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2,500,000 Shares
CONNING CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 15, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXXX & SONS, INC.
As representatives of the
several underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Conning Corporation, a Missouri corporation (the "Company"),
proposes to issue and sell 2,500,000 shares of its Common Stock, par value
$0.01 per share (the "Firm Shares"), to the several underwriters named in
Schedule I hereto (the "Underwriters"). The Company also proposes to issue
and sell to the several Underwriters not more than 375,000 additional shares
of its Common Stock, par value $0.01 per share (the "Additional Shares"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as
the "Shares". The shares of common stock of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred
to as the "Common Stock".
1. Registration Statement and Prospectus. The Company has
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prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-1 (No.
333-35993) including a prospectus relating to the Shares, which may be
amended. The registration statement as amended at the time that it becomes
effective, including a registration statement (if any) filed pursuant to Rule
462(b) under the Act increasing the size of the offering registered under the
Act and information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Act, is
hereinafter referred to as the "Registration Statement"; and the prospectus
in the form
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first used to confirm sales of Shares is hereinafter referred to as the
"Prospectus".
2. Agreements to Sell and Purchase. On the basis of the
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representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to issue and sell, and each
Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per share of $------ (the "Purchase Price") the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company agrees
to issue and sell the Additional Shares and the Underwriters shall have the
right to purchase, severally and not jointly, up to 375,000 Additional Shares
from the Company at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with
the offering of the Firm Shares. The Underwriters may exercise their right
to purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. You shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof. The date specified in any such notice shall be a business day (i)
no earlier than the Closing Date (as hereinafter defined), (ii) no later than
ten business days after such notice has been given and (iii) no earlier than
two business days after such notice has been given. If any Additional Shares
are to be purchased, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears
the same proportion to the total number of Additional Shares to be purchased
from the Company as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares.
The Company hereby agrees and the Company shall, concurrently
with the execution of this Agreement, deliver an agreement executed by (i)
each of the directors and officers of the Company and (ii) each stockholder
listed on Annex I hereto, pursuant to which each such person agrees not to
offer, sell, contract to sell, grant any option to purchase, or otherwise
dispose of any common stock of the Company or any securities convertible into
or exercisable or exchangeable for such common stock or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any such common stock, except to the Underwriters pursuant to
this Agreement, for a period of 180 days after the date of the Prospectus
without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation. Notwithstanding the foregoing, during such 180-day period, (a)
the Company may (i) issue shares of common stock of the Company or any
securities convertible into or exercisable or exchangeable for such common
stock in connection with acquisitions in which the acquiror or acquirors of
such shares or options agree(s) to the transfer restrictions set forth in
this paragraph, (ii) grant stock options or other stock-based awards or
issue shares of common stock pursuant to the 1997 Flexible Stock Plan of the
Company (as filed as an exhibit to the Registration Statement) or any other
employee benefit plan of the Company and (iii) issue shares of its common
stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and (b) shares of common stock of the
Company may be (i) transferred to a trust for the benefit of the holder of
such shares or for the benefit of the spouse or descendants of such holder or
to the estate, heirs or devisees of the holder of such shares upon the death
of such holder and (ii) pledged as security for obligations of the holders
thereof.
3. Terms of Public Offering. The Company is advised by
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you that the Underwriters propose (i) to make a public offering of their
respective portions of the Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Shares upon the terms set forth in the Prospectus.
4. Delivery and Payment. The Shares shall be represented
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by definitive certificates and shall be issued in such authorized denominations
and registered in such names as Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation shall request not later than two business days prior to the
Closing Date or the applicable Option Closing Date (as defined below), as the
case may be. The Company shall deliver the Shares, with any transfer taxes
thereon duly paid by the Company, to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation through the facilities of The Depository Trust Company ("DTC"),
for the respective accounts of the several Underwriters, against payment to
the Company of the Purchase Price therefor by wire transfer of Federal or
other funds immediately available in New
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York City. The Certificates representing the Shares shall be made available for
inspection not later than 9:30 A.M., New York City time, on the business day
prior to the Closing Date or the applicable Option Closing Date, as the case may
be, at the office of DTC or its designated custodian (the "Designated Office").
