Exhibit 1.1
FBL FINANCIAL GROUP, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
DATED: ________, 2009
1
FBL
FINANCIAL GROUP, INC.
(AN
IOWA CORPORATION)
DEBT SECURITIES
UNDERWRITING
AGREEMENT
____________, 2009
Ladies and
Gentlemen:
From time
to time, FBL Financial Group, Inc. an Iowa corporation (the “COMPANY”),
proposes to enter into one or more Pricing Agreements (each a “PRICING
AGREEMENT”) in the form of Exhibit A hereto, with such additions and deletions
as the parties thereto may determine and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I
to the applicable Pricing Agreement (the “UNDERWRITERS” with respect to such
Pricing Agreement and the securities specified therein) the principal amount of
its securities identified in Schedule I to the applicable Pricing Agreement
(the “SECURITIES”).
The terms
and rights of any particular issuance of Securities shall be as specified in
the Pricing Agreement relating thereto and in or pursuant to the Senior
Indenture or Subordinated Indenture (each an “INDENTURE”), as applicable and
identified in such Pricing Agreement.
Particular
sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the
Underwriters of such Securities in the Pricing Agreement relating thereto will
act as representatives (the “REPRESENTATIVES”). The term “Representatives” also
refers to a single firm acting as sole representative of the Underwriters and
to Underwriters who act without any firm being designated as their
representative. This Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to issue
and sell any of the Securities and the obligation of any of the Underwriters to
purchase any of the Securities shall be evidenced by the Pricing Agreement with
respect to the Securities specified therein.
Each
Pricing Agreement shall specify the aggregate principal amount of such
Securities, the initial public offering price of such Securities, the purchase
price to the Underwriters of such Securities, the names of the Underwriters of
such Securities, the names of the Representatives of the Underwriters and the
principal amount of such Securities to be purchased by each Underwriter. In
addition, such Pricing Agreement shall set forth the date, time and manner of
delivery of such Securities and payment therefore. The Pricing Agreement shall
also specify (in a manner not inconsistent with the applicable Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Securities. A Pricing Agreement shall be in the form of an executed
writing, and may be evidenced by an exchange of telegraphic communications or
any other rapid transmission device designed to produce a written record of
2
communications transmitted. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be several and not joint.
The Company
has filed with the Securities and Exchange Commission (the “COMMISSION”) a
registration statement, including a prospectus, on Form S-3 (No. 333--) under
the Securities Act of 1933, as amended (the “1933 ACT”), which has become
effective, for the registration of the Securities. The Company proposes to file
with the Commission pursuant to Rule 424 (“RULE 424”) of the rules and regulations
of the Commission under the 1933 Act (the “1933 ACT REGULATIONS”) a supplement
or supplements to the form of prospectus included in such registration
statement relating to the Securities and plan of distribution thereof. Such
registration statement, including the prospectus included therein and any
exhibits thereto, as amended at the time of any Pricing Agreement, is
hereinafter called the REGISTRATION STATEMENT;” such prospectus included in the
Registration Statement as supplemented by the prospectus filed with the
Commission pursuant to Rule 424 is hereinafter called the “PROSPECTUS.” Any
preliminary form of the Prospectus which has heretofore been filed pursuant to
Rule 424 is hereinafter called the “PRELIMINARY PROSPECTUS.” Any reference
herein to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the “1934 ACT”) on or before the date of this
Agreement, or he issue date of any Preliminary Prospectus or the Prospectus, as
the case may be; and any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the 1934 Act after the date of this Agreement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. For purposes of this Agreement,
all references to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (“XXXXX”).
