Exhibit 1.1
OHIO CASUALTY CORPORATION
FORM OF
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (COMMON SHARES)
From time to time, Ohio Casualty Corporation, an Ohio corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities (the "Offered Securities") to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The Company proposes to issue from time to time shares of its common
shares, $0.125 par value ("Common Shares"). Each Common Share so issued shall be
accompanied by one Common Share Purchase Right to purchase Common Shares upon
the terms and conditions set forth in the Shareholders' Rights Agreement, dated
as of February 19, 1998, as amended, between the Company and First Chicago Trust
Company of New York, as Rights Agent. The Common Shares, including the Common
Share Purchase Rights, to be issued hereunder are sometimes referred to herein
as the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). The term "Registration Statement" means the registration statement
as amended to the date of the Underwriting Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Offered Securities as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms
"Registration Statement," "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include, in each case, the material, if any, incorporated by
reference therein.
The Offered Securities shall include the Firm Securities (the "Firm
Securities"), which the Underwriters have agreed to purchase on the Closing Date
together with any Optional Securities (as hereinafter defined) which the
Underwriters may elect to purchase pursuant to Article III hereof. The term
"Underwriters' Securities" means the Offered Securities to be purchased by the
Underwriters herein.
II.
The Company is advised by the party that signs the Underwriting
Agreement as manager (the "Manager") that the Underwriters propose to make a
public offering of their respective portions of the Underwriters' Securities as
soon after this Agreement is entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters' Securities are
set forth in the Prospectus.
III.
The Company may specify in the Underwriting Agreement applicable to
any Firm Securities that the Company grants to the Underwriters the right (an
"Over-allotment Option") to purchase at their election up to the number of
Securities (the "Optional Securities") set forth in the Underwriting Agreement.
Upon written notice from the Manager given to the Company not more than 30 days
subsequent to the date of the initial offering of the Securities, the
Underwriters may purchase all or less than all of the Optional Securities, which
shall be at the purchase price per Security to be paid for the Firm Securities.
Such Optional Securities shall be purchased for the account of each Underwriter
in the same proportion as the number of shares of Firm Securities set forth
opposite such Underwriter's name bears to the total number of shares of Firm
Securities (subject to adjustment by the Manager to eliminate fractions) and may
be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be surrendered and
terminated at any time upon notice by the Manager to the Company.
IV.
Payment for the Underwriters' Securities shall be made by wire
transfer or by certified or official bank check or checks payable to the order
of the Company in New York Clearing House or similar next day funds at the time
and place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery. For the purpose of expediting the checking and packaging of the
Underwriters' Securities, such Underwriters' Securities shall be available for
inspection by the Manager not later than 2:00 P.M., New York City time, on the
business day prior to the Closing Date. The time and date of such payment and
delivery with respect to the Firm Securities is herein referred to as the "First
Closing Date," and with respect to the Optional Securities is herein referred to
as the "Second Closing Date," which may be the First Closing Date (the First
Closing Date and the Second Closing Date, if any, being sometimes referred to
herein as a "Closing Date").
V.
The several obligations of the Underwriters to purchase and pay for
the Firm Securities on the First Closing Date and the Optional Securities on the
Second Closing Date are subject to the following conditions:
(a) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on such Closing Date,
and the Company shall have complied with its agreements hereunder.
(b) The Prospectus as amended or supplemented in relation to the
Underwriters' Securities shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and regulations under the Act. No stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Underwriters' satisfaction; and there shall have been
no material adverse change in the condition (financial or otherwise) of the
Company and its material subsidiaries, taken as a whole, or in the earnings or
business affairs of the Company and its material subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, from that set forth
in the Registration Statement and the Prospectus.
