1
EXHIBIT 1
AMERICAN HERITAGE LIFE INVESTMENT CORPORATION
(A FLORIDA CORPORATION)
AHL FINANCING
(A DELAWARE BUSINESS TRUST)
1,500,000 FELINE PRIDES
FORM OF
UNDERWRITING AGREEMENT
DATED: , 1997
---------------
2
AMERICAN HERITAGE LIFE INVESTMENT CORPORATION
(A FLORIDA CORPORATION)
AHL FINANCING
(A DELAWARE BUSINESS TRUST)
1,500,000 FELINE PRIDES
(STATED AMOUNT OF $50 PER FELINE PRIDES)
EACH CONSISTING OF
A PURCHASE CONTRACT OF AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION REQUIRING THE PURCHASE ON __________, 2000
(OR EARLIER) OF CERTAIN SHARES OF COMMON STOCK OF
AMERICAN HERITAGE LIFE INVESTMENT CORPORATION
AND
A % TRUST ORIGINATED PREFERRED SECURITY
____ OF AHL FINANCING
UNDERWRITING AGREEMENT
, 1997
-----------
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXXXXXX & CO., INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
[as Representatives of the several Underwriters]
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
-----------------------
"FELINE PRIDES," "Income PRIDES," "Trust Originated Preferred
Securities" and "TOPrS" are service marks of Xxxxxxx Xxxxx & Co. Inc.
3
Ladies and Gentlemen:
American Heritage Life Investment Corporation, a Florida corporation
(the "Company"), and AHL Financing, a Delaware statutory business trust (the
"Trust" and, together with the Company, the "Offerors"), confirm their
agreement with the several underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), Xxxxxxx, Xxxxx & Co., Xxxxxxxxxxx & Co., Inc. and The
Xxxxxxxx-Xxxxxxxx Company, Inc., as representatives (in such capacity,
collectively, the "Representatives"), with respect to the sale to the
Underwriters of 1,500,000 FELINE PRIDES(SM), each of which will initially
consist of a unit (referred to as Income PRIDES(SM)) with a Stated Amount of
$50 comprised of (a) a stock purchase contract (the "Purchase Contract") under
which (i) the holder will purchase from the Company on __________, 2000, a
number of shares of common stock, par value $1.00 per share, of the Company
(the "Common Stock") equal to the Settlement Rate or Cash Settlement Rate as
set forth in the Purchase Contract Agreement (defined below) and (ii) the
Company will pay to the holder contract adjustment payments, and (b) beneficial
ownership of a ____% Trust Originated Preferred Security(SM) (the "Preferred
Security") of the Trust, having a liquidation amount of $50 (the "Initial
Securities"). The Company and the Trust also propose to grant to the
Underwriters an option to purchase up to 225,000 additional Income PRIDES (the
"Option Securities" and together with the Initial Securities, the "Securities")
as described in Section 2(b) hereof. In accordance with the terms of the
Purchase Contract Agreement, dated as of ____________, 1997, between the
Company and The First National Bank of Chicago, as Purchase Contract Agent (the
"Purchase Contract Agent"), the Preferred Securities constituting a part of the
Securities will be pledged by the Purchase Contract Agent, on behalf of the
holders of the Securities, to The Chase Manhattan Bank, as Collateral Agent,
pursuant to the Pledge Agreement, dated as of ____________, 1997 (the "Pledge
Agreement"), among the Company, the Purchase Contract Agent and the Collateral
Agent, to secure the holders' obligation to purchase Common Stock under the
Purchase Contracts. The rights and obligations of a holder of Securities in
respect of Preferred Securities, subject to the pledge thereof, and Purchase
Contracts will be evidenced by Security Certificates (the "Security
Certificates") to be issued pursuant to the Purchase Contract Agreement.
4
The Preferred Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and
otherwise (the "Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement, dated as of _______, 1997 (the "Preferred
Securities Guarantee Agreement"), executed and delivered by the Company and The
First National Bank of Chicago, as trustee (the "Guarantee Trustee"), for the
benefit for the holders from time to time of the Preferred Securities, and
certain back-up undertakings of the Company. The entire proceeds from the sale
of the Preferred Securities will be combined with the entire net proceeds from
the sale by the Trust to the Company of its common securities (the "Common
Securities" and, together with the Preferred Securities, the "Trust
Securities") guaranteed by the Company with respect to distributions and
payments upon liquidation and redemption (the "Common Securities Guarantee"
and, together with the Preferred Securities Guarantee, the "Guarantees")
pursuant to the Common Securities Guarantee Agreement, dated as of ________,
1997 (the "Common Securities Guarantee Agreement" and, together with the
Preferred Securities Guarantee Agreement, the "Guarantee Agreements"), executed
and delivered by the Company for the benefit of the holders from time to time
of the Common Securities, and certain backup undertakings of the Company, and
will be used by the Trust to purchase the __% Junior Subordinated Debentures
due _____________, 2002 (the "Junior Subordinated Debentures") of the Company.
The Preferred Securities and the Common Securities will be issued pursuant to
the amended and restated declaration of trust of the Trust, dated as of
_______, 1997 (the "Declara- tion"), among the Company, as Sponsor, T. O'Xxxx
Xxxxxxx and C. Xxxxxxx Xxxxxxxx (the "Regular Trustees"), The First National
Bank of Chicago, as institutional trustee (the "Institutional Trustee") and
First Chicago Delaware Inc. (the "Delaware Trustee" and, together with the
Institutional Trustee and the Regular Trustees, the "Trustees"), and the
holders from time to time of undivided beneficial interests in the assets of
the Trust. The Junior Subordinated Debentures will be issued pursuant to the
Subordinated Debt Securities Indenture, dated as of _________, 1997 (the "Base
Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (the "Debt Trustee"), as supplemented by the First Supplemental
Indenture, dated ___________, 1997 (the Base Indenture, as supplemented and
amended, being referred to as the "Indenture"). Capitalized terms used herein
without definition shall be used as defined in the Prospectus.
Prior to the purchase and public offering of the Securities by the
several Underwriters, the Offerors and the
2
5
[Representatives], acting on behalf of the several Underwriters, shall enter
into an agreement substantially in the form of Exhibit A hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written communication between the Offerors and the
[Representatives] and shall specify such applicable information as is indicated
in Exhibit A hereto. The offering of the Securities will be governed by this
Agreement, as supplemented by the Pricing Agreement. From and after the date
of the execution and delivery of the Pricing Agreement, this Agreement shall be
deemed to incorporate the Pricing Agreement.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-24153) and pre-effective amendment[s] no. 1 [and no. 2] thereto covering
the registration of securities of the Company and the Trust, including the
Securities and the Purchase Contracts and Preferred Securities included in and
shares of Common Stock underlying, the Securities, under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary prospectus
or prospectuses, and the offering thereof from time to time in accordance with
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and the Company has filed such post-effective amendments thereto
as may be required prior to the execution of the Pricing Agreement. Such
registration statement, as so amended, has been declared effective by the
Commission. Such registration statement, as so amended, including the exhibits
and schedules thereto, if any, and the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus relating to the offering of the Securities, in the form first
furnished to the Underwriters by the Company for use in connection with the
offering of the Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Pricing Agreement; provided, further, that if the Offerors file a registration
statement with the Commission pursuant to Section 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then after such filing,
all references to "Registration Statement" shall be deemed to include the Rule
462(b) Registration Statement; and
3
6
provided, further, that if the Offerors elect to rely upon Rule 434 of the 1933
Act Regulations, then all references to "Prospectus" shall be deemed to include
the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to the Underwriters by the Company in reliance upon Rule 434 of
the 1933 Act Regulations, and all references in this Underwriting Agreement to
the date of the Prospectus shall mean the date of the Term Sheet. A
"preliminary prospectus" shall be deemed to refer to any prospectus used before
the registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Pricing Agreement. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the electronically transmitted copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the [Representatives] deem advisable
after the Pricing Agreement has been executed and delivered and the
Declaration, the Indenture and the Preferred Securities Guarantee Agreement
have been qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act").
4
7
SECTION 1. Representations and Warranties.
(a) The Offerors represent and warrant to each Underwriter as of the
date hereof and as of the date of the Pricing Agreement (such later date being
hereinafter referred to as the "Representation Date") that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or, to the knowledge of the Offerors, threatened by the
Commission.
(ii) The Company and the Trust meet, and at the respective
times of the commencement and consummation of the offering of the Securities
will meet, the requirements for the use of Form S-3 under the 1933 Act. Each
of the Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act. At the respective times the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission) became effective and at each
Representation Date, the Registration Statement, any Rule 462 Registration
Statement and any amendments or supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations") and did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time (as defined
herein), the Prospectus and any amendments and supplements thereto did not and
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, the Offerors
will comply with the requirements of Rule 434. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply to (A)
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Offerors in writing by any Underwriter through Xxxxxxx Xxxxx expressly for use
in the Registration Statement or the Prospectus or (B) the part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the 1939 Act.
5
8
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied as so filed
in all material respects with the 1933 Act Regulations and, if applicable, each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of the Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or the Prospectus, at the time they
were or hereafter are filed or last amended, as the case may be, with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act, and the rules and regulations of Commission
thereunder (the "1934 Act Regulations"), and at the time of filing or as of the
time of any subsequent amendment, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading; and any additional documents
deemed to be incorporated by reference in the Registration Statement or the
Prospectus will, if and when such documents are filed with the Commission, or
when amended, as appropriate, comply in all material respects to the
requirements of the 1934 Act and the 1934 Act Regulations and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Offerors by an Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement or the
Prospectus.