SECTION
1. REPRESENTATIONS AND WARRANTIES.
|
|
|
|
|
|
(a) REPRESENTATIONS
AND WARRANTIES BY THE COMPANY. The Company represents and warrants to each
Underwriter as of the date of the applicable Pricing Agreement and as of the
Closing Time, and agrees with each Underwriter, as follows:
|
|
|
|
|
|
|
|
(i) COMPLIANCE
WITH REGISTRATION REQUIREMENTS. The Registration Statement has become
effective under the 1933 Act.
|
|
|
|
|
|
|
|
As of the date hereof, when the Prospectus is first filed or
transmitted for filing pursuant to Rule 424, when, prior to the Closing Time
(as hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in
the Registration Statement), when any supplement to the Prospectus is filed
with the Commission at the Closing Time, (i) the Registration Statement, as amended
as of any such time, and
|
3
|
|
|
|
|
|
|
the Prospectus, as amended or supplemented as of any such time, and
the Indenture will comply in all material respects with the applicable
requirements of the 1933 Act, the Trust Indenture Act of 1939 (the “1939 ACT”),
and the 1934 Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of such time, nor the Prospectus, as
amended or supplemented as of such time, will contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading;
PROVIDED, HOWEVER, that the Company makes no representations or warranties as
to (i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustees or (ii) the information contained in or omitted
from the Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
relating to such Underwriter or the underwriting arrangements furnished in
writing to the Company by the Underwriter specifically for use in the
Registration Statement and the Prospectus.
|
|
|
|
|
|
|
|
Each document incorporated by reference in the Registration Statement
and the Prospectus will comply in all material respects with the Exchange
Act.
|
|
|
|
|
|
|
|
(ii) INDEPENDENT
ACCOUNTANTS. The accountants who certified the financial statements and supporting
schedules included or incorporated by reference in the Registration Statement
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
|
|
|
|
|
|
|
|
(iii) FINANCIAL
STATEMENTS. The consolidated financial statements included in or incorporated
by reference in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly in all material respects the
financial position of the Company and its consolidated Subsidiaries at the
dates indicated and the statement of income, changes in stockholders’ equity
and cash flows of the Company and its consolidated Subsidiaries for the
periods specified; said financial statements have been prepared in conformity
with generally accepted accounting principles in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The supporting schedules included in or
incorporated by reference in the Registration Statement present fairly in all
material respects the information required to be stated therein in accordance
with GAAP. The selected consolidated financial other data and the summary
consolidated financial and other data included in or incorporated by
reference in the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included in or
incorporated by reference in the Registration Statement or with statutory
accounting principles or practices required or permitted by the National
Association of Insurance Commissioners and by the appropriate insurance
department of the jurisdiction of each Insurance
|
4
|
|
|
|
|
|
|
Subsidiary (as defined below) (“SAP”), as applicable (except as
otherwise noted therein).
|
|
|
|
|
|
|
|
(iv) NO
MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, surplus, capital,
business affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business (a “MATERIAL ADVERSE EFFECT”), and (B) there have been no
transactions entered into by the Company or any of the Subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and the Subsidiaries considered as one enterprise.
|
|
|
|
|
|
|
|
(v) GOOD
STANDING OF THE COMPANY. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Iowa and has the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under the Pricing Agreement (including
the provisions of this Agreement); and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other 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 so to qualify or to be in good standing would not result in
a Material Adverse Effect.
|
|
|
|
|
|
|
|
(vi) GOOD
STANDING OF SUBSIDIARIES. Each direct and indirect subsidiary of the Company
(each, a “SUBSIDIARY”) has been duly incorporated or organized and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through one or more Subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity, except for such security interests, mortgages, pledges,
liens, encumbrances, claims or equities (i) pursuant to the Company’s bank
credit facility, as amended or (ii) that are immaterial to the Company and
the Subsidiaries taken as a whole; none of the outstanding shares of capital stock of
|
5
|
|
|
|
|
|
|
any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary. Each
of the Company and each Subsidiary of the Company that is engaged in the business
of insurance or reinsurance (collectively, the “INSURANCE SUBSIDIARIES”) is
in compliance with the requirements of the insurance laws and regulations of
its respective jurisdiction of organization or incorporation, as the case may
be, and the insurance laws and regulations of other jurisdictions which are
applicable to it, and has filed all notices, reports, documents or other
information required to be filed thereunder, in each case, with such
exceptions as would not reasonably be expected to have a Material Adverse
Effect; and, except as otherwise specifically described in the Prospectus,
neither the Company nor any Insurance Subsidiary has received any
notification from any insurance regulatory authority to the effect that any
additional authorization, approval, order, consent, license, certificate,
permit, registration or qualification (“APPROVALS”) is needed to be obtained
by the Company or any of the Insurance Subsidiaries in any case where it
could be reasonably expected that obtaining such Approvals or the failure to
obtain such Approvals would have a Material Adverse Effect.
|
|
|
|
|
|
|
|
(vii) CAPITALIZATION.
The shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any securityholder of
the Company.
|
|
|
|
|
|
|
|
(viii) AUTHORIZATION
OF AGREEMENT. The Pricing Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the Company.
|
|
|
|
|
|
|
|
(ix) AUTHORIZATION
OF INDENTURE. The Indenture has been duly authorized, executed and delivered
by the Company, and has been duly qualified under the 1939 Act and, when duly
executed and delivered by the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement
of creditors’ rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
|
|
|
|
|
|
|
|
(x) AUTHORIZATION
AND DESCRIPTION OF SECURITIES. The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to the Pricing Agreement
(including the provisions of this Agreement) and, when authenticated, issued
and delivered in the manner provided for in the Indenture and delivered by
the Company pursuant to such Pricing
|
6
|
|
|
|
|
|
|
Agreement (including the provisions of this Agreement) against
payment of the consideration set forth therein, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits of, the
Indenture; the Securities and the Indenture conform in all material respects
to all statements relating thereto contained in the Prospectus and are in
substantially the respective forms filed or incorporated by reference as
exhibits to the Registration Statement.
|
|
|
|
|
|
|
|
(xi) ABSENCE
OF DEFAULTS AND CONFLICTS. Neither the Company nor any of the Subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any Subsidiary is
subject (collectively, “AGREEMENTS AND INSTRUMENTS”) except for such defaults
that would not reasonably be expected to result in a Material Adverse Effect;
and the execution, delivery and performance of the Indenture, the Securities
and the Pricing Agreement (including the provisions of this Agreement) and
the consummation of the transactions contemplated by the Pricing Agreement
(including the provisions of this Agreement) and in the Registration
Statement (including the issuance and sale of the Securities and the use of
proceeds from the sale of the Securities as described in the Prospectus under
the caption “Use of Proceeds”) and compliance by the Company with its
obligations under the Pricing Agreement (including the provisions of this
Agreement) and under the Indenture and the Securities have been duly
authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Subsidiary
pursuant to, any of the Agreements and Instruments (except (i) for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not reasonably be expected to result in a Material
Adverse Effect or (ii) for such conflicts, breaches, defaults or Repayment
Events that have been waived or consented to or will be waived or consented
to as of the Closing Time), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any Subsidiary or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any of
their
|
7
|
|
|
|
|
|
|
assets, properties or operations. As used herein, a “REPAYMENT EVENT”
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary.
|
|
|
|
|
|
|
|
(xii) ABSENCE
OF LABOR DISPUTE. No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any Subsidiary’s principal suppliers or customers,
which, in either case, would reasonably be expected to result in a Material
Adverse Effect.
|
|
|
|
|
|
|
|
(xiii) ABSENCE
OF PROCEEDINGS. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company or any
of its Subsidiaries, threatened, against or affecting the Company or any
Subsidiary, that is required to be disclosed in the Registration Statement
(other than as disclosed therein), or that would reasonably be expected to
result in a Material Adverse Effect, or that would reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the Pricing Agreement
(including the provisions of this Agreement) and compliance by the Company
with its obligations under the Pricing Agreement (including the provisions of
this Agreement).
|
|
|
|
|
|
|
|
(xiv) ACCURACY
OF EXHIBITS. There is no contract or other document that is required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit thereto that is not described or filed as required by the 1933 Act
and the 1933 Act Regulations.
|
|
|
|
|
|
|
|
(xv) POSSESSION
OF INTELLECTUAL PROPERTY. The Company and the Subsidiaries own or possess, or
can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, “INTELLECTUAL PROPERTY”) material to the
conduct of their businesses now operated by them, and neither the Company nor
any of the Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances that would render
any Intellectual Property invalid or inadequate to protect the interest of
the Company or any of the Subsidiaries therein, other than any such
infringement or conflict (if the subject of any unfavorable decision, ruling
or finding) or invalidity or inadequacy that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
|
8
|
|
|
|
|
|
|
(xvi) ABSENCE
OF FURTHER REQUIREMENTS. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance
by the Company of its obligations under the Pricing Agreement (including the
provisions of this Agreement), in connection with the offering, issuance or
sale of the Securities pursuant to the Pricing Agreement (including the
provisions of this Agreement) or the consummation of the transactions
contemplated by the Pricing Agreement (including the provisions of this
Agreement) or for the execution, delivery and performance of the Indenture by
the Company, except such as have been already obtained or will be timely made
or obtained prior to the Closing Time or as may be required under the 1933
Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, state
insurance laws or state securities laws.
