Exhibit 1
$125,000,000
Delphi Financial Group, Inc.
8.00% Senior Notes due 2033
Underwriting Agreement
May 13, 2003
XXXXXX BROTHERS INC.
WACHOVIA SECURITIES, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
U.S. BANCORP XXXXX XXXXXXX INC.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Delphi Financial Group, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $125,000,000 aggregate principal amount of its 8.00%
Senior Notes due 2033 (the "Firm Notes") to the underwriters set forth on
Schedule I hereto (the "Underwriters"). The Company also proposes to issue and
sell to the Underwriters not more than an additional $18,750,000 aggregate
principal amount of its 8.00% Senior Notes due 2033 (the "Additional Notes" and,
together with the Firm Notes, the "Notes"), if and to the extent that Xxxxxx
Brothers Inc., Wachovia Securities, Inc., Xxxxxx, Xxxxxxxx & Company,
Incorporated and U.S. Bancorp Xxxxx Xxxxxxx Inc. (the "Representatives"), as
representatives of the Underwriters, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such Notes granted to the
Underwriters in Section 2 hereof. The Notes will be issued pursuant to an
Indenture dated as of May 20, 2003, as amended by the First Supplemental
Indenture, to be dated as of May 20, 2003 (as so amended and supplemented, the
"Indenture") between the Company and Wilmington Trust Company, as Trustee (the
"Trustee"). This agreement (this "Agreement") is to confirm the agreement
concerning the purchase of the Notes from the Company by the Underwriters.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The registration statement on Form S-3 (File No. 333-86666) with
respect to the Notes (i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, (ii) has been filed with
the Commission under the Securities Act, (iii) either has become effective under
the Securities Act and is not proposed to be amended or is proposed to be
amended by amendment or post-effective amendment and (iv) no stop order
suspending the effectiveness of such registration statement has been issued
under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission. If the Company does not propose to amend
1
such registration statement and if any post-effective amendment to such
registration statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent such amendment has been declared
effective by the Commission. Copies of such registration statement as amended to
date have been delivered by the Company to you. For purposes of this Agreement,
"Effective Time" means the most recent date and the time as of which
registration statement No. 333-86666, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus" means the
prospectus included in such registration statement, or amendments thereof,
before such registration statement became effective under the Securities Act and
any prospectus filed with the Commission by the Company that omitted information
required by Rule 430A or 434 of the Rules and Regulations or other information
to be included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations ("Rule 424(b)"), that was
used after such effectiveness and prior to the execution and delivery of this
Agreement; "Registration Statement" means such registration statement, as
amended at the Effective Time, including any documents incorporated by reference
therein and, if the Effective Date is on or before the date of this Agreement,
all information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) in accordance with Section 4(a) hereof and deemed to be
a part thereof as of the Effective Time pursuant to paragraph (b) of Rule 430A
of the Rules and Regulations; "Prospectus" means the form of prospectus relating
to the Notes (including the prospectus supplement), as first used to confirm
sales of the Notes; and "described in the Prospectus" or "disclosed in the
Prospectus" means described or disclosed, as applicable, in the Prospectus or
any document incorporated by reference therein. Reference made herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents incorporated by reference therein as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and 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 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus or Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or Prospectus. For purposes of this
Section l, all references to the Registration Statement, any post-effective
amendments thereto and the Prospectus shall be deemed to include, without
limitation, any electronically transmitted copies thereof, including, without
limitation, any copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval system ("XXXXX"). The Commission has not
issued any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus.
(b) If the Effective Date is on or before the date of this Agreement, (i)
the Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
when they become effective or are first used to confirm sales of the Notes, as
the case may be, conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations, (ii) the Registration Statement
and any amendment thereto does not and will not, as of the applicable effective
date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus and any amendment or supplement
thereto will not, as of the first date of its use to confirm sales of the Notes,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the
2
circumstances under which they were made, not misleading. Notwithstanding the
foregoing, the Company makes no representation or warranty as to (A) information
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon, and in conformity with written information furnished to the
Company by you, expressly for inclusion therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustee. There is no contract or document required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or to a document incorporated by reference into the
Registration Statement which is not described or filed as required.
(c) Ernst & Young LLP, whose report is included or incorporated by
reference in the Prospectus, are independent certified public accountants with
respect to the Company and its Subsidiaries (as defined in Section 13 hereof),
as required by the Securities Act and the Rules and Regulations. The financial
statements (including the related notes and supporting schedules) included or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus and the Prospectus present fairly in all material respects the
financial condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods indicated and
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated and conform in
all material respects with the Rules and Regulations, except as otherwise noted
therein; and the supporting schedules included or incorporated by reference in
the Registration Statement present fairly in all material respects the
information required to be stated therein.
(d) Each of the Company and its Significant Subsidiaries (as defined in
Exhibit A hereto) has been duly incorporated, organized or formed and is validly
existing in good standing under the laws of the jurisdiction of its
incorporation, organization or formation, with full power and authority to own,
lease and operate its properties and conduct its business and to enter into and
perform its obligations under this Agreement and the Indenture; and each of the
Company and its Subsidiaries is duly qualified to do business and is in good
standing in each jurisdiction in which the character of the business conducted
by it or the location of the properties owned, leased or operated by it make
such qualification necessary, except where the failure to so qualify would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole.
(e) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, and except as otherwise described
in the Registration Statement or the Prospectus, (i) the Company and the
Significant Subsidiaries, considered as a whole, have not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction, in each case, other than in the ordinary course of business; (ii)
each of the Company and the Significant Subsidiaries has not purchased any of
its outstanding capital stock nor declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock other than ordinary and
customary dividends except as disclosed in writing to the Underwriters; and
(iii) there has not been any material change in (A) the short-term debt or
long-term debt of the Company and the Significant Subsidiaries considered as a
whole or (B) the capital stock of the Company and the Significant Subsidiaries
considered as a whole.
3
(f) All of the outstanding shares of capital stock of each Significant
Subsidiary of the Company that is a corporation have been duly authorized and
validly issued and are fully paid and nonassessable. Except as disclosed in the
Prospectus, all of the outstanding shares of capital stock, partnership
interests or other ownership interests of each Significant Subsidiary of the
Company are owned directly or indirectly by the Company, free and clear of any
claim, lien, encumbrance, security interest, restriction upon voting or
transfer, preemptive rights or any other claim of any third party (collectively,
"Liens"), except such as are described in the Prospectus or in a document filed
as an exhibit to the Registration Statement and such Liens that would not have a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole.
