Exhibit 1.01
13,200,207 Shares
TRAVELERS PROPERTY CASUALTY CORP.
Class A Common Stock
FORM OF UNDERWRITING AGREEMENT
------------------------------
___________, 1997
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. XXXXXX SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters
Ladies and Gentlemen:
The entities named in Schedule I hereto as selling stockholders (the
"Selling Stockholders") propose to sell an aggregate of 13,200,207 shares (the
"Firm Shares") of Class A Common Stock, $0.01 par value per share (the "Class A
Common Stock"), of Travelers Property Casualty Corp., a Delaware corporation
(the "Company"), to the several Underwriters named in Schedule II hereto (the
"Underwriters") for whom Xxxxx Xxxxxx Inc. and X.X. Xxxxxx Securities Inc. are
acting as representatives (the "Representatives"). The Selling Stockholders
also propose to sell to the Underwriters, upon the terms and conditions set
forth in Section 2 hereof, up to an additional 1,000,000 shares (the "Additional
Shares") of Class A Common Stock of the Company. The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares." The
Class A Common Stock, including the Shares, and the Company's Class B Common
Stock, $0.01 par value per share, are hereinafter referred to collectively as
the "Common Stock." The Company is a majority-owned subsidiary of The Travelers
Insurance Group Inc. ("TIGI"), which in turn is an indirect wholly owned
subsidiary of Travelers Group Inc. ("Travelers Group").
The Company and the Selling Stockholders wish to confirm as follows
their agreements with you and the other several Underwriters on whose behalf you
are acting in connection with the several purchases of the Shares by the
Underwriters.
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"), a registration statement on Form S-3 (File No.
333-38733) under the Act (the "registration statement"), including a
prospectus subject to completion relating to the Shares. The term
"Registration Statement" as used in this Agreement means the registration
statement (including all financial schedules and exhibits), as amended at the
time it becomes effective, or, if the registration statement became effective
prior to the
execution of this Agreement, as supplemented or amended prior to the
execution of this Agreement. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering of
the Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. If an additional registration statement is prepared and filed
with the Commission in accordance with Rule 462(b) under the Act (an
"Additional Registration Statement"), the term "Registration Statement" as
used in this Agreement includes the Additional Registration Statement. The
term "Prospectus" as used in this Agreement means the Prospectus in the form
included in the Registration Statement, or, if the Prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the
Act and such information is included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, the term "Prospectus" as
used in this Agreement means the Prospectus in the form included in the
Registration Statement as supplemented by the addition of the Rule 430A
information contained in the Prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement
means the Prospectus subject to completion in the form included in the
registration statement at the time of the initial filing of the registration
statement with the Commission, and as such Prospectus shall have been amended
from time to time prior to the date of this Prospectus. Any reference herein
to the registration statement, the Registration Statement, any Prepricing
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Form S-3 under the
Act as of the date of the registration statement, the Registration Statement,
such Prepricing Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") which are deemed
to be incorporated by reference pursuant to Form S-3 under the Act. As used
herein, the term "Incorporated Documents" means the documents which at the
time are incorporated by reference in the registration statement, the
Registration Statement, any Prepricing Prospectus, the Prospectus or any
amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. Subject to such adjustments
as you may determine in order to avoid fractional shares, each Selling
Stockholder agrees, severally and not jointly, subject to all the terms and
conditions set forth herein, to sell to each Underwriter and, upon the basis
of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to all the terms and
conditions set forth herein, each Underwriter, severally and not jointly,
agrees to purchase from each Selling Stockholder, at a purchase price of
$______ per share, that number of Firm Shares which bears the same proportion
to the number of Firm Shares set forth opposite the name of such Selling
Stockholder in Schedule I hereto as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number
of Firm Shares increased as set forth in Section 12 hereof) bears to the
aggregate number of Firm Shares to be sold by the Selling Stockholders.
The Selling Stockholders also agree, severally and not jointly,
subject to all the terms and conditions set forth herein, to sell to the
Underwriters, and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, the Underwriters shall have the right to
purchase from
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the Selling Stockholders, at the purchase price per share, pursuant to an
option (the "over-allotment option"), which may be exercised at any time and
from time to time prior to 9:00 P.M., New York City time, on the 30th day
after the date of the Prospectus (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New York
Stock Exchange is open for trading), up to an aggregate of 1,000,000
Additional Shares. The maximum number of Additional Shares which each
Selling Stockholder agrees to sell upon the exercise by the Underwriters of
the over-allotment option is set forth opposite their respective names in
Schedule I hereto. If at any time the Underwriters exercise the
over-allotment option with respect to less than 1,000,000 of the Additional
Shares, the Underwriters shall purchase from each Selling Stockholder that
number of Additional Shares which bears the same proportion to the total number
of Additional Shares to be purchased by the Underwriters as the number of
Firm Shares set forth opposite the name of such Selling Stockholder in
Schedule I hereto bears to the aggregate number of Firm Shares to be sold by
the Selling Stockholders. Upon any exercise of the over-allotment option,
each Underwriter, severally and not jointly, agrees to purchase from each
Selling Stockholder that number of Additional Shares (subject to such
adjustments as you may determine in order to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be sold by
such Selling Stockholder as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto (or such number of Firm Shares
increased as set forth in Section 12 hereof) bears to the aggregate number of
Firm Shares to be sold by the Selling Stockholders.