The time and date of delivery and payment for the Firm Shares shall be 9:00
A.M., New York City time, on December 18, 1997 or such other time and date as
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and the Company shall agree
in writing (the "Closing Date"). The time and date of delivery and payment for
any Additional Shares to be purchased by the Underwriters shall be 9:00 A.M.,
New York City time, on the date specified in the applicable exercise notice
given by you pursuant to Section 2 or such other time and date as Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation and the Company shall agree in writing
(an "Option Closing Date").
The documents to be delivered on the Closing Date or any Option
Closing Date on behalf of the parties hereto pursuant to Section 8 of this
Agreement shall be delivered at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the Shares shall be
delivered at the Designated Office, all on the Closing Date or such Option
Closing Date, as the case may be.
5. Agreements of the Company. The Company agrees with
-------------------------
you:
(a) To use its reasonable best efforts to cause the
Registration Statement to become effective at the earliest possible
time after December 11, 1997.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment to it becomes
effective, (ii) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (iv) of the happening of any event
during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you, without charge, three signed copies of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits, and to furnish to you and
each Underwriter designated by you such number of conformed copies of
the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the
Shares by you, and to use its reasonable best efforts to cause the same
to become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel for the Underwriters a prospectus is required by law
to be delivered in connection with sales by an Underwriter or a dealer,
to furnish to each Underwriter and dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the
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opinion of counsel for the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply in all material respects with any law, forthwith
to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as
so amended or supplemented, will not in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter or
dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request, to continue such
qualification in effect so long as required for distribution of the
Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided that the Company and its subsidiaries will not
be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(h) To mail and make generally available to its stockholders
as soon as reasonably practicable an earnings statement covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than 90 days
after such date) which shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so
made available.
(i) During the period of one year after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of its Common Stock a
financial report of the Company and its subsidiaries on a consolidated
basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year,
together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants,
and (ii) to mail and make generally available as soon as practicable
after the end of each quarterly period (except for the last quarterly
period of each fiscal year) to such holders, an unaudited consolidated
balance sheet and an unaudited consolidated statement of income (or
alternatively, upon the consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, a summary consolidated balance sheet and summary consolidated
statement of income) (and similar financial reports of all unconsolidated
subsidiaries, if any) as of the end of and for such period, and for the
period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods
of the preceding year.
(j) During the period referred to in paragraph (i), to
furnish to you promptly upon your request a copy of each report or
other publicly available information of the Company mailed to the
holders of Common Stock or filed with the Commission.
(k) To pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution under the Act of
the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and
supplements to any of them prior to or during the period specified in
paragraph (e), (ii) the printing and delivery of the Prospectus and all
amendments or supplements to it during the period specified in
paragraph (e), (iii) the photocopying and delivery of this Agreement,
the Preliminary and Supplemental Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents photocopied
and delivered in connection with the offering of the Shares (including
in each case any disbursements of counsel for the Underwriters relating
to such photocopying and delivery), (iv) the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of the several states (including in each case the
reasonable fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and memoranda relating
thereto which shall not exceed $7,500), (v) filings and clearance with
the National Association of Securities Dealers, Inc. (the
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"NASD") in connection with the offering, (vi) the listing of the Shares on
the Nasdaq National Market, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the
offering or sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold and (viii) the performance by the Company of
its other obligations under this Agreement; provided, that in no event
shall the Company be responsible for the fees and expenses of your
counsel, except as provided in the foregoing clauses (iii) and (iv).
(l) On the date of this Agreement, its intent is to use its
reasonable best efforts to maintain the inclusion of the Common Stock
on the Nasdaq National Market (or on a national securities exchange)
for a period of three years after the effective date of the
Registration Statement.
(m) To use its reasonable best efforts to do and perform all
things required or necessary to be done and performed under this
Agreement by the Company prior to the Closing Date or any Option
Closing Date, as the case may be, and to satisfy all conditions
precedent to the delivery of the Shares.
6. Representations and Warranties of the Company. The
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Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain, any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph (b)
do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each
Registration Statement filed pursuant to Rule 462(b) under the Act, if
any, complied when so filed in all material respects with the Act; and
did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this paragraph (c) do not apply to statements
or omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties,
and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(e) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable,
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and are owned by the Company, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature.