|
|
|
|
|
|
|
|
(xvii) POSSESSION
OF LICENSES AND PERMITS. The Company and the Subsidiaries possess such
permits, licenses, approvals, consents and other authorizations (including,
without limitation, from the insurance regulatory agencies of the various
jurisdictions where they conduct business) (collectively, “GOVERNMENTAL
LICENSES”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated
by them, except where the failure so to possess would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect; the Company and the Subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to
comply would not reasonably be expected to, individually or in the aggregate,
result in a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not reasonably be expected to have a Material Adverse
Effect; and neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected
to have a Material Adverse Effect.
|
|
|
|
|
|
|
|
(xviii) REINSURANCE
TREATIES. All reinsurance treaties and arrangements to which any Insurance
Subsidiary is a party are in full force and effect and no Insurance
Subsidiary is in violation of, or in default in the performance, observance
or fulfillment of, any obligation, agreement, covenant or condition contained
therein, except where the failure to be in full force and effect or where
such violation or default would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. No Insurance
Subsidiary has received any notice from any of the other parties to such
treaties, contracts or agreements that such other party intends not to
perform such treaty and, to the knowledge of the Company, none of the other
parties to such treaties
|
9
|
|
|
|
|
|
|
or arrangements will be unable to perform such treaty or arrangement
except to the extent adequately and properly reserved for in the audited
consolidated financial statements of the Company included in or incorporated
by reference in the Prospectus, except where such nonperformance would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
|
|
|
|
|
|
|
|
(xix) STATUTORY
FINANCIAL STATEMENTS. The statutory financial statements of the Insurance
Subsidiaries have been prepared, for each relevant period, in conformity with
SAP applied on a consistent basis throughout the periods involved, except (1)
as may otherwise be indicated therein or in the notes thereto and (2) in the
case of any such financial statements for periods less than a full year, for
any normal year-end adjustments, and present fairly in all material respects
the statutory financial position of the Insurance Subsidiaries as of the
dates thereof, and the statutory basis results of operations of the Insurance
Subsidiaries for the periods covered thereby.
|
|
|
|
|
|
|
|
(xx) TITLE
TO PROPERTY. The Company and the Subsidiaries have good and marketable title
to all real property owned by the Company and the Subsidiaries and good title
to all other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or encumbrances
of any kind except such as (a) are described in the Prospectus or (b) do not,
individually or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its Subsidiaries; and all of the
leases and subleases material to the business of the Company and the
Subsidiaries, considered as one enterprise, and under which the Company or
any of the Subsidiaries holds properties described in the Prospectus, are in
full force and effect, and neither the Company nor any Subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such Subsidiary to the continued possession of the leased
or subleased premises under any such lease or sublease.
|
|
|
|
|
|
|
|
(xxi) INVESTMENT
COMPANY ACT. The Company is not, and upon the issuance and sale of the
Securities as contemplated herein and the application of the net proceeds
therefrom as described in the Prospectus will not be, an “investment company”
as such terms are defined in the Investment Company Act of 1940, as amended
(the “1940 ACT”).
|
|
|
|
|
|
|
|
(xxii) ENVIRONMENTAL
LAWS. Except as described in the Registration Statement and except as would
not reasonably be expected to, individually or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of the Subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
|
10
|
|
|
|
|
|
|
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold (collectively,
“HAZARDOUS MATERIALS”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “ENVIRONMENTAL LAWS”), (B) the Company and its Subsidiaries
have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of the Subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of the Subsidiaries relating to Hazardous
Materials or any Environmental Laws.
