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Exhibit 1.1
LIFE RE CORPORATION
LIFE RE CAPITAL TRUST II
.....% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $........... PER UNIT)
UNDERWRITING AGREEMENT
.......................,1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Life Re Corporation, a Delaware corporation (the "Company"), and the
several Underwriters named in Schedule I hereto (the "Underwriters") propose,
subject to the terms and conditions stated herein, to enter into the Purchase
Contracts referred to in the Master Unit Agreement (herein so called) to be
dated as of .................., 1998, between the Company and
............................................, as Master Unit Agent (the "Unit
Agent"), underlying an aggregate of 1,500,000 ......% Adjustable Conversion-rate
Equity Security Units (the "Firm Securities"). In connection therewith, Life Re
Capital Trust II (the "Trust"), a statutory business trust created under the
Business Trust Act of the State of Delaware (the "Delaware Business Trust Act"),
and the Company propose, subject to the terms and conditions stated herein, that
the Trust issue and sell to the Underwriters an aggregate liquidation amount of
$1,500,000 .....% Quarterly Income Preferred Securities (liquidation amount
$...... per QUIP) (the "QUIPS(sm)") representing undivided preferred beneficial
interests in the assets of the Trust, which will be guaranteed by the Company as
to the payment of distributions, and as to payments on liquidation or
redemption, to the extent that the Trust has funds on hand legally available
therefor, as set forth in a guarantee agreement (the "Guarantee Agreement")
among the Company and The Bank of New York, as trustee (the "Guarantee
Trustee"). Further in connection therewith the Underwriters will, on behalf of
the initial holders of the Units (as defined herein), sell Call Options (the
"Call Options") to Xxxxxxx, Xxxxx & Co. (in its capacity as the holder of the
Call Options, the "Call Option Holder") which will entitle the Call Option
Holder to acquire such QUIPS (or Junior Subordinated Debentures substituted
therefore), on or before the Call Option Expiration Date (as defined in the Call
Options), in exchange for the Aggregate Consideration Deliverable on Exercise of
the Call Options (as defined in the Call Options). In connection with the Master
Unit Agreement and the Call Options, pursuant to the Pledge Agreement, to be
dated as of .................................., 1998 (the "Pledge Agreement"),
among the Company, the Unit Agent, the Call Option Holder and __________, as
collateral agent (the "Collateral Agent"), the QUIPS underlying the Units will
be pledged by the Unit Agent on behalf of the holders of the Units to secure the
holders' obligations to the Company and the Call Option Holder under the
Purchase Contract and Call Option underlying such Unit. The rights to
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purchase newly issued common stock, par value $.001 per share, of the Company
(the "Common Stock") under a Purchase Contract, together with the QUIPS or other
Pledged Securities securing such Purchase Contract, subject to (a) the
obligations owed to the Company under such Purchase Contract, (b) the
obligations owed to the Call Option Holder under the Call Option relating to
such QUIPS or other Pledged Securities and (c) the pledge arrangements under the
Pledge Agreement securing the foregoing obligations, collectively constitute an
Adjustable Conversion-rate Equity Security Units (a "Unit"). In addition,
subject to the terms and conditions herein, the Company proposes to grant the
Underwriters an option to enter into Purchase Contracts underlying up to 225,000
additional Units and the Trust and the Company propose to grant the Underwriters
an option to purchase up to 225,000 additional QUIPS, and, in the event the
Underwriters enter into any such additional Purchase Contracts, the Underwriters
propose to purchase a number of additional QUIPS equal to such number of
additional Purchase Contracts, pledge such QUIPS to the Collateral Agent and
sell Call Options relating to such QUIPS to the Call Option Holder (the Units
resulting therefrom being the "Optional Securities"). The Firm Securities and
any Optional Securities purchased by the Underwriters are herein called the
"Securities".
The proceeds of the sale of the QUIPS and of the common securities of the
Trust (the "Common Trust Securities" and, together with the QUIPS, the "Trust
Securities") to be sold by the Trust to the Company are to be invested in __%
Junior Subordinated Debentures (the "Junior Subordinated Debentures") of the
Company to be issued pursuant to an Indenture (the "Indenture") among the
Company and The Bank of New York, as trustee (the "Debenture Trustee"). The
Trust Securities will be issued pursuant to, and be governed by the Amended and
Restated Declaration, dated as of ....................., 1998 (the
"Declaration") among the Company, The Bank of New York, as property trustee (the
"Property Trustee"), The Bank of New York (Delaware), as the Delaware Trustee
(the "Delaware Trustee"), the Administrators named therein and the holders from
time to time of the beneficial interests in the assets of the Trust. The
Declaration will be qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
Concurrently with the transactions contemplated by this Agreement, the
Company and certain stockholders of the Company are entering into underwriting
agreements pursuant to which the Company proposes to issue and sell an aggregate
3,300,000 shares of Common Stock and certain stockholders of the Company propose
to sell up to an aggregate of 725,000 shares of Common Stock to the underwriters
that are the parties to such underwriting agreements. Such transactions are
collectively referred to herein as the "Other Offering".
Capitalized terms used herein without definition shall be used as defined
in the Prospectus.