3. TERMS OF THE PUBLIC OFFERING. The Company and the Selling
Stockholders have been advised by you that the Underwriters propose to make a
public offering of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, New York City
time, on _________, 1997 (the "Closing Date"). The place of closing for the
Firm Shares and the Closing Date may be varied by agreement among you, the
Company and the Selling Stockholders.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than three nor later than ten business days after
the giving of the notice hereinafter referred to, as shall be specified in a
written notice from you on behalf of the Underwriters to the Company and the
Selling Stockholders of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Shares may be varied by
agreement among you, the Company and the Selling Stockholders.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request by written notice prior to 9:30 A.M., New
York City time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in New York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next preceding the Closing
Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be purchased
hereunder shall be delivered to you on the Closing Date or the Option Closing
Date, as the case may be, against payment of the purchase price therefor in
immediately available funds.
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5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
(or any Additional Registration Statement) to be declared or to become effective
before the offering of the Shares may commence, the Company will endeavor to
cause the Registration Statement or such post-effective amendment to become
effective as soon as possible and will advise you promptly and, if requested by
you, will confirm such advice in writing, when the Registration Statement or
such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries taken as a whole, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you, without charge, copies of the
registration statement as originally filed with the Commission and of each
amendment thereto, including financial statements and all exhibits thereto and
Incorporated Documents, in such quantities as you may reasonably request.
(d) The Company will not (i) file any amendment to the Registration
Statement or any Additional Registration Statement or make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised or
(ii) so long as, in the opinion of counsel for the Underwriters, a prospectus
is required to be delivered in connection with sales by any Underwriter or
dealer, file any information, documents or reports pursuant to the Exchange
Act, without delivering a copy of such information, documents or reports to
you, as Representatives of the Underwriters, prior to or concurrently with
such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which
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the Shares are offered by the several Underwriters and by dealers, prior to
the date of the Prospectus, of each Prepricing Prospectus so furnished by the
Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without
charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may reasonably request. The Company consents to the use of
the Prospectus (and of any amendment or supplement thereto) in accordance
with the provisions of the Act and with the securities or Blue Sky laws of
the jurisdictions in which the Shares are offered by the several Underwriters
and by all dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time thereafter as the
Prospectus is required by the Act to be delivered in connection with sales by
any Underwriter or dealer. If during such period of time any event shall
occur that in the judgment of the Company or in the opinion of counsel for
the Underwriters is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Prospectus, or to file under the Exchange Act any document which upon filing
becomes an Incorporated Document, to comply with the Act, the Exchange Act or
any other law, the Company will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto or Incorporated Document and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may designate
and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company will
furnish to you, upon your request, a copy of each report of the Company
mailed to stockholders and a copy of each Annual Report on Form 10-K, each
quarterly report on Form 10-Q and each current report on Form 8-K filed by
the Company with the Commission under the Exchange Act.
(j) If Rule 430A of the Act is employed, the Company will timely
file the Prospectus pursuant to Rule 424(b) under the Act and will advise you
of the time and manner of such filing.
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(k) The Company will not (and will not announce or otherwise disclose
any intention to) sell, contract to offer, sell or otherwise dispose of any
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or grant any options or warrants to purchase Common Stock, for
a period of 90 days after the date of the Prospectus or until March 15, 1998,
whichever is later (but in no event later than 120 days after the date of the
Prospectus), without the prior written consent of the Representatives, except
(i) as provided in this Agreement and (ii) pursuant to benefit plans for
employees, directors or property and casualty insurance agents of the Company
and its subsidiaries.
(l) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by TIGI and by
certain of the Company's current executive officers and directors.
(m) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, 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 the Common
Stock to facilitate the sale or resale of the Shares.
6. AGREEMENTS OF THE SELLING STOCKHOLDERS. Each of the Selling
Stockholders agrees, severally and not jointly, with the several Underwriters as
follows:
(a) Such Selling Stockholder will cooperate to the extent necessary
to cause the Registration Statement, any Additional Registration Statement or
any post-effective amendment thereto to become effective at the earliest
possible time.
(b) Such Selling Stockholder will pay all federal and other taxes, if
any, on the transfer or sale of any Shares that are sold by such Selling
Stockholder to the Underwriters.
(c) Such Selling Stockholder will do or perform all things required
to be done or performed by it prior to the Closing Date to satisfy all
conditions precedent to the delivery of the Shares by such Selling Stockholder
pursuant to this Agreement.
(d) Except as stated in this Agreement or in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take,
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
the Common Stock to facilitate the sale or resale of the Shares.
(e) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of
time referred to in Section 5(f) hereof, of any change in information
relating to such Selling Stockholder that suggests that any statement
relating to such Selling Stockholder made in the Registration Statement or
the Prospectus (as then amended or supplemented, if amended or supplemented)
is or may be untrue in any material respect or that the Registration
Statement or Prospectus (as then amended or supplemented, if amended or
supplemented) omits or may omit to state a material fact or a fact necessary
to be stated therein in order to make the statements therein relating to such
Selling Stockholder not misleading in any material respect.
(f) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982, as amended, with respect to the transactions herein contemplated,
such Selling Stockholder agrees to deliver
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to you prior to or on the Closing Date a properly completed and executed
United States Treasury Department Form W-9 if required by Treasury Department
regulations (or any other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(g) Such Selling Stockholder has furnished or will furnish to you a
"lock-up" letter, in form and substance satisfactory to you.
7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter and to each of the Selling
Stockholders that:
(a) The Prepricing Prospectus dated October 24, 1997 complied in all
material respects with the provisions of the Act. The Commission has not issued
any order preventing or suspending the use of any Prepricing Prospectus.
