$300,000,000
CONSECO FINANCING TRUST III
(a Delaware Trust)
8.796% Capital Securities
(Liquidation Amount $1,000 per Security)
UNDERWRITING AGREEMENT
March 26, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Conseco Financing Trust III (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.), and Conseco, Inc., an Indiana corporation (the "Company" and, together
with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ("DLJ") and Salomon Brothers
Inc (collectively, the "Underwriters") with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective number of 8.796% capital securities (liquidation amount $1,000 per
security) of the Trust ("Capital Securities") set forth in Schedule A hereto.
The Capital Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption or otherwise (the
"Capital Securities Guarantee") pursuant to the Capital Securities Guarantee
Agreement (the "Capital Securities Guarantee Agreement"), to be dated as of
April 1, 1997, between the Company and Fleet National Bank, as trustee (the
"Guarantee Trustee"), and in certain circumstances described in the
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Prospectus, the Trust will distribute Subordinated Debentures (as defined
herein) to holders of Capital Securities. The 300,000 Capital Securities to be
purchased by the Underwriters, together with the related Capital Securities
Guarantee and the Subordinated Debentures, are collectively referred to herein
as the "Securities".
The Company, the Trust, Conseco Financing Trust I and Conseco Financing
Trust II (collectively, the "Conseco Trusts") have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333- 14991) and pre-effective amendment nos. 1 and 2 thereto covering the
registration of securities of the Company and the Conseco Trusts, including the
Securities, under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses, and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and the Company has filed such post-effective amendments thereto as may be
required prior to the execution of this Agreement. Such registration statement,
as so amended, has been declared effective by the Commission. Such registration
statement, as so amended, including the exhibits and schedules thereto, if any,
and the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d)
of the 1933 Act Regulations (the "Rule 434 Information"), is referred to herein
as the "Registration Statement"; and the final prospectus and the prospectus
supplement relating to the offering of the Securities, in the form first
furnished to the Underwriters by the Company for use in connection with the
offering of the Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
underwriting agreement; provided, further, that if the Offerors file a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462(b) Registration Statement; and provided, further, that if the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Company in reliance upon Rule 434 of the 1933 Act Regulations, and all
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references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable underwriting agreement. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered and the Declaration (as defined
herein), the Indenture (as defined herein), and the Capital Securities Guarantee
Agreement have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). The entire proceeds from the sale of the Capital Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities," and together with the
Capital Securities, the "Trust Securities") and will be used by the Trust to
purchase $309,280,000 aggregate principal amount of 8.796% subordinated
deferrable interest debentures (the "Subordinated Debentures") issued by the
Company. The Common Securities will be guaranteed by the Company, to the extent
set forth in the Prospectus, with respect to distributions and payments upon
liquidation and redemption (the "Common Securities
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Guarantee" and together with the Capital Securities Guarantee, the "Guarantees")
pursuant to the Common Securities Guarantee Agreement (the "Common Securities
Guarantee Agreement" and, together with the Capital Securities Guarantee
Agreement, the "Guarantee Agreements"), to be dated as of April 1, 1997, between
the Company and the Guarantee Trustee, as Trustee. The Capital Securities and
the Common Securities will be issued pursuant to the amended and restated
declaration of trust of the Trust, dated as of March 26, 1997 (the
"Declaration"), among the Company, as Sponsor, Xxxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxx and Xxxxxxxx X. Xxxxx (the "Regular Trustees"), Fleet National Bank, as
Property Trustee (the "Property Trustee"), and First Union Bank of Delaware (the
"Delaware Trustee," and, together with the Property Trustee and the Regular
Trustees, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Subordinated Debentures
will be issued pursuant to an indenture, dated as of November 14, 1996 (the
"Base Indenture"), between the Company and Fleet National Bank as trustee (the
"Debt Trustee"), as supplemented by the Third Supplemental Indenture dated as of
March 26, 1997 (the "Supplemental Indenture," and together with any other
amendments or supplements thereto, the "Indenture"), between the Company and the
Debt Trustee.