(f) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar
rights which have not been waived; and the Shares have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights.
(g) The authorized capital stock of the Company, including
the Common Stock, conforms as to legal matters in all material respects
to the description thereof contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in
the performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument, in each case material to
the conduct of the business of the Company or any of its subsidiaries,
to which the Company or any of its subsidiaries is a party or by which
it or any of its subsidiaries or their respective properties are bound,
except where such default in this clause (ii) would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(i) The execution, delivery and performance of this Agreement
by the Company, compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby by
the Company will not require any consent, approval, authorization or
other order of any court, regulatory body, administrative agency or
other governmental body (except as such has been obtained or may be
required under the securities or Blue Sky laws of the various states)
and will not (x) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of
the Company or any of its subsidiaries or any agreement, indenture or
other instrument to which it or any of its subsidiaries is a party or
by which it or any of its subsidiaries or their respective properties
are bound, or (y) violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any
of its subsidiaries or their respective properties, except where such
conflict, breach, default or violation would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(j) Except as otherwise set forth in the Prospectus, there
are no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective properties are the subject, and, to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement is not so described
or filed as required.
(k) Each of Conning & Company and Conning Asset Management
Company ("CAMCO") is, and, upon consummation of this Agreement, will
be, registered as an investment adviser with the Commission under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and
each is duly registered, licensed or qualified as an investment adviser
in each jurisdiction where the conduct of its respective business
requires such registration and each is in compliance in all material
respects with the Advisers Act and all other applicable United States
federal and state laws requiring any such registration, licensing or
qualification. Neither the Company nor any other subsidiary of the
Company is required to be registered, licensed or qualified as an
investment adviser under the laws of the United States or any state in
which it or its subsidiaries conduct business.
(l) Consummation of the transactions contemplated by this
Agreement will not constitute an assignment, as defined in the Advisers
Act or the Investment Company Act of 1940, as amended (the "1940 Act"),
such that any investment advisory agreement of Conning & Company or
CAMCO would be automatically terminated or would require client consent
to continue in effect.
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(m) Each of the investment advisory agreements and service
agreements to which any of the Company's subsidiaries is a party is a
legal and valid obligation of such subsidiaries, and none of the
Company's subsidiaries is in breach or violation of or in default under
any such agreement, except when such breach or violation would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(n) Neither the Company nor any of its subsidiaries is
required to register with the Commission as an investment company under
the 1940 Act.
(o) Conning & Company is duly registered as a broker-dealer
under the Exchange Act and under the securities laws of each United
States jurisdiction where the conduct of its business requires such
registration and has complied and is in compliance in all material
respects with the Exchange Act, all applicable rules and regulations of
the National Association of Securities Dealers, Inc. and all other
United States federal and state laws requiring any such registration.
Neither the Company nor any of its other subsidiaries is required to
register, license or qualify as a broker-dealer with the Commission
under the Exchange Act or under the laws requiring any such
registration, licensing or qualification in any state in which it or,
in the case of the Company, its subsidiaries conduct business.
(p) Each of Conning & Company and CAMCO has adopted a written
code of ethics and a written policy regarding xxxxxxx xxxxxxx. Such
code of ethics complies in all material respects with Section 17(j) of
the 1940 Act and Rule 17j-1 thereunder and such written policy complies
in all material respects with Section 204A of the Advisers Act. The
restrictions, internal procedures or disclosure practices used by each
of Conning & Company and CAMCO with respect to conflicts of interest
are as set forth in the most recent Form ADV thereof (or incorporated
by reference therein), as amended. To the knowledge of the Company,
there have been no material violations or allegations of material
violations of such restrictions, internal policies or disclosure
practices.
(q) None of Conning & Company, CAMCO, their respective
subsidiaries or, to the knowledge of the Company, any Fund which
Conning & Company or CAMCO or their respective subsidiaries has
sponsored or organized, and, to the knowledge of the Company, no person
"associated" (as defined under the Advisers Act) with Conning &
Company, CAMCO or their respective subsidiaries, has been convicted of
any crime or is or has engaged in any conduct that would be a basis for
denial, suspension or revocation of registration of an investment
adviser under Section 203(e) of the Advisers Act or Rule 206(4)-4(b)
thereunder or, with respect to Conning & Company, of a broker-dealer
under Section 15 of the Exchange Act, or for disqualification as an
investment adviser for any registered investment company (as defined in
the 1940 Act) (an "Investment Company") pursuant to Section 9(a) of the
1940 Act, and to the knowledge of the Company, there is no basis for,
or proceeding or investigation that is reasonably likely to become the
basis for, any such disqualification, denial, suspension or revocation.