(b) The Company meets the requirements of Form S-3 under the Act.
The registration statement in the form in which it became or becomes effective
and also in such form as it may be when any post-effective amendment thereto or
any Additional Registration Statement shall become effective, and the Prospectus
and any supplement or amendment thereto when filed with the Commission under
Rule 424(b) under the Act, complied or will comply in all material respects with
the provisions of the Act and did not or will not at any such times 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,
except that this representation and warranty does not apply to statements in or
omissions from the registration statement or the Prospectus made in reliance
upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter through you expressly
for use therein.
(c) All the outstanding shares of capital stock of the Company
(including the Shares) have been duly authorized and validly issued, are fully
paid and nonassessable and are free of any preemptive or similar rights, except
as set forth in Section 5 of the Shareholders Agreement dated as of April 2,
1996, as amended on June 20, 1997 and November 5, 1997, among TIGI and the other
shareholders party thereto (the "Shareholders Agreement") and Section 5.1 of the
Intercompany Agreement dated as of April 2, 1996 between Travelers Group and the
Company (the "Intercompany Agreement"); and the capital stock of the Company
conforms in all material respects to the description thereof in the Registration
Statement and the Prospectus.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure or failures (individually or in the aggregate) so to register or qualify
does not have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and its
subsidiaries taken as a whole.
(e) There are no legal or governmental proceedings (including,
without limitation, actions or proceedings by any insurance regulatory agency
or body) pending or, to the
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knowledge of the Company, threatened, against the Company or any of the
Company's "significant subsidiaries," as determined in accordance with
Regulation S-X under the Act (such "significant subsidiaries" being
hereinafter referred to collectively as the "Subsidiaries" and individually
as a "Subsidiary"), or to which the Company or any of the Subsidiaries is a
party, or to which any of their respective properties is subject, that are
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act.
(f) The Company is not (i) in violation of its certificate of
incorporation or bylaws, or (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company, or
(iii) in violation of any decree of any court or governmental agency or body
having jurisdiction over the Company, or (iv) in default in the performance or
any obligation, agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Company is a party or by which it or any of its
properties may be bound, except, in the case of clauses (ii), (iii) and (iv),
where any such violation or default would not, net of reinsurance, reserves and
taxes, have a material adverse effect (individually or in the aggregate) on the
condition (financial or other), business, properties, net worth or results of
operation of the Company and its subsidiaries taken as a whole.
(g) Neither the execution, delivery or performance of this
Agreement by the Company, nor the consummation by the Company of the
transactions contemplated hereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body (including any insurance regulatory body), administrative
agency or other governmental body, agency or official (except such as may be
required for the registration of the Shares under the Act and compliance with
the securities or Blue Sky laws of various jurisdictions, all of which have
been or will be effected in accordance with this Agreement), except where the
failure to obtain such consent, approval, authorization or other order or
make such registration or filing would not have (individually or in the
aggregate) a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
its subsidiaries taken as a whole, or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other organizational
documents, of the Company or any of the Subsidiaries, or (iii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, any agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound, or (iv) violates or will
violate any statute, law, regulation or filing or judgment, injunction, order
or decree of any government, government instrumentality (including, without
limitation, any insurance regulatory agency or body) or court, domestic or
foreign, applicable to the Company or any of the Subsidiaries or any of their
respective properties, or (v) will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to the terms of any agreement or instrument
to which any of them is a party or by which any of them may be bound or to
which any of the property or assets of any of them is subject, except, in the
case of clauses (iii), (iv) and (v) of this paragraph (i), any such conflict,
breach or default, violation or any such lien or encumbrance that would not
(individually or in the aggregate) have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and its subsidiaries taken as a whole.
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(h) The accountants, KPMG Peat Marwick LLP, who have certified or
shall certify the financial statements included in the Registration Statement
and the Prospectus (or any amendment or supplement thereto) are independent
public accountants as required by the Act.
(i) The consolidated financial statements, together with related
schedules and notes, included and/or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), comply as to form in all material respects with the requirements of
the Act. Such statements present fairly the consolidated financial position
of the Company and its subsidiaries and the combined financial position of
Travelers Casualty and Surety Company (formerly The Aetna Casualty and Surety
Company) and The Standard Fire Insurance Company and their subsidiaries, in
each case at the respective dates indicated, and the results of their
operations and their cash flows for the respective periods indicated in
accordance with generally accepted accounting principles consistently applied
throughout such periods. The other financial and statistical information
relating to the Company and its subsidiaries and Travelers Casualty and
Surety Company and The Standard Fire Insurance Company and their subsidiaries
and data included and/or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
historical and pro forma, that are identified as being prepared in accordance
with generally accepted accounting principles, are, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and its subsidiaries or
Travelers Casualty and Surety Company and The Standard Fire Insurance Company
and their subsidiaries, as the case may be. No pro forma financial
statements prepared in accordance with Article 11 of Regulation S-X under the
Act are required to be included or incorporated by reference in the
Registration Statement or Prospectus.
(j) The statutory financial statements of the Company's insurance
subsidiaries from which certain ratios and other statistical data included
and/or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) have been derived, have
been prepared for each relevant period in conformity with accounting
practices prescribed or permitted by the National Association of Insurance
Commissioners and the insurance departments of the states of domicile of such
subsidiaries, in effect at such time of preparation, except as otherwise
stated therein.
(k) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and validly
authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except to the extent that (i) enforcement hereof may be limited by
(x) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and (y)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (ii) the rights to
indemnity and contribution hereunder may be limited by United States federal
or state securities laws.
