions contemplated hereby and thereby by the
Company, will not violate, conflict with or constitute a breach of any
of the terms or provisions of, or a default under (or an event that
with notice or the lapse of time, or both, would constitute a default),
or require consent under (other than those that have been or will be
obtained prior to the Closing Date), or result in the imposition of a
lien or encumbrance on any properties of the Company or any of its
subsidiaries, or an acceleration of indebtedness pursuant to, (i) the
charter or by-laws or other organizational documents of the Company,
(ii) any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or their property is or
may be bound, (iii) any statute, rule or regulation applicable to the
Company, any of its subsidiaries or any of their assets or properties,
or (iv) any judgment, order or decree of any court or governmental
agency or authority having jurisdiction over the Company, any of its
subsidiaries or their assets or properties except insofar as any of
(ii), (iii) or (iv) above would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Effect. No consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any court or
governmental agency, body or administrative agency is required for the
execution, delivery and performance of this Agreement and the other
documents prepared and delivered in connection herewith and the
consummation of the transactions contemplated hereby and thereby,
except such as have been obtained and made under the Act and state
securities or Blue Sky laws and regulations or such as may be required
by the National Association of Securities Dealers, Inc. ("NASD") and
except such as would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect. No consents or
waivers from any other person are required for the execution, delivery
and performance of this Agreement and the other documents prepared and
delivered in connection herewith and the consummation of the
transactions contemplated hereby and thereby, other than such consents
and waivers as have been obtained.
(m) Except as described in the Prospectus, there is (i) no
action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or
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foreign, now pending or to the knowledge of the Company and its
subsidiaries, threatened or contemplated, to which the Company or any
of its subsidiaries is or may be a party or to which the business or
property of the Company or any of its subsidiaries is or may be
subject, (ii) to the knowledge of the Company and its subsidiaries, no
statute, rule, regulation, or order that has been enacted, adopted or
issued by any governmental agency or that has been proposed by any
governmental body, (iii) no injunction, restraining order or order of
any nature by a federal or state court or foreign court of competent
jurisdiction to which the Company or any of its subsidiaries or any of
their respective business, assets or property are or to the knowledge
of the Company and its subsidiaries may be subject that, in the case of
clauses (i), (ii) and (iii) above, might, singly, have a Material
Adverse Effect.
(n) There is (i) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its
subsidiaries nor, to the best knowledge of the Company and its
subsidiaries, threatened against the Company or any of its subsidiaries
and (ii) to the best knowledge of the Company and its subsidiaries, no
union representation question exists with respect to the employees of
the Company and its subsidiaries and, to the best knowledge of the
Company and its subsidiaries, no union organizing activities are taking
place. Neither the Company nor any of its subsidiaries has violated any
federal, state or local law or foreign law relating to discrimination
in hiring, promotion or pay of employees, nor any applicable wage or
hour laws, nor any provision of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or the rules and regulations
thereunder, or analogous foreign laws and regulations, which violations
could reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect.
(o) All reinsurance treaties and arrangements to which any
subsidiary of the Company engaged in the business of insurance (an
"Insurance Subsidiary") is party are in full force and effect and no
Insurance Subsidiary is in violation of or in default in the
performance, observance or fulfillment of, any obligation, agreement,
covenant or condition contained therein, which violation or default
could reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect; no Insurance 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 and the Insurance
Subsidiaries, the Company and Insurance 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 to the
extent adequately and properly reserved for in the consolidated
financial statements of the Company included in the Registration
Statement and the Prospectus.