1. The Company and the Trust, jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-46213) (the
"Initial Registration Statement") in respect of the Securities, including
the Purchase Contracts underlying the Securities, the shares of Common
Stock (the "Shares") to be purchased upon settlement of the Purchase
Contracts underlying such Securities, the QUIPS, the Junior Subordinated
Debentures, the Guarantee and the Call Options, has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated
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by reference in the prospectus contained therein, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became or hereafter becomes effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any,
has been issued and no proceeding for that purpose has been initiated
or, to the knowledge of the Company, threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement,
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto but excluding Form T-1 and including (i) the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, and (ii) the documents incorporated by reference in
the prospectus contained in the registration statement at the time such
part of the registration statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, each as amended at the time such part of the Initial
Registration Statement became effective, are hereinafter collectively
called the "Registration Statement"; such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act, and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in
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reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for
use therein;
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission will conform in
all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein either (i) in the case of the
Registration Statement or any amendment thereto, not misleading or (ii) in
the case of the Prospectus or any amendment or supplement thereto, in
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or increase
in long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development that could reasonably be
expected to involve a prospective material adverse change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered as
a whole, otherwise than as set forth or contemplated in the Prospectus;
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(f) The Company and its subsidiaries have good title in fee simple
to all real property and good title to all material personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(g) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and insurance regulatory) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, except for those failures to be so qualified
or in good standing in any such jurisdiction that would not individually
or in the aggregate have a material adverse effect on the business,
operations, financial condition or results of operations of the Company
and its subsidiaries considered as a whole (a "Material Adverse Effect");
and each Significant Subsidiary (as defined in Section (1)(aa)) of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
(h) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions, in each jurisdiction
in which such filings or approvals are required, except (i) where the
failure to have made such filings or receive such approvals in any such
jurisdiction would not have, individually or in the aggregate, a Material
Adverse Effect or (ii) in the case of pending acquisitions, in which case
such filings have been made or such approvals have been applied for; each
of the Company's subsidiaries that is required to be organized and
licensed as an insurance company in its jurisdiction of incorporation is
duly organized and licensed as an insurance company in its respective
jurisdiction of incorporation, and each such subsidiary is duly licensed
or authorized as an insurer in each other jurisdiction in which such
licensing or authorization is required, except where the failure to be so
licensed or authorized in any such jurisdiction would not have,
individually or in the aggregate, a Material Adverse Effect; the Company
and each of its subsidiaries have all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications of and from all insurance regulatory and other governmental
authorities to conduct their respective businesses as described in the
Prospectus, except where the failure to have such authorizations,
approvals, orders, consents, licenses, certificates, permits,
registrations or qualifications would not have, individually or in the
aggregate, a Material Adverse Effect; each of the Company and each of its
subsidiaries that engages in the insurance business have fulfilled and
performed all obligations necessary to maintain the insurance licenses
("Insurance Licenses") from the insurance regulatory agencies of the
various jurisdictions where it conducts business
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except where the failure to so fulfill or perform would not,
individually or in the aggregate, have a Material Adverse Effect; there
is no pending or, to the knowledge of the Company, threatened action,
suit, proceeding or investigation that could reasonably be expected to
lead to the revocation, termination or suspension of any such license,
certificate or permit (including, without limitation, the Insurance
Licenses), the revocation, termination or suspension of which would
have, individually or in the aggregate, a Material Adverse Effect; and
except as disclosed in the Prospectus, no insurance regulatory agency
or body has issued any order or decree impairing, restricting or
prohibiting the payment of dividends by any subsidiary to its parent
which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(i) The Company and each of its subsidiaries that is an
insurance company is in compliance with the requirements of the
insurance laws and regulations of its jurisdiction of incorporation and
the insurance laws and regulations of other jurisdictions which are
applicable to the Company and each such subsidiary, and has filed all
notices, reports, documents or other information required to be filed
thereunder, except where the failure to so comply or file would not,
individually or in the aggregate, have a Material Adverse Effect;
(j) At September 30, 1997, the Company had an authorized
capitalization as set forth in the column entitled "actual" under the
caption "Capitalization" in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and conform to the
description of the Common Stock incorporated by reference in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully paid and non-assessable and (except as set forth in the
Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(k) All retrocessional treaties and arrangements to which any
of the subsidiaries of the Company is a party are in full force and
effect and none of the subsidiaries is in violation of, or in default
in the performance, observance or fulfillment of, any obligation,
agreement, covenant or condition contained therein, except to the
extent that any such violation or default would not, individually or in
the aggregate, have a Material Adverse Effect; none of the Significant
Subsidiaries of the Company has received any notice from any of the
other parties to such treaties, contracts or agreements that such other
party intends not to perform in any material respect such treaty,
contract or agreement and, to the best knowledge of the Company, the
Company has no reason to believe that any of the other parties to such
treaties or arrangements will be unable to perform such treaty or
arrangement;
(l) The unissued Shares to be issued and sold by the Company
pursuant to the Purchase Contracts and the Master Unit Agreement have
been duly authorized and reserved for issuance and, when issued and
delivered against payment therefor as provided in the Purchase
Contracts and the Master Unit Agreement, will be validly issued and
fully paid and non-assessable and will conform to the description of
the Common Stock incorporated by reference in the Prospectus;
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(m) The entry into the Purchase Contracts underlying the Firm
Securities and the Optional Securities by the Company, the issue and
sale of the QUIPS underlying the Firm Securities and the Optional