(l) Except as disclosed in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), (i)
neither the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business (including any material addition, or any
development involving a prospective
9
material addition, to the Company's consolidated reserve for insurance claims
and claims expense, other than as contemplated by the Registration Statement
or the Prospectus), that is material to the Company and its subsidiaries
taken as a whole, (ii) there has not been any change in the capital stock of
the Company nor any material increase in the short-term debt or long-term
debt of the Company or any of its subsidiaries, and (iii) there has not been
any material adverse change, or any development involving or which may
reasonably be expected to involve, a prospective material adverse change, in
the condition (financial or other), business, net worth or results of
operation of the Company and its subsidiaries taken as a whole.
(m) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute any offering materials in connection with the offering and
sale of the Shares other than the Registration Statement, the Prepricing
Prospectus, the Prospectus or other materials, if any, permitted by the Act.
(n) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and with
statutory accounting principles, and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(o) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filling of the registration statement or the consummation of the
transactions contemplated by this Agreement, other than any such rights that
have been complied with or waived in writing.
(p) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(q) The Incorporated Documents heretofore filed were filed in a
timely manner and, when they were filed (or, if any amendment with respect to
any such document was filed, when such document was filed), conformed with the
requirements of the Exchange 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 not misleading
8. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter and to the Company that:
(a) Such Selling Stockholder has, and on the Closing Date will have,
valid and unencumbered title to the Shares to be delivered by such Selling
Stockholder on the Closing Date and has full right, power and authority to enter
into this Agreement and to sell, assign, transfer and deliver the Shares to be
delivered by such Selling Stockholder on the Closing Date hereunder; and upon
the delivery of any payment for the Shares on the Closing Date, and assuming the
several Underwriters take delivery of such Shares in good faith and without
notice of any adverse claim within the meaning of the Uniform Commercial Code as
in effect in the
10
State of New York (the "UCC"), the several Underwriters will acquire valid
and unencumbered title to such Shares to be delivered by such Selling
Stockholder on the Closing Date.
(b) Such Selling Stockholder has reviewed the information relating to
such Selling Stockholder contained in the Registration Statement and the
Prospectus and the information relating to such Selling Stockholder in
the Registration Statement and the Prospectus does not contain any untrue
statement of a material fact relating to such Selling Stockholder or omit to
state any fact required to be stated therein or necessary to make the statements
therein relating to such Selling Stockholder not misleading in any material
respect.
(c) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or made
by such Selling Stockholder for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Shares to be
sold by such Selling Stockholder hereunder, except such as have been obtained
and made under the Act and such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares.
(d) Neither the execution, delivery and performance of this Agreement
by such Selling Stockholder nor the consummation of the transactions herein
contemplated by such Selling Stockholder will result in a breach or violation of
any of the terms and provisions of, or constitute a default under, (A) any
statute, rule, regulation or order of any governmental agency or body or any
court having jurisdiction over such Selling Stockholder or any of its
properties, (B) any agreement or instrument to which such Selling Stockholder is
a party or by which such Selling Stockholder is bound or to which any of the
properties of such Selling Stockholder is subject or (C) the certificate or
articles of incorporation or bylaws or other organizational documents of such
Selling Stockholder.
(e) This Agreement has been duly authorized, executed and delivered
by such Selling Stockholder and is the valid and binding agreement of such
Selling Stockholder enforceable against such Selling Stockholder in
accordance with its terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or principles of
public policy and except as enforcement hereof may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general equitable
principles.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of such Underwriter through you expressly for use in connection
therewith; PROVIDED, HOWEVER, that the indemnification contained in this
11
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) to the extent that any such loss, claim, damage, liability or
expense arises from the sale of the Shares by such Underwriter to any person if
it shall be established that a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such Prepricing
Prospectus was corrected in the Prospectus and such correction would have cured
the defect giving rise to such loss, claim, damage, liability or expense;
PROVIDED that the Company delivered the Prospectus to the several Underwriters
in requisite quantity on a timely basis to permit such delivery or sending. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any 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 losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of
or are based on information relating to such Selling Stockholder furnished in
writing by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto; PROVIDED, HOWEVER, that the indemnification
contained in this paragraph (b) with respect to any Prepricing Prospectus
shall not inure to the benefit of any Underwriter (or to the benefit of any
person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of Shares by such
Underwriter to any person if it shall be established that a copy of the
Prospectus shall not have been delivered or sent to such person within the
time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus and such correction would have cured the defect giving rise to
such loss, claim, damage, liability or expense; PROVIDED that the Company
delivered the Prospectus to the several Underwriters in requisite quantity on
a timely basis to permit such delivery or sending. The foregoing indemnity
agreement shall be in addition to any liability which the Selling
Stockholders may otherwise have.
(c) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder, such
Underwriter or such controlling person shall promptly notify the parties against
whom indemnification is being sought (the "indemnifying parties") and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel, or (iii) the named parties to any
12
such action, suit or proceeding (including any impleaded parties) include
both such Underwriter or such controlling person and the indemnifying parties
and such Underwriter or such controlling person shall have been advised by
its counsel that representation of such indemnified party and the
indemnifying parties by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
parties shall not have the right to assume the defense of such action, suit
or proceeding on behalf of such Underwriter or such controlling person). It
is understood, however, that the indemnifying parties shall, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
(i) the reasonable fees and expenses of only one separate firm of attorneys
(in addition to any local counsel) at any time for all such Underwriters and
controlling persons not having actual or potential differing interest with
you or among themselves, which firm shall be designated in writing by the
Representatives and (ii) the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Selling Stockholders and controlling persons not having actual or
potential differing interest among themselves, which firm shall be designated
in writing by the Selling Stockholders selling a majority of the Shares, and
that all such fees and expenses shall be reimbursed as they are incurred.