(p) The Company and its subsidiaries have good and
defensible title to all personal property and other assets (including,
without limitation, contract rights), in each case as described in the
Prospectus, and all such properties or rights are owned or possessed by
it, in each case free and clear of all liens, charges, encumbrances,
restrictions and defects except such as are described in the Prospectus
or would not result in a Material Adverse Effect and do not materially
interfere with the use made and proposed to be made of such properties
by the Company and its subsidiaries (or security interests in favor of
the Administrative Agent to be terminated at Closing); and any property
held under lease by the
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Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as would not have a
Material Adverse Effect and do not materially interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries. Each of the Company and its subsidiaries has (i) all
licenses, certificates, permits, authorizations, approvals, franchises
and other rights from, and has made all declarations and filings with,
all foreign, federal, state and local authorities, all self-regulatory
authorities and all courts and other tribunals (each an
"Authorization") necessary to engage in the business currently
conducted by it in the manner described in the Prospectus, except where
failure to hold such Authorizations would not have a Material Adverse
Effect (each a "Material Authorization") and (ii) no reason to believe
that any governmental body or agency is considering limiting,
suspending or revoking any such Material Authorization. All such
Material Authorizations are valid and in full force and effect and the
Company and its subsidiaries are in compliance in all material respects
with the terms and conditions of all such Material Authorizations and
with the rules and regulations of the regulatory authorities having
jurisdiction with respect thereto. Except as disclosed in the
Prospectus, no insurance regulatory agency or body has issued, or
commenced any proceeding for the issuance of, any order or decree
impairing, restricting or prohibiting the payment of dividends by any
Insurance Subsidiary to its parent.
(q) All tax returns required to be filed by the Company or
any of its subsidiaries, in all jurisdictions, have been so filed. All
taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those
being contested in good faith and for which adequate reserves have been
provided or which the failure to so pay would not reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries knows of any material proposed additional tax
assessments against it or any of its subsidiaries that have not been
adequately reserved for.
(r) The Company, after giving effect to the distribution of
the Rights and the sale of Common Stock pursuant to the Rights, will
not be (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), or analogous
foreign laws and regulations, or (ii) a "holding company" or a
"subsidiary company" or an "affiliate" of a holding company within the
meaning of the Public Utility Holding Company Act of 1935, as amended
(the "Public Utility Holding Act"), or analogous foreign laws and
regulations.
(s) Each certificate signed by any officer of the Company
and delivered to the Dealer Manager or counsel for the Dealer Manager
shall be deemed to be a representation and warranty by the Company to
the Dealer Manager as to the matters covered thereby.
(t) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with applicable generally accepted accounting principles and
to maintain
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accountability for assets in accordance with industry practice; (iii)
access to financial assets is permitted only in accordance with
management's general or specific authorizations; (iv) access to
physical assets is monitored in accordance with reasonably prudent
business practices to attempt to prevent and identify theft and (v)
recorded assets are compared with the existing assets at reasonable
intervals in accordance with industry standards.
(u) The Company and each of its subsidiaries maintains
insurance covering (or self-insures) their properties, operations,
personnel and businesses. Such insurance insures against such losses
and risks as are adequate in accordance with customary industry
practice to protect the Company and its subsidiaries and their
businesses. Neither the Company nor any of its subsidiaries has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be
outstanding and duly in force on the closing date.
(v) Neither the Company nor any of the Company's
subsidiaries has (i) taken, directly or indirectly, any action designed
to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the
Company (or any of its subsidiaries) to facilitate the sale or resale
of the Securities or (ii) since the date of the preliminary Prospectus
(A) sold, bid for, purchased or paid any person any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Company (or any of its subsidiaries).
(w) Subsequent to the respective dates as of which
information is given in the Prospectus and up to the Closing Date,
except as set forth in the Prospectus, neither the Company nor any of
its subsidiaries has incurred any liabilities or obligations, direct or
contingent, which are material to the Company and its subsidiaries
taken as a whole, nor entered into any transaction not in the ordinary
course of business, nor has there been, individually or in the
aggregate, any material adverse change, or any development which may
reasonably be expected to involve a material adverse change, in the
assets, properties, business, results of operations, condition
(financial or otherwise), affairs or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Change") and there
have not been dividends or distributions (other than to the Company) of
any kind declared, paid or made by the Company or any of its
subsidiaries on any class of its capital stock, other than payments by
the Company's subsidiaries which are made to its parents.