Securities and the Common Securities by the Trust, the issue and sale
of the Junior Subordinated Debentures underlying such Trust Securities
by the Company, the issue and sale of the Shares by the Company
pursuant to the Purchase Contracts, the compliance by the Company and
the Trust, as applicable, with the provisions of this Agreement, such
Purchase Contracts, the Master Unit Agreement, the Pledge Agreement,
the Guarantee Agreement, the Declaration and the Indenture and the
consummation of the transactions herein and therein contemplated and
the Other Offering (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company and (iii) will not result in any violation of the provisions of
any statute or any order, rule or regulation of any court, insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, except in the case of clauses (i) and (iii) for such
conflicts, breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect; and
no consent, approval, authorization, order, registration or
qualification of or with any such court, insurance regulatory authority
or other governmental agency or body is required for the entry into the
Purchase Contracts underlying the Firm Securities and the Optional
Securities by the Company, the issue and sale of the QUIPS underlying
the Firm Securities and the Optional Securities and the Common
Securities by the Trust, the issue and sale of the Junior Subordinated
Debentures underlying such Trust Securities by the Company, the issue
and sale of the Shares by the Company pursuant to the Purchase
Contracts, the compliance by the Company and the Trust, as applicable,
with all of the provisions of this Agreement, such Purchase Contracts,
the Master Unit Agreement, the Pledge Agreement, the Guarantee
Agreement, the Declaration or the Indenture or the consummation of the
transactions herein or therein contemplated or the Other Offering
except the registration under the Act of the Securities and the Shares
to be issued upon settlement of the Purchase Contracts and the Stock to
be issued in the Other Offering and the approval and registration of
the Securities with the New York Stock Exchange and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters or the Other Offering;
(n) The issue and sale of the QUIPS underlying the Firm
Securities and the Optional Securities and the Common Trust Securities
by the Trust, the purchase of the Junior Subordinated Debentures
underlying such Trust Securities by the Trust, and the compliance by
the Trust with all of the provisions of the Declaration and this
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any agreement or instrument to which the Trust is a party or by which
the Trust is bound or to which any of the property or assets of the
Trust is subject, nor will such
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action result in any violation of the provisions of any statute or any
order, rule or regulation of any court, insurance regulatory authority
or other governmental agency or body having jurisdiction over the Trust
or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court,
insurance regulatory authority or other governmental agency or body is
required for the issue and sale of the QUIPS underlying the Firm
Securities and the Optional Securities and the Common Securities by the
Trust, the purchase of the Junior Subordinated Debentures underlying
such Trust Securities by the Trust or the consummation by the Trust of
the transactions contemplated by this Agreement or the Declaration,
except the registration under the Act of the Securities, and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(o) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority to enter into this Agreement and
to perform its obligations; the Trust has conducted no business to date
other than as contemplated by this Agreement and the Declaration; the
Trust is not a party to or bound by any agreement or instrument other
than this Agreement, the Declaration, and the agreements and
instruments contemplated by the Declaration and described in the
Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement
and the Declaration and described in the Prospectus; based on current
law, the Trust is not and will not be classified as an association
taxable as a corporation for United States federal income tax purposes;
and the Trust is not a party to or subject to any action, suit or
proceeding of any nature; and the Declaration has been duly qualified
under the Trust Indenture Act;
(p) The Purchase Contracts underlying the Firm Securities and
the Optional have been duly and authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding instruments, enforceable in accordance with their
terms, subject, as the enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Purchase Contracts will conform to the descriptions thereof in the
Prospectus;
(q) The Master Unit Agreement, and the Pledge Agreement, have
been duly authorized by the Company and, when executed and delivered by
the other parties thereto, will constitute a valid and binding
instrument enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles;
(r) The QUIPS underlying the Firm Securities and the Optional
Securities have been duly authorized, and, when issued, delivered and
paid for pursuant to this Agreement, will have been validly issued and
fully paid and non-assessable beneficial interests in the Trust
entitled to the benefits of the Declaration and will conform to the
description of the QUIPS contained in the Prospectus; the holders of
the QUIPS will be entitled to the same limitation of personal liability
extended to stockholders of private
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corporations for profit organized under the General Corporation Law of the
State of Delaware;
(s) The Common Trust Securities have been duly authorized and at
each Time of Delivery (as defined herein), will be validly issued and
fully paid and non-assessable beneficial interests in the assets of the
Trust; the issuance of the Common Trust Securities is not subject to
preemptive or other similar rights; and at each Time of Delivery, all of
the issued and outstanding Common Trust Securities of the Trust will be
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and the Common Trust
Securities and the QUIPS are the only interests authorized to be issued by
the Trust;
(t) The Guarantee Agreement, the Declaration, the Indenture and the
Junior Subordinated Debentures, each have been duly authorized and at each
Time of Delivery, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Junior Subordinated Debentures will be entitled to
the benefits of the Indenture; and the Guarantee Agreement, the
Declaration, the Indenture and the Junior Subordinated Debentures will
conform to the descriptions thereof in the Prospectus;
(u) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws or (ii) in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound
except in the case of clause (ii) for such defaults that, individually or
in the aggregate, would not have a Material Adverse Effect;
(v) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect; and, to the Company's knowledge, no such
proceedings are threatened by governmental authorities or threatened by
others;
(w) No "forward looking statement" (as defined in Rule 175 under the
Act) contained in the Registration Statement, any Preliminary Prospectus
or the Prospectus was made or reaffirmed without a reasonable basis or was
disclosed other than in good faith;
(x) Neither the Company nor the Trust is and, after giving effect to
the offering and sale of the Securities, neither will be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(y) None of the Company, any of its affiliates or the Trust, does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes
(Chapter 92-128, Laws of Florida);
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(z) Ernst & Young, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants
within the meaning of Regulation S-X under the Act and the rules and
regulations of the Commission thereunder; and
(aa) Each of TexasRe Life Insurance Company ("TexasRe"), Life
Reassurance Corporation of America ("Life Reassurance"), Reassure America
Life Insurance Company ("REALIC") and American Merchants Life Insurance
Company ("AML") is referred to herein as a "Significant Subsidiary"; all