(c) The Company shall have furnished to the Manager on such
Closing Date a certificate, dated as of such Closing Date, of an authorized
executive officer of the Company stating that:
(i) The representations, warranties and agreements of the
Company herein are true and correct in all material respects as of such
Closing Date; the Company has complied in all material respects with
its agreements contained herein; and the conditions set forth in clause
(b) above have been fulfilled; and
(ii) Such officer has carefully examined the Registration
Statement and Prospectus and, in such officer's opinion, (A) as of the
date of the Prospectus, (1) the Registration Statement did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (2) the Prospectus did not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and (B) since the date of the Prospectus, no event has
occurred which should have been set forth in a supplement to or
amendment of the Prospectus which has not been set forth in such a
supplement or amendment.
(d) The Manager shall have received, on such Closing Date, an
opinion of the counsel for the Company, dated as of such Closing Date, in
substantially the form set forth as Exhibit A.
(e) The Manager shall have received, on such Closing Date, an
opinion of the counsel for the Underwriters, dated as of such Closing Date, in
substantially the form set forth as Exhibit B.
(f) The Manager shall have received, on such Closing Date, a
letter, dated as of such Closing Date, in form and substance satisfactory to the
Manager, from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus and with respect to certain changes
since the date of such financial statements and financial information.
(g) On or after the date of the Pricing Agreement relating to the
Offered Securities (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of possible downgrading, of such rating) and (ii)
no suspension or material limitation on trading in securities generally on the
New York Stock Exchange or any securities of the Company on any exchange or in
the over-the-counter market shall have occurred.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, as many copies of the
Registration Statement, only one of which need include exhibits and materials,
if any, incorporated by reference therein, as the Manager may reasonably request
and, during the period mentioned in clause (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as the Manager may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement with respect
to the Registration Statement or Prospectus shall include all documents filed by
the Company with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which are deemed to be incorporated by reference in the Prospectus.
(b) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Offered Securities in the form approved by the
Manager and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second day following the
execution and delivery of the Underwriting Agreement relating to the applicable
Offered Securities, and before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to promptly
advise and furnish the Manager with a copy of each such proposed amendment or
supplement.
(c) If, during such period after the commencement of the public
offering of the Offered Securities that counsel for the Underwriters is of the
opinion that the Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the Prospectus as then
amended or supplemented would, in the opinion of Underwriters' counsel, include
any 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 then existing, not misleading, or if, in the opinion of
Underwriters' counsel, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith at the Company's own expense, to amend or to
supplement the Prospectus and to furnish such amendment or supplement to the
Underwriters, so as to correct such statement or omission or effect such
compliance.
(d) Endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with the
determination of the eligibility of the Offered Securities for investment under
the laws of such jurisdictions as the Manager may designate.
(e) To make generally available to the Company's security holders
as soon as practicable, but no later than 18 months after the effective date of
the Registration Statement (as defined in Rule 158(c)), an earnings statement,
which shall satisfy the provisions of Section 11(a) of the Act and the rules and
regulations thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of (i) the date of notice
to the Company by the Manager of the termination of trading restrictions, if
any, with respect to the Offered Securities imposed by any agreement among
Underwriters or (ii) the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any Common Shares of the Company or securities convertible
into, or exercisable or exchangeable for, shares of its Common Shares (except
issuances in accordance with the terms of the Company's Common Share Purchase
Rights or up to [ ] shares issuable pursuant to any stock option or incentive
plan of the Company in effect on the date of the Underwriting Agreement or
issuances upon the conversion of securities or the exercise of warrants
outstanding on the date of the Underwriting Agreement) without the prior written
consent of the Manager.
(g) To advise the Manager promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the Offered
Securities becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement or to
any Prospectus (insofar as the amendment or supplement relates to or covers the
Offered Securities), (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order directed
to any Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any Prospectus
(insofar as any such issuance or challenge relates to or covers the Offered
Securities), (iv) of receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose and
(v) of the happening of any event which makes untrue any statement of a material
fact made in the Registration Statement or any Prospectus or which requires the
making of a change in the Registration Statement or any Prospectus in order to
make any material statement therein not misleading (insofar as the Registration
Statement or Prospectus relates to or covers the Offered Securities).