|
|
|
|
|
|
|
|
(xxiii) TAX
MATTERS. The Company and each of the Subsidiaries have filed all tax returns
required to be filed, or have duly requested extensions thereof, which
returns are true and correct, except to the extent that any failure to file,
request for an extension or incorrectness would not reasonably be expected to
result in a Material Adverse Effect, and neither the Company nor any of the
Subsidiaries is in default in the payment of any taxes, including penalties
and interest, assessments, fees and other charges, shown thereon due or
otherwise assessed, other than (A) those being contested in good faith and
for which adequate reserves have been provided or (B) those currently payable
without interest which were payable pursuant to said returns or any assessments
with respect thereto, except where the default would not, individually or in
the aggregate, be reasonably expected to have a Material Adverse Effect.
|
|
|
|
|
|
|
|
(xxiv) INSURANCE.
The Company and the Subsidiaries maintain insurance against such losses and
risks and in such amounts as is commercially reasonable in light of the
business presently conducted by the Company and the Subsidiaries, all of
which insurance is in full force and effect. The Company and the Subsidiaries
are insured by insurers of recognized financial responsibility. The Company
and each of the Subsidiaries are in compliance with the terms of such
policies and instruments in all material respects, and neither the Company
nor any Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its
|
11
|
|
|
|
|
|
|
business at a cost that would not reasonably be expected to have a
Material Adverse Effect.
|
|
|
|
|
|
|
|
(xxv) ACCOUNTING
CONTROLS. The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed with management’s general and specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of the Company’s consolidated financial statements in conformity
with GAAP and to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general and specific
authorizations; and (D) the reported accountability of the assets of the
Company and the Subsidiaries is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
|
|
|
|
|
|
|
|
|
(b) OFFICER’S
CERTIFICATES. Any certificate signed by any officer of the Company or any of
the Subsidiaries delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
|
|
|
|
|
|
|
SECTION 2. SALE AND DELIVERY TO
UNDERWRITERS; CLOSING.
|
|
|
|
|
|
(a) INITIAL
SECURITIES. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, at the price per share
set forth in Schedule II to the applicable Pricing Agreement, the principal
amount of the Securities set forth in Schedule I to the applicable Pricing
Agreement opposite the name of such Underwriter.
|
|
|
|
|
|
(b) PAYMENT.
Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in definitive form to the extent practicable, and
in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours’ prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter at the office, on the
date and at the time specified in the applicable Pricing Agreement (or such
later date not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 10 hereof (such time and date of payment and delivery being herein
called the “CLOSING TIME”). Delivery of the Securities shall be made to the
Underwriters for the respective accounts of the several Underwriters against
payment by the several Representatives of the purchase price thereof to the
Company by wire transfer of immediately available funds to a bank account
designated by the Company or otherwise as set forth in the applicable Pricing
Agreement. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the Securities which it has agreed to
purchase.
|
12
SECTION 3. COVENANTS OF THE COMPANY.
The Company
covenants with each Underwriter as follows:
(a) PREPARATION
OF PROSPECTUS. The Company will prepare the Prospectus as amended and
supplemented in relation to the applicable Securities in a form approved by the
Representatives and will file timely such Prospectus pursuant to Rule 424(b)
under the 1933 Act.
(b) FILING
OF AMENDMENTS. The Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement 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,
will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall object in good faith.
(c) DELIVERY
OF REGISTRATION STATEMENTS. The Company has furnished or will deliver
to the Representatives 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 signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. 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.
(d) DELIVERY
OF PROSPECTUSES. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the
1933 Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. 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.
(e) CONTINUED
COMPLIANCE WITH SECURITIES LAWS. The Company will comply with the 1933 Act and
the 1933 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in the Pricing Agreement (including the
provisions of this Agreement) and in the Prospectus. If at any time when a
prospectus is required by the 1933 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 Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not
13
include any
untrue statements 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
Company will promptly prepare and file with the Commission, subject to Section
3(b), 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 Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) BLUE
SKY QUALIFICATIONS. The Company will use its reasonable 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 the Representatives may designate and to
maintain such qualifications in effect for a period of time as may be necessary
to complete the distribution of the Securities; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of time as may be necessary to complete the distribution of the
Securities.