of the other subsidiaries of the Company in the aggregate do not
constitute a "Significant Subsidiary" as defined in Regulation S-X under
the Act;
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Underwriters, severally and not jointly, agree to enter
into the Purchase Contracts underlying the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto, (b) the Company and
the Trust agree that the Trust will sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, at a purchase price of $______ per QUIPS, the number of QUIPS underlying
the number of Firm Securities set forth opposite the name of such Underwriter in
Schedule 1 hereto, and (c) in the event and to the extent that the Underwriters
shall exercise the election to enter into additional Purchase Contracts
underlying Optional Securities as provided below, the Company and each of the
Underwriters, severally and not jointly, agree to enter into that number of
additional Purchase Contracts as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional Purchase
Contracts) determined by multiplying such number of additional Purchase
Contracts by a fraction, the numerator of which is the maximum number of
Optional Securities set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the maximum number of Optional
Securities set forth in total opposite the names of all such Underwriters in
Schedule I hereto and the Company and the Trust agree that the Trust will sell
to each of the Underwriters and each of the Underwriters agrees, severally and
not jointly, to purchase from the Trust at the purchase price set forth in
clause (a) of this Section 2, a number of QUIPS equal to such number of
additional Purchase Contracts.
The Company hereby grants to the Underwriters the right to enter into at
their election up to 225,000 Purchase Contracts underlying Optional Securities
and the Company and the Trust hereby grant the Underwriters the right to
purchase from the Trust at their election up to 225,000 QUIPS, for the sole
purpose of covering overallotments in the sale of the Firm Securities. Any such
election to enter into such additional Purchase Contracts and purchase such
QUIPS may be exercised only by written notice from you to the Company and the
Trust, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of such additional Purchase
Contracts to be entered into and QUIPS to be purchased (which shall be an
identical number) and the date on which the related Optional Securities are to
be delivered, as determined by you but in no event earlier than the First Time
of Delivery (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
The Underwriters agree to pledge to the Collateral Agent the QUIPS
underlying the Firm Securities and the Optional Securities with respect to which
the Company and the Underwriters have entered into Purchase Contracts. Such
pledge shall be effected by the delivery to the
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Collateral Agent in New York by the Underwriters of the QUIPS to be pledged at
the appropriate Time of Delivery (as defined below) in accordance with the
Pledge Agreement.
The Underwriters further agree to sell, on behalf of the initial
purchasers of the Units, to the Call Option Holder a Call Option with respect to
each Security purchased at a purchase price of $______ per Call Option at the
appropriate Time of Delivery.
Unless the context otherwise requires, for purposes of this Agreement, the
act of entering into a Purchase Contract underlying a Security, purchasing a
QUIPS underlying a Security and selling a Call Option with respect to such QUIPS
shall be referred to as a "purchase" of such Security.
3. Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Units in book-entry form which will be deposited by or
on behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian and delivered to Xxxxxxx, Xxxxx & Co., for the
account of each Underwriter, against payment by or on behalf of such
Underwriter of the purchase price by certified or official bank check or
checks, payable to the order of, or by wire transfer to the account
designated by, the Trust, in immediately available (same day) funds and
delivery to the Collateral Agent of the QUIPS relating to such Securities.
The Company will cause the certificates representing the Securities to be
made available to Xxxxxxx, Sachs & Co. for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be, with
respect to the Firm Securities, 9:30 a.m., New York City time, on
....................., 1998 or such other time and date as Xxxxxxx, Xxxxx
& Co. and the Company may agree upon in writing, and, with respect to the
Optional Securities, 9:30 a.m., New York City time, on the date specified
by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx &
Co. of the Underwriters' election to purchase such Optional Securities, or
such other time and date as Xxxxxxx, Sachs & Co. and the Company may agree
upon in writing. Such time and date for delivery of the Firm Securities is
herein called the "First Time of Delivery", such time and date for
delivery of the Optional Securities, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date
for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by
the Underwriters pursuant to Section 7(l) hereof, will be delivered at the
offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at each Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding each Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties
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hereto. For the purposes of this Section 4, "New York Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company and the Trust jointly and severally agree with each of
the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be disapproved
by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities and insurance securities laws of such jurisdictions as you
may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to or take any action
that would subject the Company to service of process in any jurisdiction
or taxation in any jurisdiction where it is not now subject;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement, to furnish the
Underwriters with copies of the Prospectus in New York City in such
quantities as you may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection
with the offering or sale of the Securities and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue
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statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify you and upon your request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission or effect
such compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) If the Company and the Trust elect to rely upon Rule 462(b), the
Company and the Trust shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
(e) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(f) During the period beginning from the date of the Prospectus and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder and in connection with the Other Offering,
any Common Stock or securities of the Company that are substantially
similar to the Common Stock, or which are convertible into or exchangeable
for, or that represent the right to receive, Common Stock or any such
substantially similar securities other than (i) pursuant to employee stock
option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement and (ii) shares of Common Stock or such other securities issued
as consideration in future acquisitions as long as either the entity to
which the Company is issuing consideration for such acquisitions or, in
the case of consideration being paid to shareholders of the acquired
entity, all of the executive officers, directors, other affiliates and
shareholders owning 5% or more of the equity of the entity being acquired
have agreed in writing to such 180-day restriction, without your prior
written consent;
(g) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries
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certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(h) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to the
Commission);
(i) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(j) To use its best efforts to list, subject to notice of issuance,
the Securities on the New York Stock Exchange (the "Exchange").