SECTION 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof (such date being hereinafter referred to as
the "Representation Date") that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or, to the knowledge and information of the Offerors after due
and diligent inquiry, threatened by the Commission.
(ii) The Company and the Conseco Trusts meet, and at the
respective times of the commencement and consummation of the Offering of the
Securities will meet, the requirements for the use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act. At the respective times the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto (including the filing of the Company's most
recent Annual Report on Form 10-K with the Commission) became effective and at
each Representation Date, the Registration Statement, any Rule 462 Registration
Statement and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act
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and the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. At the date of the Prospectus and at the Closing Time
(as defined herein), the Prospectus and any amendments and supplements thereto
did not and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. If the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, the Offerors
will comply with the requirements of Rule 434. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply to (A)
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Offerors in writing by the Underwriters expressly for use in the Registration
Statement or the Prospectus or (B) that part of the Registration Statement which
shall constitute the Statement of Eligibility (Form T-1) under the 1939 Act.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, if applicable,
each preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or the Prospectus, at the time they
were or hereafter are filed or last amended, as the case may be, with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and at the time of filing or as of the
time of any subsequent amendment, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading; and any additional documents
deemed to be incorporated by reference in the Registration Statement or the
Prospectus will, if and when they are filed with the Commission, or when
amended, as appropriate,
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comply in all material respects with the requirements of the 1934 Act and the
1934 Act Regulations and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading after the date hereof; provided,
however, that this representation and warranty shall not apply to statements
contained in or omitted from the Registration Statement or the Prospectus in
reliance upon, and in conformity with, information furnished to the Company in
writing by the Underwriters expressly for use in the Registration Statement or
the Prospectus.
(iv) Coopers & Xxxxxxx, L.L.P., the accountants who certified
the financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement, are independent public
accountants with respect to the Company and its subsidiaries as required by the
1933 Act and the 1933 Act Regulations.
(v) The financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the
results of their operations for the periods specified. Except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis. The supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required
to be included therein. The ratios of earnings to fixed charges (including
preferred stock dividends) included in the Prospectus have been calculated in
compliance, in all material respects, with Item 503(d) of Regulation S-K of the
Commission. The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(vi) The statutory financial statements of each of the
Company's insurance subsidiaries, from which certain ratios and other
statistical data contained in the Registration Statement have been derived, have
for each relevant period been prepared in accordance with accounting practices
prescribed or permitted by the National Association of Insurance Commissioners,
and with respect to each insurance subsidiary, the appropriate Insurance
Department of the state of domicile of such insurance subsidiary, and such
accounting practices have been applied on a consistent
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basis throughout the periods involved, except as disclosed therein.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as otherwise
stated or contemplated therein, (A) there has been no material adverse change
and no development which would reasonably be expected to result in a material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or any of its subsidiaries
which are material to the Company and its subsidiaries considered as one
enterprise, other than those entered into in the ordinary course of business,
and (C) except for regular quarterly dividends, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(viii) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana, with corporate
power and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Prospectus or in the
Company's Annual Report filed on Form 10-K for the year ended December 31, 1996;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not reasonably be expected to have a material adverse effect on
the condition, financial or otherwise, or the earnings or business affairs of
the Company and its subsidiaries, considered as one enterprise.
(ix) Each of the subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own,
lease and operate its properties and to conduct its business as presently
conducted and as described in the Prospectus or in the Company's Annual Report
filed on Form 10-K for the year ended December 31, 1996; 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 to so qualify or be in good standing would not reasonably be expected to
have a material adverse
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effect on the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one enterprise; and
the outstanding shares of capital stock of each subsidiary of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and,
except as described in the Prospectus, all such shares are owned by the Company
or by a subsidiary of the Company.