The indemnifying parties shall not be liable for any settlement of any such
action, suit or proceeding effected without their written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the indemnifying parties
agree to indemnify and hold harmless any Underwriter, to the extent provided
in the preceding paragraph, and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such settlement or
judgment.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Company's directors, the Company's officers
who sign the Registration Statement, each Selling Stockholder and any person who
controls the Company or any Selling Stockholder within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnities from the Company and the Selling Stockholders to each
Underwriter, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of the Company's directors,
any such officer or any Selling Stockholder, or any such controlling person,
based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (d),
such Underwriter shall have the rights and duties given to the Company and the
Selling Stockholder by paragraph (c) above (except that if the Company or any
Selling Stockholder shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, the Company's
directors, any such officer, any Selling Stockholder, and any such controlling
person shall have the rights and duties given to the Underwriters by paragraph
(c) above. The foregoing indemnity agreement shall be in addition to any
liability which the Underwriters may otherwise have.
13
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a), (b) or (d) hereof
in respect of any losses, claims, damages, liabilities or expenses referred
to therein, then an 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 or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and
the indemnified party on the other hand from the offering of the Shares, 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 or parties on the one hand and the indemnified
party on the other in connection with the statement or omission that resulted
in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Selling Stockholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus; PROVIDED that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company and the
Selling Stockholders or the Underwriters from the offering of the Shares
shall include the net proceeds (before deducting expenses) received by the
Selling Stockholders, and the underwriting discounts and commissions received
by the Underwriters, from the sale of such Additional Shares, in each case
computed on the basis of the respective amounts set forth in the notes to the
table on the cover page of the Prospectus. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
(f) The Company, each Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by a pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (e) above shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to the respective numbers of Shares set forth opposite
their names in Schedule II hereto (or such numbers of Shares increased as set
forth in Section 12 hereof) and not joint.
14
(g) Notwithstanding any other provision of this Section 9, the total
liability of any Selling Stockholder for indemnification or contribution under
this Section 9 shall not exceed an amount equal to the number of Shares sold by
such Selling Stockholder hereunder multiplied by the purchase price per share
set forth in Section 2 hereof.
(h) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent
relating to any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes (i) an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (ii) does not include a
statement as to or an admission of fault or culpability by or on behalf of
any indemnified party.
(i) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under
this Section 9 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities or expenses are incurred.
The indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders
set forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Company, the
Company's directors or officers, or any Selling Stockholder or any person
controlling the Company or any Selling Stockholder, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company, the Company's directors or officers, any
Selling Stockholder, or any person controlling the Company or any Selling
Stockholder, shall be entitled to the benefits of the indemnity,
contribution, and reimbursement agreements contained in this Section 9. The
indemnity and contribution agreements contained in this Section 9 shall be in
addition to any rights and obligations of the Company and the Selling
Stockholders under the Shareholders Agreement.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
(or an Additional Registration Statement) to be declared or to become effective
before the offering of the Shares may commence, the registration statement or
such post-effective amendment or Additional Registration Statement shall have
become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
you, and all filings, if any, required by Rules 424 and 430A under the Act shall
have been timely made; no stop order suspending the effectiveness of the
registration statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the Commission for
additional information (to be included in the registration statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the
15
condition (financial or other), business, properties, net worth, or results
of operations of the Company or its subsidiaries taken as a whole from what
was set forth in the Prospectus, which, in your opinion, as Representatives
of the several Underwriters, would materially adversely affect the market for
the Shares, or (ii) any event or development relating to or involving the
Company, which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus
in order to state a material fact required by the Act or any other law to be
stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect such event
or development would, in your opinion, as Representatives of the several
Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of Xxxxx
X. Xxxxxxxx, Esq., General Counsel of the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, and otherwise
in form and substance satisfactory to you, covering the matters referred to in
Exhibit A hereto.
(d) You shall have received on the Closing Date, an opinion of
counsel to each of the Selling Stockholders, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, and otherwise
in form and substance satisfactory to you, covering the matters referred to in
Exhibit B hereto.
(e) You shall have received on the Closing Date an opinion of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, with respect
to the Registration Statement, the Prospectus and such other related matters as
you may reasonably require.
(f) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and the Selling Stockholders and
dated the date hereof and the Closing Date from KPMG Peat Marwick LLP,
independent certified public accountants, substantially in the forms
heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company from
that set forth as contemplated in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), except as may otherwise
be stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), (iii) there shall not have been (A) any material adverse
change in the condition (financial or other), business, properties, net worth
or results of operations of the Company and its subsidiaries taken as a whole
or (B) any material addition, or any development involving a prospective
material addition, to, other than as contemplated by the Registration
Statement or the Prospectus, the Company's consolidated reserve for insurance
claims and claims expense; (iv) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (other than in the
ordinary course of business), that are material to the Company and its
subsidiaries taken as a whole, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and
(v) all the representations and warranties of the Company contained in this
Agreement shall be true and
16
correct on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
or vice chairman and the chief financial officer of the Company (or such
other officers as are acceptable to you), to the effect set forth in this
Section 10(g) and in Section 10(h) hereof.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(i) All the representations and warranties of each of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate from each Selling
Stockholder, dated the Closing Date and signed by or on behalf of such Selling
Stockholder, to the effect set forth in this Section 10(i) and in Section 10(j)
hereof.