For purposes of this Agreement, "Fund" means any Investment Company and
any company that would be an Investment Company but for the exemption
contained in Section 3(c)(1), the final clause of Section 3(c)(3) or
Section 3(c)(11) of the 1940 Act, in each case to which as of the date
of this Agreement Conning & Company or CAMCO provides investment
management or investment advisory services.
(r) Each of Conning & Company and CAMCO, in managing the
account of each client (including any Fund) to which it provides
investment management, investment advisory, administrative or
distribution services as of the date of this Agreement (each such
client, a "Client"), has complied and is in compliance in all material
respects with such Client's objectives, guidelines and restrictions
disclosed to Conning & Company or CAMCO, including, without limitation,
any limitation set forth in the applicable prospectus (in the case of a
Fund) or governing instruments for such Client, and including
compliance in all material respects with any other offering,
advertising and marketing materials of any Fund; and each of Conning &
Company and CAMCO, in advising its Clients, has complied and is in
compliance in all material respects with the 1940 Act.
(s) Conning & Company or CAMCO, as the case may be, has
managed the accounts of each
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Client (other than a client that is a Client solely by reason of its
investment in a Fund that is an Investment Company) that has represented
to Conning & Company or CAMCO, as the case may be, that it is (i) an
employee benefit plan, as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") (unless the
Client has represented to Conning & Company or CAMCO, as the case may be,
that it is a governmental plan, church plan or otherwise not subject to
Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"), or Conning & Company or CAMCO, as the case may be,
reasonably believes that it is not subject to Title I of ERISA or Section
4975 of the Code), or (ii) a person acting on behalf of such a plan, in
compliance in all material respects with the applicable requirements of
ERISA, except where such lack of compliance or violation would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(t) Each Client that is a registered Investment Company has
elected to be treated as a "regulated investment company" under
Subchapter M of Chapter 1 of Subtitle A of the Code, has at all times
since the end of the most recent taxable year of such Client that has
been closed and for which the statute of limitations for assessments
has expired qualified as a regulated investment company and, to the
knowledge of the Company, each such Client has complied in all material
respects with all applicable provisions of law necessary to preserve
and retain such Client's election and status as a regulated investment
company or has determined not to retain such status.
(u) Each Client has operated and is currently operating in
compliance in all material respects with the Act, the 1940 Act and the
rules and regulations thereunder, to the extent the Company or any of
its subsidiaries has legal responsibility for such compliance as a
matter of law or due to its contractual relationship with such Client.
(v) The operation of the business of each Fund which is not
registered as an Investment Company under the 1940 Act, including
without limitation the offering of interests therein, has been in
compliance in all material respects with the 1940 Act or the relevant
exemptions therefrom.
(w) Neither the Company nor any of its subsidiaries has
violated (x) any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or
state wages and hours laws, nor any provisions of ERISA or the rules
and regulations promulgated thereunder, nor (y) any state or local law
or regulation relating to the mortgage origination and servicing
activities of the Company and its subsidiaries described in the
Prospectus, which in the case of each of clauses (x) and (y) might,
individually or in the aggregate, result in any material adverse change
in the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
(x) Except where the failure to do so would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries has such other permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own, lease and operate its
respective properties and to conduct its business; the Company and each
of its subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such permit; and, except as may be
described in the Prospectus, such permits contain no restrictions that
are materially burdensome to the Company or any of its subsidiaries.
(y) Except as otherwise set forth in the Prospectus or such
as are not material to the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries have good and
marketable title, free and clear of all liens, claims, encumbrances and
restrictions except liens for taxes not yet due and payable, to all
property and assets described in the Registration Statement as being
owned by them. All material leases to which the Company or any of its
subsidiaries is a party are valid and binding and no default has
occurred or is continuing thereunder which might, individually or in
the aggregate with any such other defaults, result in any material
adverse change in the business, prospects, financial condition or
results of operations of the
9
Company and its subsidiaries taken as a whole, and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions as
do not materially interfere with the use made by the Company or such
subsidiary.