(x) The Company and each of its subsidiaries hold all material
licenses, certificates and permits from governmental authorities (including,
without limitation, insurance licenses from the insurance departments of the
various states where the subsidiaries write insurance business (the "Insurance
Licenses") which are necessary to the conduct of their businesses; the Company
and its subsidiaries have fulfilled and performed all material obligations
necessary to maintain their respective Insurance Licenses, and no event or
events have occurred which could reasonably be expected to result in the
impairment, modification, termination or revocation of such Insurance Licenses.
(xi) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus; since the date indicated in the
Prospectus there has been no change in the consolidated capitalization of the
Company and its subsidiaries (except for subsequent issuances, if any, pursuant
to stock option agreements or employee benefit plans); and all of the issued and
outstanding capital stock of the Company has been duly authorized and validly
issued, is fully paid and nonassessable and conforms to the descriptions thereof
contained in the Prospectus and the Registration Statement.
(xii) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Capital Securities, the Common Securities
and the Declaration; the Trust is duly qualified to transact business as a
foreign company and is in good standing in each jurisdiction in which such
qualification is necessary, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the Trust; the Trust is not
a party to or otherwise bound by any agreement other than those described in the
Prospectus; the Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an association
taxable as a corporation.
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(xiii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and will represent undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and at the Closing Time all
of the issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(xiv) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(xv) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and delivery
of the Declaration by the Property Trustee and the Delaware Trustee, the
Declaration will, at the Closing Time, be a valid and binding obligation of the
Company and the Regular Trustees, enforceable against the Company and the
Regular Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) (the "Bankruptcy Exceptions") and will conform
in all material respects to the description thereof contained in the Prospectus.
(xvi) Each of the Guarantee Agreements has been duly
authorized by the Company and, when validly executed and delivered by the
Company, and, in the case of the Capital Securities Guarantee Agreement,
assuming due authorization, execution and delivery of the Capital Securities
Guarantee by the Guarantee Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions, and each of the Guarantees and the Guarantee Agreements
will conform in all material respects to the description thereof contained in
the Prospectus.
(xvii) The Capital Securities have been duly authorized for
issuance and sale to the Underwriters and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid and
non-assessable
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undivided beneficial interests in the assets of the Trust and will conform in
all material respects to the description thereof contained in the Prospectus;
the issuance of the Capital Securities is not subject to preemptive or other
similar rights.
(xviii) The Indenture has been duly authorized and qualified
under the 1939 Act and, at the Closing Time, will have been duly executed and
delivered and will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions; the
Indenture will conform in all material respects to the description thereof
contained in the Prospectus.
(xix) The Subordinated Debentures have been duly authorized by
the Company and, at the Closing Time, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions, and will be in the form
contemplated by, and entitled to the benefits of, the Indenture and will conform
in all material respects to the description thereof in the Prospectus.
(xx) Each of the Regular Trustees of the Trust is an employee
of the Company and has been duly authorized by the Company to execute and
deliver the Declaration.
(xxi) The Agreement and Plan of Merger (the "Pioneer Merger
Agreement"), by and among the Company, Rock Acquisition Company ("RAC") and
Pioneer Financial Services, Inc. ("Pioneer"), dated as of December 15, 1996 has
been duly authorized, executed and delivered by the Company and RAC and
constitutes valid and binding obligations of the Company and RAC enforceable
against the Company and RAC in accordance with its terms, except as enforcement
thereof may be limited by the Bankruptcy Exceptions, and none of the Company,
RAC or, to the knowledge and information of the Company after due and diligent
inquiry, Pioneer is in default in the observance of the terms and conditions
thereof.