(j) The Selling Stockholders shall not have failed at or prior to the
Closing Date to have performed or complied with any of their agreements herein
contained and required to be performed or complied with by them hereunder at or
prior to the Closing Date.
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you such further certificates and documents as you
shall have reasonably requested.
(l) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the financial strength or claims paying
ability of any intracompany insurance pool to which any Subsidiary belongs
by any of Xxxxx'x Investor Services, Inc., Standard & Poor's Ratings Group or
A.M. Best & Co. and (ii) no such organization shall have publicly announced
that is has under surveillance or review, with possible negative implications,
its rating of the claims paying ability of any such insurance pool, the effect
of which, in any such case described in clause (i) or (ii), would in your
opinion, as Representatives of the several Underwriters, materially adversely
affect the market for the Shares.
(m) The "lockup" agreements between you and TIGI and certain
executive officers and directors of the Company and each of the Selling
Stockholders relating to sales of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, previously delivered to
you, shall be in full force and effect on the Closing Date.
(n) The Company shall have consented in writing to the sale of the
Additional Shares by the Selling Stockholders, and the Selling Stockholders
shall have consented in writing to the terms of the waiver permitting such sale,
and you shall have been furnished with a copy of such consents.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or
by or on behalf of any Selling Stockholder and delivered to you, as
Representatives of the Underwriters,
17
or to counsel for the Underwriters, shall be deemed to be a representation
and warranty by the Company or such Selling Stockholder, as the case may be,
to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (g) and (i) and (k) shall be dated
the Option Closing Date and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Additional Shares.
11. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it
of its obligations hereunder: (i) the preparation, printing or reproduction,
and filing with the Commission of the registration statement (including
financial statements and exhibits thereto), each of the Prepricing Prospectus
and the Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
registration statement, the Prepricing Prospectus, the Prospectus, the
Incorporated Documents and all amendments or supplements to any of them as
may be reasonably requested for use in connection with the offering and sale
of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes in
connection with the original issuance and sale of the Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, Blue Sky Memoranda
and all other agreements or documents printed (or reproduced) and delivered
in connection with the offering of the Shares; (v) the registration or
qualification of the Shares for offer and sale under the securities or blue
sky laws of the several states as provided in Section 5(g) hereof (including
the reasonable fees, expenses and disbursements of counsel for the
Underwriters relating to the preparation, printing or reproduction, and
delivery of Blue Sky Memoranda and such registration and qualification);
(vi) the filing fees and the reasonable fees and expenses of counsel for the
Underwriters in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; (vii) the transportation
and other expenses incurred by or on behalf of Company management in
connection with presentations to prospective purchasers of the Shares; and
(viii) the fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Company and
the Selling Stockholders.
12. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto or any
Additional Registration Statement to be declared or become effective before the
offering of the Shares may commence, when notification of the effectiveness of
the registration statement or such post-effective amendment has been released by
the Commission. Until such time as this Agreement shall have become effective,
it may be terminated by the Company by notifying you and the Selling
Stockholders, by the Selling Stockholders by notifying you and the Company or by
you, as Representatives of the several Underwriters, by notifying the Company
and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or
18
refuse to purchase is not more than one-tenth of the aggregate number of
Shares which the Underwriters are obligated to purchase on the Closing Date,
each non-defaulting Underwriter shall be obligated, severally, in the
proportion which the number of Shares set forth opposite its name in Schedule
II hereto bears to the aggregate number of Shares set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as you
may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares which such
defaulting Underwriter or Underwriters are obligated, but fail or refuse, to
purchase. If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you
and the Company are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case which does not result in
termination of the Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and
the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed
in Schedule I hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or the Selling Stockholders, by notice to the
Company and the Selling Stockholders, if prior to the Closing Date,
(i) trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in New York or Connecticut shall have been declared by either
federal or state authorities, or (iii) there shall have occurred any outbreak
or escalation of hostilities or other international or domestic calamity,
crisis or change in political, financial or economic conditions, the effect
of which on the financial markets of the United States is such as to make it,
in your judgment, impracticable or inadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on the
cover page of the Prospectus or to enforce contracts for the resale of the
Shares by the Underwriters. Notice of such termination may be given by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company or any of the Selling Stockholders (each
such Selling Stockholder, a "Defaulting Stockholder"), as the case may be, to
comply with the terms or fulfill
19
any of the conditions of this Agreement, the Company or such Defaulting
Stockholders, as the case may be, agree to reimburse the Representatives for
all reasonable out-of-pocket expenses (including reasonable fees and expenses
of counsel for the Underwriters) incurred by you in connection herewith;
PROVIDED that each such Defaulting Stockholder will pay the amount of
expenses which bears the same proportion as the number of Shares to be sold
by such Defaulting Stockholder bears to the aggregate number of Shares to be
sold by all such Defaulting Stockholders.
14. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first, second, sixth, seventh,
tenth and eleventh paragraphs under the caption "Underwriting" in any Prepricing
Prospectus and in the Prospectus constitute the only information furnished by or
on behalf of the Underwriters through you as such information is referred to in
Section 7(b) and 9 hereof.