(g) RULE
158. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon
as practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) USE
OF PROCEEDS. 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”.
(i) RESTRICTION
ON SALE OF SECURITIES. During the period beginning from the date of the Pricing
Agreement for any Securities and continuing to and including the latter of (i)
the termination of trading restrictions, if any, for such Securities, of which
the Company shall be notified by the Representatives or their counsel, and (ii)
the Closing Time for such Securities, the Company agrees not to offer, sell,
contract to sell or otherwise dispose of any securities of the Company which
are substantially similar to such Securities, without the prior written consent
of the Representatives, which consent shall not be unreasonably withheld.
14
SECTION 4. PAYMENT OF EXPENSES.
|
|
|
|
|
(a) EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under the Pricing Agreement (including the provisions of this
Agreement), including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation,
printing and delivery to the Underwriters of the Pricing Agreement, the
Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to
the Underwriters, including any stock or other transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the Securities
to the Underwriters, (iv) the fees and disbursements of the Company’s
counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection
with the preparation of the Blue Sky Survey and any supplement thereto, (vi)
the printing and delivery to the Underwriters of copies of any Preliminary
Prospectus and of the Prospectus and any amendments or supplements thereto,
(vii) the reasonable fees and expenses of the Trustee, any paying agent or
transfer agent, including the reasonable fees and disbursements of counsel
for the Trustee, any paying agent or transfer agent, in connection with the
Indenture and the Securities, (viii) any fees payable in connection with the
rating of the Securities, (ix) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (x)
the costs and expenses of the Company relating to investor presentations on
any “road show” undertaken in connection with the marketing of the
Securities, including without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel
and lodging expenses of the representatives and officers of the Company and
any such consultants, and the pro rata cost of aircraft and other
transportation chartered in connection with the road show, and (xi) the
filing fees incident to, and the reasonable fees and disbursements of counsel
to the Underwriters in connection with, the review by the NASD of the terms
of the sale of the Securities. Except as otherwise set forth in this Section
and in Sections 6 and 7, the Underwriters shall be responsible for all other
expenses incurred by them, including the fees and expenses of their counsel.
|
|
|
|
|
|
(b) TERMINATION
OF AGREEMENT. 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 counsel for the
Underwriters.
|
SECTION 5. CONDITIONS OF UNDERWRITERS’
OBLIGATIONS.
The
obligations of the several Underwriters hereunder are subject to the accuracy
of the representations and warranties of the Company contained in Section 1
hereof or in certificates of any officer of the Company or any Subsidiary
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
15
|
|
|
|
|
(a) FILING
OF PROSPECTUS. The Prospectus as amended or supplemented in relation to the
applicable Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the 1933 Act and in accordance with Section
3(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall have
been complied with to the Representatives’ reasonable satisfaction.
|
|
|
|
|
|
(b) OPINION
OF SPECIAL COUNSEL FOR COMPANY. At Closing Time, the Representatives shall
have received the favorable opinion, dated as of Closing Time, of Xxxxx,
Brown, Koehn, Shors & Xxxxxxx, P.C., special counsel for the Company, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters.
|
|
|
|
|
|
(c) OPINION
OF COUNSEL FOR COMPANY. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of Xxxxxx X.
Xxxxxx, Esq., Assistant General Counsel – Securities of the Company, in form
and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters.
|
|
|
|
|
|
(d) OPINION
OF COUNSEL FOR UNDERWRITERS. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of counsel for the
Underwriters, in form and substance reasonably satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters.
|
|
|
|
|
|
(e) OFFICERS’
CERTIFICATE. At Closing Time, there shall not have been, since the date of
the Pricing Agreement or since the respective dates as of which information
is given in the Prospectus, any Material Adverse Effect, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i)
there has been no Material Adverse Effect, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to 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 instituted or are
pending or, to their knowledge, contemplated by the Commission.
|
|
|
|
|
|
(f) ACCOUNTANTS’
COMFORT LETTER. At the time of the execution of the Pricing Agreement, the
Representatives shall have received from Ernst & Young LLP, a letter
dated such date, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the
other Underwriters
|
16
|
|
|
|
|
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 the Registration Statement and
the Prospectus.