(xxii) Neither the Company nor any of its 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
material contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the
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property or assets of the Company or any of its subsidiaries is subject, or in
violation of any applicable law, administrative regulation or administrative or
court order or decree, which violation or default would, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise; the Trust is not in
violation of the Declaration or its certificate of trust filed with the State of
Delaware on October 28, 1996 (the "Certificate of Trust"); the execution,
delivery and performance of this Agreement, the Declaration, the Capital
Securities, the Common Securities, the Indenture, the Subordinated Debentures,
the Guarantee Agreements and the Guarantees and the consummation of the
transactions contemplated herein and therein, and compliance by the Offerors
with their respective obligations hereunder and thereunder will not conflict
with or constitute a breach of, or a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Trust, the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Trust, the Company or any of its 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
Trust, the Company or any of its subsidiaries is subject, except for a conflict,
breach, default, lien, charge or encumbrance which would not reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, nor will such action result in any
violation of the provisions of the Certificate of Trust, the charter or by-laws
of the Company or any of its subsidiaries or any applicable law, administrative
regulation or administrative or court decree.
(xxiii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign (including,
without limitation, any proceeding to revoke or deny renewal of any Insurance
Licenses), now pending, or, to the knowledge and information of the Company
after due and diligent inquiry, threatened, against or affecting the Company or
any of its subsidiaries which is required to be disclosed in the Registration
Statement or the Prospectus, or which is reasonably likely to result in any
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs of the Company and its subsidiaries considered as
one enterprise, or which could be reasonably likely to materially and adversely
affect a material portion of the properties or assets thereof or which is
reasonably likely to materially and adversely affect the consummation of this
Agreement, the Guarantee Agreements, the
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Indenture or the transactions contemplated herein or therein; all pending legal
or governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement or the Prospectus,
including ordinary routine litigation incidental to the business of the Company
or any of its subsidiaries are, considered in the aggregate, not material; and
there are no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement, or to
be incorporated by reference therein, by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations, which have not been so filed or
incorporated by reference.
(xxiv) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the issuance
and sale of the Common Securities or the offering, issuance and sale of the
Capital Securities, the Subordinated Debentures or the Guarantees hereunder, or
the consummation by the Offerors of any other transactions contemplated hereby,
except such as have been obtained and made under the federal securities laws or
state insurance laws and such as may be required under state or foreign
securities laws.
(xxv) The Securities conform in all material respects to the
statements relating thereto contained in the Prospectus and the Registration
Statement.
(xxvi) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities registered as
part of the Registration Statement or included in the offering contemplated by
this Agreement.
(xxvii) No order preventing or suspending the use of any
preliminary prospectus with respect to the Securities has been issued and no
proceedings for that purpose are pending, threatened, or, to the knowledge and
information of the Offerors after due and diligent inquiry, contemplated by the
Commission; to the knowledge and information of the Offerors after due and
diligent inquiry, no order suspending the offering of the Securities in any
jurisdiction designated by the Underwriters pursuant to Section 3(f) of this
Agreement has been issued and, to the knowledge and information of the Offerors
after due and diligent inquiry, no proceedings for that purpose have been
instituted or threatened or are contemplated, and any request of the Commission
for additional information (to be included in the Registration Statement or
Prospectus or otherwise) has been complied with.
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(xxviii) Each of the Offerors has full power and authority to
execute, deliver and perform its obligations under this Agreement, the
Declaration, the Guarantee Agreements and the Indenture and the Offerors have
full corporate power and authority to issue, sell and deliver the Securities.
(xxix) The Offerors have not taken, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in manipulation of the price of the Securities or any of the capital stock of
the Company.
(xxx) None of the Trust or the Company or any of its
subsidiaries is, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus will not be, an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment Company Act
of 1940, as amended (the "1940 Act").
(xxxi) The Company is in compliance with all provisions of
Section 1 of the Laws of Florida, Chapter 92-198, An Act Relating to Disclosure
of Doing Business with Cuba.
(xxxii) No "forward looking statement" (as defined in Rule 175
under the 0000 Xxx) contained in the Registration Statement, any preliminary
prospectus or the Prospectus was made or reaffirmed without a reasonable basis
or was disclosed other than in good faith.
(b) Any certificate signed by any officer of the Company or a Trustee
of the Trust and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, as the case may be, to the Underwriters as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the price per
security of $1,000, the number of Capital Securities set forth opposite such
Underwriter's name in Schedule A hereto. The compensation to be paid by the
Company to the Underwriters in respect of its commitments hereunder shall be an
amount in same day funds of $10 per Capital Security.