(z) The Company and each of its subsidiaries maintain
insurance reasonably deemed adequate for their businesses.
(aa) KPMG Peat Marwick LLP are independent public accountants
with respect to the Company as required by the Act.
(ab) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly in all
material respects the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(ac) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of
the Company, except as disclosed in the Registration Statement or
Prospectus.
(ad) The Company has filed a registration statement pursuant
to Section 12(g) of the Exchange Act to register the Common Stock, has
filed an application to list the Shares on the Nasdaq National Market,
and has received notification that the listing has been approved,
subject to notice of issuance of the Shares.
(ae) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in, the
Company or any subsidiary thereof except as otherwise disclosed in the
Registration Statement.
(af) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries or, to
the best knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or more significant
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened
against any of them, and (ii) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened
against it or any of its subsidiaries except for such actions specified
in clause (i) or (ii) above, which, singly or in the aggregate, could
not reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(ag) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
10
(ah) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes currently due and payable, including withholding taxes,
penalties and interest, assessments, fees and other charges due
pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those
being contested in good faith or for which adequate reserves have been
provided.
7. Indemnification. (a) The Company agrees to indemnify
---------------
and hold harmless each Underwriter, its directors, its officers and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), the Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriter furnished in writing to the Company by such Underwriter through
you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter who failed to deliver a Prospectus
(as then amended or supplemented, provided by the Company to the several
Underwriters in the requisite quantity and on a timely basis to permit proper
delivery on or prior to the Closing Date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or omission
or alleged material misstatement or omission was cured in such Prospectus and
the delivery of such Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to such
underwriter but only with reference to information relating to such
Underwriter furnished in writing to the Company by such Underwriter through
you expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party")
in writing (provided, however, that the failure to give such notice in a
prompt manner shall not relieve any of the indemnifying parties of its
obligations or liabilities except to the extent that such failure results in
the loss of any material rights or defenses) and the indemnifying party shall
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all fees
and expenses of such counsel, as incurred (except that in the case of any
action in respect of which indemnity may be sought pursuant to both Sections
7(a) and 7(b), the Underwriter shall not be required to assume the defense of
such action pursuant to this Section 7(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of such
Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties
to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party shall
have been advised by such counsel that there may be one or more legal
defenses
11
available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of
the indemnified party). In any such case, the indemnifying party shall not,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, in the case of parties indemnified
pursuant to Section 7(a), and by the Company, in the case of parties
indemnified pursuant to Section 7(b). The indemnifying party shall indemnify
and hold harmless the indemnified party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any settlement of any
action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than forty business
days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party
shall have failed to comply with such reimbursement request. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement or compromise of, or consent to the entry of judgment
with respect to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or contribution
may be or could have been sought hereunder by the indemnified party, unless
such settlement, compromise or judgment (i) includes an unconditional release
of the indemnified party from all liability arising out of such action 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 the indemnified party.
(d) To the extent the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 7(d)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on the one hand and
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (after deducting underwriting
discounts and commissions, but before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any matter, including any action that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Shares 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
12
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
number of Shares purchased by each of the Underwriters hereunder and not
joint.
(e) The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
8. Conditions of Underwriters' Obligations. The several
---------------------------------------
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
(b) The Registration Statement shall have become effective
not later than 5:30 P.M. (and in the case of a Registration Statement
filed under Rule 462(b) of the Act, not later than 9:00 A.M. the next
business day), New York City time, on the date of this Agreement or at
such later date and time as you may approve in writing, and at the
Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have
been any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, affairs or business prospects, whether
or not arising in the ordinary course of business, of the Company, (ii)
since the date of the latest balance sheet included in the Registration
Statement and the Prospectus, there shall not have been any material
adverse change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the
Company from that set forth in the Registration Statement and the
Prospectus, (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to the
Company and its subsidiaries, taken as a whole, other than those
reflected in the Registration Statement and the Prospectus and (iv) on
the Closing Date you shall have received a certificate dated the
Closing Date, signed by the Chief Executive Officer and the President
of the Company, solely in their capacities as such, in the name and on
behalf of the Company confirming the matters set forth in paragraphs
(a), (b) and (c) of this Section 8.