6. The Company and the Trust jointly and severally covenant and agree
with the several Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Indenture, the Blue Sky
Memorandum, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) any fees charged by securities rating services for rating
the Securities; (v) all fees and expenses in connection with listing the
Securities on the Exchange; (vi) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of the Trust and the trustees thereunder incident to
the performance by the Trust of its obligations hereunder; (viii) the fees and
expenses of the Unit Agent, Collateral Agent and Debenture Trustee and any agent
of the Unit Agent, Collateral Agent and Debenture Trustee and the fees and
disbursements of any counsel for the Unit Agent, Collateral Agent or Trustee in
connection with the Master Unit Agreement, the Pledge Agreement, the Call Option
Agreement, the Indenture and the Junior Subordinated Debentures, as the case may
be; and (ix) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
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this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Securities
to be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties of the Company and the
Trust herein are, at and as of such Time of Delivery, true and correct, the
condition that the Company and the Trust shall have performed all of its and
their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5 (a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to your reasonable
satisfaction; if the Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, this Agreement, the
validity of the Securities being delivered at such Time of Delivery, the
Registration Statement, the Prospectus and such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Weil, Gotshal & Xxxxxx LLP, counsel for the Company, shall
have furnished to you their written opinion (a draft of each such opinion
is attached as Annex II(a) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own
its properties and to carry on its business as described in the
Prospectus;
(ii) The authorized capital stock of the Company consists of
40,000,000 shares of common stock, par value $.001 per share. Based
solely upon such counsel's review of (A) a certificate of the
Company's transfer agent and (B) the minute books of the Company in
the form provided to such counsel, as of September 30, 1997, there
were 15,830,785 shares of common stock issued of which [2,196,469]
shares were treasury stock and [13,634,316] were outstanding. All of
the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and non-assessable. The
Common Stock to be issued
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pursuant to this Agreement have been duly authorized, validly
issued, fully paid and non-assessable;
(iii) The unissued Shares to be issued and sold by the Company
pursuant to the Purchase Contracts and the Master Unit Agreement
have been duly authorized and reserved for issuance and, when issued
and delivered against payment therefor as provided in the Purchase
Contracts and the Master Unit Agreement, will be validly issued and
fully paid and non-assessable and will conform to the description of
the Common Stock incorporated by reference in the Prospectus;
(iv) The Company is duly qualified to transact business and
is in good standing as a foreign corporation in each jurisdiction
where the character of its activities requires such qualification,
except where the failure of the Company to be so qualified would not
have a material adverse effect on the business, operations or
financial condition of the Company and its subsidiaries considered
as a whole (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they are relying upon
such opinions and certificates);
(v) Each Significant Subsidiary of the Company is a
corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation; and all of the
outstanding shares of capital stock of each of TexasRe, Life
Reassurance and REALIC, and 79% of the outstanding shares of capital
stock of AML are duly authorized, validly issued, fully paid and
non-assessable, and are owned of record by the Company or its
directly or indirectly wholly owned subsidiary and, to such
counsel's knowledge, beneficially by the Company, free and clear, to
such counsel's knowledge , of all liens, claims and other
encumbrances (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company or
its subsidiaries, provided that such counsel shall state that they
are relying upon such opinions and certificates);
(vi) The Company and its subsidiaries have good and
marketable title in fee simple to all real property owned by them,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiaries (in giving the opinion in this clause,
such counsel may state that no examination of record titles for the
purpose of such opinion has been made, and that they are relying
upon a general review of the titles of the Company and its
subsidiaries, upon opinions of local counsel and abstracts, reports
and policies of title companies rendered or issued at or subsequent
to the
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time of acquisition of such property by the Company or its
subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect of matters of fact, upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions, abstracts, reports,
policies and certificates);
(vii) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending or overtly threatened against the Company or any of its
subsidiaries which, if adversely determined, would have a Material
Adverse Effect;
(viii) The execution and delivery of this Agreement have been
duly authorized by all necessary corporate action on the part of the
Company and the Trust. This Agreement has been duly executed and
delivered by the Company and the Trust;
(ix) The Master Unit Agreement, the Purchase Contracts
underlying the Securities being delivered at such Time of Delivery
and the Pledge Agreement have been duly authorized, executed and
delivered by the Company and each is a valid and legally binding
agreement of the Company (and together they create, to the extent
provided therein, a valid interest of the holders of the Securities
in the QUIPS) enforceable against the Company in accordance with its
terms, (except to the extent that enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws now or hereafter in effect
relating to or affecting creditors' rights generally and by general
principles of equity, provided, however, that the rights and
remedies of the Unit Agent and the Collateral Agent provided in
Sections [402] and [508] of the Master Unit Agreement and Section
[4(a)] of the Pledge Agreement upon the occurrence of a Termination
Event will not be limited under the Bankruptcy Code (11 U.S.C. 101
et seq.) as a consequence of Section 365(e)(2) thereof; the Pledge
Agreement creates, as collateral security for the performance when
due by the holders from time to time of the Securities of their
respective obligations under the Purchase Contracts and Call Options