(x) (i) The accountants who have certified or shall certify
the financial statements and supporting schedules included or to be
included as part of the Registration Statement and Prospectus are
independent accountants under Rule 101 of AICPA's Code of Professional
Conduct and its interpretations and rulings. The consolidated
historical statements fairly present in all material respects the
consolidated financial condition and results of operations of the
Company and its subsidiaries at the respective dates and for the
respective periods indicated, in accordance with generally accepted
accounting principles consistently applied throughout such periods,
except as stated therein. The pro forma financial statements included
in the Registration Statement and Prospectus have been prepared on a
basis
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consistent with such historical statements of the Company and its
subsidiaries, except for the pro forma adjustments specified therein,
and give effect to assumptions made on a reasonable basis and present
fairly in all material respects the historical and proposed
transactions contemplated by this Agreement, the Indenture and the
other documents prepared and delivered in connection herewith. Other
financial and statistical information and data included in the
Registration Statement and Prospectus, historical and pro forma, are
accurately presented in all material respects and prepared on a basis
consistent with such financial statements and the books and records of
the Company and its subsidiaries.
(ii) The statutory financial statements of the Insurance
Subsidiaries from which certain ratios and other statistical data in
the Registration Statement and Prospectus have been derived, have for
each relevant period been prepared in material conformity with
statutory accounting principles or practices required or permitted by
the National Association of Insurance Commissioners and by the
appropriate Insurance Department of the jurisdiction of domicile of
each Insurance Subsidiary, and such statutory accounting practices have
been applied on a consistent basis throughout the periods involved,
except as may otherwise be indicated therein or in the notes thereto,
and present fairly in all material respects the statutory financial
position of the Insurance Subsidiaries as of the dates thereof, and the
statutory basis results of operations of the Insurance Subsidiaries for
the periods covered thereby.
(iii) Except as disclosed in the Prospectus, the Company and
the Insurance Subsidiaries have made no material changes in their
insurance reserving practices since the most recent audited financial
statements included or incorporated in the Prospectus.
(y) There are no contracts, agreements or understandings
between the Company (or any of its subsidiaries) and any person that
would give rise to a valid claim against the Company, its subsidiaries
or the Dealer Manager for a brokerage commission, finder's fee or like
payment in connection with the distribution of the Rights.
The Company acknowledges that the Dealer Manager and, for
purposes of the opinions to be delivered to the Dealer Manager pursuant
to Section 7 hereof, counsel to the Company and counsel to the Dealer
Manager will rely upon the accuracy and truth of the foregoing
representations and hereby consent to such reliance.
4. The Stock Offering; Agreement to Act as Dealer Manager.
(a) The Company intends to commence the Stock Offering as
soon as practicable after the Registration Statement becomes effective
under the Act by publicly announcing its commencement and by mailing,
or causing to be mailed on its behalf, copies of the Prospectus, the
related Form of Acceptance, the related Letter of Transmittal and such
of the other materials relating to the Stock Offering as is required
under the Act or the Exchange Act or as the Company elects to each
recipient of the Rights.
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(b) The Company hereby retains the Dealer Manager to assist
the Company in the preparation of the materials relating to the Stock
Offering to be used in the United States and retains and authorizes the
Dealer Manager to act as dealer manager in the United States and to
assist the Company with solicitations of subscriptions to purchase
Common Stock ("Solicitations"). On the basis of the representations and
warranties and agreements of the Company herein contained and subject
to and in accordance with the terms and conditions hereof and of the
materials relating to the Stock Offering, the Dealer Manager agrees to
assist the Company in the preparation of the materials relating to the
Stock Offering to be used in the United States and to act as dealer
manager in connection with the distribution of the Rights in the United
States. The Dealer Manager agrees in accordance with its customary
practices to solicit subscriptions of Rights ("Subscriptions");
provided that in no event shall the Dealer Manager be required to
effect any registration, qualification, notification or filing in any
jurisdiction where such registration, qualification, notification or
filing would be necessary in order to solicit Subscriptions.