(iv) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(v) The financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its
6
9
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The ratio of earnings to fixed
charges included in the Prospectus has been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The selected financial information
and the summary financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration Statement
and the Prospectus. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(vi) The statutory financial statements of each of the
Company's insurance subsidiaries, from which certain ratios and other
statistical data contained in the Registration Statement have been derived,
have for each relevant period been prepared in accordance with accounting
practices prescribed or permitted by the National Association of Insurance
Commissioners, and with respect to each insurance subsidiary, the appropriate
Insurance Department of the state of domicile of such insurance subsidiary, and
such accounting practices have been applied on a consistent basis throughout
the periods involved.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as otherwise
stated therein, (A) there has been no material adverse change and no
development which could reasonably be expected to result in a 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 one enterprise whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those arising in the
7
10
ordinary course of business, which are material with respect to the Company and
its subsidiaries, considered as one enterprise, (C) except for regular
dividends on the Common Stock in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(viii) The Company has been incorporated, is validly existing
as a corporation and its status is active under the laws of the State of
Florida, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as described
in the Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Agreement, the Pricing Agreement, the Purchase
Contract Agreement, the Pledge Agreement and the Guarantee Agreements. The
Company is 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 or be in good standing would
not have a Material Adverse Effect.
(ix) Other than the Trust, each subsidiary of the Company
has been incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Prospectus, and is
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 or be in good standing would not have a
Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding shares of
capital stock of each subsidiary of the Company have been authorized and
validly issued, are fully paid and non-assessable and all such shares are owned
by the Company, directly or through its subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity. None
of the outstanding shares of capital stock of the subsidiaries was issued in
violation of preemptive or other similar rights arising by operation of law,
under the charter or by-laws of any subsidiary or under any agreement to which
the Company or any subsidiary is a party, or otherwise.
8
11
(x) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus; since the date indicated in the
Prospectus there has been no change in the consolidated capitalization of the
Company and its subsidiaries (other than changes in outstanding Common Stock
resulting from employee benefit plan or dividend reinvestment and stock
purchase plan transactions); and all of the issued and outstanding capital
stock of the Company has been authorized and validly issued, is fully paid and
non-assessable and conforms to the descriptions thereof contained in the
Prospectus.
(xi) The Trust has been created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act (the
"Delaware Act") with the power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Pricing Agreement,
the Preferred Securities, the Common Securities and the Declaration; the Trust
is qualified to transact business as a foreign company and is in good standing
in each jurisdiction in which such qualification is necessary, except where the
failure to so qualify or be in good standing would not have a Material Adverse
Effect on the Trust; the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus; the Trust is and will,
under current law, be classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a corporation.
(xii) The Purchase Contract Agreement has been authorized by
the Company and, at the Closing Time, when validly executed and delivered by
the Company and assuming due authorization, execution and delivery of the
Purchase Contract Agreement by the Purchase Contract Agent, will constitute a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Bankruptcy Exceptions"), and will conform
in all material respects to the description thereof contained in the
Prospectus.
(xiii) The Pledge Agreement has been authorized by the
Company and, at the Closing Time, when validly executed and delivered by the
Company and assuming due authorization,
9
12
execution and delivery of the Pledge Agreement by the Collateral Agent and the
Purchase Contract Agent, will constitute a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions, and will conform in all material respects to the description
thereof contained in the Prospectus.
(xiv) The Common Securities have been authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus,
will be validly issued and will represent undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the
description thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at the
Closing Time all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
(xv) The Declaration has been authorized by the Company and,
at the Closing Time, will have been executed and delivered by the Company and
the Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Institutional Trustee and the Delaware Trustee, the
Declaration will, at the Closing Time, be a legal, valid and binding obligation
of the Company and the Regular Trustees, enforceable against the Company and
the Regular Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and will
conform in all material respects to the description thereof contained in the
Prospectus.
(xvi) Each of the Guarantee Agreements has been authorized by
the Company and, when validly executed and delivered by the Company, and, in
the case of the Preferred Securities Guarantee Agreement, assuming due
authorization, execution and delivery of the Preferred Securities Guarantee by
the Guarantee Trustee, will constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions, and each of the Guarantees and the Guarantee Agreements will
conform in all material respects to the description thereof contained in the
Prospectus.
10
13
(xvii) The Securities have been authorized for issuance and
sale to the Underwriters and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully paid and
non-assessable and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Securities is not
subject to preemptive or other similar rights.
(xviii) The shares of Common Stock to be issued and sold by
the Company pursuant to the Purchase Contract Agreement (the "Shares"), when
issued and delivered in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement, will be authorized, validly issued and
fully paid and non-assessable and will conform in all material respects to the
description thereof contained in the Prospectus; and the issuance of such
Shares will not be subject to preemptive or other similar rights.
(xix) The Indenture has been authorized and qualified under
the 1939 Act and, at the Closing Time, will have been executed and delivered
and will constitute a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions;
the Indenture will conform in all material respects to the description thereof
contained in the Prospectus.
(xx) The Junior Subordinated Debentures have been
authorized by the Company and, at the Closing Time, will have been executed by
the Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the Prospectus, will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and will be in
the form contemplated by, and entitled to the benefits of, the Indenture and
will conform in all material respects to the description thereof contained in
the Prospectus.
(xxi) Each of the Regular Trustees of the Trust is an
employee of the Company and has been authorized by the Company to execute and
deliver the Declaration.
(xxii) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation or by-laws or in default in the
performance or observance of any material
11
14
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, note, lease, loan or credit agreement or any other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject, or in violation of
any applicable law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets, which violation or default would, singly or in
the aggregate, have a Material Adverse Effect.
(xxiii) The Trust is not in violation of the Declaration or
its certificate of trust filed with the State of Delaware on March 20, 1997
(the "Certificate of Trust"); none of the entry into the Purchase Contracts
underlying the Securities by the Company, the offer of the Securities as
contemplated herein and in the Prospectus, the issue of the Shares and the sale
of the Shares by the Company pursuant to the Purchase Contracts; the execution,
delivery and performance of this Agreement, the Pricing Agreement, the Purchase
Contracts, the Purchase Contract Agreement, the Pledge Agreement, the
Declaration, the Preferred Securities, the Common Securities, the Indenture,
the Junior Subordinated Debentures, the Guarantee Agreements and the
Guarantees, and the consummation of the transactions contemplated herein and
therein and compliance by the Offerors with its obligations hereunder and
thereunder, did or will result in a breach of any of the terms or provisions
of, or constitute a default under or require the consent of any party under the
Certificate of Trust of the Trust or the Articles of Incorporation or by-laws
of the Company and its subsidiaries, any contract, indenture, mortgage, note,
lease, agreement or other instrument to which either the Trust, the Company or
any of its subsidiaries is a party or by which any of them may be bound, any
applicable law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Trust, the Company or any of its subsidiaries or any of
their respective property or assets, or did or will result in the creation or
imposition of any lien on the properties or assets of the Trust, the Company or
any of its subsidiaries.
(xxiv) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent.
12
15
(xxv) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body, domestic
or foreign (including, without limitation, any proceeding to revoke or deny
renewal of any Insurance Licenses (as defined below)), now pending or to the
knowledge of the Company threatened against or affecting the Trust, the Company
or any of its subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated therein), or
which might reasonably be expected to result in a Material Adverse Effect, or
which might be reasonably expected to materially and adversely affect the
assets, properties or operations thereof or the consummation of this Agreement,
the Pricing Agreement, the Purchase Contracts, the Purchase Contract Agreement,
the Pledge Agreement, the Guarantee Agreements, the Indenture or the
transactions contemplated herein or therein. The aggregate of all pending
legal or governmental proceedings to which the Trust, the Company or any
subsidiary thereof is a party or of which any of their respective properties or
operations is the subject which are not described in the Registration Statement
and the Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(xxvi) The Company and its subsidiaries have good and
marketable title to all material real and personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Registration Statement or the Prospectus or such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries; and any material real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries; the Company and its
subsidiaries possess all licenses, franchises, permits, certificates,
authorizations, approvals, consents and orders of all governmental authorities
or agencies (including, without limitation, insurance licenses from the
insurance departments of the various states where the subsidiaries write
insurance business (the "Insurance Licenses")) which are necessary for the
ownership or lease of the material properties owned or leased by each of them
and for the operation of the business now operated by each of them with such
exceptions which, singly or in the aggregate, are not material and do not
materially interfere with the conduct of the business of the
13
16
Company and its subsidiaries, considered as one enterprise; the Company, on
behalf of its subsidiaries, has made all required filings under applicable
insurance holding company statutes (except for failures to file that,
individually or in the aggregate, would not have a Material Adverse Effect),
including without limitation, all insurance holding company system registration
statements required to be filed, in all jurisdictions in which such
registrations are required; the insurance subsidiaries of the Company have
fulfilled and performed all material obligations necessary to maintain their
respective Insurance Licenses, and no event or events have occurred which may
result in the impairment, modification, termination or revocation of such
Insurance Licenses; all such licenses, franchises, permits, certificates,
orders, authorizations, approvals and consents are in full force and effect and
contain no unduly burdensome provisions that would interfere with the conduct
of the business of the Company and its subsidiaries, considered as one
enterprise and, except as otherwise set forth in the Registration Statement or
the Prospectus, there are no legal or governmental proceedings pending or
threatened that would result in a material modification, suspension or
revocation thereof.
(xxvii) No authorization, approval, consent, order,
registration or qualification of or with any court or governmental authority or
agency (including, without limitation, any insurance regulatory agency or body)
is required for the entry into the Purchase Contracts underlying the
Securities, in connection with the issuance and sale of the Common Securities,
the offering of the Securities and the issuance and sale of the Shares by the
Company pursuant to such Purchase Contracts, except such as have been obtained
and made under the federal securities laws or state insurance laws and such as
may be required under state or foreign securities or Blue Sky laws.
(xxviii) This Agreement and the Pricing Agreement have been
authorized, executed and delivered by each of the Offerors.
(xxix) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business in Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively, the
"Cuba Act") or is exempt therefrom.