constituting part of such Securities, a legal, valid and perfected
security interest (as that term is defined in the Uniform Commercial
Code, as adopted and in effect in the State of New York), in favor
of the Collateral Agent, in the right, title and interest of such
holders in the Pledged Securities (as defined in the Pledge
Agreement) constituting a part of such Securities;
(x) The Trust has been duly created and is validly existing
as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority to enter into this
Agreement and to perform its obligations; based on current law, the
Trust is not and will not be classified as an association taxable as
a corporation for United States federal income tax purposes; and the
Declaration has been duly qualified under the Trust Indenture Act;
(xi) The QUIPS underlying the Firm Securities and the
Optional Securities have been duly authorized, and are duly and
validly issued and fully paid and non-assessable beneficial
interests in the Trust entitled to the benefits of the
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Declaration and conform to the description of the QUIPS contained in
the Prospectus; the holders of the QUIPS are entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law
of the State of Delaware;
(xii) The Common Trust Securities have been authorized and
are duly and validly issued and fully paid and non-assessable
beneficial interests in the assets of the Trust; the issuance of the
Common Trust Securities is not subject to preemptive or other
similar rights; and all of the issued and outstanding Common Trust
Securities of the Trust are directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Common Trust Securities and the QUIPS are
the only interests authorized to be issued by the Trust;
(xiii) The Guarantee Agreement, the Declaration, the Indenture
and the Junior Subordinated Debentures, each have been duly
authorized and constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; the Junior Subordinated
Debentures are entitled to the benefits of the Indenture; and the
Guarantee Agreement, the Declaration, the Indenture and the Junior
Subordinated Debentures conform to the descriptions thereof in the
Prospectus;
(xiv) The entry into the Purchase Contracts underlying the
Firm Securities and the Optional Securities by the Company, the
issue and sale of the QUIPS underlying the Firm Securities and the
Optional Securities and the Common Securities by the Trust, the
issue and sale of the Junior Subordinated Debentures underlying such
Trust Securities by the Company, the issue and sale of the Shares by
the Company pursuant to the Purchase Contracts, the compliance by
the Company and the Trust, as applicable, with the provisions of
this Agreement, such Purchase Contracts, the Master Unit Agreement,
the Pledge Agreement, the Guarantee Agreement, the Declaration and
the Indenture and the consummation of the transactions contemplated
herein and therein and the Other Offering will not conflict with,
constitute a default under or violate any of the terms or provisions
of, any material document, agreement or other instrument known to
such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound,
nor will such action violate the provisions of the Certificate of
Incorporation or By-laws of the Company or any New York, Delaware
corporate or federal law or regulation (other than state or foreign
securities or Blue Sky laws, as to which such counsel need not
express an opinion) or any judgment, writ, injunction, decree, order
or ruling known to such counsel of any court, insurance regulatory
authority or other governmental authority binding on the Company or
any of its subsidiaries; no consent, approval, waiver, license or
authorization or other action by or filing with any New York,
Delaware or federal government authority is required for the entry
into the Purchase Contracts underlying the Firm Securities and the
Optional Securities by the Company, the
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issue and sale of the QUIPS underlying the Firm Securities and the
Optional Securities and the Common Securities by the Trust, the
issue and sale of the Junior Subordinated Debentures underlying such
Trust Securities by the Company, the issue and sale of the Shares by
the Company pursuant to the Purchase Contracts, the compliance by
the Company and the Trust, as applicable, with all of the provisions
of this Agreement, such Purchase Contracts, the Master Unit
Agreement, the Pledge Agreement, the Guarantee Agreement, the
Declaration or the Indenture or the consummation of the transactions
herein or therein contemplated or the Other Offering except for
those already obtained and for such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters or the Other Offering;
(xv) The issue and sale of the QUIPS underlying the Firm
Securities and the Optional Securities and the Common Trust
Securities by the Trust, the purchase of the Junior Subordinated
Debentures underlying such Trust Securities by the Trust, and the
compliance by the Trust with all of the provisions of the
Declaration and this Agreement, and the consummation of the
transactions contemplated herein and therein will not conflict with,
constitute a default under or violate of any of the terms or
provisions of, any material document, agreement or other instrument
known to such counsel to which the Trust is a party or by which the
Trust is bound, nor will such action violate the provisions of the
Declaration of the Trust or any New York, Delaware corporate or
federal law or regulation (other than state or foreign securities or
Blue Sky laws, as to which such counsel need not express an opinion)
or any judgment, writ, injunction, decree, order or ruling known to
such counsel of any court, insurance regulatory authority or other
governmental authority binding on the Trust; and no consent,
approval, waiver, license or authorization or other action by or
filing with any New York, Delaware or federal governmental authority
is required for the issue and sale of the QUIPS underlying the Firm
Securities and the Optional Securities and the Common Securities by
the Trust, the purchase of the Junior Subordinated Debentures
underlying such Trust Securities by the Trust or the consummation by
the Trust of the transactions contemplated by this Agreement or the
Declaration, except for those already obtained and for such
consents, approvals, authorizations, registrations or qualifications
as may be required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(xvi) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
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(xvii) To the best of such counsel's knowledge, the Company
has made all required filings under applicable insurance holding
company statutes, and has received approvals of acquisition of
control and/or affiliate transactions, in each jurisdiction in which
such filings or approvals are required, except where the failure to
have made such filings or to receive such approvals in any such
