EXHIBIT 1.1(a)
XXXXXX XXXX EDUCATORS CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
____________, 20___
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Xxxxxx Xxxx Educators Corporation, a Delaware
corporation (the "COMPANY"), proposes to enter into one or more Pricing
Agreements (each a "PRICING AGREEMENT") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine and, subject to the
terms and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms constituting
the "UNDERWRITERS" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "SECURITIES") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "DESIGNATED SECURITIES").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "INDENTURE") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"REPRESENTATIVES"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase any of the Securities. The obligation of the
Company to issue and sell any of the Securities, and the obligation of any of
the Underwriters to purchase any of the Securities, shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement also shall specify, to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto, the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing, which may be in counterparts, and
may be evidenced by an exchange of email communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-__________) (the "INITIAL REGISTRATION STATEMENT") in respect of
the Securities has been filed with the Securities and Exchange
Commission (the "COMMISSION"). The Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to the Initial Registration Statement, but including all
documents incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form. Other than
a registration statement, if any, increasing the size of the offering
(a "RULE 462(b) REGISTRATION STATEMENT"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
which became effective upon filing, no other document with respect to
the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the
Securities Act, each in the form heretofore delivered to the
Representatives). No stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
any Rule 462(b) Registration Statement has been issued, and no
proceeding for that purpose has been initiated or threatened by the
Commission. Any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) under the Securities Act, is called a "PRELIMINARY PROSPECTUS".
The Initial Registration Statement and any Rule 462(b) Registration
Statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time the Initial Registration Statement
became effective but excluding Form T-1, each as amended at the time
the Initial Registration Statement became effective or any Rule 462(b)
Registration Statement became or hereafter becomes effective, are
collectively called the "REGISTRATION STATEMENT". The prospectus
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, is called the "PROSPECTUS". Any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the information incorporated by
reference therein, as updated or superseded as provided therein
pursuant to the rules and regulations of the Commission relating to
registration statements on Form S-3 and prospectuses as of the date of
such Preliminary Prospectus or Prospectus, as the case may be. Any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be. Any reference to any
amendment to the Initial Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange
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Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement. Any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Securities Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing.
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents 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. Any further
documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder 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. The representations and warranties in this Section 2(b)
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 of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities.
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The representations and warranties in this Section 2(c)
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 of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
set forth therein or contemplated thereby, there has not been any
material change in the capital stock or long-term debt of the Company
or any material adverse change, or any development reasonably likely to
result in a material adverse change, in or affecting the business,
financial condition, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole.
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(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus.
(f) The Securities have been duly authorized and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement. The Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities.
(g) The issue and sale of the Designated Securities and
the compliance by the Company with the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to such Designated Securities, and the consummation of the
transactions contemplated herein and therein, will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is
a party that is material to the Company and its subsidiaries taken as a
whole, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company. No consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Pricing Agreement with respect to such Designated Securities or the
Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Securities Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters.
(h) Except set forth in or contemplated by the
Prospectus, each of Xxxxxx Xxxx Lloyds, Xxxxxx Xxxx Property & Casualty
Insurance Company, Xxxxxx Xxxx Insurance Company, Teachers Insurance
Company, Xxxxxx Xxxx Life Insurance Company and Allegiance Life
Insurance Company (collectively referred to as the "INSURANCE
SUBSIDIARIES") is in compliance with the requirements of the insurance
laws and regulations of its jurisdiction of incorporation and the
insurance laws and regulations of the jurisdictions that are
applicable to each such Insurance Subsidiary, and has filed all
notices, reports, documents or other information required to be filed
thereunder, except where the failure to so comply or file would not
have, individually or in the aggregate, a material adverse effect on
the Company and its subsidiaries taken as a whole.
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(i) Except as set forth in or contemplated by the
Prospectus, the Company and its Insurance Subsidiaries have made no
changes in their insurance reserving practices since the most recent
financial statements included or incorporated in the Prospectus, except
for changes that would not have, individually or in the aggregate, a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(j) Except as set forth in or contemplated by the
Prospectus, all material reinsurance treaties and arrangements to which
any Insurance Subsidiary is a 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, except to the extent
adequately and properly reserved for in the consolidated financial
statements of the Company included or incorporated by reference in the
Prospectus and for such violations or defaults that would not have,
individually or in the aggregate, a material adverse effect on the
Company and its subsidiaries taken as a whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least 48 hours prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least 48 hours in advance or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "TIME OF DELIVERY" for such Designated
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities that:
(a) The Company will:
(i) prepare the Prospectus as amended or
supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives and
file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of
business on the second business day following the execution
and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b);
(ii) make no further amendment or supplement to
the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating
to such Designated Securities and prior to the Time of
Delivery for such Designated Securities that shall be
disapproved by the Representatives for such Securities
promptly after reasonable notice thereof;
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(iii) advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; and
(iv) promptly file all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering
or sale of such Designated Securities, and during such period
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose or of any request by the Commission to amend or
supplement the Registration Statement or Prospectus or for
additional information and, in the event of the issuance of
any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the
Securities or suspending any such qualification, promptly use
its best efforts to obtain the withdrawal of such order.