|
|
|
|
|
|
(g) BRING-DOWN
COMFORT LETTER. At Closing Time, the Representatives shall have received from
Ernst & Young LLP, a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (f) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
|
|
|
|
|
|
(h) MAINTENANCE
OF RATING. Since the execution of the Pricing Agreement, there shall not have
been any decrease in the rating of any of the Company’s securities or the
rating of any Subsidiary by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the 0000 Xxx) or
any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction
of the possible change.
|
|
|
|
|
|
(i) ADDITIONAL
DOCUMENTS. At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, 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 Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
|
|
|
|
|
|
(j) TERMINATION
OF AGREEMENT. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the Pricing Agreement
(including the provisions of this Agreement) may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 6, 7 and
8 shall survive any such termination and remain in full force and effect.
|
SECTION 6. INDEMNIFICATION.
17
|
|
|
|
|
|
|
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 reasonable 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 Company; and (iii) against any
and all expense whatsoever, as reasonably incurred (including the reasonable
fees and disbursements of counsel chosen by the Representatives), 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 this 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 Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto); PROVIDED, further, that the foregoing indemnity with
respect to any untrue statement contained in or any omission from the
Registration Statement shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, liability, claim, damages or expense
purchased any of the Securities that are the subject thereof if the Company
shall sustain the burden of proving that (i) the untrue statement or omission
contained in the Registration Statement was corrected and (ii) such person
was not sent or given a copy of the Prospectus which corrected the untrue
statement or omission at or prior to the written confirmation of the sale of
such Securities to such person.
|
|
|
|
|
|
|
(b) INDEMNIFICATION
OF COMPANY, DIRECTORS AND OFFICERS. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers
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), or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon
|
18
|
|
|
|
|
and in
conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto).
|
|
|
|
|
|
(c) ACTIONS
AGAINST PARTIES; NOTIFICATION. 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 the
Representatives, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the
Company. 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 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.
|
|
|
|
|
|
(d) SETTLEMENT
WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel in accordance with the terms hereof, 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.
|
19
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 Company on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to the Pricing
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
Company on the one hand and of the 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 the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities pursuant to
the Pricing Agreement shall be deemed to be in the same respective proportions
as the total net proceeds from the offering of the Securities pursuant to the
Pricing Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, bear to the aggregate initial public
offering price of the Securities as set forth on the cover of the Prospectus.
The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or 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 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 Underwriter has
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
20
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 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
shall have the same rights to contribution as the Company. The Underwriters’
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective
names in Schedule II to the Pricing Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE.
All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of the Subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect until the
one year anniversary of the Closing Time, regardless of (i) any investigation
made by or on behalf of any Underwriter, any person controlling any
Underwriter, its officers or directors or any person controlling the Company
and (ii) delivery of and payment for the Securities; PROVIDED that the
agreements contained in Sections 4, 6 and 7 shall remain operative and in full
force and effect thereafter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION;
GENERAL. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of the Pricing Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the good faith judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the NASDAQ National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, or (iv) if a banking moratorium has been declared
by either Federal or New York authorities.
21
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If
one or more of the Underwriters shall fail at Closing Time to purchase the
Securities which it or they are obligated to purchase under the Pricing
Agreement (the “DEFAULTED SECURITIES”), the Representatives 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, the Representatives
shall not have completed such arrangements within such 24-hour period, then:
|
|
|
|
|
(i) if the
number of Defaulted Securities does not exceed 10% of the aggregate principal
amount of the Securities to be purchased on such date, each of 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
|
|
|
|
|
|
(ii) if the
number of Defaulted Securities exceeds 10% of the aggregate principal amount
of the Securities to be purchased on such date, the Pricing Agreement
(including the provisions of this Agreement) shall terminate without
liability on the part of any non-defaulting Underwriter.
|
No
action taken pursuant to this Section 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 the
Pricing Agreement (including the provisions of this Agreement), either the
Representatives or the Company shall have the right to postpone Closing Time
for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or 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. TAX DISCLOSURE.
Notwithstanding
any other provision of this Agreement or any Pricing Agreement, the parties
(and each employee, representative or other agent of each party) may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure (as such terms are used in Sections 6011, 6111 and 6112 of the
U.S. Code and the Treasury Regulations promulgated thereunder) of the
transactions contemplated by this Agreement and any Pricing Agreement and all
materials of any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure.