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxx Xxxx LLP, counsel for the Company, to the effect
that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation and has the corporate power
and authority required to carry on its business in all material
respects as it is currently being conducted and to own, lease and
operate its properties;
(ii) all of the outstanding shares of Common Stock
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar
rights which have not been waived;
(iii) the Shares have been duly authorized and,
when issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be validly issued,
fully paid and non-assessable and not subject to any preemptive
or similar rights under Missouri law or the Company's charter
which have not been waived;
(iv) this Agreement has been duly authorized,
executed and delivered by the
13
Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable
law and except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent transfer and other similar laws relating to
or affecting the rights and remedies of creditors generally and by
general principles of equity including, without limitation, concepts
of reasonableness, materiality, good faith and fair dealing and the
possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether
enforceability is considered in a proceeding in equity or at
law);
(v) the authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters in all
material respects to the description thereof contained in the
Prospectus;
(vi) the Registration Statement has become
effective under the Act, and to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending
before or threatened by the Commission;
(vii) the statements set forth in the Prospectus
under the headings "Certain Relationships and Related
Transactions", "Description of Capital Stock" and "Certain
Charter and Bylaw Provisions" and in Items 14 of Part II of the
Registration Statement, insofar as such statements constitute a
summary of legal matters or agreements referred to therein,
fairly present in all material respects the information called
for with respect to such legal matters or agreements;
(viii) the execution, delivery and performance of
this Agreement by the Company and the consummation by the Company
of the transactions contemplated by this Agreement will not
require any consent, approval, authorization or other order of
any federal or Missouri governmental body or agency (except as
such may be required under the Act, under other securities or
Blue Sky laws or by the NASD) and will not violate or constitute
a breach of any of the terms or provisions of, or a default
under, the charter or by-laws of the Company or any of its
subsidiaries, or any agreement, indenture or other instrument
filed or incorporated by reference as an exhibit to the
Registration Statement, or violate any federal or Missouri
statute or any rule or regulation that has been issued pursuant
to any federal or Missouri statute (which rule or regulation such
counsel would, in its experience, recognize as directly
applicable to the Company and its subsidiaries or any of their
properties) or any order known to such counsel issued pursuant to
any federal or Missouri statute by any court or governmental
agency or body or court having jurisdiction over the Company or
any of its subsidiaries or any of their properties (except for
breaches or defaults which would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole);
(ix) to such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party, or to which
any of their respective properties is subject, which is required
to be described in the Registration Statement or the Prospectus
and is not described, or of any contract or other document of a
character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed;
(x) each of Conning & Company and CAMCO is duly
registered as an investment adviser under the Advisers Act;
(xi) consummation of the transactions contemplated
by this Agreement will not constitute an assignment, as defined
in the Advisers Act or the 1940 Act, such that, pursuant to
either such act, any investment advisory agreement of Conning &
Company or CAMCO would be automatically terminated or would
require client consent to continue in effect;
14
(xii) the Company is not currently required and,
giving effect to the application of the net proceeds from the
sale of the Shares as described in the Registration Statement or
Prospectus, is not required to register with the Commission as an
investment company under the 1940 Act;
(xiii) Conning & Company is duly registered as a
broker-dealer under the Exchange Act;
(xiv) to such counsel's knowledge, no holder of any
security of the Company has any right to require registration of
shares of Common Stock or other security of the Company, other
than as described in the Registration Statement or Prospectus;
and
(xv) the Registration Statement and the Prospectus
and any supplement or amendment thereto comply as to form in all
material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder, it
being understood that such counsel need express no opinion with
respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in
any of the documents mentioned in this clause or as to the
accuracy, completeness or fairness of the Prospectus or the
Registration Statement, as amended or supplemented.