(c) The Company agrees that the Dealer Manager shall not be
subject to any liability to the Company or any of its affiliates for
any act or omission on the part of any broker or dealer in securities
or any bank or trust company or any other person (other than
themselves), and the Dealer Manager shall not be liable for its acts or
omissions in performing its obligations as dealer manager hereunder,
except for any losses, claims, damages, liabilities and expenses
determined in a final judgment by a court of competent jurisdiction to
have resulted from the Dealer Manager's gross negligence or wilful
misconduct. In soliciting or obtaining Subscriptions, the Dealer
Manager shall not be deemed to be acting as the agent of the Company or
as the agent of any broker, dealer, bank or trust company, and no
broker, dealer, bank or trust company shall be deemed to be acting as
your agent or as the agent of the Company. Nothing contained in this
Agreement shall constitute the Dealer Manager a partner of or a joint
venturer with the Company or any of its subsidiaries.
(d) To the extent available, the Company shall furnish the
Dealer Manager, as soon as practicable after the date hereof, with
cards or lists showing the names of persons who are recipients of the
Rights, together with their addresses, and the number of Rights held by
them. Additionally, the Company shall use its best efforts to update
such information from time to time during the term of this Agreement as
may be reasonably requested by the Dealer Manager. The Dealer Manager
agrees to use any such information only in connection with the Stock
Offering.
(e) Subject to the final sentence of this clause (e), the
Company authorizes the Dealer Manager to use the materials relating to
the Stock Offering for such period of time as any such materials are
required by law to be delivered in connection therewith. The Dealer
Manager shall not use any materials in connection with soliciting
Subscriptions or otherwise in connection with the Stock Offering except
as specifically approved by the Company and will cease using any such
materials promptly upon receipt of written instructions from the
Company to that effect.
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(f) The Company authorizes the Dealer Manager to communicate
with any information agent or subscription agent appointed by the
Company to act in such capacities in connection with the Stock Offering
with respect to matters relating to the Stock Offering.
(g) The Company agrees that any reference to the Dealer
Manager in any materials relating to the Stock Offering or in any
newspaper announcement or press release or other document or
communication is subject to the Dealer Manager's prior consent, which
consent shall not be unreasonably withheld.
5. Compensation. In full payment for services rendered and
to be rendered hereunder by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
the Company agrees to pay Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
$___________ upon the execution hereof and to reimburse Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation for all fees and expenses (including, without
limitation, the fees and disbursements of counsel and all expenses and listing
fees in connection with the review and clearance of the offering of the
Securities by the NASD) incurred in connection with the performance of its
obligations under this Agreement.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i)
the Dealer Manager, (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Act or the
Exchange Act) the Dealer Manager (any of such persons referred to in
this clause (ii) being hereinafter referred to as a "controlling
person"), and (iii) the respective officers, directors, partners,
employees, representatives and agents of the Dealer Manager or any
controlling person (any person referred to in clause (i), (ii) or (iii)
may hereinafter be referred to as an "Indemnified Person") to the
fullest extent lawful, from and against any and all losses, claims,
damages, assessments, judgments, actions and expenses (including
without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency
or body, commenced or threatened including the reasonable fees and
expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with
(x) the Stock Offerings and the Solicitations and (y) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission therein of 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. The Company shall notify you promptly of the
institution, threat or assertion of any claim, proceeding (including
any governmental investigation) or litigation in connection with the
matter addressed by this Agreement which involves the Company or an
Indemnified Person.