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(b) Delivery of certificates for the Securities shall be made at the
offices of DLJ in New York, and payment of the purchase price for the Securities
shall be made at the offices of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as shall be agreed
upon by the Underwriters and the Offerors, at 10:00 a.m. (New York time) on the
third business day after the date the Registration Statement becomes effective
(or, if the Offerors have elected to rely upon Rule 430A, the third full
business day after execution of this Agreement (or, if pricing of the Securities
occurs after 4:30 p.m. Eastern time, on the fourth full business day
thereafter)), or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriters and the Offerors (such time and
date of payment and delivery being herein called the "Closing Time"). Payment
for the Capital Securities purchased by the Underwriters shall be made to the
Trust by wire transfer of immediately available funds, payable to the order of
the Trust, against delivery to the respective accounts of the Underwriters of
certificates for the Capital Securities to be purchased by them. Certificates
for the Capital Securities shall be in such denominations and registered in such
names as the Underwriters may request in writing at least two full business days
before the Closing Time. The certificates for the Capital Securities will be
made available for examination and packaging by the Underwriters no later than
10:00 a.m. (New York City time) on the last business day prior to the Closing
Time.
SECTION 3. Covenants of the Offerors. The Offerors agree
with each Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Offerors
will cause the Prospectus, including as a part thereof a prospectus supplement
relating to the Securities to be filed with the Commission pursuant to Rule 424
of the 1933 Act Regulations and the Offerors will promptly advise the
Underwriters when such filing has been made. Prior to the filing, the Offerors
will cooperate with the Underwriters in the preparation of such prospectus
supplement to assure that each Underwriter has no reasonable objection to the
form or content thereof when filed or mailed.
(b) The Offerors, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations if and as applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of
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any comments from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and (v) of the issuance by
any state securities commission or other regulatory authority of any order
suspending the qualification or the exemption from qualification of the
Securities under state securities or Blue Sky laws or the initiation or
threatening of any proceeding for such purpose. The Offerors will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise; will furnish the Underwriters with copies of any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision a
reasonable amount of time prior to such proposed filing or use, as the case may
be; and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment, supplement or revision to which the Underwriters or counsel for the
Underwriters shall object.
(d) The Company will deliver to the DLJ and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts. If applicable, the copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(e) The Company will deliver to each Underwriter, without charge, as
many copies of each preliminary prospectus as the Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of
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copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable opinion of
counsel for the Underwriters or for the Offerors, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Offerors will promptly prepare and file with the Commission,
subject to Section 3(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 Offerors will furnish to the
Underwriter, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(g) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as DLJ may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified or subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Securities have been so qualified, the Company will file such
statements and reports as may be required by the laws of such
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jurisdiction to continue such qualification in effect for so long as may be
required in connection with distribution of the Securities.
(h) The Company will make generally available to its securityholders as
soon as practicable, but not later than 45 days (or 90 days, in the case of a
period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(i) The Trust will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under "Use of
Proceeds".
(j) If, at the time that the Registration Statement became (or in the
case of a post-effective amendment becomes) effective, any information shall
have been omitted therefrom in reliance upon Rule 430A or Rule 434 of the 1933
Act Regulations, then immediately following the execution of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A or Rule 434 and Rule 424(b) of the 1933 Act
Regulations, copies of an amended Prospectus, or Term Sheet, or, if required by
such Rule 430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus), containing all information so omitted.
(k) If Offerors elect to rely upon Rule 462(b), the Offerors shall both
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933
Act Regulations by the earlier of (i) 10:00 p.m. Eastern time on the date of
this Agreement and (ii) the time confirmations are sent or given, as specified
by Rule 462(b)(2).