(b) The Company, promptly from time to time, will take
such action as the Representatives reasonably may request to qualify
such Designated Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives reasonably may
request and comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Designated Securities,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
(c) Prior to 10:00 a.m., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from
time to time, the Company will deliver written and electronic copies of
the Prospectus as amended or supplemented to the Underwriters in New
York City in such quantities as the Representatives reasonably may
request. If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Designated Securities and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Securities Act, the
Exchange Act or the Trust Indenture Act, the Company will notify the
Representatives and upon their request will file such document and
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many written and electronic copies as the
Representatives from time to time reasonably may request of an amended
Prospectus or a
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supplement to the Prospectus that will correct such statement or
omission or effect such compliance.
(d) The Company will make generally available to its
securityholders as soon as practicable, but in any event not later than
18 months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Securities Act), an earnings statement
of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, the Company will not offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company that mature
more than one year after such Time of Delivery and that are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
(f) 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) by 10:00 p.m., Washington, DC
time, on the date of this Agreement, and at the time of filing the
Company shall either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Securities Act.
6. The Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Securities Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) all expenses in connection with
the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the any Blue Sky Memorandum or Legal
Investment Survey; (iii) any fees charged by securities rating services for
rating the Securities; (iv) any filing fees incident to, and the reasonable fees
and disbursements of counsel for the Underwriters in connection with, any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (v) the cost of printing or reproducing the
Securities; (vi) the fees and expenses of any Trustee and any agent of any
Trustee and the reasonable fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder that are not
otherwise specifically provided for in this Section 6. It is understood,
however, that, except as provided in this Section 6, and Sections 8 and 11
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the
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Representatives, to the condition that all representations and warranties and
other statements of the Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to such Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5(a) hereof. If the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 p.m., Washington, DC time, on the date
of this Agreement. No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission. All requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction.
(b) Counsel for the Underwriters shall have furnished to
the Representatives such written opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to the valid
existence of the Company, the validity of the Designated Securities,
the Registration Statement, the Prospectus and such other related
matters as the Representatives reasonably may request, and such counsel
shall have received such documents and information as they reasonably
may request to enable them to pass upon such matters.
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company is a validly existing
corporation in good standing under the laws of the State of
Delaware, with the requisite corporate power and authority to
own its properties and conduct its business as described in
the Prospectus as amended or supplemented.
(ii) The Company has the corporate power and
authority to execute and deliver the Underwriting Agreement,
the Pricing Agreement, the Indenture and the Designated
Securities and to perform its obligations thereunder.
(iii) The execution, delivery and performance of
the Underwriting Agreement and the Pricing Agreement have been
duly authorized by all necessary corporate action. The
Underwriting Agreement and the Pricing Agreement have been
duly executed and delivered by the Company.
(iv) The execution, delivery and performance of
the Designated Securities have been duly authorized by all
necessary corporate action. The Designated Securities, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the
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terms of the Underwriting Agreement and the Pricing Agreement,
will be legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms. The Designated Securities conform to the description
thereof in the Prospectus as amended or supplemented.
(v) The execution, delivery and performance of
the Indenture have been duly authorized by all necessary
corporate action. The Indenture has been duly executed and
delivered by the Company and constitutes a legal, valid and
binding obligation of the Company enforceable against the
Company in accordance with its terms. The Indenture conforms
to the description thereof in the Prospectus as amended or
supplemented.
(vi) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body having jurisdiction over the
Company is required to be obtained by the Company for the
issue and sale by the Company of the Designated Securities
being delivered at such Time of Delivery, except such as have
been obtained under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters.
(vii) Insofar as the statements in the Prospectus
under the captions "Description of Securities", "Description
of Capital Stock" and "Underwriting" constitute a summary of
the documents referred to therein, such statements fairly
present in all material respects the information required to
be disclosed under the Securities Act and the rules and
regulations of the Commission relating to registration
statements on Form S-3 and prospectuses.
(viii) The Registration Statement has become
effective under the Securities Act.
In addition, such counsel shall state that, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, such counsel has no
reason to believe: (a) that the Registration Statement, at the time it
became effective (which, for purposes of such counsel's expression of
belief, shall have the meaning set forth in Rule 158(c) under the
Securities Act) or the Prospectus, as of its date or as of such Time of
Delivery, were not appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder; or (b)(i) that the
Registration Statement, at the time it became effective, 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 (ii) that the Prospectus, as of its date or
as of such Time of Delivery, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In expressing
its belief, such counsel may state that it expresses no belief as to
the financial statements and related schedules, or the Statement of
Eligibility on Form T-1, contained or incorporated by reference in the
Registration Statement or the Prospectus. Such
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counsel also shall state that it does not know of any contract or other
document of a character required to be described in the Registration
Statement or Prospectus, or filed as an exhibit thereto, that is not
described or filed as required.