(g) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any material adverse change in, or
adverse development which, individually or in the aggregate, materially affects
or may materially affect, the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole from the respective dates as of which information is given in the
Prospectus.
(h) Neither (i) the execution or delivery hereof by the Company, (ii) the
consummation of the transactions contemplated hereby, (iii) the execution and
delivery of the Indenture and the Notes by the Company nor (iv) compliance by
the Company with all of the provisions of this Agreement, the Indenture and the
Notes, will result in a breach or violation of, or constitute a default under,
the certificate of incorporation, by-laws, partnership agreement or other
governing documents of the Company or any of its Subsidiaries, or any agreement,
indenture or other instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound, or to which any of their properties is
subject, nor will any such action or the performance by the Company of its
obligations hereunder violate any law, rule, administrative regulation or decree
of any court, or any governmental agency or body having jurisdiction over the
Company, its Subsidiaries or any of their respective properties, or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or any of its Subsidiaries except for a breach,
violation, default, lien, charge, claim or encumbrance which would not have a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole. Except for permits, consents, approvals and similar authorizations
required under the Securities Act and the Rules and Regulations or "Blue Sky" or
state securities laws and the qualification of the Indenture under the 1939 Act,
and except for such permits, consents, approvals and authorizations which have
been obtained, no permit, consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required in
connection with the consummation of the transactions contemplated by this
Agreement.
(i) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and binding agreement of the Company, and is
enforceable against the Company in accordance with its terms, except (i) as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (ii) to the extent the
4
indemnification provisions contained in Section 6 hereof may be limited by
principles of public policy.
(j) Neither the Company nor any of its Subsidiaries (i) is in violation of
its certificate of incorporation or by-laws or other governing documents, (ii)
is in default and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any agreement, indenture or other
instrument to which it is a party or by which it is bound or to which any of its
properties is subject, except for any such defaults that would not, individually
or in the aggregate, have a material adverse effect on the condition (financial
or other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole, or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property may be
subject, except for any such violations that would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or other),
results of operations, business or prospects of the Company and its Subsidiaries
taken as a whole.
(k) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (ii) to the extent the
indemnification provisions contained therein may be limited by principles of
public policy. The Indenture (i) has been duly qualified under the Trust
Indenture Act, (ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms in all material respects to the description
thereof in the Registration Statement and the Prospectus.
(l) The Notes have been duly and validly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
free of any preemptive or similar rights to subscribe to or purchase the same
arising by operation of law or under the certificate of incorporation or by-laws
of the Company or otherwise, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except (i) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, and (ii) to the extent the indemnification provisions
contained therein may be limited by principles of public policy, and the Notes
conform, or will conform, in all material respects to the description thereof in
the Registration Statement and the Prospectus. Neither the filing of the
Registration Statement nor the offering or sale of the Notes as contemplated by
this Agreement gives rise to any rights, other than those which have been duly
waived or satisfied, for or relating to the registration of any securities of
the Company. The capitalization of the Company was, as of the date of the most
recent balance sheet included in the Prospectus, as set forth in the Prospectus.
The Company has all requisite corporate power and authority to issue, sell and
deliver the Notes in accordance with and upon the terms and conditions set forth
in this Agreement and in the Registration Statement and Prospectus. All
corporate action required to be
5
taken by the Company for the authorization, issuance, sale and delivery of the
Notes to be sold by the Company hereunder has been validly and sufficiently
taken.
(m) There is no litigation or governmental proceeding to which the Company
or any of its Subsidiaries is a party or to which any property of the Company or
any of its Subsidiaries is subject or which is pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries that
could reasonably be expected to, individually or in the aggregate, result in a
material adverse effect on the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole or which is required to be disclosed in the Prospectus and is not
disclosed. There are no statutes or regulations required to be described in the
Registration Statement or the Prospectus which are not described as required.
(n) The documents incorporated by reference into each Preliminary
Prospectus and the Prospectus, at the time they were or are filed with the
Commission, conform or will conform, as the case may be, with the requirements
of the Securities Act and the Rules and Regulations and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and did not or will
not, as the case may be, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(o) The statements set forth in the Prospectus under the caption
"Description of the Notes", insofar as they purport to describe the provisions
of the documents referred to therein or constitute a summary of the terms of the
Notes, are accurate, complete and fair in all material respects.
(p) The Notes will be pari passu with all existing and future unsecured and
unsubordinated indebtedness of the Company.
(q) The Notes have been approved for listing on the New York Stock
Exchange, Inc., subject to notice of issuance.
(r) The conditions for the Company's use of Form S-3 for filing the
Registration Statement, as set out in the general instructions to such form,
have been satisfied.
(s) The Company is not required to be licensed as an insurance company;
Reliance Standard Life Insurance Company of Texas ("RSLIC-Texas"), Reliance
Standard Life Insurance Company ("RSLIC"), First Reliance Standard Life
Insurance Company ("FRSLIC"), and Safety National Casualty Corporation ("SNCC";
RSLIC-Texas, RSLIC, FRSLIC and SNCC are collectively, the "Insurance
Subsidiaries") are each duly licensed as insurers under the insurance laws and
regulations of Texas, Illinois, New York and Missouri, respectively; and the
Insurance Subsidiaries have filed with the appropriate insurance regulatory
authorities all reports, documents and other information required to be filed
under the insurance laws of Texas, Illinois, New York, and Missouri,
respectively, except as to filings the failure of which to make, singly or in
the aggregate, would not be reasonably expected to have a material adverse
effect on general affairs, financial position, stockholders' equity or results
of operations of the Company and its Subsidiaries considered as one enterprise
or on the Insurance Licenses (as defined below).
6
(t) Each of the Insurance Subsidiaries holds such licenses, certificates,
authorities and permits from governmental authorities (including, without
limitation, insurance licenses from the insurance regulatory agencies of the
various states where it conducts business (the "Insurance Licenses")) which are
necessary to the conduct of its insurance businesses as presently operated; the
Insurance Subsidiaries have fulfilled and performed all obligations necessary to
maintain the Insurance Licenses; there is no pending or, to the knowledge of the
Company or any of Insurance Subsidiary, 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); except, in each of the foregoing
cases, as to Insurance Licenses, the failure of which to obtain or maintain
would not be reasonably expected to have a material adverse effect on the
general affairs, financial position, stockholders' equity or results of
operations of the Company and its Subsidiaries considered as one enterprise; and
except as disclosed in the Prospectus, no insurance regulatory agency or body
has issued any order or decree (specifically applicable to one or more of the
Insurance Subsidiaries as opposed to insurance companies generally) impairing,
restricting or prohibiting the payment of dividends by any of the Insurance
Subsidiaries to their respective parent companies.