(xxx) None of the Trust or the Company or any of its
subsidiaries is an "investment company" or under the "control" of
14
17
an "investment company" as such terms are defined under the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxxi) The Company and the Subsidiaries have each filed all
federal, state and foreign income tax returns which have been required to be
filed and have paid all taxes indicated by said returns and all assessments
received by any of them to the extent that such taxes have become due and are
not being contested in good faith.
(xxxii) None of the Company, its subsidiaries or any of their
respective directors, officers or controlling persons, has taken, directly or
indirectly, any action resulting in a violation of Regulation M under the 1934
Act, or designed to cause or result in, or that has constituted or that
reasonably might be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Securities or the Common Stock.
(xxxiii) No "forward looking statement" (as defined in Rule
175 under the 0000 Xxx) contained in the Registration Statement, any
preliminary prospectus or the Prospectus was made or reaffirmed without a
reasonable basis or was disclosed other than in good faith.
(b) Any certificate signed by any officer of the Company or a
Trustee of the Trust and delivered to the [Representatives] or to counsel for
the Underwriters shall be deemed a representation and warranty by the Company
or the Trust, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Offerors agree to sell to each Underwriter, and each Underwriter severally and
not jointly, agrees to purchase from the Offerors, at the price per security
set forth in the Pricing Agreement, the number of Initial Securities set forth
in Schedule A hereto opposite the name of such Underwriter, plus any additional
number of Initial Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
15
18
(1) If the Offerors have elected not to rely upon Rule 430A
of the 1933 Act Regulations, the initial public offering price per Security and
the purchase price per Security to be paid by the several Underwriters for the
Securities have each been determined and set forth in the Pricing Agreement,
dated the date hereof, and any necessary amendments to the Registration
Statement and the Prospectus will be filed before the Registration Statement
becomes effective.
(2) If the Offerors have elected to rely upon Rule 430A of
the 1933 Act Regulations, the purchase price per Security to be paid by the
several Underwriters shall be an amount equal to the initial public offering
price per Security, less an amount per Security to be determined by agreement
between the Underwriters and the Offerors. The initial public offering price
per Security shall be a fixed price to be determined by agreement between the
Underwriters and the Offerors. The initial public offering price and the
purchase price, when so determined, shall be set forth in the Pricing
Agreement. In the event that such prices have not been agreed upon and the
Pricing Agreement has not been executed and delivered by all parties thereto by
the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the Offerors and the
Underwriters.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Offerors hereby grant to the Underwriters, severally and not
jointly, the right to purchase at their election up to 225,000 Option
Securities at the price per share set forth in the Pricing Agreement. The
option hereby granted will expire automatically at the close of business on the
30th calendar day after (i) the later of the date the Registration Statement
and any Rule 462(b) Registration Statement becomes effective, if the Offerors
have elected not to rely upon Rule 430A under the 1933 Act Regulations, or (ii)
the Representation Date, if the Offerors have elected to rely upon Rule 430A
under the 1933 Act Regulations, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Securities upon
notice by the Underwriters to the Offerors setting forth the aggregate number
of additional Optional Securities to be purchased and the time and date of
delivery for the related Option Securities. Any such time and date of delivery
(a "Date of Delivery") shall be determined by the Underwriters but shall not be
later than seven
16
19
full business days after the exercise of such option, nor in any event before
the Closing Time, unless otherwise agreed upon by the Underwriters and the
Offerors. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase from the Company the same percentage of the total number of Option
Securities as such Underwriter is purchasing of the Initial Securities as set
forth in Schedule A hereto (subject in each case to such adjustments as the
[Representatives] in their discretion shall make to eliminate any fractional
Option Securities).
(c) The Preferred Securities underlying the Securities will be
pledged with the Collateral Agent to secure the holders' obligations to
purchase Common Stock under the Purchase Contracts. Such pledge shall be
effected by the transfer to the Collateral Agent of the Preferred Securities to
be pledged at the Closing Time and appropriate Date of Delivery, if any, in
accordance with the Pledge Agreement.
(d) Delivery of certificates for the Initial Securities and the
Option Securities (if the option provided for in Section 2(b) hereof shall have
been exercised on or before the first business day prior to the Closing Time)
shall be made at the offices of the Underwriters in New York, against the
delivery to the Collateral Agent of the Preferred Securities relating to such
Securities by such Underwriters or on their behalf, and payment of the purchase
price for such Securities shall be made at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
place as shall be agreed upon by the Underwriters and the Offerors, at 9:00
a.m. (New York time) on the third business day after the date the Registration
Statement becomes effective (or, if the Offerors have elected to rely upon Rule
430A, the third full business day after execution of the Pricing Agreement (or,
if pricing of the Securities occurs after 4:30 p.m., Eastern time, on the
fourth full business day thereafter)), or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriters and
the Offerors (such time and date of payment and delivery being referred to
herein as the "Closing Time"). Payment for the Securities purchased by the
Underwriters shall be made by wire transfer of immediately available funds,
payable to the Company, against delivery to the respective accounts of the
Underwriters of the Securities to be purchased by it. Delivery of, and payment
for, the Securities shall be made through the facilities of the Depository
Trust Company. In addition, if the
17
20
Underwriters purchase any or all of the Option Securities, payment of the
purchase price and delivery of certificates for such Option Securities shall be
made at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP set forth
above, or at such other place as shall be agreed upon by the Underwriters and
the Offerors, on each Date of Delivery as specified in the relevant notice from
the Underwriters to the Offerors.
Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names
as the Underwriters may request in writing at least two full business days
before the Closing Time or any Date of Delivery, as the case may be. Xxxxxxx
Xxxxx, individually and not as representative of the Underwriters, may (but not
shall be obligated to) make payment of the purchase price for the Securities,
if any, to be purchased by any Underwriter whose funds have not been received
by the Closing Time, or the Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Initial Securities and the Option Securities, if any, will
be made available for examination by the Underwriters no later than 10:00 a.m.
(New York City time) on the last business day prior to the Closing Time or the
Date of Delivery, as the case may be.
(e) If settlement for the Option Securities occurs after the
Closing Time, the Offerors will deliver to the Underwriters on the relevant
Date of Delivery, and the obligations of the Underwriters to purchase the
Option Securities shall be conditioned upon the receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered at the Closing Time pursuant to Section
5[(k)] hereof.
SECTION 3. Covenants of the Offerors. The Offerors agree with each
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Offerors
will cause the Prospectus to be filed with the Commission pursuant to Rule 424
of the 1933 Act Regulations and the Offerors will promptly advise the
Underwriters when such filing has been made. Prior to the filing, the Offerors
will cooperate with the Underwriters in the preparation of such Prospectus to
assure that the Underwriters have no reasonable objection to the form or
content thereof when filed or mailed.
18
21
(b) The Offerors will comply with the requirements of Rule 430A of
the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations if and as
applicable, and will notify the Underwriters immediately, and confirm the
notice in writing, (i) of the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose and (v) of the issuance by any state securities
commission or other regulatory authority of any order suspending the
qualification or the exemption from qualification of the Securities or the
Shares under state securities or Blue Sky laws or the initiation or threatening
of any proceeding for such purpose. The Offerors will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Offerors will give the Underwriters notice of its intention
to file or prepare any amendment to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise; will furnish the Underwriters with copies of any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision a
reasonable amount of time prior to such proposed filing or use, as the case may
be; and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment, supplement or revision to which the Underwriters or counsel for the
Underwriters shall object.
(d) The Company will deliver to Xxxxxxx Xxxxx and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to Xxxxxxx Xxxxx,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. If
19
22
applicable, the copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) The Company has delivered to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Offerors, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Offerors will promptly prepare and file with the Commission, subject to Section
3(c), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Offerors will furnish to the
Underwriters,
20
23
without charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as Xxxxxxx Xxxxx may designate; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Offerors
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required in connection with distribution of the Securities and the Shares.
(h) The Company will make generally available to its securityholders
as soon as practicable, but not later than 45 days (or 90 days, in the case of
a period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company and its subsidiaries (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in
said Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(j) If, at the time that the Registration Statement became (or in the
case of a post-effective amendment becomes) effective, any information shall
have been omitted therefrom in reliance upon Rule 430A or Rule 434 of the 1933
Act Regulations, then immediately following the execution of the Pricing
Agreement, the Offerors will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A or Rule 434 and Rule 424(b) of the
1933 Act Regulations, copies of an amended Prospectus, or Term Sheet, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted.
(k) If the Offerors elect to rely upon Rule 462(b), the Offerors
shall file a Rule 462(b) Registration Statement with the
21
24
Commission in compliance with Rule 462(b) and pay the applicable fees in
accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i)
10:00 p.m. Eastern time on the date of the Pricing Agreement and (ii) the time
confirmations are sent or given, as specified by Rule 462(b)(2).
(l) The Offerors, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(m) The Offerors will use their best efforts to effect the listing of
the Income PRIDES and the Shares on the New York Stock Exchange and to cause
the Securities to be registered under the 0000 Xxx.
(n) During a period of 180 days from the date of the Pricing
Agreement, neither the Trust nor the Company will, without the prior written
consent of Xxxxxxx Xxxxx, directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of, or enter into any
agreement to sell, any Securities, Purchase Contracts, Preferred Securities or
Common Stock or any security convertible into or exchangeable or exercisable
for Securities, Purchase Contracts, Preferred Securities, Common Stock or the
Junior Subordinated Debentures, or any equity securities substantially similar
to the Securities, Preferred Securities, Purchase Contracts or Common Stock or
any debt securities substantially similar to the Junior Subordinated
Debentures; provided, however, that such restriction shall not affect the
ability of the Offerors to take any such action (i) in connection with any
employee benefit, dividend reinvestment or stock purchase plan of the Company
or its subsidiaries or (ii) in connection with the offering of the Securities,
including the Preferred Securities, and the Junior Subordinated Debentures
issued pursuant to this Agreement.