15. MISCELLANEOUS. Except as otherwise provided in Sections 5, 12
and 13 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at Xxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxx
X. Xxxxxxx, Vice Chairman, with copies to: Xxxxx X. Xxxxxxxx, Esq., General
Counsel, and Xxxxxxxxx X. Xxxxxx, Deputy General Counsel of Travelers Group;
(ii) if to the Selling Stockholders, at the offices of (A) Aetna Services,
Inc., Law & Regulation Affairs RC4A, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000-0000, Attention: Xxxxx Xxxxxxxx; (B) X.X. Xxxxxx Capital
Corporation, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx
Xxxxxxxx; (C) The Trident Partnership, L.P., Xxxxxxxx Xxxx, 00 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx XX00, Attention: Xxxxxxx Xxxxxxxx; (D) Fund
American Enterprises Holdings, Inc., 00 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxx
Xxxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx; (E) Sixty Wall Street Fund,
L.P., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx Xxxxxxxx; with
a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxxx, Esq. or (iii) if to you, as
Representatives of the several Underwriters, care of Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division, with a copy to General Counsel, Investment Banking Division
and to Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxxxx X. Xxxxxx, Esq.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, the Company's directors and officers, the
Selling Stockholders and the controlling persons referred to in Section 9 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any Underwriter of any
of the Shares in his status as such purchaser.
16 APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
20
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
TRAVELERS PROPERTY CASUALTY CORP.
By: _____________________________________
Name:
Title:
AETNA SERVICES, INC.
By: _____________________________________
Name:
Title:
X.X. XXXXXX CAPITAL CORPORATION
By: _____________________________________
Name:
Title:
THE TRIDENT PARTNERSHIP, L.P.
By: _____________________________________
Name:
Title:
FUND AMERICAN ENTERPRISES
HOLDINGS, INC.
By: _____________________________________
Name:
Title:
SIXTY WALL STREET FUND, L.P.
By: _____________________________________
Name:
Title:
21
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
X.X. XXXXXX SECURITIES INC.
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By: _____________________________
Managing Director
By X.X. XXXXXX SECURITIES INC.
By: _____________________________
Managing Director
22
SCHEDULE I
SELLING STOCKHOLDERS
Maximum Number of
Legal Name of Entity Number of Firm Shares Additional Shares
-------------------- --------------------- -----------------
Aetna Services, Inc . . . . . . . . . . 5,028,650 380,953
X.X. Xxxxxx Capital Corporation . . . . 4,973,473 376,772
The Trident Partnership, L.P. . . . . . 1,885,744 142,857
Fund American Enterprises
Holdings, Inc. . . . . . . . . . . . . 1,257,163 95,238
Sixty Wall Street Fund, L.P.. . . . . . 55,177 4,180
---------- ---------
Total 13,200,207 1,000,000
========== =========
SCHEDULE II
TRAVELERS PROPERTY CASUALTY CORP.
Number of
Underwriter Firm Shares
----------- -------------
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . .
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . . . . . .
Credit Suisse First Boston Corporation. . . . . . . . . . . . . .
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated. . . . . . . . . . . . . . . . . . . . . . .
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . .
----------
TOTAL 13,200,207
==========
EXHIBIT A
1. The Company is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such registration or
qualification, except where the failure or failures (individually or in the
aggregate) so to register or qualify does or do not have a material adverse
effect on the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a whole.
2. Each of the Subsidiaries is a corporation duly incorporated and
validly existing in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own, lease, and
operate its properties and to conduct its business as described in the
Prospectus; and all the outstanding shares of capital stock of each of the
subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and are owned by the Company directly or indirectly, free and
clear of any lien, adverse claim, security interest or other encumbrance.
3. Each of the Subsidiaries has full corporate power and authority,
and the Company and each of the Subsidiaries has all necessary governmental
authorizations, approvals, orders, licenses, certificates, franchises and
permits of and from all governmental regulatory officials and bodies (including,
without limitation, insurance licenses from the insurance regulatory agencies of
the various states where it conducts business) (except where the failure so to
have any such authorizations, approvals, orders, licenses, certificates,
franchises or permits, individually or in the aggregate, would not have a
material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries taken as a whole), to own their respective properties and to
conduct their respective businesses as now being conducted, as described in the
Prospectus.
4. Neither the Company nor any of the Subsidiaries is in violation
of its respective certificate or articles of incorporation or by-laws, or other
organizational documents, or to the best knowledge of such counsel, is in
default in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or other evidence of indebtedness or in any
agreement, indenture, lease or other instrument to which the Company or any of
the Subsidiaries is a party or to which any of them or any of their respective
properties may be bound other than any such violation or default that would not,
net of reinsurance, reserves and taxes, have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and its subsidiaries taken as a whole.
5. Neither the execution, delivery or performance of the
Underwriting Agreement by the Company, nor the consummation by the Company of
the transactions contemplated thereby (A) conflicts or will conflict with or
constitutes or will constitute a breach
of, or a default under, the certificate or articles or incorporation or by-laws
of the Company or any of the Subsidiaries, (B) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, (i) any
agreement, indenture, lease or other instrument to which the Company is a party
or by which it or any of its properties may be bound or (ii) any material
agreement, indenture, lease or other instrument to which any of the Subsidiaries
is a party or by which any of them or any of their respective properties may be
bound, in each case that is an exhibit to the Registration Statement or any
Incorporated Document or that is known to such counsel, (C) will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries, or (D) violate or will violate
any statute, law, regulation, filing, ruling (assuming compliance with all
applicable state securities and Blue Sky laws), judgment, injunction, order or
decree of any government, governmental instrumentality (including, without
limitation, any insurance regulatory agency or body), or court, domestic or
foreign, known to such counsel, applicable to the Company or any of the
Subsidiaries or any of their respective properties, except, in the case of
clauses (B), (C) and (D) of this paragraph (6), any such conflict, breach or
default or any such lien or encumbrance that would not (individually or in the
aggregate) have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the
Company and its subsidiaries taken as a whole.