(b) In case any action or proceeding (including any
governmental investigation) shall be brought or asserted against any of
the Indemnified Persons with respect to which indemnity may be sought
against the Company, such Indemnified Person shall promptly notify the
Company in writing (provided that the failure to give such notice shall
not relieve the Company of its obligations pursuant to this Agreement).
Such Indemnified Person shall have the right to employ its own counsel
(in addition to any local counsel) subject to the
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consent of the Company, which consent shall not be unreasonably
withheld, in any such action and, subject to the Indemnified Person's
obligation to pay fees and expenses not covered by this Section 5, the
reasonable and duly documented fees and expenses of such counsel shall
be paid, as incurred, by the Company (regardless of whether it is
ultimately determined that an Indemnified Person is not entitled to
indemnification hereunder, in which case such Indemnified Person shall
reimburse the Company for all amounts paid in respect of such action or
proceeding). The Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition
to any local counsel) at any time for the Indemnified Persons, which
firm shall be designated by Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation (subject to the reasonable consent of the Company). The
Company shall be liable for any settlement of any such action or
proceeding effected with the Company's prior written consent, which
consent will not be unreasonably withheld, and the Company agrees to
indemnify and hold harmless any Indemnified Person from and against any
loss, claim, damage, liability or expense by reason of any settlement
of any action effected with the written consent of the Company.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Person shall have requested an indemnifying party to
reimburse the Indemnified Person for the duly documented fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, 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 twenty business days
after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such
settlement. The Company shall not, without the prior written consent of
an Indemnified Person, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened
cause of action, in respect of which indemnification or contribution
may be sought hereunder (whether or not any Indemnified Person is a
party thereto) as to which both the Company and any Indemnified Person
are or may be a party, unless such settlement, compromise, consent or
termination includes an unconditional release of such Indemnified
Person from all losses, claims, damages, liabilities or expenses
arising out of the action, claim, litigation or proceeding (or portion
thereof) which is the subject of the settlement.
(c) If the indemnification provided for in this Section 5 is
unavailable to an Indemnified Person under Sections 5(a) and 5(b)
hereof in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party and the indemnified party, as well as
any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Dealer Manager, on
the other hand, shall be
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deemed to be in the same proportion as (a) the total proceeds from the
offering of the Securities (before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Prospectus,
whether or not the Stock Offering is consummated, bears to (b) the fees
paid to the Dealer Manager under this Agreement.
The Company and the Dealer Manager agree that it would not be
just and equitable if contribution to this Section 5(c) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 5, neither the
Dealer Manager (nor the related Indemnified Persons) shall be required
to contribute, in the aggregate, any amount in excess of the amount of
fees paid to the Dealer Manager under this Agreement. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The Company also agrees that no Indemnified Person shall have
any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with advice or services
rendered or to be rendered by any Indemnified Person pursuant to this
Agreement, the transactions contemplated hereby or any Indemnified
Person's actions or inactions in connection with any such advice,
services or transactions except for liabilities (and related expenses)
of the Company that are determined by a judgment of a court of
competent jurisdiction which is no longer subject to appeal or further
review to have resulted solely from such Indemnified Person's gross
negligence or wilful misconduct in connection with any such advice,
actions, inactions or services.
7. Conditions of Dealer Manager's Obligations. The obligations
of the Dealer Manager under this Agreement are subject to the satisfaction of
each of the following conditions:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the date
hereof and on the Closing Date with the same force and effect as if
made on and as of the date hereof and the Closing Date, respectively.
The Company shall have performed or complied with all of the agreements
herein contained and required to be performed or complied with by them
at or prior to the Closing Date.
(b) If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., New York City time, on the date of this Agreement; and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the Commission.
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(c) The Prospectus shall have been printed and copies
distributed to the Dealer Manager on the date of this Agreement or at
such later date and time as to which you may agree, and no stop order
suspending the qualification or exemption from qualification of any of
the Securities in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(d) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the
issuance or sale of any of the Securities; no action, suit or
proceeding shall be pending against or affecting or, to the knowledge
of the Company and its subsidiaries, threatened against, the Company or
any of its subsidiaries before any court or arbitrator or any
governmental body, agency or official that, if adversely determined,
would have a Material Adverse Effect; and no stop order preventing the
use of the Registration Statement or Prospectus, or any amendment or
supplement thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Act shall have been issued.