In addition to the matters set forth above, such counsel shall
state that during such counsel's participation in the preparation of the
Registration Statement and the Prospectus, such counsel participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company, your
representatives and your counsel at which conferences the contents of the
Registration Statement and Prospectus and related matters were discussed,
reviewed and revised. Although such counsel is not passing upon, and does
not assume responsibility for, the accuracy, completeness or fairness of the
statements made or included in the Registration Statement and the Prospectus,
both as amended or supplemented, no facts have come to such counsel's
attention that cause such counsel to believe that the Registration Statement,
as of its effective date and including any further amendment or supplement
thereto made by the Company prior to the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as of the Closing Date, contains any
untrue statement of a material fact or omits 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 (it being understood
that such counsel need express no opinion with respect to the financial
statements and the notes thereto and the schedules and other financial and
statistical data included in the Registration Statement or the Prospectus).
The opinion of Xxxxx Xxxx LLP described in this paragraph (d)
shall be rendered to you at the request of the Company and shall so state
therein. Such opinions may recite that no opinion is expressed with respect
to, and that such counsel is not passing upon, and does not assume
responsibility for any matters relating to insurance laws, statutes, rules,
regulations or policies. In addition, such opinions may contain customary
recitals, conditions and qualifications.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxxxx X. XxXxxxxx, Esq., General Counsel and
Secretary of the Company, to the effect that:
(i) each of the Company and its subsidiaries is
duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
15
(ii) each of the Company's subsidiaries has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and
has the corporate power and authority required to carry on its
business in all material respects as it is currently being
conducted and to own, lease and operate its properties;
(iii) all of the outstanding shares of capital
stock of, or other ownership interests in, each of the Company's
subsidiaries have been duly and validly authorized and issued and
are fully paid and non-assessable, and are owned of record by the
Company, directly or indirectly through one or more subsidiaries,
free and clear of any security interest, claim, lien or other
encumbrance;
(iv) neither the Company nor any of its
subsidiaries is in violation of its respective charter or by-laws
and, to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is in default in
the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective properties are bound;
(v) the statements set forth in Item 15 of Part
II of the Registration Statement, insofar as such statements
constitute a summary of legal matters or agreements referred to
therein, fairly present in all material respects the information
called for with respect to such legal matters or agreements;
(vi) each of Conning & Company and CAMCO is duly
registered as an investment adviser under the Advisers Act and is
in compliance in all material respects with all United States
Federal and state laws requiring any such registration; and
neither the Company nor any of its other subsidiaries is required
to register, license or qualify as an investment adviser under
the Advisers Act;
(vii) none of the Company's subsidiaries is
currently required and, giving effect to the application of the
net proceeds from the sale of the Shares as described in the
Prospectus, is required to register with the Commission as an
investment company under the 1940 Act;
(viii) Conning & Company is duly registered as a
broker-dealer under the Exchange Act and is in compliance in all
material respects with all United States Federal and state laws
requiring any such registration; and neither the Company nor any
of its other subsidiaries is required to register, license or
qualify as a broker-dealer under the Exchange Act;
(ix) to such counsel's knowledge, each of the
Company and its subsidiaries has such other permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own, lease and
operate its respective properties and to conduct its business in
all material respects in the manner described in the Prospectus;
to such counsel's knowledge, each of the Company and its
subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
permit, subject in each case to such qualification as may be set
forth in the Prospectus; and, except as may be described in the
Prospectus, such permits contain no restrictions that are
materially burdensome to the Company or any of its subsidiaries;
In addition to the matters set forth above, such counsel shall
state that during such counsel's participation in the preparation of the
Registration Statement and the Prospectus, such counsel or persons under such
16
counsel's direct supervision participated in conferences with officers and
other representatives of the Company, representatives of the independent
public accountants of the Company, your representatives and your counsel at
which conferences the contents of the Registration Statement and Prospectus
and related matters were discussed, reviewed and revised. Although such
counsel is not passing upon, and does not assume responsibility for, the
accuracy, completeness or fairness of the statements made or included in the
Registration Statement and the Prospectus, both as amended or supplemented,
no facts have come to such counsel's attention that cause such counsel to
believe that the Registration Statement, as of its effective date and
including any further amendment or supplement thereto made by the Company
prior to the Closing Date, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus, as of the Closing Date, contains any untrue statement of a
material fact or omits 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 (it being understood that such counsel need express
no opinion with respect to the financial statements and the notes thereto and
the schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
(f) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, in form and substance reasonably satisfactory to you,
covering such matters as are customarily covered in such an opinion.