(u) None of the Company or any Insurance Subsidiary is aware of any
threatened or pending downgrading in the A.M. Best Company, Inc. ("A.M. Best")
rating of any Insurance Subsidiary.
(v) All reinsurance ceded treaties, contracts, agreements and arrangements
to which any the Company or any of the Insurance Subsidiaries is a party are in
full force and effect, other than those that, by their terms, have expired or
otherwise terminated, and none of the Company or any of its Subsidiaries is in
violation of, or in default in the performance, observance or fulfillment of,
any material obligation, agreement, covenant or condition contained therein,
which violation or default would, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the general affairs, financial
position, stockholders' equity or results of operations of the Company and its
Subsidiaries, considered as one enterprise; none of the Company or any of its
Subsidiaries has received any notice from any of the other parties to such
treaties, contracts, agreements or arrangements that such other party intends
not to perform in any material respect such treaty, contract, agreements or
arrangements will be unable to perform such treaty, contract, agreement or
arrangement where the failure to perform would have a material adverse effect on
the general affairs, financial position, stockholders' equity or results of
operations of the Company and its Subsidiaries, considered as one enterprise.
(w) The statutory Annual and Quarterly Statements of each of the Insurance
Subsidiaries, and the statutory balance sheets and income statements included in
such statutory Annual and Quarterly Statements, most recently filed in each
state have been prepared in conformity with required or permitted statutory
accounting principles or practices consistently followed, except as may
otherwise be indicated in the notes thereto, and present fairly in all material
respects the statutory financial position of each Insurance Subsidiary as at the
dates thereof, and on a statutory basis of for the periods covered thereby.
7
(x) Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act"), or is subject to regulation as an "investment company" under
the 0000 Xxx.
(y) The Company and its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles or statutory accounting practices, as the case may be, and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization and (iv) recorded
assets are compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and
(z) The Company and each of its Subsidiaries have filed all tax returns
required to have been filed, which returns are complete and correct in all
material respects, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, except for any such taxes or assessments which
are being contested in good faith by appropriate proceedings and for which
appropriate reserves, if any, have been established in accordance with generally
accepted accounting principles.
(aa) The Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, Federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses; and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse effect on the
Company.
(ab) To the knowledge of the Company, after due inquiry, no material labor
dispute with the employees of the Company or any of its Subsidiaries exists, or,
is imminent.
(ac) The Company and its Subsidiaries own or possess, or have the ability
to acquire, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names currently employed by them in connection with the
business now operated by them, except where the failure to own, possess or have
the ability to acquire such patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries taken as a
whole, and none of the Company nor its Subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing
8
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the Company and its
Subsidiaries taken as a whole.
2. Purchase of the Notes by the Underwriters. Subject to the terms and
conditions and upon the basis of the representations and warranties herein set
forth, the Company agrees to issue and sell to the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a price equal to 96.85% of the principal amount thereof, plus accrued interest,
if any, from May 20, 2003 (the "Purchase Price"), the principal amount of the
Notes set forth opposite such Underwriter's name in Schedule I hereto. The
Underwriters propose to offer the Notes to the public as set forth in the
Prospectus.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Notes, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to $18,750,000
aggregate principal amount of the Additional Notes at the Purchase Price. If the
Representatives, on behalf of the Underwriters, elect to exercise such option,
the Representatives shall so notify the Company in writing not later than 30
days after the date of this Agreement, which notice shall specify the aggregate
principal amount of Additional Notes to be purchased by the Underwriters and the
date on which such Additional Notes are to be purchased. Such date may be the
same as the Closing Date (as defined below) but not earlier than the Closing
Date nor later than ten business days after the date of such notice. Additional
Notes may be purchased as provided in Section 3 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Notes.
If any Additional Notes are to be purchased, each Underwriter agrees, severally
and not jointly, to purchase the aggregate principal amount of Additional Notes
that bears the same proportion to the total aggregate principal amount of
Additional Notes to be purchased as the aggregate principal amount of Firm Notes
set forth in Schedule I hereto opposite the name of such Underwriter bears to
the total aggregate principal amount of Firm Notes.
3. Delivery of and Payment for Notes. Delivery of the Notes shall be made
at such place or places as mutually may be agreed upon by the Company and the
Representatives at 10:00 A.M., New York City time, on May 20, 2003 or on such
later date not more than three Business Days after the foregoing date as shall
be determined by the Representatives and the Company (the "Closing Date").
Delivery of the Notes shall be made to the Underwriters by or on behalf of
the Company against payment of the purchase price therefor by wire transfer of
immediately available funds. Delivery of the Notes shall be made through the
facilities of The Depository Trust Company unless you shall otherwise instruct.
Delivery of the Notes at the time and place specified in this Agreement is a
further condition to the obligations of each Underwriter.
Payment for any Additional Notes shall be made to the Company in Federal or
other funds immediately available in New York City for the respective accounts
of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the notice described in Section 2 or at such other time on the same
or on such other date, in any event not later than June 19, 2003, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "Option Closing Date".
9
4. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
(a) The Company shall comply with the provisions of and make all requisite
filings with the Commission pursuant to Rule 424(b) 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) of the Rules and Regulations. The Company
shall advise you, promptly after it receives notice thereof, of the time when,
if the Effective Date is on or before the date of this Agreement, 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. The
Company shall notify you promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for additional information; the Company shall prepare and file with the
Commission, as soon as reasonably practical upon your request, any amendments or
supplements to the Registration Statement or the Prospectus which, in your
opinion, may be necessary or advisable in connection with the distribution of
the Notes; and the Company shall not file any amendment or supplement to the
Registration Statement or the Prospectus or file any document under the Exchange
Act before the termination of the offering of the Notes by the Underwriters if
such document would be deemed to be incorporated by reference into the
Prospectus, which filing is not consented to by you after reasonable notice
thereof, such consent not to be unreasonably withheld or delayed. The Company
shall advise you promptly of the issuance by the Commission or any State or
other regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, suspending or preventing the use of
any Preliminary Prospectus or the Prospectus or suspending the qualification of
the Notes for offering or sale in any jurisdiction, or of the institution of any
proceedings for any such purpose; and the Company shall use its reasonable best
efforts to prevent the issuance of any stop order or other such order and,
should a stop order or other such order be issued, to obtain as soon as possible
the lifting thereof.