(l) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(m) During a period of 90 days from the date of this Agreement, neither
the Trust nor the Company will, without the prior written consent of DLJ on
behalf of the Underwriter, directly or indirectly, sell, offer to sell, grant
any option for
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the sale of, or otherwise dispose of, or enter into any agreement to sell, any
Capital Securities, any security convertible into or exchangeable or exercisable
for Capital Securities, or the Subordinated Debentures or any debt securities
substantially similar to the Subordinated Debentures or any equity securities
substantially similar to the Capital Securities (except the Subordinated
Debentures and the Capital Securities issued pursuant to this Agreement).
(n) During a period of one year from the Closing Time, to make
generally available to the Underwriters copies of all reports and other
communications (financial or other) mailed to stockholders, and to deliver to
the Underwriter promptly after they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
(such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission).
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including,
without limitation, expenses related to the following, if incurred: (i) the
preparation, delivery, printing and filing of the Registration Statement and
Prospectus as originally filed (including financial statements and exhibits) and
of each amendment thereto, (ii) the printing and delivery to each Underwriter of
this Agreement and such other documents as may be required in connection with
offering, purchase, sale and delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Capital Securities, (iv) the
fees and disbursements of the Company's counsel, accountants and other advisors
or agents (including the transfer agents and registrars) as well as fees and
disbursements of the Trustees and any Depositary, and their respective counsel,
(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(g), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any Legal Investment
Survey, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, any Term Sheet and of the Prospectus and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any Legal Investment Survey,
(viii) any fees payable in connection with the rating of the Capital Securities
by nationally recognized statistical rating
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organizations; (ix) the filing fees incident to, and the fees and disbursements
of counsel to the Underwriters in connection with, the review, if any, by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Capital Securities; and (x) any fees payable to the Commission.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse DLJ for all of its out-of-pocket expenses, including the reasonable
fees and disbursements of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for
the Underwriters.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriters to purchase and pay for the Capital Securities pursuant to this
Agreement are subject to the accuracy of the representations and warranties of
the Offerors herein contained or in certificates of any officer of the Company
or any subsidiary or the trustees of the Trust delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the 1933 Act not later than 5:00
p.m., New York City time, on the date hereof, and on the date hereof and at the
Closing Time, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933
Act Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx X. Xxxxx, Executive Vice President, Secretary
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and General Counsel of the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Indiana; and the Company has the corporate power and authority under
the laws of the State of Indiana and under its charter to own, lease
and operate its properties and to conduct its business as presently
conducted and as described in the Registration Statement and the
Prospectus or in the Company's Annual Report filed on Form 10-K for the
year ended December 31, 1996.
(ii) To the knowledge and information of such counsel
after due and diligent inquiry, the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not reasonably be expected to have a material adverse effect on
the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise.
(iii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to stock option agreements or
employee benefit plans), and 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.
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own, lease and operate its properties
and to conduct its business as presently conducted and as described in
the Registration Statement and the Prospectus or in the Company's
Annual Report filed on Form 10-K for the year ended December 31, 1996.
Nothing has come to the attention of such counsel to lead such counsel
to believe that any subsidiary is not duly qualified as a foreign
corporation to transact business or is not in good standing in each
jurisdiction in which such qualification is required, except where the
failure to so qualify or be in good standing would not reasonably be
expected to have a material adverse effect on the condition, financial
or otherwise, or the earnings or business affairs
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of the Company and its subsidiaries considered as one enterprise. All
of the shares of issued and outstanding capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully paid and nonassessable, and, except as set forth in the
Prospectus, all such shares are owned by the Company or by a subsidiary
of the Company.
(v) The forms of certificates used to evidence the
Securities comply with all applicable statutory requirements and with
any applicable requirements of the Company's Amended Articles of
Incorporation ("Charter") and
Code of By-Laws ("By-Laws").
(vi) The Trust is not required to be qualified and in
good standing as a foreign company in Indiana, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Trust; and the Trust is not a party to
or otherwise bound by any agreement other than those described in the
Prospectus.