jurisdiction would not have, individually or in the aggregate, a
material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole; each of the Company's
subsidiaries that is required to be organized and licensed as an
insurance company in its jurisdiction of incorporation is duly
organized and licensed as an insurance company in its respective
jurisdiction of incorporation, and each such subsidiary is duly
licensed or authorized as an insurer in each other jurisdiction in
which such licensing or authorization is required, except where the
failure to be so licensed or authorized in any such jurisdiction
would not have, individually or in the aggregate, a material adverse
effect on the business, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries,
considered as a whole; the Company and each of its subsidiaries have
all other necessary authorizations, approvals, orders, consents,
certificates, permits, registrations or qualifications of and from
all insurance regulatory and other governmental authorities to
conduct their respective businesses as described in the Prospectus,
except where the failure to have such authorizations, approvals,
orders, consents, licenses, certificates, permits, registrations or
qualifications would not, individually or in the aggregate, have a
material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole; each of the Company and each of
its subsidiaries that engages in the insurance business have
fulfilled and performed all obligations necessary to maintain the
Insurance Licenses from the insurance regulatory agencies of the
various jurisdictions where it conducts business; there is no
pending or, to the knowledge of the Company, threatened action,
suit, proceeding or investigation that may reasonably be expected to
lead to the revocation, termination or suspension of any such
license, certificate or permit (including, without limitation, the
Insurance Licenses), the revocation, termination or suspension of
which would have, individually or in the aggregate, a material
adverse effect on the business, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
considered as a whole; and except as disclosed in the Prospectus, no
insurance regulatory agency or body has issued any order or decree
impairing, restricting or prohibiting the payment of dividends by
any subsidiary to its parent which could reasonably be expected to
have, individually or in the aggregate, a material adverse effect on
the business, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as a
whole;
(xviii) Each of the Company's subsidiaries that is an
insurance company and, to the best of such counsel's knowledge, the
Company, is in compliance with the requirements of the insurance
laws and regulations of its jurisdiction of incorporation and the
insurance laws and regulations of other jurisdictions which
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are applicable to the Company and each such subsidiary, and has
filed all notices, reports, documents or other information required
to be filed thereunder, except where the failure to so comply or
file would not have, individually or in the aggregate with other
such failures, a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole;
(xix) To the best of such counsel's knowledge, all
retrocessional treaties and arrangements to which any of the
subsidiaries of the Company is a party are in full force and effect
and none of the subsidiaries is in violation of, or in default in
the performance, observance or fulfillment of, any obligation,
agreement, covenant or condition contained therein, except to the
extent that any such violation or default would not, individually or
in the aggregate, have a material adverse effect on the business,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, considered as a whole; none of the
subsidiaries of the Company has received any notice from any of the
other parties to such treaties, contracts or agreements that such
other party intends not to perform in any material respect such
treaty, contract or agreement and, to the best knowledge of such
counsel, such counsel has no reason to believe that any of the other
parties to such treaties or arrangements will be unable to perform
such treaty or arrangement;
(xx) Neither the Company nor the Trust is an "investment
company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act;
(xxi) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company and the Trust prior to such Time of Delivery (other than
the financial statements and related schedules therein and the other
financial and accounting data included or incorporated by reference
therein, as to which such counsel need express no opinion), when
they were filed with the Commission, appear on their face to have
complied as to form in all material respects with the requirements
of the Exchange Act, and the rules and regulations of the Commission
thereunder; and
(xxii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company and
the Trust prior to such Time of Delivery (other than the financial
statements and related schedules therein and the other financial and
accounting data included or incorporated by reference therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
Such counsel shall also have furnished a written statement
addressed to the Underwriters to the effect that such counsel has
participated in conferences with directors, officers and other
representatives of the Company and the Trust, representatives of the
independent public accountants for the Company,
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representatives of the Underwriters and representatives of counsel
for the Underwriters, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed and although such counsel have not independently verified
and are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, no facts have come
to such counsel's attention which lead such counsel to believe that,
as of its effective date, the Registration Statement or any further
amendment thereto made by the Company and the Trust prior to such
Time of Delivery (other than the financial statements and related
schedules therein and the other financial and accounting data
included or incorporated by reference therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein
not misleading or that, as of its date or as of such Time of
Delivery, the Prospectus or any further amendment or supplement
thereto made by the Company and the Trust prior to such Time of
Delivery (other than the financial statements and related schedules
therein and the other financial and accounting data included or
incorporated by reference therein, as to which such counsel need
express no opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading
In rendering such opinion, such counsel may state that its opinions are
limited to the laws of the State of New York, the corporate laws of the
State of Delaware and the federal laws of the United States and that such
counsel express no opinion as to the laws of any other jurisdiction.