(b) The Company shall furnish to each of you and to counsel for the
Underwriters such number of conformed copies of the Registration Statement, as
originally filed and each amendment thereto (excluding exhibits other than this
Agreement), the Prospectus and all amendments and supplements to any of such
documents (including any document filed under the Exchange Act and deemed to be
incorporated by reference in the Preliminary Prospectus or Prospectus), in each
case as soon as available and in such quantities as you may from time to time
reasonably request; provided that, the Prospectus shall be made available to the
Underwriters no later than 2 PM New York City time on the next business day
succeeding the date of this Agreement.
(c) Within the time during which the Prospectus relating to the Notes is
required to be delivered under the Securities Act, the Company shall comply with
all requirements imposed upon it by the Securities Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in force, so far
as is necessary to permit the continuance of sales of or dealings in the Notes
as contemplated by the provisions hereof and by the Prospectus. If during such
period any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not
10
misleading, or if during such period it is necessary to amend the Registration
Statement or supplement the Prospectus or file any document to comply with the
Securities Act, the Company shall promptly notify you and shall, subject to
Section 4(a) above, amend the Registration Statement or supplement the
Prospectus or file any document (at the expense of the Company) so as to correct
such statement or omission or to effect such compliance.
(d) As soon as practicable, the Company shall make generally available to
its security holders (and shall deliver to you) an earnings statement satisfying
the requirements of Section 11(a) of the Securities Act and Rule 158 of the
Rules and Regulations.
(e) Whether or not this Agreement becomes effective or is terminated or the
sale of the Notes to the Underwriters is consummated, the Company shall pay or
cause to be paid (A) all fees and expenses (including, without limitation, all
registration and filing fees and fees and expenses of the Company's accountants
but excluding fees and expenses of counsel for the Underwriters) incurred in
connection with the preparation, printing, filing, delivery and shipping of the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto), each Preliminary Prospectus, the Prospectus,
the Indenture, the Statement of Eligibility and Qualification of the Trustee on
Form T-1 filed with the Commission (the "Form T-1") and any amendments or
supplements of the foregoing and any documents incorporated by reference into
any of the foregoing and the copying, delivery and shipping of this Agreement
and Blue Sky Memoranda, (B) all fees and expenses incurred in connection with
the preparation and delivery to the Underwriters of the Notes (including the
cost of printing the Notes), (C) all filing fees and fees and disbursements of
counsel to the Underwriters incurred in connection with the qualification of the
Notes under state securities or Blue Sky laws not to exceed $10,000, (D) any
fees required to be paid to rating agencies incurred in connection with the
rating of the Notes, (E) the fees, costs and charges of the Trustee, including
the fees and disbursements of counsel for the Trustee, and (F) all other costs
and expenses incident to the performance of its obligations hereunder for which
provision is not otherwise made in this Section. It is understood, however,
that, except as provided in this Section, Section 6 and Section 8 hereof, the
Underwriters shall pay all of their own costs and expenses, including the fees
of their counsel and any advertising expenses incurred in connection with any
offers they may make. If the sale of the Notes provided for herein is not
consummated by reason of acts of the Company or changes in circumstances of the
Company pursuant to Section 8 hereof which prevent this Agreement from becoming
effective, or by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed or because any
other condition of the Underwriters' obligations hereunder is not fulfilled or
if the Underwriters shall decline to purchase the Notes for any reason permitted
under this Agreement (other than by reason of a default by any of the
Underwriters pursuant to Section 7 hereof), the Company shall reimburse the
several Underwriters for all reasonable out-of-pocket disbursements (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with any investigation or preparation made by them in respect of the marketing
of the Notes or in contemplation of the performance by them of their obligations
hereunder.
(f) Until termination of the offering of the Notes, the Company shall
timely file all documents and amendments to previously filed documents required
to be filed by it pursuant to Sections 12, 13, 14 or 15(d) of the Exchange Act.
11
(g) The Company shall endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the underwriters
shall reasonably request; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(h) The Company shall apply the net proceeds from the sale of the Notes as
set forth in the Prospectus.
(i) Until 30 days following the Closing Date, the Company will not, without
the prior written consent of the Representatives, directly or indirectly, issue,
sell, offer to sell, grant any option for the sale of or otherwise dispose of,
any debt securities in the same market as the Notes.
5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and
the Closing Date (as if made at the Closing Date), of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a timely
fashion in accordance with Section 4(a) hereof, the Registration Statement and
all post-effective amendments to the Registration Statement shall have become
effective, all filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made and no such filings shall have been made
without the consent of the Representatives, which consent shall not be
unreasonably withheld; no stop order suspending the effectiveness of the
Registration Statement or any amendment or supplement thereto or suspending the
qualification of the Notes for offering or sale in any jurisdiction shall have
been issued; no proceedings for the issuance of any such order shall have been
initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been disclosed to you and complied with to your reasonable
satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have
discovered and disclosed to the Company that the Registration Statement or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of fact which in your opinion, or in the opinion of counsel to the Underwriters,
is material, or omits to state a fact which, in the opinion of counsel to the
Underwriters, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(c) On the Closing Date, the Representatives on behalf of the Underwriters
shall have received from LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the
Underwriters, such opinion or opinions with respect to the validity of the Notes
and other related matters as you may reasonably request and such counsel shall
have received such documents and information as they reasonably request to
enable them to pass upon such matters.
12
(d) On the Closing Date there shall have been furnished to the
Representatives on behalf of the Underwriters the opinion (addressed to the
Underwriters) of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, dated the
Closing Date and in form and substance satisfactory to the Underwriters, to the
effect that:
(i) The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus. To the knowledge of such counsel, the Company is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned, leased or operated by it makes such qualification necessary (except
where the failure to so qualify would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole).
(ii) The Company has all requisite corporate power and authority to
issue, sell and deliver the Notes in accordance with and upon the terms and
conditions set forth in this Agreement and in the Registration Statement
and Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law); and the Indenture has been duly qualified under the Trust
Indenture Act and the rules and regulations thereunder.
(iv) The Notes have been duly authorized and executed by the Company
for issuance and sale to the Underwriters pursuant to this Agreement and,
assuming due authentication of the Notes by the Trustee, upon delivery to
the Underwriters against payment therefor in accordance with the terms of
this Agreement, will have been validly issued and delivered, will be
entitled to the benefits of the Indenture and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with its terms, except (i) as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
or judicial decisions relating to or affecting creditors' rights generally
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and (ii)
to the extent the indemnification provisions contained therein may be
limited by principles of public policy.