22
SECTION 12. 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 at the address specified in the Pricing Agreement; and notices
to the Company shall be directed to it at 0000 Xxxxxxxxxx Xxxxxx, Xxxx Xxx Xxxxxx,
Xxxx 00000, attention of Xxxxx X. XxXxxxx.
SECTION 13. PARTIES.
The
Pricing Agreement (including the provisions of this Agreement) shall each inure
to the benefit of and be binding upon the Underwriters and the Company and
their respective successors. Nothing expressed or mentioned in the Pricing
Agreement (including the provisions of this Agreement) is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company 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 equitable right, remedy or claim under or
in respect of the Pricing Agreement (including the provisions of this
Agreement) or any provision herein contained. The Pricing Agreement (including
the provisions of this Agreement) and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, 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 14. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF IOWA.
SECTION 15. TIME.
TIME SHALL BE OF THE ESSENCE OF THIS
AGREEMENT.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 16. COUNTERPARTS.
The
Pricing Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement.
SECTION 17. EFFECT OF HEADINGS.
23
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
|
|
|
|
|
|
Very truly
yours,
|
|
|
|
|
|
FBL
FINANCIAL GROUP, INC.
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
24
EXHIBIT A
PRICING AGREEMENT
_____________, 2009
[ ]
as representatives of the several Underwriters named in Schedule I hereto c/o
[ ]
Ladies and
Gentlemen:
FBL
Financial Group, Inc., an Iowa corporation (the “COMPANY”), proposes, subject to
the terms and conditions stated herein (this “AGREEMENT”) and in the
Underwriting Agreement, dated ________, 2009 (the “UNDERWRITING AGREEMENT”), to
issue and sell to the Underwriters named in Schedule I hereto (the
“UNDERWRITERS”) the Securities specified in Schedule II hereto (the “DESIGNATED
SECURITIES”). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Agreement, except that each representation and warranty that refers to the
Prospectus in Section 1 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of this Agreement in relation to the
Prospectus as amended or supplemented relating to the Designated Securities
which are the subject of this Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to the
Underwriting Agreement and the address of the Representatives are set forth at
the end of Schedule II hereto.
An
amendment to the Registration Statement, or a supplement to the form of
prospectus included in the Registration Statement, as the case may be, relating
to the Designated Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject
to the terms and conditions set forth herein and in the Underwriting Agreement
incorporated herein by reference, the Company agrees to sell to each
Underwriter, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the time and place and at the purchase price set
forth in Schedule II hereto, the principal amount of the Designated Securities
set forth in Schedule I to hereto opposite the name of such Underwriter.
If the
foregoing is in accordance with your understanding, please sign and return to
us _____ counterparts hereof, and upon acceptance hereof by you, on behalf of
each of the
25
|
|
|
|
|
Underwriters,
this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
|
|
|
|
|
|
|
Very truly
yours,
|
|
|
|
|
|
FBL
FINANCIAL GROUP, INC.
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Accepted as of
the date hereof on behalf of each of the Underwriters:
26
SCHEDULE I
TO THE PRICING AGREEMENT
|
|
|
|
|
Name of
Underwriter
|
|
Principal
Amount of
Designated Securities
|
|
|
|
|
|
Total
|
|
$
|
27
SCHEDULE II
TO THE PRICING AGREEMENT
|
|
|
Underwriting
Agreement dated __________, 2009
|
|
Registration
Statement No. 333-__________
|
TITLE,
PURCHASE PRICE AND DESCRIPTION OF SECURITIES
Title:
Applicable
Indenture:
Aggregate Principal
Amount:
Price to the
Public:
Purchase Price
by Underwriters (include accrued interest, if any):
Sinking Fund
Provisions:
Redemption
Provisions:
Securities
into which Convertible or Exchangeable:
Maturity:
Interest Rate:
Interest
Payment Dates:
Other
Provisions:
OTHER
Closing Time
and Location:
Names and
Addresses of Representatives:
Address for
Notices, etc.:
Other Terms,
if any:
28