(o) The Company, during a period of three years from the Closing
Time, will make generally available to the Underwriters copies of all reports
and other communications (financial or other) mailed to stockholders, and
deliver to the Underwriters promptly after they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which any class of securities of the
Company is listed; and shall furnish such additional information concerning the
business and financial condition of the Company as the Underwriters may from
time to time reasonably
22
25
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission).
(p) The Company will reserve and keep available at all times, free
of preemptive or other similar rights and liens and adverse claims, sufficient
shares of Common Stock to satisfy any obligations to issue Shares upon
settlement of the Purchase Contracts and shall take all actions necessary to
keep effective the Registration Statement with respect to the Shares.
(q) None of the Company, its subsidiaries or any of their
respective directors, officers or controlling persons, will take, directly or
indirectly, any action resulting in a violation of Regulation M under the 1934
Act, or designed to cause or result in, or that reasonably might be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities or the Common
Stock.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, the
Pricing Agreement, the Purchase Contracts, the Purchase Contract Agreement and
the Pledge Agreement, including, without limitation, expenses related to the
following, if incurred: (i) the preparation, delivery, printing and filing of
the Registration Statement and Prospectus as originally filed (including
financial statements and exhibits) and of each amendment thereto; (ii) the
printing and delivery to the Underwriters of this Agreement, the Pricing
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Securities; (iii) the preparation, issuance and delivery of the certificates
for the Securities and the Shares; (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including the
transfer agents and registrars), as well as fees and disbursements of the
Trustees, the Purchase Contract Agent, the Collateral Agent and any Depositary,
and their respective counsel (except as provided for in the Prospectus); (v)
the qualification of the Securities and the Shares under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any Legal
Investment Survey; (vi) the printing and delivery to the Underwriters of copies
of the Registration
23
26
Statement as originally filed and of each amendment thereto, of each
preliminary prospectus, any Term Sheet and of the Prospectus and any amendments
or supplements thereto; (vii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any Legal Investment Survey; (viii) any fees
payable in connection with the rating of the Securities by nationally
recognized statistical rating organizations; (ix) the filing fees incident to,
and the fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities; (x) any fees
payable to the Commission; and (xi) the fees and expenses incurred in
connection with the listing of the Income PRIDES and the Shares on the New York
Stock Exchange.
If this Agreement is terminated by the [Representatives] in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Securities pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Offerors herein contained or in certificates of any officer of the Company
or any subsidiary or the trustees of the Trust delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective under the 1933 Act not
later than 5:30 p.m., New York City time, on the date hereof, and on the date
hereof and at the Closing Time and any Date of Delivery, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the satisfaction of
counsel to the Underwriters. A prospectus containing information relating to
the description of the Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
24
27
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
W. Xxxxxxx Xxxxxx, Esq., Senior Vice President, Corporate Secretary and General
Counsel of the Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company has been incorporated, is
validly existing as a corporation and its status is active under
the laws of the State of Florida.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus.
(iii) The Company is qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required.
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus (except
for subsequent issuances, if any, pursuant to employee benefit plan or
dividend reinvestment and stock purchase plan transactions), and the
shares of issued and outstanding capital stock of the Company have
been authorized and validly issued and are fully paid and
non-assessable.
(v) Except for the Trust, each subsidiary of
the Company has been incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently
conducted and as described in the Prospectus, and is 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
25
28
the conduct of business, except where the failure to so qualify or be
in good standing would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each such subsidiary of the
Company has been authorized and validly issued, is fully paid and
non-assessable and all such shares are owned by the Company, directly
or through its subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(vi) The Trust is not required to be qualified
and in good standing as a foreign company in Florida, except to the
extent that the failure to so qualify or be in good standing would not
have a Material Adverse Effect on the Trust; and the Trust is not a
party to or otherwise bound by any agreement other than those
described in the Prospectus.
(vii) The Declaration has been authorized,
executed and delivered by the Company and the Trustees and is a legal,
valid and binding obligation of the Company, enforceable against the
Company and each of the Regular Trustees in accordance with its terms,
except as enforcement thereof may be limited by the Bankruptcy
Exceptions; and the Declaration has been duly qualified under the 1939
Act.
(viii) All legally required proceedings in
connection with the authorization, issuance and validity of the
Securities and the sale of the Securities in accordance with this
Agreement (other than the filing of post-issuance reports, the
non-filing of which would not render the Securities invalid) have been
taken and all legally required orders, consents or other
authorizations or approvals of any other public boards or bodies
(including, without limitation, any insurance regulatory agency or
body) in connection with the authorization, issuance and validity of
the Securities and the sale of the Securities in accordance with this
Agreement (other than in connection with or in compliance with the
provisions of the securities or Blue Sky laws of any jurisdictions, as
to which no opinion need be expressed) have been obtained and are in
full force and effect.
(ix) The Registration Statement is effective
under the 1933 Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act,
26
29
and no proceedings therefor have been initiated or threatened by the
Commission.
(x) The Registration Statement as of its
effective date and the Prospectus and each amendment or supplement
thereto as of its issue date (in each case, other than the financial
statements and the notes thereto, the financial schedules, and any
other financial data included or incorporated by reference therein, as
to which such counsel need express no belief), complied as to form in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations; and the Declaration, the Indenture, the
Preferred Securities Guarantee Agreement and the Statements of
Eligibility on Forms T-1 with respect to each of the Institutional
Trustee, the Debt Trustee, and the Guarantee Trustee filed with the
Commission as part of the Registration Statement complied as to form
in all respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(xi) Each of the documents incorporated by
reference in the Registration Statement or the Prospectus at the time
they were filed or last amended (other than the financial statements
and the notes thereto, the financial schedules, and any other
financial data included or incorporated by reference therein, as to
which such counsel need express no belief), complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations, as applicable; and such counsel has no reason to
believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the 1933 Act,
an untrue statement of a material fact, or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of other documents which were
filed under the 1934 Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein not misleading.
(xii) The Company and the Trust meet the
registrant requirements for use of Form S-3 under the 1933 Act
Regulations.
(xiii) The Securities have been authorized for
issuance and sale to the Underwriters pursuant to this
27
30
Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth in the
Pricing Agreement, will be validly issued and fully paid and
non-assessable; the Common Stock and the Securities are each
registered under the 1934 Act, and the Income PRIDES issuable at the
Closing Time and the Shares issuable by the Company pursuant to the
Purchase Contracts have been authorized for listing on the New York
Stock Exchange, upon official notice of issuance.
(xiv) The Shares subject to the Purchase
Contract Agreement have been validly authorized and reserved for
issuance and, when issued and delivered by the Company in accordance
with the provisions of the Purchase Contract Agreement, the Purchase
Contracts and the Pledge Agreement, will be fully paid and non-
assessable; the issuance of such Shares will not be subject to
preemptive or other similar rights arising by law or, to the best of
such counsel's knowledge, otherwise.
(xv) The issuance of the Securities is not
subject to preemptive or other similar rights arising by law or, to
the best of such counsel's knowledge, otherwise.
(xvi) All of the issued and outstanding Common
Securities of the Trust are directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(xvii) This Agreement and the Pricing Agreement
have been duly authorized, executed and delivered by each of the
Company and the Trust.
(xviii) The Purchase Contract Agreement has been
duly authorized by the Company and, assuming due authorization,
execution and delivery of the Purchase Contract Agreement by the
Purchase Contract Agent, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(xix) The Pledge Agreement has been duly
authorized by the Company and, assuming due authorization, execution
and delivery of the Pledge Agreement by the Collateral Agent and the
Purchase Contract Agent, constitutes a legal, valid and binding
obligation of the
28
31
Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xx) Each of the Guarantee Agreements has been
duly authorized, executed and delivered by the Company; the Preferred
Securities Guarantee Agreement, assuming it is duly authorized,
executed, and delivered by the Guarantee Trustee, constitutes a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by Bankruptcy Exceptions; and the
Preferred Securities Guarantee Agreement and the Declaration have been
duly qualified under the 0000 Xxx.
(xxi) The Indenture has been executed and
delivered by the Company and, assuming authorization, execution, and
delivery thereof by the Debt Trustee, is a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the Indenture
has been duly qualified under the 0000 Xxx.
(xxii) The Junior Subordinated Debentures are in
the form contemplated by the Indenture, have been duly authorized,
executed and delivered by the Company and, when authenticated by the
Debt Trustee in the manner provided for in the Indenture and delivered
against payment therefor by the Trust, will constitute legal, valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
(xxiii) The entry into the Purchase Contracts
underlying the Securities; the issuance and sale of the Securities by
the Offerors; the issuance and sale of the Shares by the Company
pursuant to the Purchase Contracts; the execution, delivery and
performance by the Company of this Agreement, the Pricing Agreement,
the Purchase Contracts, the Purchase Contract Agreement, the Pledge
Agreement, the Declaration, the Securities, the Common Securities, the
Indenture, the Junior Subordinated Debentures, the Guarantee
Agreements and the Guarantees; the consummation of the transactions
contemplated herein and therein; and the compliance by each of the
Offerors with
29
32
their respective obligations hereunder and thereunder do not and will
not conflict with, result in a breach of, or constitute a default
under or require the consent of any party under the Certificate of
Trust of the Trust or the Articles of Incorporation or by-laws of the
Company or any of its subsidiaries, or any contract, indenture,
mortgage, agreement, note,
lease or other instrument to which the Trust, the Company or any of its
subsidiaries is a party or by which any of them may be bound, or any applicable
law, rule or regulation, or any judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Trust, the Company or any of its subsidiaries or any of their
respective properties or assets or did or will result in the creation or
imposition of any lien on the properties or assets of the Trust, the Company or
any of its subsidiaries.
(xxiv) All conditions precedent provided for in
the Purchase Contract Agreement relating to the authentication and
delivery of the Security Certificates have been complied with and the
Company is duly entitled to the authentication and delivery of the
Security Certificates in accordance with the terms of the Purchase
Contract Agreement; the Security Certificates are in a form
contemplated by the Purchase Contract Agreement and comply with all
applicable statutory requirements and with the requirements of the New
York Stock Exchange.