(v) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, nor will the performance by the
Company of its obligations hereunder violate any applicable law, rule,
administrative regulation or (to the knowledge of such counsel)
administrative or
13
court decree (except that such counsel need not express an opinion as to
federal or state securities or Blue Sky laws with respect to this
subparagraph) where such violation would prohibit or affect the execution,
delivery or performance of this Agreement, the Indenture or the Notes or
the transactions contemplated herein or therein or compliance by the
Company with its obligations hereunder or thereunder. Except for permits,
consents, approvals and similar authorizations required under the
securities or Blue Sky laws of certain jurisdictions and except for such
permits, consents, approvals and authorizations which have been obtained,
no permit, consent, approval, authorization or order of any court,
governmental agency or body or financial institution is required of the
Company for the valid authorization, issuance, sale and delivery of the
Notes.
(vi) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The Registration Statement and all post-effective amendments
thereto have become effective under the Securities Act, and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending
before or, to the knowledge of such counsel, threatened by the Commission.
No order of the Commission directed to any document incorporated by
reference in the Registration Statement has been issued, and no challenge
by appropriate proceedings has been made to the accuracy or adequacy of any
document incorporated by reference in the Registration Statement.
(viii) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company, as of their
respective effective dates, complied as to form in all material respects
with the applicable requirements of the Securities Act and the Rules and
Regulations and the Trust Indenture Act and the rules and regulations
thereunder (except that no opinion need be expressed as to the financial
statements or notes thereto or other financial and statistical data
contained therein or omitted therefrom).
(ix) The Indenture and the Notes conform in all material respects as
to legal matters to the respective statements concerning them contained in
the Registration Statement and Prospectus. There are no legal proceedings
pending or, to the knowledge of such counsel, threatened against the
Company or any of its Subsidiaries to which such counsel has given
substantive attention or in which such counsel has been engaged to
represent the Company or any of its Subsidiaries that are required to be
disclosed in the Prospectus and are not disclosed.
(x) The statements (A) in the Prospectus Supplement under the captions
"Description of the Notes", "Underwriting" (with respect solely to the
description of this Agreement contained therein) and "Certain Material U.S.
Federal Income Tax Consequences"; and (B) in the Prospectus under the
caption "Description of Debt Securities", in each case insofar as such
statements constitute summaries of the legal matters or documents and
proceedings referred to therein, fairly present the information
14
called for with respect to such legal matters, documents and proceedings
and fairly summarize in all material respects the matters referred to
therein.
(xi) The Notes have been approved for listing on the Exchange, subject
to notice of issuance. Such opinion shall also contain a statement that no
facts have come to such counsel's attention that cause it to believe that
(i) the Registration Statement, as of the Effective Time, or any amendment
thereto (other than the financial statements and notes thereto and the
other financial and statistical data contained therein, as to which such
counsel need not comment), at the time it became effective, including in
each case any document filed under the Exchange Act and incorporated by
reference therein, 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 (ii)
the Prospectus or any supplement or amendment thereto (other than the
financial statements and notes thereto and the other financial and
statistical data contained therein, as to which such counsel need not
comment), including in each case any document filed under the Exchange Act
and incorporated by reference therein, on such Closing Date and at the time
such Prospectus or supplement or amendment thereto was issued contained any
untrue statement of a material fact or omits or omitted to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) On the Closing Date there shall have been furnished to the
Representatives on behalf of the Underwriters the opinion (addressed to the
Underwriters) of General Counsel of the Company and/or its appropriate
Subsidiaries, dated the Closing Date and in form and substance satisfactory to
the Underwriters, to the aggregate effect that:
(i) Each of the Company's Significant Subsidiaries has been duly
incorporated or formed as a corporation, and is validly existing as a
corporation, under the laws of its jurisdiction of incorporation or
formation (and each of the Significant Subsidiaries that is a corporation
or a limited partnership is in good standing under the laws of its
jurisdiction of incorporation or formation), with full corporate power and
authority to own, lease and operate its properties and conduct its business
as described in the Prospectus.
(ii) To the knowledge of such counsel, except as disclosed in the
Prospectus, all of the outstanding shares of capital stock, or other
ownership interests of each Significant Subsidiary are owned directly or
indirectly by the Company, free and clear of any perfected security
interest.
(iii) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation or by-laws of the Significant Subsidiaries or any agreement,
indenture or other instrument filed as an exhibit to the Registration
Statement or any document incorporated by reference therein.
15
(iv) Each document incorporated by reference in the Registration
Statement as filed under the Exchange Act complied when so filed as to form
in all material respects with the applicable requirements of the Exchange
Act and the rules and regulations of the Commission thereunder (except that
no opinion need be expressed as to the financial statements or notes
thereto and other financial and statistical data contained therein).
(v) Each Insurance Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not reasonably be expected to have a
material adverse effect on the financial condition, earnings or business of
the Company and its Subsidiaries considered as one enterprise;
(vi) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened against the Insurance Subsidiaries which
are required to be disclosed in the Registration Statement or Prospectus,
other than those disclosed therein; all pending legal or governmental
proceedings to which any Insurance Subsidiary is a party or to which any of
their property is subject which are not described in the Registration
Statement or Prospectus, including ordinary routine litigation incidental
to the business, would, considered in the aggregate, not reasonably be
expected to have a material adverse effect on the financial condition,
earnings or business of the Company and its Subsidiaries considered as one
enterprise;
(vii) Neither the Company nor SIG Holdings, Inc. is required to be
licensed as an insurance company;
(viii) RSLIC-Texas, RSLIC, FRSLIC and SNCC are each duly licensed as
an insurer under the insurance laws and regulations of the States of Texas,
Illinois, New York and Missouri, respectively, and, to the best of such
counsel's knowledge RSLIC-Texas, RSLIC, FRSLIC and SNCC have filed with the
appropriate insurance regulatory authorities all reports, documents and
other information required to be filed under the insurance laws of the
States of Texas, Illinois, New York and Missouri, respectively, except as
to filings the failure of which to make, singly or in the aggregate, would
not have a material adverse effect on the financial condition, earnings or
business of the Company and its Subsidiaries considered as one enterprise.