(e) Since the dates as of which information is given in the
Prospectus, (i) there shall not have been any material change, or any
development that is reasonably likely to result in a material change,
in the capital stock or the long-term debt, or material increase in the
short-term debt, of the Company or any of its subsidiaries from that
set forth in the Prospectus, (ii) no dividend or distribution of any
kind shall have been declared, paid or made by the Company on any class
of its capital stock, and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liabilities or obligations, direct
or contingent, that are material, individually or in the aggregate, to
the Company and its subsidiaries, taken as a whole, and that are
required to be disclosed on a balance sheet in accordance with
generally accepted accounting principles and are not disclosed on the
latest balance sheet included in the Prospectus. Since the date hereof
and since the dates as of which information is given in the Prospectus,
there shall not have been any Material Adverse Change.
(f) You shall have received (i) a certificate, dated the
Closing Date, signed by (x) the President and Chief Executive Officer
and (y) the principal financial officer of the Company confirming, as
of the Closing Date, the matters set forth in paragraphs (a), (b), (c),
(d) and (e) of this Section 7.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date, of
Xxxxxxx & XxXxxxxx, counsel to the Company, to the effect that and
based upon certain assumptions and representations as to factual
matters from various persons affiliated with the Company, under the
federal laws of the United States, the States of Delaware and New York
(assuming the law is the same as that of California and without giving
effect to conflicts of laws principles) and, where indicated, the State
of California:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Delaware, with all requisite corporate power and authority
to own, lease and operate its properties and to conduct its
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business as it is currently being conducted and as described
in the Prospectus, and is duly qualified and in good standing
as a foreign corporation authorized to do business in each
jurisdiction in which the ownership, leasing and operating of
its property and the conduct of its business requires such
qualification, except where the failure to be so qualified
would not be reasonably expected to have a Material Adverse
Effect.
(ii) The authorized, issued and outstanding capital
stock of the Company has been duly and validly authorized and
issued and is fully paid and nonassessable.
(iii) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under this Agreement, the Indenture and the other documents
prepared and delivered in connection herewith to which it is a
party and to consummate the transactions contemplated hereby
or thereby, including, without limitation, the corporate power
and authority to issue, sell and deliver the Securities.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) The Rights have been duly authorized and
validly issued and are fully paid and non-assessable and not
subject to any preemptive or similar rights.
(vi) The Common Stock issuable upon exercise of the
Rights has been duly authorized and, when issued and delivered
in accordance with the terms of the Prospectus, will be
validly issued, fully paid and non-assessable, and the
issuance of such Common Stock will not be subject to any
preemptive or similar rights.
(vii) The Securities conform as to legal matters to
the descriptions thereof in the Prospectus.