(xxv) To the best of such counsel's knowledge,
there are no actions, suits or proceedings before or by any court or
governmental agency or body, domestic or foreign, (including, without
limitation, any insurance regulatory agency or body) pending or
threatened which are required to be disclosed in the Registration
Statement or the Prospectus, other than those disclosed therein, and
all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or to which any of their property
is subject which are not described in the Registration Statement and
the Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material.
(xxvi) The information in the Prospectus under
the captions "Prospectus Summary- The Company," "The Trust," "Use of
Proceeds", "Capitalization," "Description of the
30
33
FELINE PRIDES," "Description of the Purchase Contracts," "Certain
Provisions of the Purchase Contract Agreement and the Pledge
Agreement," "Description of the Trust Preferred Securities,"
"Description of the Guarantee," "Description of the Junior
Subordinated Debentures," "Description of the Common Stock," and
"ERISA Considerations" to the extent that they involve matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(xxvii) To the best of such counsel's knowledge
and information, there are no contracts, indentures, mortgages,
agreements, notes, leases or other instruments required to be
described or referred to or incorporated by reference in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to or incorporated by reference therein or
filed as exhibits thereto; the descriptions thereof or references
thereto are true and correct, and no default exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
agreement, note, lease or other instrument so described, referred to,
filed or incorporated by reference.
(xxviii) No authorization, approval, consent,
order, registration or qualification of or with any court or federal
or state governmental authority or agency (including, without
limitation, any insurance regulatory agency or body) is required for
the issuance and sale of the Securities by the Offerors to the
Underwriters or the performance by the Trust and the Company of their
respective obligations in this Agreement, the Pricing Agreement, the
Purchase Contract Agreement, the Pledge Agreement, the Indenture, the
Junior Subordinated Debentures, the Preferred Securities Guarantee
Agreement, the Preferred Securities Guarantee, the Declaration and the
Securities except such as has been obtained and made under the federal
securities laws or such as may be required under state or foreign
securities or Blue Sky laws.
(xxix) The Company, on behalf of its subsidiaries,
has made all required filings under applicable insurance holding
company statutes, including without limitation insurance holding
company system registration statements, in each jurisdiction where
such filings are required to conduct
31
34
its business as described in the Prospectus, except where the failure
to make such filings would not, individually or in the aggregate, have
a Material Adverse Effect.
(xxx) Each Subsidiary that is required to be
organized and licensed as an insurance company in its jurisdiction of
incorporaton is so organized and licensed and each such Subsidiary is
authorized or qualified as an insurer in each other jurisdiction where
it is required to be so authorized or qualified to conduct its busines
as described in the Prospectus, except where the failure to be so
authorized or qualifed in such jurisdiction would not, singly or in
the aggregate, have a Material Adverse Effect; the Company and its
subsidiaries possess all licenses, franchises, permits, certificates,
authorizations, approvals, consents and orders of all governmental
authorities or agencies (including, without limitation, the Insurance
Licenses) necessary for the ownership or lease of the material
properties owned or leased by each of them and for the operation of
the business carried on by each of them as described in the
Registration Statement and the Prospectus with such exceptions as are
not material and do not materially interfere with the conduct of the
business of the Company and its subsidiaries, considered as one
enterprise; all such licenses, franchises, permits, certificates,
authorizations, approvals, consents and orders are in full force and
effect and contain no unduly burdensome provisions that would
interfere with the conduct of the business of the Company and its
subsidiaries, considered as one enterprise and, except as otherwise
set forth in the Registration Statement or the Prospectus, there are
no legal or governmental proceedings pending or threatened that would
result in a material modification, suspension or revocation thereof.
(xxxi) None of the Trust or the Company or any of
its subsidiaries is an "investment company" or under the "control" of
an "investment company" as such terms are defined in the 1940 Act.
Moreover, such counsel shall confirm that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, including any information provided pursuant to
Rule 430A or Rule 434 (except for financial statements and the notes
thereto, the financial schedules and any other financial data included
or incorporated by reference therein, as to which counsel need
32
35
express no opinion), at the time it became effective or at the
Representation Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and the notes thereto, the
financial schedules, and any other financial data included or
incorporated by reference therein, as to which counsel need express no
opinion), at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by
the Company for use in connection with the offering of the Securities
which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective, in which case at the
time it is first provided to the Underwriters for such use) or at the
Closing Time, included (or includes) an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In giving such opinion, such counsel may rely, as to matters
of New York law, upon the opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.,
special counsel to the Offerors, and as to matters of Delaware law, upon the
opinion of ________________, special Delaware counsel to the Offerors, in which
case the opinion shall state that such counsel believes that you and such
counsel are entitled to so rely.
(2) The favorable opinion, dated as of the Closing Time, of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special counsel to the Offerors, in
form and substance satisfactory to counsel for the Underwriters and subject to
the qualifications and assumptions stated therein, to the effect that:
(i) The Registration Statement, including any
Rule 462(b) Registration Statement, is effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings therefor
initiated, to the best of such counsel's knowledge, or threatened by
the Commission.
(ii) The Registration Statement, including any
Rule 462(b) Registration Statement and the Prospectus, and
33
36
each amendment or supplement thereto (other than the financial
statements and the notes thereto, the financial schedules and any
other financial data included or incorporated by reference therein, or
the exhibits to the Registration Statement, including any Form T-1, as
to which no opinion need be rendered), as of their respective
effective or issue dates, or when amended, as appropriate, complied as
to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(iii) The statements in the Prospectus under the
captions "The Trust," "Description of the FELINE PRIDES," "Description
of the Purchase Contracts," "Certain Provisions of the Purchase
Contract Agreement and the Pledge Agreement," "Description of the
Trust Preferred Securities," "Description of the Guarantee,"
"Description of the Junior Subordinated Debentures," "Effect of
Obligations Under the Junior Subordinated Debentures and the
Guarantee," "Description of the Common Stock," and "ERISA
Considerations" to the extent that they involve matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(iv) The Purchase Contract Agreement, the
Purchase Contracts underlying the Securities being delivered at
the Closing Time and at any Date of Delivery, and the Pledge
Agreement have been duly authorized, executed and delivered by the
Company and each is a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as may be limited by the Bankruptcy Exceptions; provided,
however, that based on a review of applicable case law, upon the
occurrence of a Termination Event, Section 365(e)(2) of the Bankruptcy
Code (11 U.S.C. Section Section 101-1330, as amended) should not
substantively limit the provisions of Sections 3.15 and 5.8 of the
Purchase Contract Agreement and Section 4.3 of the Pledge Agreement
that require termination of the Purchase Contracts and release of the
Collateral Agent's security interest in the Preferred Securities or
the Treasury Securities; provided, however, that procedural
restrictions respecting relief from the automatic stay under Section
362 of the Code may affect the timing of the exercise of such rights
and remedies.
(v) When the Securities are issued in
accordance with the terms of the Purchase Contract Agreement
34
37
and delivered against payment therefor, the Securities will entitle
the holders thereof to the rights specified in the Purchase Contract
Agreement.
(vi) For purposes of the opinions expressed
therein, such counsel has assumed that (1) the Pledge Agreement has
been authorized, executed and delivered by the Purchase Contract Agent
on behalf of each of the holders of the Securities from time to time,
(2) the Purchase Contract Agent is incorporated and validly existing
under the laws of the state of its incorporation, (3) the Purchase
Contract Agent and each of the holders of the Securities has full
power, authority and legal right (including, without limitation, any
legal right dependent upon there being no necessary governmental
approvals or filings and no conflict with laws, governing documents or
contracts) to make and perform its obligations under the Pledge
Agreement, (4) the Pledge Agreement is the legal, valid, binding and
enforceable obligation of the Purchase Contract Agent on behalf of
each of the holders of the Securities from time to time, and (5) the
Purchase Contract Agent and each holder of Securities has sufficient
rights in the Preferred Securities or the Treasury Securities, as the
case may be, for the security interest of the Collateral Agent for the
benefit of the Company to attach.
For purposes of such counsel's opinion: (i) "UCC" means the
Uniform Commercial Code as in effect on the date thereof in the State
of New York; (ii) "Federal Book-Entry Regulations" means the United
States Department of Treasury regulations governing the transfer and
pledge of marketable Treasury Securities maintained in the form of
entries in the records of the Federal Reserve Banks and set forth in
61 Fed. Reg. 43,626 (1996) (to be codified at 31 C.F.R. Part 357),
including the 1994 Official Text of the Uniform Com- mercial Code,
Revised Article 8, Investment Securities (with Conforming and
Miscellaneous Amendments to Articles 1, 3, 4, 5, 9 and 10) adopted by
the American Law Institute and National Conference of Commissioners On
Uniform State Laws and approved by the American Bar Association on
February 14, 1995, which is incorporated by reference pursuant to 61
Fed. Reg. 43,626 (1996) (to be codified at 31 C.F.R. Section 357.2;
(iii) "Securities Intermediary" means The Chase Manhattan Bank acting
solely in its capacity as a "securities intermediary" as defined in
the Federal Book-Entry Regulations; (iv) "Security Entitlements"
means "security entitlements" as defined in the Federal Book-Entry
35
38
Regulations; and (v) "Collateral Account" means account number
_________ maintained by the Securities Intermediary in the name "The
First National Bank of Chicago as Purchase Contract Agent on behalf of
the holders of certain securities of AHL Financing, Collateral Account,
subject to the security interest of The Chase Manhattan Bank as
Collateral Agent for the benefit of American Heritage Life Investment
Corporation as pledgee" pursuant to the Pledge Agreement, dated as of
________, 1997, among the Securities Intermediary, the Purchase
Contract Agent and the Company (the "Pledge Agreement") and (vi) "
Financial Intermediary" means The Chase Manhattan Bank acting solely
in its capacity as a "financial intermediary" as defined in Section
8-313(4) of the UCC.