(d) At the Time of Delivery for such Designated
Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter, dated such Time
of Delivery, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the Company's financial statements and certain
financial information contained or incorporated by reference in the
Registration Statement and the Prospectus.
(e) Except as set forth in or contemplated by the
Registration Statement and the Prospectus, the Company shall not have
sustained any loss or interference with its business from any calamity,
labor dispute or court or governmental action, order or decree, and
there shall not have been any change in the capital stock or long-term
debt of the Company or any change, or any development reasonably likely
to result in a change, in or affecting the business, financial
condition, stockowners' equity or results of operations of the Company
and its subsidiaries taken as a whole, the effect of which in any such
case is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended relating to the Designated
Securities.
(f) On or after the date of the Pricing Agreement
relating to the Designated Securities: (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock or the Company's financial strength or claims paying
ability by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act; and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock or the Company's financial strength or
claims paying ability.
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv)
the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Securities.
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(h) The Company shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of prospectuses
on the New York Business Day next succeeding the date of the Pricing
Agreement relating to such Designated Securities.
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in Sections 7(a) and (e) and as
to such other matters as the Representatives reasonably may request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Designated Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the
11
Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
Section 8(a) or (b) of notice of the commencement of any action, such
indemnified party, if a claim in respect thereof is to be made against
the indemnifying party under Section 8(a) or (b), shall notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under Section 8(a) or (b). In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party,
be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under Section 8(a) or (b) for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Without
the written consent of the indemnified party, no indemnifying party
shall effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or (b) in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters of the Designated Securities on the
other from the offering of the Designated Securities to which such
loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section
8(c), then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters of
the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to,
among
12
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in
this Section 8(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this
Section 8(d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
Securities Act. The obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the
Securities Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Designated Securities which it has agreed to
purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives in their discretion may arrange for
themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within 36 hours
after such default by any Underwriter the Representatives do not
arrange for the purchase of such Designated Securities, then the
Company shall be entitled to a further period of 36 hours within which
to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms.
In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated
Securities for a period of not more than seven days, in order to effect
whatever changes thereby may be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company promptly will file any
amendments or supplements to the Registration Statement or the
Prospectus that in the opinion of the Representatives thereby may be
made necessary.
13
The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section 9 with like effect as if such
person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
Section 9(a), the aggregate principal amount of such Designated
Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Designated Securities, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Designated Securities that such
Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities that such Underwriter agreed
to purchase under such Pricing Agreement) of the Designated Securities
of such defaulting Underwriter or Underwriters for which such
arrangements have not been made, but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
Section 9(a), the aggregate principal amount of Designated Securities
that remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred to in
Section 9(b), or if the Company shall not exercise the right described
in Section 9(b) to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof, but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, other than the occurrence of an event described in Section
7(g)(i), (iii), (iv) or (v), the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
14
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company as set forth in
the Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign merely by reason of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, DC is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
17. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Underwriters imposing
any limitation of any kind.
15
ANNEX I
PRICING AGREEMENT
[NAMES OF REPRESENTATIVE(S)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Book-Running Representative(s)]
[Address]
[City, State ZIP]
______________, 20__
Ladies and Gentlemen:
Xxxxxx Xxxx Educators Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _______________________, 20 ___ (the
"Underwriting Agreement"), to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of
this Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall be
deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us _____ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Xxxxxx Xxxx Educators Corporation
By:_________________________
Name:
Title:
Accepted as of the date hereof:
[Name of Book-Running Representative(s)]
[Name(s) of Co-Representative(s)]
By: ____________________
Name:
Title:
2
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
---------
Total.......................................... $
=========
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued
amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization
[, if any,] from to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of
[The Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
______ a.m. (New York City time), , 20
INDENTURE:
Indenture dated , 20 , between the Company and , as
Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing _____________________, 20__]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Securities
on in each of the years through at 100% of their
principal amount plus accrued interest[, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$
2
] principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities,
insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on , and
to a rate not less than % of the effective annual interest rate
on U.S. Treasury obligations with -year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Designated Securities are floating rate debt securities,
insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year [month][securities][certificates of deposit] issued by and
[insert names of banks].] [and the annual interest rate [thereafter]
[from through ] will be the interest yield equivalent of
the weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if
any, of (i) the then current weekly average per annum secondary market
yield for -month certificates of deposit over (ii) the then
current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); [from and
thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
3