(viii) Neither the Company nor any of its United
States subsidiaries (A) is in violation of its respective
charter or, to the knowledge of such counsel, its by-laws or
other organizational documents, (B) to the knowledge of such
counsel, is in default in the performance of any bond,
debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which it is a party or by which it
is bound or to which any of its properties is subject or (C)
is in violation of any United States federal or State of
California or Delaware law, statute, rule, regulation, or, to
the knowledge of such counsel, any judgment or court decree
applicable to the Company, any of its subsidiaries or their
assets or properties that in the case of clauses (A), (B) and
(C) above, would reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(ix) The execution, delivery and performance by the
Company of this Agreement and the other documents prepared and
delivered in connection herewith to which it is a party, the
issuance and sale of the Securities, and the consummation of
the transactions contemplated hereby and thereby, will not
violate, conflict with
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or constitute a breach of any of the terms or provisions of,
or a default under (or an event that with notice or the lapse
of time, or both, would constitute a default), or require
consent under (other than those that have been or will be
obtained prior to the Closing Date), or result in the
imposition of a lien or encumbrance on any properties of the
Company or any of its subsidiaries, or an acceleration of
indebtedness pursuant to, (i) the charter or by-laws or other
organizational documents of the Company or any of its
subsidiaries, (ii) any material bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which any of them or their property is or may be
bound and identified to us as material on a certificate of the
Officers of the Company, (iii) any United States federal or
State of California or Delaware statute applicable to the
Company or any of its subsidiaries or any of their assets or
properties, (iv) any United States federal or State of
California or Delaware rule or regulation normally applicable
to transactions of the type contemplated by this Agreement,
the Indenture or the other documents prepared and delivered in
connection herewith, or (v) to the knowledge of such counsel,
any judgment, order or decree of any United States federal or
State of California or Delaware court or United States federal
or State of California or Delaware governmental agency or
authority having jurisdiction over the Company, any of its
subsidiaries or their assets or properties except insofar as
any of (ii), (iii), (iv) or (v) above would not reasonably be
expected, individually or in the aggregate, to result in a
Material Adverse Effect. No consent, approval, authorization
or order of, or filing, registration, qualification, license
or permit of or with, any U.S. federal or State of California
or Delaware or governmental agency, body or administrative
agency is required for the execution, delivery and performance
of this Agreement, the Indenture or the other documents
prepared and delivered in connection herewith and the
consummation of the transactions contemplated hereby and
thereby, except such as have been obtained and made under the
Act and state securities or Blue Sky laws and regulations or
such as may be required by the NASD.
(x) The Company owns, directly or indirectly
through other subsidiaries, 100 percent of the outstanding
capital stock or other securities evidencing equity ownership
of the subsidiaries listed on Schedule I. To the knowledge of
such counsel, there are no outstanding subscriptions, rights,
warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any equity
interest of the Company or its subsidiaries, other than as set
forth in the Prospectus.
(xi) To the knowledge of such counsel, no action
has been taken and no statute, rule or regulation or order has
been enacted, adopted or issued by any United States federal
or State of California or Delaware agency that prevents the
issuance of the Securities; to the knowledge of such counsel,
no injunction, restraining order or order of any nature by a
United States federal or State of California or Delaware court
of competent jurisdiction has been issued that prevents the
issuance of the Securities or suspends the sale of the
Securities in any jurisdiction; and to the knowledge of such
counsel, no action, suit or proceeding is pending against or
affecting or
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threatened against the Company or any of its subsidiaries
before any United States federal or State of California or
Delaware court or arbitrator or any governmental body, agency
or official which is reasonably likely to have a Material
Adverse Effect.
(xii) Neither the Company nor any of its
subsidiaries is (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of
the Investment Company Act and regulations, or (ii) a "holding
company" or a "subsidiary company" or an "affiliate" of a
holding company within the meaning of the Public Utility
Holding Act.
(xiii) (A) each document, if any, filed pursuant to
the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and other
financial data included therein as to which no opinion need be
expressed) complied when so filed with the Exchange Act, (B)
the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial
statements and other financial data included therein as to
which no opinion need be expressed) comply as to form with the
Act, (C) such counsel has no reason to believe that at the
time the Registration Statement became effective or on the
date of this Agreement, the Registration Statement and the
Prospectus included therein (except for the financial
statements and other financial data as to which such counsel
need not express any belief) contained any untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading and (D) such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other
financial data, as aforesaid) contains any untrue statement of
a material fact 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.
(xiv) The statements made in the Prospectus under
the caption "Description of Superior National Capital Stock"
insofar as they purport to constitute summaries of certain
contracts, agreements or documents, constitute accurate
summaries of such contracts, agreements or documents in all
material respects.