(A) The "transfer" of the Preferred Securities together
with the Pledge Agreement will be effective to create in favor of the
Collateral Agent for the benefit of the Company a valid and perfected
security interest in the Preferred Securities to secure the
obligations of the holders under the Purchase Contracts. Transfer of
the Preferred Securities will occur upon the latest of (a) the
delivery of the Preferred Securities to the Financial Intermediary
indorsed to the Financial Intermediary or in blank, (b) the sending of
a confirmation by the Financial Intermediary of the purchase by the
Collateral Agent for the benefit of the Company of such Preferred
Securities and (c) the identification by book-entry of the Preferred
Securities to the Collateral Account.
(B) Such counsel notes that although the Federal
Book-Entry Regulations contain express provisions identifying the law
governing perfection and priority of security interests in security
entitlements, they do not contain express provisions identifying the
law governing validity and attachment of such security interests.
Such counsel further notes that the parties have chosen the laws of
the State of New York to govern the Pledge Agreement and that the UCC
does not contain any provisions with respect to the creation of a
secu- rity interest in collateral constituting a "security
entitlement." The UCC, however, does contain provisions for creation
of a security interest in collateral constituting either a "general
intangible" or a "security" (each as defined in the UCC). If and to
the extent (i) the Federal Book-entry Regulations do not preempt the
choice of New York law with respect to the validity and attachment of
the security interest in the Treasury Security Entitlements
36
39
(as defined herein), (ii) under New York law a security interest in a
"security entitlement" with respect to a book-entry security issued by
the U.S. Treasury would be created in the same manner as a security
interest in a "general intangible" (as defined in the UCC), such
counsel is of the opinion that the provisions of the Pledge Agreement
are effective to create a valid security interest in favor of the
Company, to secure the obligations of the holders of the Growth PRIDES
under the Purchase Contracts comprising a part of such Growth PRIDES,
in each such holder's rights in all "security entitlements" with
respect to book-entry securities issued by the United States Treasury
and credited to the Collateral Account (such security entitlements,
the "Treasury Security Entitlements"). Alternatively, if and to the
extent (i) the Federal Book-Entry Regulations do not preempt the
choice of New York law with respect to the validity and attachment of
the security interest in the Treasury Security Entitlements, and (ii)
under New York law a security interest in a "security entitlement"
with respect to a book-entry security issued by the U.S. Treasury
would be created in the same manner as a security interest in a
"security" (as defined in the UCC), such counsel is of the opinion
that the provisions of the Pledge Agreement together with the
"transfer" (within the meaning of Section 8-313 of the UCC) of the
Treasury Security Entitlements to the Collateral Agent will be
effective to create a valid security interest in favor of the
Collateral Agent for the benefit of the Company, to secure the
obligations of the holders of the Growth PRIDES under the Purchase
Contracts, in such holders' rights in all Treasury Security
Entitlements. Assuming that the Securities Intermediary satisfies the
requirements of Section 8-313(d)(iii) of the UCC (as to which such
counsel expresses no opinion), "transfer" of the Treasury Securities
Entitlements will occur upon the later to occur of (1) the sending of
a confirmation by the Securities Intermediary to the Collateral Agent
for the benefit of the Company of the purchase by the Collateral Agent
of the Treasury Securities Entitlements and (2) the identification by
book-entry by the Securities Intermediary of the Treasury Securities
Entitlements as belonging to the Collateral Agent for the benefit of
the Company.
(C) Upon the execution and delivery of the Pledge
Agreement and the establishment of the Collateral Account in
accordance with the terms of the Pledge Agreement, the security
interest of the Company in the Treasury Securities
37
40
Entitlements will be perfected under the Federal Book-Entry
Regulations.
(vii) Assuming due authorization, execution and
delivery thereof by the Guarantee Trustee, the Preferred Securities
Guarantee Agreement is a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(viii) Assuming due authorization, execution, and
delivery thereof by the Debt Trustee, the Indenture is a legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the
Indenture, Declaration and Preferred Securities Agreement have been
duly qualified under the 0000 Xxx.
(ix) The Securities, the Shares, the Common
Securities, the Junior Subordinated Debentures, each of the
Guarantees, the Declaration and each of the Guarantee Agreements
conform in all material respects to the description thereof contained
in the Prospectus.
(x) No authorization, approval, consent,
order, registration or qualification of or with any court or federal
or New York or Florida state governmental authority or agency
(including, without limitation, any insurance regulator) is required
for the entry into the Purchase Contracts underlying the Securities,
the issuance and sale of the Securities by the Offerors to the
Underwriters, or the issuance and sale of the Shares by the Company
pursuant to such Purchase Contracts, or the performance by the Company
and the Trust of their respective obligations under this Agreement,
the Pricing Agreement, the Purchase Contracts, the Purchase Contract
Agreement, the Pledge Agreement, the Indenture, the Junior
Subordinated Debentures, the Preferred Securities Guarantee Agreement,
the Preferred Securities Guarantee, the Declaration and the
Securities, except such as has been obtained and made under the
federal securities laws or such as may be required under state or
foreign securities or Blue Sky laws.
38
41
(xi) The issuance and sale of the Securities do
not contravene the Commodity Exchange Act or the regulations of the
Commodity Futures Trading Commission.
Moreover, such counsel shall confirm that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, including any information provided pursuant to
Rule 430A or Rule 434 (except for financial statements and the notes
thereto, the financial schedules, and any other financial data
included or incorporated by reference therein, as to which counsel
need express no opinion), at the time it became effective or at the
Representation Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and the notes thereto, the
financial schedules, and any other financial data included or
incorporated by reference therein, as to which counsel need express no
opinion), at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by
the Company for use in connection with the offering of the Securities
which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective, in which case at the
time it is first provided to the Underwriters for such use) or at the
Closing Time, included (or includes) an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(3) The favorable opinion, dated as of the Closing Time, of
____________________________________, special Delaware counsel to the Offerors,
in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Trust has been created and is validly
existing in good standing as a business trust under the Delaware Act,
and has the business trust power and authority to conduct its business
as described in the Registration Statement and the Prospectus.
(ii) The Declaration constitutes a legal, valid
and binding obligation of the Company and is enforceable against the
Company in accordance with its terms, except
39
42
that to the extent enforceability thereof may be limited by the
Bankruptcy Exceptions.
(iii) Under the Delaware Act and the
Declaration, the Trust has the power and authority to (i) execute and
deliver, and to perform its obligations under, this Agreement and the
Pricing Agreement and (ii) issue, and perform its obligations under,
the Trust Securities.
(iv) The execution and delivery by the Trust of
this Agreement and the Pricing Agreement, and the performance by the
Trust of its obligations hereunder and under the Pricing Agreement,
have been authorized by all necessary action on the part of the Trust.
(v) The Preferred Securities have been
authorized by the Declaration and, when executed by the trust and the
Institutional Trustee in accordance with the Declaration and delivered
against payment therefor in accordance with the terms of this
Agreement, will be validly issued and, subject to qualifications
hereinafter expressed in subparagraph (vi), fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities, as beneficial owners
of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
said counsel may note that the holders of the Preferred Securities may
be obligated to make payments as set forth in the Declaration.
(vi) The Common Securities have been authorized
by the Declaration and, when issued, executed and authenticated in
accordance with the terms of the Declaration, and delivered and paid
for as set forth in the Registration Statement, will be validly
issued, undivided beneficial interests in the assets of the Trust.
(vii) Under the Delaware Act and the
Declaration, the issuance of the Trust Securities is not subject to
preemptive or other similar rights.
(viii) None of the execution and delivery by the
Trust of, or the performance by the Trust of its obligations under,
this Agreement, the issuance and sale of the Preferred Securities by
the Trust in accordance with the terms of this Agreement and the
Pricing Agreement, or the
40
43
consummation of the other transactions contemplated thereby, will
contravene any provisions of applicable Delaware law or administrative
regulations or the Certificate of Trust or the Declaration.
(ix) This Agreement and the Pricing Agreement
have been authorized, executed and delivered by the Trust.
(x) No authorization, approval, consent,
order, registration or qualification of or with any Delaware state
governmental authority or agency is required for the entry into the
Purchase Contracts underlying the Securities, the issuance and sale of
the Securities by the Offerors to the Underwriters, or the issuance
and sale of the Shares by the Company pursuant to such Purchase Contracts, or
the performance by the Company and the Trust of their respective obligations
under this Agreement, the Pricing Agreement, the Purchase Contracts, the
Purchase Contract Agreement, the Pledge Agreement, the Indenture, the Junior
Subordinated Debentures, the Preferred Securities Guarantee Agreement, the
Preferred Securities Guarantee, the Declaration and the Securities, except
such as has been obtained and made under the federal securities laws or such as
may be required under state or foreign securities or Blue Sky laws.
(4) The favorable opinion, dated as of the Closing Time, of
Pepper, Xxxxxxxx & Xxxxxxx LLP, counsel to First Chicago Delaware Inc., as
Delaware Trustee, and to The First National Bank of Chicago, as Institutional
Trustee under the Declaration, and Guarantee Trustee under the Preferred
Securities Guarantee Agreement, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) First Chicago Delaware Inc. is a Delaware
corporation with corporate powers, duly organized, validly existing
and in good standing under the laws of the State of Delaware with all
necessary power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of the Declaration and the
Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and performance by
the Institutional Trustee of the Declaration and the execution,
delivery and performance by the Guarantee Trustee of the Preferred
Securities Guarantee Agreement have been duly authorized by all
necessary corporation action on the part of the Institutional Trustee
and the Guarantee Trustee,
41
44
respectively. The Declaration and the Preferred Securities Guarantee
Agreement have been duly executed and delivered by the Institutional
Trustee and the Guarantee Trustee, respectively, and constitute the
legal, valid and binding obligations of the Institutional Trustee and
the Guarantee Trustee, respectively, enforceable against the
Institutional Trustee and the Guarantee Trustee, respectively, in
accordance with their terms, except to the extent enforcement thereof
may be limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of
the Declaration and the Preferred Securities Guarantee Agreement by
the Institutional Trustee and the Guarantee Trustee, respectively, do
not conflict with or constitute a breach of the Articles of
Organization or Bylaws of the Institutional Trustee and the Guarantee
Trustee, respectively.