(vii) The Declaration has been duly authorized,
executed and delivered by the Company and the Trustees and is a valid
and binding obligation of the Company, enforceable against the Company
and each of the Regular Trustees in accordance with its terms, except
as enforcement thereof may be limited by the Bankruptcy Exceptions; and
the Declaration has been duly qualified under the 1939 Act.
(viii) All legally required proceedings in connection
with the authorization, issuance and validity of the Securities and the
sale of the Securities in accordance with this Agreement (other than
the filing of post-issuance reports, the non-filing of which would not
render the Securities invalid) have been taken and all legally required
orders, consents or other authorizations or approvals of any other
public boards or bodies in connection with the authorization, issuance
and validity of the Securities and the sale of the Securities in
accordance with this Agreement (other than in connection with or in
compliance with the provisions of the securities or Blue Sky laws of
any jurisdictions, as to which no opinion need be expressed) have been
obtained and are in full force and effect.
(ix) The Registration Statement, including any Rule
462(b) Registration Statement, is effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and
no stop order suspending
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the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated, or, to such counsel's
knowledge and information after due and diligent inquiry, threatened by
the Commission.
(x) The Registration Statement, including any Rule
462(b) Registration Statement, each of the incorporated documents and
the Prospectus, and each amendment or supplement thereto (other than
the financial statements or other financial information or statistical
data included therein and the Statements of Eligibility on Forms T-1
with respect to each of the Property Trustee, the Debt Trustee and the
Guarantee Trustee, as to which no opinion need be rendered), as of
their respective effective or issue dates, or when amended, as
appropriate, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act and the Rules and
Regulations thereunder; and the Declaration, the Indenture and the
Capital Securities Guarantee Agreement filed with the Commission as
part of the Registration Statement complied as to form in all material
respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(xi) Each of the documents incorporated by reference
in the Registration Statement or the Prospectus at the time they were
filed or last amended (other than the financial statements or other
financial or statistical data included therein, as to which such
counsel need express no belief) complied as to form in all material
respects with the requirements of the 1934 Act, and the 1934 Act
Regulations, as applicable.
(xii) The Company and each of the Conseco Trusts meet
the registrant requirements for use of Form S-3 under the 1933 Act
Regulations.
(xiii) The Common Securities, the Capital Securities,
the Subordinated Debentures, each of the Guarantees, the Declaration,
the Indenture and each of the Guarantee Agreements conform in all
material respects to the descriptions thereof contained in the
Prospectus.
(xiv) The information in the Prospectus under the
captions "The Company", "Conseco Financing Trust III", "Risk Factors",
"Use of Proceeds", "Capitalization", "Description of the Capital
Securities", "Description of the Trust Guarantee", "Description of the
Subordinated Debentures" and "Effect of Obligations under the
Subordinated Debentures and the Trust Guarantee", to the extent that
they involve
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matters of law, summaries of legal matters, the Company's Charter and
By-Laws or legal proceedings, or legal conclusions, has been reviewed
by such counsel and is correct in all material respects.
(xv) All of the issued and outstanding Common
Securities of the Trust are directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(xvi) This Agreement has been duly authorized,
executed and delivered by each of the Trust and the Company and
constitutes a valid and binding obligation of the Company and the
Trust, enforceable against the Company and the Trust in accordance with
its terms, except (1) to the extent that enforcement thereof may be
limited by Bankruptcy Exceptions and (2) that no opinion is given as to
the enforceability of the indemnity and contribution provisions under
this Agreement.
(xvii) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Capital
Securities Guarantee Agreement, assuming it is duly authorized,
executed, and delivered by the Guarantee Trustee, constitutes a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by Bankruptcy Exceptions; and the Capital
Securities Guarantee Agreement has been duly qualified under the 1939
Act.
(xviii) The Indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution,
and delivery thereof by the Debt Trustee, is a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the Indenture
has been duly qualified under the 1939 Act.