(d) W. Xxxxxx Xxxxxx, General Counsel of the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached hereto
as Annex II(b)) dated such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(ii) The entry into the Purchase Contracts underlying the Firm
Securities and the Optional Securities by the Company, the issue and sale
of the QUIPS
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underlying the Firm Securities and the Optional Securities and the Common
Securities by the Trust, the issue and sale of the Junior Subordinated
Debentures underlying such Trust Securities by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase Contracts, the
compliance by the Company and the Trust, as applicable, with all of the
provisions of this Agreement, such Purchase Contracts, the Master Unit
Agreement, the Pledge Agreement, the Guarantee Agreement, the Declaration
and the Indenture and the consummation of the transactions herein and
therein contemplated and the Other Offering will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule
or regulation known to such counsel of any court, insurance regulatory
authority or other governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
entry into the Purchase Contracts underlying the Firm Securities and the
Optional Securities by the Company, the issue and sale of the QUIPS
underlying the Firm Securities and the Optional Securities and the Common
Securities by the Trust, the issue and sale of the Junior Subordinated
Debentures underlying such Trust Securities by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase Contracts, the
compliance by the Company and the Trust, as applicable, with all of the
provisions of this Agreement, such Purchase Contracts, the Master Unit
Agreement, the Pledge Agreement, the Guarantee Agreement, the Declaration
or the Indenture or the consummation of the transactions herein or therein
contemplated or the Other Offering except for those already obtained and
for such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters or the Other Offering;
(iii) The issue and sale of the QUIPS underlying the Firm Securities
and the Optional Securities and the Common Trust Securities by the Trust,
the purchase of the Junior Subordinated Debentures underlying such Trust
Securities by the Trust, and the compliance by the Trust with all of the
provisions of the Declaration and this Agreement, and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument known to such
counsel to which the Trust is a party or by which the Trust is bound or to
which any of the property or assets of the Trust is subject, nor will such
action result in any violation of the provisions of any statute or any
order, rule or regulation of any court, insurance regulatory authority or
other governmental
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agency or body having jurisdiction over the Trust or any of its
properties; and no consent, approval, authorization, order, registration
or qualification of or with any such court, insurance regulatory authority
or other governmental agency or body is required for the issue and sale of
the QUIPS underlying the Firm Securities and the Optional Securities and
the Common Securities by the Trust, the purchase of the Junior
Subordinated Debentures underlying such Trust Securities by the Trust or
the consummation by the Trust of the transactions contemplated by this
Agreement or the Declaration, except the registration under the Act of the
Securities, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(iv) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(v) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when such documents became effective or were
so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or, in
the case of other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; and
(vi) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, such
counsel has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company
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25
prior to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
(e) Xxxxxxxx & Xxxxxxxx, special tax counsel for the Company and the
Underwriters, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance satisfactory to you, to the effect that the
discussion set forth in the Prospectus under the heading "Certain Federal Income
Tax Consequences", insofar as it relates to matters of United States federal
income tax law, is accurate in all material respects;
(f) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Ernst & Young shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or increase
in
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long-term debt of the Company or any of its subsidiaries, or any change,
or any development that could reasonably be expected to involve a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred
stock or the financial strength or claims paying ability of the Company or
any of its subsidiaries by either any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, or A.M. Best Company, Inc., and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock or the financial
strength or claims paying ability of the Company or any of its
subsidiaries;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this Clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered
at such Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
(j) The Securities shall have been duly listed, subject to notice of
issuance, on the Exchange;
(k) The Company and the Trust shall have complied with the
provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(l) The Company and the Trust shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of the
Company and the Trust satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Trust herein at and
as of such Time of Delivery, as to the performance by the Company and the
Trust of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (g) of this Section and as to such other matters as
you may reasonably request.
8. (a) Each of the Company and the Trust, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several,
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to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that neither the Company nor the Trust
shall be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and the
Trust against any losses, claims, damages or liabilities to which the Company
and the Trust may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No
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indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Trust on the one hand and the Underwriters on the other
from the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the Trust
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Trust 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 purchase of the
Securities purchased under this Agreement (before deducting expenses) received
by the Company and the Trust bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault 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 and the Trust on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Trust and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
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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 in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Trust under this Section 8
shall be in addition to any liability which the Company or the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company or the Trust within
the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the purchase
of such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the
Company shall have the right to postpone such Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Securities which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
of the Securities to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
number of Securities which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Securities which such
Underwriter agreed to purchase hereunder) of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Securities which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Securities to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations
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30
of the Underwriters to purchase and of the Company to sell the Optional
Securities) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
the Trust or any officer or director or controlling person of the Company or the
Trust, and shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Trust shall not then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Securities are not delivered by or on behalf of the Company and the
Trust as provided herein, the Company will reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities (not so
delivered), but the Company shall then be under no further liability to any
Underwriter in respect of the Securities not so delivered except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company or the Trust shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company or the Trust
set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company, the Trust or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
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14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Life Re Corporation
By:____________________________________
Name:
Title:
Life Re Capital Trust II
By:____________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:_____________________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF
OPTIONAL SECURITIES
TOTAL NUMBER OF TO BE DELIVERED IF
UNDERWRITER FIRM SECURITIES MAXIMUM OPTION
TO BE DELIVERED EXERCISED
Xxxxxxx, Xxxxx & Co....................................................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation....................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.....................
--------------------- -----------------------
Total................................................
===================== =======================
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ANNEX I
Pursuant to Section 7 (e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in the related in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their attention
that caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited
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procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply
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as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference) or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
3