(g) You and the Board of Directors of the Company shall have
received a letter on and as of the Closing Date, in form and substance
reasonably satisfactory to you, from KPMG Peat Marwick LLP, independent
public accountants, with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus and confirming as of such date the substance of the
letter delivered to you and the Board of Directors of the Company by
KPMG Peat Marwick LLP on the date of this Agreement.
(h) The Company shall have delivered to you the agreements
specified in the third paragraph of Section 2 hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such
Additional Shares consistent with the foregoing.
9. Effective Date of Agreement and Termination. (a) This
-------------------------------------------
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when notification of the effectiveness of the Registration
Statement has been released by the Commission.
(a) This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following
has occurred: (i) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse change
or development involving a prospective material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries, taken
as a whole, or the earnings, affairs or business prospects of the Company and
its subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, which would, in your judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus, (ii) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in
the financial markets of the United States or elsewhere that, in your
judgment, is material and adverse and would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus, (iii) the suspension or material limitation
of trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market or material limitation on prices for
securities on any such
17
exchange or national market system, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business or
operations of the Company or any of its subsidiaries, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
(b) If on the Closing Date or on an Option Closing Date, as
the case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it
or they have agreed to purchase hereunder on such date and the aggregate
number of Firm Shares or Additional Shares, as the case may be, which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase is not more than one-tenth of the total number of
Shares to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number
of Firm Shares set forth opposite its name in Schedule I bears to the total
number of Firm Shares which all the non-defaulting Underwriters, as the case
may be, have agreed to purchase, or in such other proportion as you may
specify, to purchase the Firm Shares or Additional Shares, as the case may
be, which such defaulting Underwriter or Underwriters, as the case may be,
agreed but failed or refused to purchase on such date; provided that in no
--------
event shall the number of Firm Shares or Additional Shares, as the case may
be, which any Underwriter has agreed to purchase pursuant to Section 2 hereof
be increased pursuant to this Section 9 by an amount in excess of one-ninth
of such number of Firm Shares or Additional Shares, as the case may be,
without the written consent of such Underwriter. If on the Closing Date or
on an Option Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares, or Additional
Shares, as the case may be, and the aggregate number of Firm Shares or
Additional Shares, as the case may be, with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be
purchased on such date by all Underwriters and arrangements satisfactory to
you and the Company for purchase of such Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter and the Company. In any such case
which does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date or the applicable
Option Closing Date, as the case may be, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision
-------------
of this Agreement shall be addressed as follows: (a) if to the Company, to
Conning Corporation, 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxx X. Xxxxxxx (with a copy to Xxxxx Xxxx LLP, One Metropolitan Square, 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: R. Xxxxxxx
Xxxx); and (b) if to any Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin
& Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, its officers
and directors and of the several Underwriters set forth in or made pursuant
to this Agreement shall remain operative and in full force and effect, and
will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or by or on behalf of the Company, the officers or
directors of the Company or any controlling person thereof, (ii) acceptance
of the Shares and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them, provided
that the Underwriters furnish reasonably satisfactory documentation thereof.
The statements set forth in (i) the footnotes to the tables on
the cover page of any Preliminary
18
Prospectus and the Prospectus, (ii) the last paragraph of the cover page of any
Preliminary Prospectus and the Prospectus, (iii) the "stabilization legend" on
page 2 of any Preliminary Prospectus and the Prospectus and (iv) the fifth,
ninth, tenth and eleventh paragraphs and the third sentence of the third
paragraph and the fourth sentence of the sixth paragraph under the caption
"Underwriting" in any Preliminary Prospectus and the Prospectus constitute the
only information furnished to the Company by the Underwriters for use in any
Preliminary Prospectus and the Prospectus.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
19
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
CONNING CORPORATION
By:
------------------------------
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
X.X. XXXXXXX & SONS, INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:-----------------------------
Name:
Title:
20
SCHEDULE I
----------
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation [ ]
X.X. Xxxxxxx & Sons, Inc. [ ]
[ remainder to come ]
---------
2,500,000
21
ANNEX I
-------
Required Stockholder Lock-up Agreements
---------------------------------------
[ to come ]