6. No consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency, or official (except such as has been
obtained under the Act or such as may be required under state securities or Blue
Sky laws governing the purchase and distribution of the Shares) is required on
the part of the Company for the execution, delivery or performance of the
Underwriting Agreement, except, in each case, where the failure to obtain such
consent, approval, authorization or other order to make such registration or
filing would not have (individually or in the aggregate) a material adverse
effect on the condition (financial or other), business, properties, net worth or
results of operations of the Company and its subsidiaries taken as a whole.
7. Each of the Subsidiaries is duly organized and licensed as an
insurance company in the state of its incorporation and is duly licensed or
authorized as an insurer or reinsurer in each other jurisdiction where it is
required to be so licensed or authorized to conduct its business as described in
the Prospectus, except where the failure (individually or in the aggregate) to
be so licensed or authorized in any such jurisdiction does not have a material
adverse effect on the condition (financial or other), business, properties, net
worth or results of operations of the Company and its subsidiaries taken as a
whole.
8. Except as described in the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, and there is no
commitment, plan or arrangement to issue any shares of capital stock of the
Company or any security convertible into or exchangeable or exercisable for
capital stock of the Company.
9. Except as described in the Prospectus, there is no holder of any
security of the Company or any other person who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, the Shares or the right to have any Common Stock
or other securities of the Company included in the Registration Statement or the
right, as a result of the filing of the Registration Statement, to require
registration under the Act of any shares of Common Stock or other securities of
the Company.
10. The Company has corporate power and authority to enter into the
Underwriting Agreement, and the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid, legal and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforcement of rights to indemnity and contribution thereunder
may be limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of the Company's
obligations thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
11. All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, and are fully paid and
nonassessable; and the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained in
the Prospectus under the caption "Description of Capital Stock."
12. The Incorporated Documents (except for the financial statements
and the notes thereto and the schedules and other financial and statistical
information included therein, as to which no opinion need be expressed), at the
time they were filed with the Commission (or, if any amendment with respect to
any such document was filed, when such document was filed), complied as to form
in all material respects with the requirements of the Exchange Act.
13. The Registration Statement was declared effective under the Act,
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or have been communicated
by the Commission to the Company as being contemplated by it under the Act. The
Registration Statement, as of its effective date, and the Prospectus, as of its
date and as of the Closing Date, comply as to form in all material respects with
the requirements of the Act and the applicable rules and regulations thereunder
(except as to the financial statements or other data of a financial or
statistical nature, as to which no opinion need be expressed); such counsel has
no reason to believe that the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date or as of the
Closing Date, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (except as to the financial statements or
other data of a financial
or statistical nature, as to which no opinion need be expressed). The
descriptions in the Registration Statement and the Prospectus of statutes, legal
and governmental proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be described in the
Registration Statement or Prospectus which are not described as required or of
any contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement or any Incorporated Document which are not described and
filed as required; except that such counsel need not express any opinion as to
the financial statements or other data of a financial or statistical nature
contained in the Registration Statement or the Prospectus. While such counsel
need not independently verify nor assume any responsibility for the accuracy,
completeness or fairness of the statements, except as expressly referred to in
the immediately preceding sentence, contained in the Registration Statement or
the Prospectus, the foregoing opinion in the second and third sentences in this
paragraph 13 shall be based upon such counsel's review and discussion with
members of the Travelers Group Inc. legal staff who participated in the
preparation of the Registration Statement and the Prospectus (including any
Incorporated Documents) and any amendments and supplements thereto (including
any such Incorporated Documents), review and discussion of the contents thereof
and the knowledge such counsel has gained in such counsel's capacity as Senior
Vice President, General Counsel and Secretary to the Company, but without any
independent check or verification on such counsel's part.
EXHIBIT B
1. No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required on behalf of any
Selling Stockholder for the consummation of the transactions contemplated by the
Underwriting Agreement or in connection with the sale of the Shares, except (A)
such as have been obtained and made under the Act and (B) such as may be
required under state securities laws.
2. Each Selling Stockholder has the full legal right, power and
authority to sell, assign, transfer and deliver the Shares on the Closing Date
as provided in the Underwriting Agreement; and, upon delivery of such Shares and
payment therefor as contemplated by the Underwriting Agreement and assuming the
several Underwriters purchased such Shares in good faith and without notice of
an adverse claim within the meaning of the UCC, the several Underwriters will
acquire good and marketable title to the Shares, free and clear of any adverse
claim.
3. To the knowledge of such counsel, neither the execution, delivery
and performance of the Underwriting Agreement, the transactions contemplated
therein or the sale of the Shares by the Selling Stockholders will result in (A)
a breach or violation of any of the terms and provisions of, or constitute a
default under, the charter, by-laws or other organizational documents of any
Selling Stockholder; (B) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over any Selling Stockholder or any subsidiary of any Selling
Stockholder or any of their properties or (C) any agreement, indenture, mortgage
or other instrument material to any Selling Stockholder.
4. The Underwriting Agreement has been duly authorized, executed and
delivered by each Selling Stockholder and constitutes the legal, valid and
binding agreement of each Selling Stockholder, enforceable against each Selling
Stockholder in accordance with its terms, except as enforcement of rights to
indemnity and contribution thereunder may be limited by Federal or state
securities laws or principles of public policy, and except as enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent
conveyance and other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