(ix) To such counsel's knowledge, each Insurance Subsidiary holds such
licenses, certificates, authorizations and permits from governmental
authorities (including, without limitation, the Insurance Licenses) which
are necessary to the conduct of its insurance business as presently
operated, each Insurance Subsidiary has fulfilled and performed all
obligations necessary to maintain the Insurance Licenses; there is no
pending or, to the best of such counsel's knowledge, threatened action,
suit, or proceeding 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), except for
an action, suit, or proceeding which would not have a material adverse
effect on the financial condition, earnings or business of the Company and
its Subsidiaries, considered as one enterprise; except, in each of the
foregoing cases,
16
as to licenses, certificates or permits, the failure of which to obtain or
maintain would not have a material adverse effect on the management,
financial position, stockholders' equity or results of operations, of the
Company and its Subsidiaries considered as one enterprise.
(x) No insurance regulatory agency or body has issued any order or
decree that by its terms is specifically applicable to one or more of the
Insurance Subsidiaries, as opposed to insurance companies generally,
restricting or prohibiting the payment of dividends by any of the Insurance
Subsidiaries to their respective parent companies.
(xi) The descriptions in the Registration Statement and Prospectus of
statutes, regulations, legal or governmental proceedings, to the extent
they constitute matters of law and summaries of legal matters, documents or
proceedings fairly present the information called for with respect to such
legal matters, documents or proceedings and are accurate in all material
respects. To the knowledge of such counsel, there are no contracts or
documents required to be described in the Registration Statement or
Prospectus or to be filed as exhibits thereto which are not described or
filed as required.
Such opinion shall also contain a statement that no facts have come to such
counsel's attention that cause it to believe that (i) the Registration
Statement, as of the Effective Time, or any amendment thereto (other than the
financial statements and notes thereto and the other financial and statistical
data contained therein, as to which such counsel need not comment), at the time
it became effective, including in each case any document filed under the
Exchange Act and incorporated by reference therein, 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 (ii) the Prospectus or any supplement or amendment thereto (other
than the financial statements and notes thereto and the other financial and
statistical data contained therein, as to which such counsel need not comment),
including in each case any document filed under the Exchange Act and
incorporated by reference therein, on such Closing Date and at the time such
Prospectus or supplement or amendment thereto was issued contains or contained
any untrue statement of a material fact or omits or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(f) There shall have been furnished to the Representatives on behalf of the
Underwriters a certificate, dated the Closing Date and addressed to the
Underwriters, signed by the Chairman of the Board or the President or any
Executive Vice President and by the Chief Financial Officer or other person
acting in such capacity of the Company to the effect that to their knowledge
after due inquiry: (i) the representations and warranties of the Company
contained in this Agreement are true and correct, as if made at and as of the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be complied with or satisfied at or prior to
the Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been initiated or, threatened; (iii) all filings required by Rule 424(b) and
Rule 430A of the Rules and Regulations have been made; (iv) the signers of said
certificate have carefully examined the Registration Statement and the
Prospectus, and any amendments or supplements thereto (including any documents
filed under the Exchange Act and deemed to be incorporated
17
by reference into the Prospectus), and do not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; (v) since the
Effective Date there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or the Prospectus which
has not been so set forth and there has been no document required to be filed
under the Exchange Act and the Rules and Regulations that upon such filing would
be deemed to be incorporated by reference into the Prospectus that has not been
so filed and (vi) no event contemplated by subsection (g) of this Section 5
shall have occurred.
(g) Since the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and in the Prospectus (exclusive
of any supplement thereto filed subsequent to the date hereof), neither the
Company nor any of its Subsidiaries shall have sustained any loss by fire,
flood, accident or other calamity, or shall have become a party to or the
subject of any litigation, which is materially adverse to the Company and its
Subsidiaries taken as a whole, nor shall there have been a material adverse
change in the condition (financial or otherwise), results of operations,
business or prospects of the Company and its Subsidiaries taken as a whole,
regardless of whether arising in the ordinary course of business, which loss,
litigation or change, in the reasonable judgment of the Representatives, shall
render it impractical or inadvisable to proceed with the payment for and
delivery of the Notes.
(h) On the date hereof and the Closing Date the Representatives on behalf
of the Underwriters shall have received letters from Ernst & Young LLP, dated
respectively the date hereof and the Closing Date and addressed to the
Underwriters, confirming that they are independent certified public accountants
within the meaning of the Securities Act and the applicable published Rules and
Regulations, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given or incorporated in the Prospectus as of
a date not more than five days prior to the date of such letter, provided that
such date shall be after the date of the Prospectus), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by its letter delivered to the Representatives on behalf of the
Underwriters concurrently with the execution of this Agreement, and, with
respect to the letter delivered on the Closing Date, confirming the conclusions
and findings set forth in such prior letter.
(i) The Underwriters through the Representatives shall have been furnished
by the Company such additional documents and certificates as the Representatives
or counsel for the Underwriters may reasonably request.
(j) At the time of the Closing, the Company's senior debt shall have a
rating of at least Ba1 by Xxxxx'x Investors Service, Inc. and BBB by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. Since the
date hereof, there shall not have occurred any downgrading with respect to any
debt securities of the Company or any of its Subsidiaries by any "nationally
recognized statistical rating organization" as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act or any public
announcement that any such organization has under surveillance or review its
rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating).
18
(k) Conditions to Purchase of Additional Notes. In the event that the
Representatives on behalf of the Underwriters exercise their option granted in
Section 2 hereof to purchase all or any portion of the Additional Notes, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any Subsidiary of the
Company hereunder shall be true and correct as of each Option Closing Date and,
at the Optional Closing Date, the Representatives on behalf of the Underwriters
shall have received:
(i) A certificate, dated such Option Closing Date, signed by the
Chairman of the Board or the President or any Executive Vice President and
by the Chief Financial Officer (or a person acting in such capacity) of the
Company, confirming that since the Closing Date, to their knowledge: (i)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its Subsidiaries considered as a whole, whether or not
arising in the ordinary course of business, (ii) the representations and
warranties contained in Section 1 hereof are true and correct with the same
force and effect as though expressly made at and as of such Option Closing
Date, and (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to such
Option Closing Date.
(ii) The favorable opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
counsel for the Underwriters, dated such Option Closing Date, relating to
the Additional Notes to be purchased on such Option Closing Date and
otherwise to the same effect as the opinions required by Section 5(c)
hereof.
(iii) The favorable opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel
for the Company in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Additional
Notes to be purchased on such Option Closing Date and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(iv) The favorable opinion of the General Counsel of the Company
and/or its appropraite Subsidiaries, in form and substance satisfactory to
counsel for the Underwriters, dated such Option Closing Date, relating to
the Additional Notes to be purchased on such Option Closing Date and
otherwise to the same effect as the opinion required by Section 5(e)
hereof.