(h) If, during the period referred to in clause (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time.
(i) To pay the costs of printing this Agreement, the fees paid in
connection with the quotation of the Securities, including the Offered
Securities, on NASDAQ and all other costs and expenses incident to the
performance of the Company's obligations under this Agreement; provided that,
except as provided otherwise herein, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel, any transfer
taxes on the Offered Securities which they may sell, the expenses incident to
the performance of the Company's obligations under this Agreement, and the
expenses of advertising any offering of the Offered Securities made by the
Underwriters.
(j) Until the termination of the offering of the Offered
Securities, to file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act in a timely manner.
VII.
The Company represents and warrants to each Underwriter as follows:
(a)(i) The Registration Statement has become effective; (ii) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder and, except as otherwise disclosed to the Manager, no
stop order directed to any document incorporated by reference in the Prospectus
has been issued, (iii) each part of the Registration Statement (including the
documents incorporated by reference therein), filed with the Commission pursuant
to the Act relating to the Securities, when such part became effective, did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iv) each preliminary prospectus, if any, filed pursuant to Rule 424
under the Act complied when so filed in all material respects with such Act and
the applicable rules and regulations thereunder, (v) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the applicable rules and
regulations thereunder, (vi) (1) the Registration Statement does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(2) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that these representations and warranties do not apply to statements or
omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter through the Manager expressly for use therein.
(b) Neither the Company nor any of its material subsidiaries is
in violation of its corporate charter or by-laws or in default under any
agreement, indenture, mortgage, lease, note or instrument, which violation or
default would have a material adverse effect on the assets, operations,
condition (financial and otherwise) of the Company and its material subsidiaries
taken as a whole (a "Material Adverse Effect"); the execution, delivery and
performance of this Agreement and compliance by the Company with the provisions
of the Offered Securities will not (1) conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of its material subsidiaries pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument, or result in
a violation of the corporate charter or by-laws of the Company or any of its
material subsidiaries or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its material
subsidiaries or their respective properties or (2) have a Material Adverse
Effect; and except as required by the Act, the Exchange Act and applicable state
securities or Blue Sky laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance by the Company of this Agreement.
(c) Except as described in or contemplated by the Registration
Statement and the Prospectus, since the dates as of which information is given
in the Registration Statement and the Prospectus, no Material Adverse Effect has
occurred.
(d) Each of the accountants whose reports are incorporated by
reference in the Prospectus are independent public accountants as required by
the Act and the applicable rules and regulations thereunder.
(e) On the applicable Closing Date, (i) the Offered Securities
will have been validly authorized and, upon payment therefor as provided in this
Agreement, will be validly issued, fully paid and nonassessable and will have
the rights set forth in the Company's Articles of Incorporation, and (ii) the
Offered Securities will conform to the descriptions thereof contained in the
Prospectus.
(f) The Company and each of its material subsidiaries have been
duly incorporated, are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their respective
business requires such qualification and where the failure to be so qualified
would have a Material Adverse Effect, and have the corporate power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(g) Except as described in each Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its material subsidiaries
which might result in any Material Adverse Effect or which is required to be
disclosed in the Registration Statement.
(h) The audited financial statements filed as part of or
incorporated by reference in the Registration Statement or Prospectus present,
or (in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made) will
present fairly, at all times during the period specified in clause (c) of
Article VI hereof, the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation is
being made) will be at all times during the period specified in clause (c) of
Article VI hereof, prepared in conformity with generally accepted accounting
principles.