(iv) No consent, approval or authorization of,
or registration with or notice to, any Delaware or federal banking
authority is required for the execution, delivery or performance by
the Institutional Trustee and the Guarantee Trustee of the Declaration
and the Preferred Securities Guarantee Agreement.
(5) The favorable opinion, dated as of the Closing Time, of
The Law Department of The First National Bank of Chicago, as Purchase Contract
Agent, in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) The First National Bank of Chicago is duly
incorporated and is validly existing as a banking corporation with
trust powers under the laws of the United States with all necessary
power and authority to execute, deliver and perform its obligations
under the Purchase Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by
the Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement, and the authentication and delivery of the
Securities have been duly authorized by all necessary corporate action
on the part of the Purchase Contract Agent. The Purchase Contract
Agreement and the Pledge Agreement have been duly executed and
delivered by the Purchase Contract Agent,and constitute the legal,
valid and binding obligations of the Purchase Contract Agent,
42
45
enforceable against the Purchase Contract Agent in accordance with its
terms, except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions.
(iii) the execution, delivery and performance of the
Purchase Contract Agreement and the Pledge Agreement by the Purchase
Contract Agent does not conflict with or constitute a breach of the
charter or by- laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any Illinois or federal governmental
authority or agency is required for the execution, delivery or
performance by the Purchase Contract Agent of the Purchase Contract
Agreement and the Pledge Agreement.
(6) The opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.,
special tax counsel to the Offerors, generally to the effect that based upon
current law and the assumptions stated or referred to therein, under current
U.S. federal income tax law: (i) the Trust will be classified as a grantor
trust and not as an association taxable as a corporation; (ii) the Junior
Subordinated Debentures will be classified as indebtedness of the Company, and
(iii) the discussion set forth in the Prospectus under the headings "Risk
Factors - Proposed Tax Legislation" and "Certain Federal Income Tax
Consequences" is a fair and accurate summary of the matters addressed therein.
The opinion expressed pursuant to clause (iii) may be conditioned on, among
other things, the initial and continuing accuracy of the facts, financial and
other information, covenants and representations set forth in certificates of
officers of the Company and the Trust and other documents deemed necessary for
such opinion.
(7) The favorable opinion, dated as of then Closing Time, of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, in form
and substance satisfactory to the Underwriters, with respect to the
incorporation and legal existence of the Company, the issuance and sale of the
Securities, the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, the Preferred Securities Guarantee Agreement, this Agreement, the
Pricing Agreement, the Registration Statement, the Prospectus and other related
matters as the [Representatives] may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such
43
46
matters. In giving its opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP may
rely as to certain matters of Florida law upon the opinions of W. Xxxxxxx
Xxxxxx, Esq. and LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special counsel for
the Offerors, which shall be delivered in accordance with Section 5(b)(1) and
5(b)(3) hereof.
(8) The favorable opinions, dated as of the Closing Time, of
(i) LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special Connecticut and
Pennsylvania counsel for the Company, and (ii) Dickinson, Wright, Moon, Van
Dusen & Xxxxxxx, special Michigan counsel for the Company, in form and
substance satisfactory to the Underwriters, with respect to the applicability
of the "bucket shop" laws of such states.
(c) Between the date of this Agreement and prior to the Closing Time,
no material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiaries, considered as one enterprise,
whether or not in the ordinary course of business.
(d) At the Closing Time, the [Representatives] shall have received a
certificate of the President or a Vice- President of the Company and of the
Chief Financial Officer or Chief Accounting Officer of the Company and a
certificate of a Regular Trustee of the Trust, and dated as of the Closing
Time, to the effect that (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 Trust or the Company and its subsidiaries considered
as one enterprise, whether or not in the ordinary course of business, (ii) the
representations and warranties in Section 1 hereof are true and correct as
though expressly made at and as of the Closing Time, (iii) the Company and the
Trust have complied with all agreements and satisfied all condi- tions on their
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(e) At the time of the execution of this Agreement, the
[Representatives] shall have received from KPMG Peat Marwick LLP a letter dated
such date in form and substance satisfactory to the [Representatives], to the
effect set forth below and as to such other matters as the [Representatives]
may reasonably request, that:
44
47
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations;
(ii) In their opinion, the consolidated financial
statements and any financial statement schedules audited by them and
included or incorporated by reference in the Registration Statement
and the Prospectus as amended or supplemented comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations;
[(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
including a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
condensed consolidated financial statements included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Registration Statement and the Prospectus as amended or supplemented
for the periods specified in such letter, a reading of the latest
available unaudited interim consolidated financial statements of the
Company and its subsidiaries, a reading of the minutes of the Company
and its subsidiaries since the audited consolidated financial
statements set forth in the Company's Annual Report on Form 10-K for
the most recent year, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters, a
review of interim financial information in accordance with standards
established by the American Institute of Certified Public Accountants
in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71") and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) the unaudited condensed consolidated
financial statements set forth in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Registration Statement and the Prospectus as amended or
supplemented do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations as they apply to Form 10-Q or any
material modifications should be made for them to be in
conformity with generally accepted accounting
45
48
principles applied on a basis substantially consistent with
that of the audited consolidated financial statements set
forth in the Company's Annual Report on Form 10-K for the most
recent year ended incorporated by reference in the
Registration Statement and the Prospectus as amended or
supplemented;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus as amended or
supplemented do not agree with the corresponding items in the
unaudited consolidated financial statements from which such
data and items were derived;
(C) any unaudited pro forma consolidated condensed
financial statements or any unaudited pro forma consolidating
financial statements included or incorporated by reference in
the Prospectus as amended or supplemented do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(D) as of a specified date not more than five
days prior to the date of delivery of such letter, there has
been any decrease or increase in the common stock (except for
any increases in connection with any employee benefit,
dividend reinvestment or stock purchase plan of the Company)
or any increase or decrease in long-term debt including
capital lease obligations and current maturities or any
increase in short-term debt, or any decrease in consolidated
common shareholders' equity of the Company and its
consolidated subsidiaries (other than periodic dividends
declared to shareholders), in each case as compared with the
corresponding amounts shown in the latest consolidated
statement of financial position of the Company and its
subsidiaries incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented,
except in each case for increases or decreases which the
Prospectus as amended or supplemented, including financial
information incorporated by reference, discloses have
46
49
occurred or may occur or which are described in such letter;
and
(E) for the period from the date of the latest
consolidated financial statements included or incorporated by
reference in the Prospectus as amended or supplemented to the
end of the latest period for which unaudited condensed
consolidated financial statements or financial information are
available there were any decreases in consolidated operating
revenues, operating income, net income or earnings available
for Common Stock of the Company and its consolidated
subsidiaries, or any increases in any items specified by the
[Representatives], in each case as compared with the
corresponding period in the preceding year and with any other
period of corresponding length specified by the
[Representatives], except in each case for increases or
decreases which the Prospectus as amended or supplemented,
including financial information incorporated by reference,
discloses have occurred or may occur or which are described in
such letter; and
(F) the unaudited condensed consolidated
financial statements referred to in Clause (E) are not stated
on a basis substantially consistent with the audited
consolidated financial statements incorporated by reference in
the Registration Statement and the Prospectus as amended or
supplemented.]
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus as amended or supplemented and included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
(v) based upon the procedures set forth in clause (iii)
above and a reading of the Selected Consolidated Financial
Information included in the Registration Statement, nothing came to
their attention that caused them to believe that the Selected
Consolidated Financial Information included in the Registration
Statement does not
47
50
comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act, that the
amounts included in the Selected Consolidated Financial Information
are not in agreement with the corresponding amounts in the audited
consolidated financial statements for the respective periods or that
the financial statements not included in the Registration Statement
from which certain of such data were derived are not in conformity
with generally accepted accounting principles;
(vi) they have compared the information in the
Registration Statement under selected captions with the disclosure
requirements of Regulation S-K of the 1933 Act and on the basis of
limited procedures specified herein, nothing came to their attention
that caused them to believe that this information does not comply as
to form in all material respects with the disclosure requirements of
Items 302, 402 and 503(d), respectively, of Regulation S-K;
(vii) based upon the procedures set forth in clause (ii)
above, a reading of the unaudited financial statements of the Company
of the most recent period that have not been included in the
Registration Statement and a review of such financial statements in
accordance with SAS 71, nothing came to their attention that caused
them to believe that the unaudited amounts for the most recent period
do not agree with the amounts set forth in the unaudited consolidated
financial statements for those periods or that such unaudited amounts
were not determined on a basis substantially consistent with that of
the corresponding amounts in the audited consolidated financial
statements;
(viii) they are unable to and do not express any opinion on
the Pro Forma Statement included in the Registration Statement or on
the pro forma adjustments applied to the historical amounts included
in the Pro Forma Statement; however, for purposes of this letter they
have:
(A) read the Pro Forma Statement;
(B) performed a review in accordance with SAS 71
of the financial statements to which the pro forma adjustments
were applied;
(C) made inquiries of certain officials of the
Company who have responsibility for financial and
48
51
accounting matters about the basis for their determination of
the pro forma adjustments and whether the Pro Forma Statement
complies as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the Pro Forma Statement; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to their attention that caused them to believe
that the Pro Forma Statement included in the Registration Statement does not
comply as to form in all material respects with the applicable requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(viii) In addition to the limited procedures, reading of
minutes, inquiries and other procedures referred to in clause (iii)
and (iv) above, they have carried out certain other specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus as amended or supplemented and the
Registration Statement, in the Company's Annual Report on Form 10-K
for the latest year ended and in the Company's Quarterly Reports on
Form 10-Q since the latest Annual Report on Form 10-K and which are
specified by the [Representatives], and have compared certain of such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be
in agreement; and
(ix) If applicable and agreed to by the parties, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the selected financial
data, pro forma financial information, prospective financial
statements, consolidating financial statements and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
[Representatives].