(v) A letter from Ernst & Young LLP, in form and substance
satisfactory to the Underwriters and dated such Option Closing Date,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5((h) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date
not more than five days prior to the date of such letter.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to counsel for the Underwriters. The Company shall furnish
to you conformed copies of such opinions, certificates, letters and other
documents in such number as you shall reasonably request. If any
19
of the conditions specified in this Section 5 shall not have been fulfilled when
and as required by this Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date, by you. Any such cancellation shall be without liability of any party to
any other party except as provided in Section 4(e). Notice of such cancellation
shall be given to the Company in writing, or by telegraph or telephone and
confirmed in writing.
6. Indemnification and Contribution. (a) The Company shall indemnify and
hold harmless each Underwriter from and against any loss, claim, damage or
liability (or any action in respect thereof), joint or several, to which such
Underwriter may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage or liability (or action in respect thereof) arises
out of or is based upon (i) any untrue statement or alleged untrue statement
made by the Company in Section 1 hereof, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Registration Statement or
Prospectus as amended or supplemented, or (iii) the omission or alleged omission
to state in the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented a material fact required to be stated therein or necessary to make
the statements therein not misleading; and shall reimburse each Underwriter
promptly after receipt of invoices from such Underwriter for any legal or other
expenses as reasonably incurred by such Underwriter in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Company shall not be liable under this
paragraph 6(a) in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriters through the Representatives expressly for use in
the preparation of the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented; and provided, further, that this indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of the Underwriter
from whom the person asserting any such losses, liabilities, claims, damages or
expenses purchased Securities, or any person controlling the Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any such amendments or supplements thereto) was not sent or given
by or on behalf of the Underwriter to such person, if such is required by law,
at or prior to the written confirmation of the sale of such Securities to such
person and if the Prospectus (as to amended or supplemented) would have
corrected the defect giving rise to such loss, liability, claim, damage or
expense, unless such failure is the result of noncompliance by the Company with
Section 4(b).
(b) Each Underwriter severally, but not jointly, shall indemnify and hold
harmless the Company against any loss, claim, damage or liability (or any action
in respect thereof) to which the Company may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage or liability
(or action in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration
20
Statement or Prospectus as amended or supplemented, or (ii) the omission or
alleged omission to state in the Registration Statement, any Preliminary
Prospectus, the Prospectus or the Registration Statement or Prospectus as
amended or supplemented a material fact required to be stated therein or
necessary to make the statements therein not misleading and shall reimburse the
Company promptly after receipt of invoices from the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that such indemnification or reimbursement shall be
available in each such 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 reliance upon and in conformity with written information furnished to
the Company by such Underwriter expressly for use therein.
(c) Promptly after receipt by any indemnified party under subsection (a) or
(b) above of notice of any claim or the commencement of any action, the
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 claim or the commencement of that action; provided, however, that
the failure to so notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against any indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under subsection (a) or (b) above for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; except that the
Underwriters shall have the right to employ counsel to represent the
Underwriters who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company under
such subsection if (i) the employment thereof has been specifically authorized
by the Company in writing, (ii) the Underwriters shall have been advised by
counsel that there may be one or more legal defenses available to the
Underwriters which are different from or additional to those available to the
Company and in the reasonable judgment of such counsel it is advisable for the
Underwriters to employ separate counsel or (iii) the Company has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the Underwriters, in any of which event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent
21
shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 6 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (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 Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. 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 or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending against any
action or claim which is the subject of this subsection (d). 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 discounts, fees
and commissions received by such Underwriter exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint. Each party entitled to
contribution agrees that upon the service of a summons or other initial legal
process upon it in any action instituted against it in respect to which
contribution may be sought, it shall promptly give written notice of such
service to the party or parties from whom contribution may be sought, but the
omission so to notify such party or parties of any such service shall not
relieve the party from whom contribution may be
22
sought for any obligation it may have hereunder or otherwise (except as
specifically provided in subsection (c) above).
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have, and shall extend,
upon the same terms and conditions set forth in this Section 6, to the
respective officers and directors and partners of the Underwriters and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this Section 6
shall be in addition to any liability that the respective Underwriters may
otherwise have, and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company), to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Securities Act.
7. Substitution of Underwriters. If any Underwriter defaults in its
obligation to purchase the principal amount of the Notes which it has agreed to
purchase under this Agreement, the non-defaulting Underwriters shall be
obligated to purchase (in the respective proportions which the principal amount
of the Notes set forth opposite the name of each non-defaulting Underwriter in
Schedule I hereto bears to the total principal amount of the Notes less the
principal amount of the Notes the defaulting Underwriter agreed to purchase set
forth in Schedule I hereto) the principal amount of the Notes which the
defaulting Underwriter agreed but failed to purchase; except that the
non-defaulting Underwriters shall not be obligated to purchase any of the Notes
if the total principal amount of the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceed 9.09% of the total principal
amount of the Notes, and any non-defaulting Underwriters shall not be obligated
to purchase more than 110% of the principal amount of the Notes set forth
opposite its name in Schedule I hereto. If the foregoing maximums are exceeded,
the non-defaulting Underwriters, and any other underwriters satisfactory to you
who so agree, shall have the right, but shall not be obligated, to purchase (in
such proportions as may be agreed upon among them) all of the Notes. If the
non-defaulting Underwriters or the other underwriters satisfactory to the
Underwriters do not elect to purchase the Notes that the defaulting Underwriter
or Underwriters agreed but failed to purchase within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except for the indemnity and
contribution agreements of the Company and the Underwriters contained in Section
6 hereof. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter pursuant to this Section 7. If, on the Option
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Notes and the aggregate number of Additional Notes with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional Notes to be purchased, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase Additional Notes
or (ii) purchase not less than the number of Additional Notes that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If the non-defaulting
Underwriters or the other
23
underwriters satisfactory to you are obligated or agree to purchase the Notes of
a defaulting Underwriter, either the Representatives on behalf of the
Underwriters or the Company may postpone the Closing Date for up to seven full
Business Days in order to effect any changes that may be necessary in the
Registration Statement or the Prospectus or in any other document or agreement,
and to file promptly any amendments or any supplements to the Registration
Statement or the Prospectus which in the Representatives' opinion may thereby be
made necessary.