(i) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the rules
and regulations thereunder, or which were required to be filed as exhibits to
any document incorporated by reference in any Prospectus by the Exchange Act or
the rules and regulations thereunder, which have not been filed as exhibits to
the Registration Statement or to such document or incorporated therein by
reference as permitted by such rules and regulations.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus as amended or
supplemented (if used within the period set forth in clause (c) of Article VI
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
that such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity with respect to preliminary prospectuses shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities if such untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus (excluding
documents incorporated by reference) has not been furnished to such person at or
prior to the written confirmation of the sale of such Offered Securities to such
person.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information furnished in
writing by such Underwriter through the Manager expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus as amended
or supplemented.
If any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding;
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Manager in the case of parties indemnified pursuant to the second
preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Article VIII were determined by pro rata
allocation or by any other method of allocation which does not take account of
the consideration referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VIII are several, in proportion to the respective
number of Offered Securities purchased by each of such Underwriters, and not
joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on NASDAQ shall have been
suspended or materially limited, (ii) trading in the Common Shares of the
Company has been suspended, (iii) a general moratorium on commercial banking
activities in the State of New York shall have been declared by either Federal
or New York State authorities or (iv) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Manager, impracticable to proceed with the public offering
or delivery of the Offered Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
X.
If any one or more of the Underwriters shall fail or refuse to
purchase Offered Securities which it or they have agreed to purchase hereunder,
and the aggregate number of Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Underwriters' Securities, the other
Underwriters shall be obligated severally in the proportions which the number of
Offered Securities set forth opposite their names in the Underwriting Agreement
bear to the aggregate number of Offered Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the number of Offered Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this paragraph in excess of one-ninth of such number of
Offered Securities without the written consent of such Underwriter. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate number of Offered Securities, with respect to which such default
occurs is more than one-tenth of the aggregate number of the Underwriters'
Securities, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or of the Company. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
XI.
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Manager as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed as of the __ day of ________, [YEAR].
OHIO CASUALTY CORPORATION
By: ________________________
[Seal]
Attest:
------------------------------
EXHIBIT A
[FORM OF OPINION OF COUNSEL FOR THE COMPANY]
(i) the Company has been duly incorporated, is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership of property or
the conduct of its businesses requires such qualification and where the failure
to be so qualified would result in a material adverse effect on the financial
condition or operation of the Company and its material subsidiaries taken as a
whole;
(ii) the Securities have been duly authorized, and, when
issued and delivered to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, will be validly issued, fully paid and
nonassessable and will have the rights set forth in the Company's Articles of
Incorporation;
(iii) the Underwriting Agreement has been validly
authorized, executed and delivered by the Company;
(iv) the execution and delivery and performance of the
Underwriting Agreement by the Company and sale of the Offered Securities as
provided in the Underwriting Agreement will not contravene any provision of
applicable law or the Company's Articles of Incorporation or Code of Regulations
or, to my knowledge after reasonably inquiry, any agreement, indenture or
instrument binding upon the Company, and no consent, approval or authorization
of any governmental agency or authority (other than in connection or in
compliance with the provisions of any state securities or Blue Sky laws, as to
which we express no opinion) is required for the performance by the Company of
the Underwriting Agreement;
(v) we do not know of any litigation or any governmental
proceeding pending or threatened against the Company or any of its material
subsidiaries that would affect the subject matter of the Underwriting Agreement
or is required to be disclosed in the Registration Statement or Prospectus that
is not disclosed and correctly summarized therein;
(vi) to the best of our knowledge, neither the Company nor
its material subsidiaries are in violation in any material respect of their
corporate charters or codes, or in default in any material respect under any
agreement, indenture or instrument material to the Company and its material
subsidiaries taken as a whole; and
(vii) the Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements thereto made
by the Company prior to the sale of the Offered Securities (other than the
financial statements and related schedules therein, as to which we express no
opinion) comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; and we do not know of any
amendment to the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required.
EXHIBIT B
[FORM OF OPINION OF THE COUNSEL FOR THE UNDERWRITERS]
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Ohio.
2. The Offered Securities have been duly authorized, issued and
delivered and are fully paid and nonassessable.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