(xv) The statements made in the Prospectus under
the heading "Certain Federal Income Tax Considerations"
constitute accurate summaries of the potential United States
federal income tax consequences of an investment in the
Securities.
Such counsel shall also state that, for purposes of
rendering the opinions contained in paragraphs (iv), (v), (vi)
and (viii) above, such counsel has no reason to believe that
any provision of New York law would render any of the
documents referred to in such paragraphs unenforceable in any
material respect (subject to each of the other assumptions and
qualifications contained in such opinion), assuming that New
York law is the same as California law, and that such counsel
has no reason to believe that New York law is different than
California law (it being understood that such counsel has not
made an independent investigation into the relevant provisions
of New York law and that no member of such counsel is licensed
to practice law in the State of New York).
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In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
your representatives and your counsel in connection with the
preparation of the Registration Statement and Prospectus and has
considered the matters required to be stated therein and the statements
contained therein and, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements
(except as indicated above) and relying as to materiality to the extent
such counsel deems appropriate upon the statements of officers and
other representatives of the Company, such counsel advises you that, on
the basis of the foregoing, no facts came to its attention that caused
it to believe that the Registration Statement or the Prospectus (as
amended or supplemented, if applicable), at the time such Registration
Statement or the Prospectus was circulated or at the Closing Date,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may further state that they assume
no responsibility for, and have not independently verified, the
accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial data included in the Registration
Statement or the Prospectus or any amendment or supplement thereto.
The opinions of such counsel described in this paragraph shall
be rendered to you at the request of the Company and shall so state
therein.
(h) You shall have received an opinion, dated the Closing
Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Dealer Manager, in
form and substance reasonably satisfactory to you, covering such
matters as are customarily covered in such opinions.
(i) At the time this Agreement is executed and delivered by
the Company and on the Closing Date, you shall have received letters,
substantially in the form previously approved by you, from KPMG Peat
Marwick LLP, independent public accountants, dated the date of such
execution, with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and Prospectus.
(j) At the time this Agreement is executed and delivered by
the Company and on the Closing Date, you shall have received letters,
substantially in the form previously approved by you, from Deloitte &
Touche LLP, independent public accountants, dated the date of such
execution, with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and Prospectus.
(k) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Dealer
Manager, shall have been furnished with such documents and opinions, in
addition to those set forth above, as they may reasonably require for
the purpose of enabling them to review or pass upon the matters
referred to in this Section 7 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
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(l) Prior to the Closing Date, the Company shall have
furnished to you such further information, certificates and documents
as you may reasonably request.
(m) The Company shall have completed the acquisition (the
"Acquisition") of the insurance business of Business Insurance Group,
Inc. pursuant to the Acquisition Agreement.
(n) The Securities shall have been duly listed for quotation
on the Nasdaq National Market.
All opinions, certificates, letters and other documents required by
this Section 7 to be delivered by the Company will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to you.
8. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the execution hereof.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Company by notice to you; provided that Sections 5, 6, 8 and 9 shall
survive such termination.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Dealer Manager set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of the
Securities, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Dealer Manager or by or on behalf of the
Company, its officers or directors or a controlling person thereof.
If this Agreement shall be terminated by you pursuant to this Section
8, the Company agrees to reimburse you for the fee set forth in Section 5 and
all out-of-pocket expense (including the fees and disbursements of counsel),
incurred by you.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Dealer
Manager, any controlling person or Indemnified Person referred to herein 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.
9. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, Superior
National Insurance Group, Inc., 00000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, with a copy to Superior National Insurance Group,
Inc., 00000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx
and (b) if to the Dealer Manager, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxxxxx, with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxx, Esq., or in any case to such
other address as the person to be notified may have requested in writing.
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This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York. This Agreement may be signed in various
counterparts which together shall constitute one and the same instrument.
Very truly yours,
SUPERIOR NATIONAL INSURANCE GROUP, INC.
By:
-------------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
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SCHEDULE I
Subsidiaries of the Company