8. Effective Date and Termination. (a) This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
(b) Until the Closing Date, this Agreement may be terminated by the
Representatives by giving notice as hereinafter provided to the Company if (i)
the Company shall have failed, refused or been unable, at or prior to the
Closing Date, to perform any agreement in any material manner on its part to be
performed hereunder, (ii) any other condition of the Underwriters' obligation
hereunder is not fulfilled in any material manner, (iii) trading in securities
generally on the NYSE shall have been suspended or minimum prices shall have
been established on such exchange by the Commission or such exchange or other
regulatory body or governmental authority having jurisdiction or there shall
have been a material disruption in the settlement of securities which, in the
judgment of Representatives, make it inadvisable or impractical to proceed with
the offering or delivery of the Notes, or a banking moratorium is declared by
either federal or New York state authorities, (iv) the United States becomes
engaged in hostilities or there is an escalation of hostilities involving the
United States or there is a declaration of a national emergency or war by the
United States or an act of terrorism shall have occurred which, in each case, in
the judgment of Representatives, make it inadvisable or impracticable to proceed
with the offering or delivery of the Notes or (v) there shall have been such a
material adverse change in general economic, political or financial conditions,
or the effect of international conditions on the financial markets in the United
States shall be such, as to, in the judgment of Representatives, make it
inadvisable or impracticable to proceed with the offering or delivery of the
Notes. Any termination of this Agreement pursuant to this Section 8 shall be
without liability on the part of the Company or any Underwriter, except as
otherwise provided in Sections 4(e) and 6 hereof.
Any notice referred to above may be given at the address specified in
Section 10 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
9. Survival of Certain Provisions. The agreements contained in Section 6
hereof and the representations, warranties and agreements of the Company
contained in Sections 1 and 4 hereof shall survive the delivery of the Notes to
the Underwriters hereunder and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.
10. Notices. Except as otherwise provided in the Agreement, (a) whenever
notice is required by the provisions of this Agreement to be given to the
Company, such notice shall be in writing or by telegraph addressed to the
Company at 153 East 53rd Street, 49th Floor, New York, New York, 10022,
Attention: General Counsel; (b) whenever notice is required by
24
the provisions of this Agreement to be given to the several Underwriters, such
notice shall be in writing or by telegraph addressed to the Representatives as
follows:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Debt Capital Markets, Financial Institutions Group,
Facsimile: (000) 000-0000
with copy to: General Counsel
Xxxxxx Xxxxxxxx & Company Incorporated
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Investment Banking
Facsimile: (000) 000-0000
with copy to: General Counsel
U.S. Bancorp Xxxxx Xxxxxxx Inc. US Bancorp
Tower 000 XX Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Fixed Income Capital Markets - Corporate Finance
Facsimile: (000) 000-0000
with copy to: General Counsel
Wachovia Securities, Inc.
0000 Xxxxxxxx Xx., Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Investment Grade Syndicate
Facsimile: (000) 000-0000
with copy to: General Counsel
11. Information Furnished by Underwriters. The Underwriters severally
confirm that the information appearing in the list of names of, and principal
amount of Notes to be purchased by, each of the Underwriters, under the caption
"Underwriting" in any Preliminary Prospectus and in the Prospectus, and the
statements in (a) the third paragraph text under the caption "Underwriting" in
the Prospectus concerning the terms of the offering by the Underwriters, (b) the
sixth paragraph text under the caption "Underwriting" in the Prospectus
concerning overallotments, stabilizing transactions and short sales by the
Underwriters and (c) the last sentence of the seventh paragraph text under the
caption "Underwriting" in the Prospectus concerning sales by the Underwriters to
a minimum number of beneficial owners, constitute the only written information
furnished by or on behalf of any Underwriter referred to in paragraph (b) of
Section 1 hereof and in paragraphs (a) and (b) of Section 6 hereof.
25
12. Parties. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (b) the indemnity
agreement of the Underwriters contained in Section 6 hereof shall be deemed to
be for the benefit of directors of the Company, officers of the Company who
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement shall
be construed to give any person, other than the persons referred to in this
paragraph, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. Definition of "Business Day" and "Subsidiary." For purposes of this
Agreement, (a) "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading, other than any day on which commercial banks
are authorized or required to be closed in New York City, and (b) "Subsidiary"
has the meaning set forth in Rule 405 of the Rules and Regulations and includes
both partnerships and corporations.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.
15. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
16. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
26
Please confirm, by signing and returning to us two counterparts of this
Agreement, that you are acting on behalf of yourselves and the several
Underwriters and that the foregoing correctly sets forth the Agreement between
the Company and the several Underwriters.
Very truly yours,
By: /s/ Xxxxxx Xxxxx Jr.
----------------------------
Name: Xxxxxx Xxxxx Jr.
Title: Executive Vice President
Confirmed and accepted as of
the date first above mentioned
XXXXXX BROTHERS INC.
WACHOVIA SECURITIES, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
U.S. BANCORP XXXXX XXXXXXX INC.
By: XXXXXX BROTHERS INC.
AS REPRESENTATIVE OF THE UNDERWRITERS
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
By: WACHOVIA SECURITIES, INC.
AS REPRESENTATIVE OF THE UNDERWRITERS
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
AS REPRESENTATIVE OF THE UNDERWRITERS
By: /s/ Xx Xxxxxxx
----------------------------------------
Name: Xx Xxxxxxx
Title: Vice President
By: U.S. BANCORP XXXXX XXXXXXX INC.
AS REPRESENTATIVE OF THE UNDERWRITERS
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
27
SCHEDULE I
Underwriting Agreement dated May 13, 2003
Underwriter Principal Amount of
Notes to
be Purchased
------------
Xxxxxx Brothers Inc................................... $26,250,000
Wachovia Securities, Inc.............................. $25,625,000
Xxxxxx, Xxxxxxxx & Company, Incorporated.............. $25,625,000
U.S. Bancorp Xxxxx Xxxxxxx Inc........................ $25,625,000
Advest Inc............................................ $3,125,000
Banc of America Securities LLC........................ $3,125,000
ING Financial Markets LLC............................. $3,125,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc.......................... $3,125,000
Xxxxxx Xxxxxx NBF Securities Inc...................... $3,125,000
Quick & Xxxxxx, Inc................................... $3,125,000
Sandler X'Xxxxx & Partners, L.P....................... $3,125,000
Total................................................. $125,000,000
============
EXHIBIT A
Underwriting Agreement dated May 13, 2003
As used in the Underwriting Agreement, the "Significant Subsidiaries" of the
Company are as follows:
Reliance Standard Life Insurance Company
First Reliance Standard Life Insurance Company
Reliance Standard Life Insurance Company of Texas
Safety National Casualty Corporation
Matrix Absence Management, Inc.