49
52
(f) At the Closing Time, the [Representatives] shall have received
from KPMG Peat Marwick LLP a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section, except that the specified date referred to
shall be a date not more than five days prior to the Closing Time.
(g) At the Closing Time, and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions herein contained;
and all proceedings taken by the Offerors in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(h) At the Closing Time, (i) the Securities shall be rated [in one of
the four highest rating categories for preferred stock ("Investment Grade")] by
any nationally recognized statistical rating agency, and the Offerors shall
have delivered to the [Representatives] a letter, dated the Closing Time, from
such nationally recognized statistical rating agency, or other evidence
satisfactory to the [Representatives], confirming that the Securities have
Investment Grade ratings; (ii) there shall not have occurred any decrease in
the ratings of the Securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act
Regulations), (iii) no downgrading shall have occurred in the Company's "AA"
claims-paying ability rating assigned by Standard and Poor's Corporation
("S&P") or the "A (Excellent)" financial strength rating assigned by A.M. Best
Company, Inc. ("Best"), and (iv) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or the Company's financial strength
or claims paying ability.
(i) At the Closing Time, the Income PRIDES and the Shares shall have
been approved for listing on the New York Stock Exchange upon notice of
issuance.
(j) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
50
53
(k) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Offerors contained herein
and the statements in any certificates furnished by the Offerors hereunder
shall be true and correct as of, and as if made on, each Date of Delivery, and
at the relevant Date of Delivery, the Underwriters shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice-President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company and a certificate
of a Regular Trustee of the Trust confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof is true
and correct as of, and as if made on, such Date of Delivery.
(2) The favorable opinion of W. Xxxxxxx Xxxxxx, Esq., Senior
Vice President, Corporate Secretary and General Counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b)(1) hereof.
(3) The favorable opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., special counsel and special tax counsel for the Offerors, in
form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities and otherwise
to the same effect as the opinion required by Sections [5(b)(2) and
5(b)(6)] hereof.
(4) The favorable opinion of ____________________, special
Delaware counsel for the Offerors, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(3) hereof.
(5) The favorable opinion of ______________________, counsel
to First Chicago Delaware Inc., in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the opinion
required by Section 5(b)(4) hereof.
51
54
[(6) The favorable opinion of ______________________, counsel
to The First National Bank of Chicago, as Purchase Contract Agent, in
form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Securities and otherwise
to the same effect as the opinion required by Section 5(b)(5) hereof.]
(7) The favorable opinion of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise to the same effect as
the opinion required by Section 5(b)(7) hereof.
(8) A letter from KPMG Peat Marwick LLP in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Underwriters pursuant to Section 5(e) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
shall be a date not more than five days prior to such Date of
Delivery.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the purchase of Option Securities on a Date of Delivery
which is after the Closing Time, the obligations of the several Underwriters to
purchase the relevant Option Securities may be terminated by the Underwriters
by notice to the Company at any time at or prior to the Closing Time, or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) The Offerors agree to jointly and severally indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information
52
55
and the Rule 434 Information deemed to be part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, provided, that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the
Offerors; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of
counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the foregoing indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Offerors by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Insofar as this indemnity agreement may permit indemnification
for liabilities under the 1933 Act of any person
53
56
who is a partner of an Underwriter or who controls an underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and who, at
the date of this Agreement, is a director or officer of the Company or controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement under Item 15 thereof.
(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, the Trust and each of its Trustees who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through Xxxxxxx Xxxxx
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(d) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Offerors. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than
54
57
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Offerors on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) 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 Offerors on the one hand,
and the
55
58
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by Offerors on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Offerors and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet bear to the aggregate initial public offering price
of such Securities as set forth on such cover.
The relative fault of the Offerors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
56
59
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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company and each Trustee
of the Trust who signed the Registration Statement, and each person, if any,
who controls the Company and the Trust within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Offerors. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number
or aggregate principal amount, as the case may be, of Initial Securities set
forth opposite their respective names in Schedule A to this Agreement, and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers
of the Company or trustees of the Trust submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of and payment for the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) The [Representatives] may terminate this Agreement, by notice to
the Company at any time at or prior to the Closing Time, if (i) there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change or any
development which could reasonably be expected to result in a prospective
material adverse change, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) there has occurred any material adverse change in the financial markets in
57
60
the United States or any outbreak of hostilities or escalation of hostilities
or other calamity or crisis, or any change or development involving a
prospective change in national or international political, financial or
economic conditions the effect of which is such as to make it, in the judgment
of the [Representatives], impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in the Common
Stock or any other security of the Company has been suspended or limited by the
Commission, NASD or the New York Stock Exchange, or if trading generally on
either the American Stock Exchange, the New York Stock Exchange or in the
over-the-counter market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by such system or by order
of the Commission, NASD or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, New York or Florida
authorities.
(b) If this Agreement and the Pricing Agreement are terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4, and provided,
further, that Sections 1, 6, 7 and 8 shall survive such termination and remain
in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time or a Date of Delivery,
as the case may be, to purchase the Securities which it or they are obligated
to purchase under this Agreement and the Pricing Agreement (the "Defaulted
Securities"), Xxxxxxx Xxxxx shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, Xxxxxxx Xxxxx shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the total number or
aggregate principal amount, as the case may be, of Securities, the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
58
61
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the total number or aggregate
principal amount, as the case may be, of the Securities to be purchased on such
date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, either Xxxxxxx Xxxxx or the Company
shall have the right to postpone the Closing Time or the relevant Date of
Delivery, as the case may be,for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the [Representatives] c/o Merrill Xxxxx at
Xxxxxxx Xxxxx World Headquarters, World Financial Center, Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx, Director, with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Attention of Xxxxxx X. Xxxx, Esq.;
notices to the Company shall be directed to it at American Heritage Life
Investment Corporation, 0000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, Attention of C. Xxxxxxx Xxxxxxxx, Executive Vice President,
Treasurer and Chief Financial Officer.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the Offerors and the
Underwriters and their respective successors. Nothing expressed or mentioned
in this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or
59
62
equitable right, remedy or claim under or in respect of this Agreement or the
Pricing Agreement or any provision herein or therein contained. This Agreement
and the Pricing Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors and legal representatives, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME UNLESS
OTHERWISE INDICATED.
SECTION 14. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
60
63
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, shall become a binding
agreement among the Company, the Trust and the several Underwriters in
accordance with its terms.
Very truly yours,
AMERICAN HERITAGE LIFE
INVESTMENT CORPORATION
By:
--------------------------
Name:
Title:
AHL FINANCING
By:
--------------------------
Name: T. O'Xxxx Xxxxxxx
Title: Regular Trustee
By:
--------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXXXXXX & CO., INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------------------
Authorized Signatory: Xxxx Xxxxxx
Director
Investment Banking Group
[For themselvles and as the Representatives of the
61
64
several underwriters named in Schedule A hereto.]
62
65
SCHEDULE A
Name of Underwriter Number of Shares
------------------- ----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxxxxx & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . . .
The Xxxxxxxx-Xxxxxxxx Company, Inc. . . . . . . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,500,000
=========
66
EXHIBIT A
AMERICAN HERITAGE LIFE INVESTMENT CORPORATION
(A FLORIDA CORPORATION)
AHL FINANCING
(A DELAWARE BUSINESS TRUST)
1,500,000 FELINE PRIDES
(STATED AMOUNT OF $50 PER SECURITY)
EACH CONSISTING OF
A PURCHASE CONTRACT OF AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION REQUIRING THE PURCHASE ON __________, 2000
(OR EARLIER) OF CERTAIN SHARES OF COMMON STOCK OF
AMERICAN HERITAGE LIFE INVESTMENT CORPORATION
AND
A ___% TRUST ORIGINATED PREFERRED SECURITY
OF AHL FINANCING
PRICING AGREEMENT
, 1997
------------
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, as representatives of the
several Underwriters named in the within-
mentioned Underwriting Agreement
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated
_____________, 1997 (the "Underwriting Agreement"), relating to the purchase by
[the several Underwriters named in Schedule A thereto for whom Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co.,
Oppenheimer &
--------------------
"FELINE PRIDES" is a service xxxx of Xxxxxxx Xxxxx & Co. Inc.
1
67
Co., Inc. and The Xxxxxxxx-Xxxxxxxx Company, Inc. are acting as representatives
(the "Representatives"),] of the above FELINE PRIDES (the "Securities") of
American Heritage Life Investment Corporation, (the "Company"), and AHL
Financing (the "Trust").
Pursuant to Section 2 of the Underwriting Agreement, the
Company and the Trust agree with each Underwriter as follows:
1. The initial public offering price per security for the
Securities, determined as provided in said Section 2, shall be $50.00.
2. The purchase price per security for the Securities to be
paid by the several Underwriters shall be $48.50, being an amount
equal to the initial public offering price set forth above less $1.50
per security.
2
68
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company and the Trust in accordance
with its terms.
Very truly yours,
AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION
By:
-------------------------------------
Name:
Title:
AHL FINANCING
By:
-------------------------------------
Name: T. O'Xxxx Xxxxxxx
Title: Regular Trustee
By:
-------------------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXXXXXX & CO., INC.
THE XXXXXXXX-XXXXXXXX
COMPANY, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------
Authorized Signatory:
[For themselves and as the Representatives of the
3
69
several Underwriters named in the Purchase Agreement.]
4