(xix) The Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Debt Trustee in
the manner provided for in the Indenture and delivered against payment
therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent
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that enforcement thereof may be limited by the Bankruptcy Exceptions.
(xx) The issuance and delivery of the Securities, the
execution and delivery of this Agreement, the Declaration, the Capital
Securities, the Common Securities, the Indenture, the Subordinated
Debentures, the Guarantee Agreements and the Guarantees and the
consummation of the transactions contemplated herein and therein, and
the compliance by each of the Offerors with their respective
obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Trust, the Company or any of its subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement (except
as described in the Prospectus, as to which a waiver has been
obtained), note, lease or other instrument to which the Trust, the
Company or any of its 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
Trust, the Company or any of its subsidiaries is subject, except for a
conflict, breach, default, lien, charge or encumbrance which would not
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs
of the Trust, the Company and its subsidiaries considered as one
enterprise nor will such action result in any violation of the
provisions of the Certificate of Trust of the Trust, the Charter or
By-Laws, or any material applicable law, administrative regulation or
administrative or court decree.
(xxi) The Pioneer Merger Agreement has been duly
authorized, executed and delivered by the Company, RAC and Pioneer and
constitutes a valid and binding obligation of the Company, RAC and
Pioneer, enforceable against the Company, RAC and Pioneer in accordance
with its terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions, and none of the Company, RAC or, to the
knowledge and information of the Company after due and diligent
inquiry, Pioneer, is in default in the observance of the terms and
conditions thereof.
(xxii) To the knowledge and information of such
counsel after due and diligent inquiry, there are no statutes or
regulations required to be described or incorporated by reference in
the Registration Statement which are not described or incorporated by
reference as required and there are no legal or governmental
proceedings
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pending or threatened which are required to be disclosed or
incorporated by reference in the Registration Statement, other than
those disclosed or incorporated by reference therein.
(xxiii) To the knowledge and information of such
counsel after due and diligent inquiry, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to or incorporated by
reference in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to or incorporated by
reference therein or filed as exhibits thereto; the descriptions
thereof or references thereto are true and correct in all material
respects and no default exists in the due performance or observance of
any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or incorporated by reference or
filed, which default would reasonably be expected to have a material
adverse effect on the Company and its subsidiaries considered as one
enterprise.
(xxiv) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection
with the issuance and sale of the Capital Securities by the Trust to
the Underwriters or the performance by the Trust and the Company of
their respective obligations in this Agreement, the Indenture, the
Subordinated Debentures, the Guarantee Agreements, the Declaration and
the Capital Securities, except such as have been obtained and made
under the federal securities laws or state insurance laws and such as
may be required under the state or foreign securities laws.
(xxv) No authorization, approval, consent, order,
registration or qualification of or with any court or federal or New
York or Delaware state governmental authority or agency is required for
the issuance and sale of the Capital Securities by the Trust to the
Underwriters or the performance by the Trust and the Company of their
respective obligations in this Agreement, the Indenture, the
Subordinated Debentures, the Capital Securities Guarantee Agreement,
the Capital Securities Guarantee, the Declaration and the Capital
Securities except such as has been obtained and made under the federal
securities laws or such as may be required under state or foreign
securities or Blue Sky laws.
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(xxvi) The Company and each of its subsidiaries hold
all material licenses, certificates and permits from all governmental
authorities (including, without limitation, the Insurance Licenses)
which are necessary to the conduct of their businesses; the Company and
its subsidiaries have fulfilled and performed all material obligations
necessary to maintain their respective Insurance Licenses, and no event
or events have occurred which could reasonably be expected to result in
the material impairment, modification, termination or revocation of
such Insurance Licenses.
(xxvii) None of the Trust or the Company or any of
its subsidiaries is an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
(xxvii) Any consents and waivers required in
connection with the issuance and delivery of the Securities, the
execution and delivery of this Agreement, the Declaration, the Capital
Securities, the Common Securities, the Indenture, the Subordinated Debt
Securities, the Guarantee Agreement and the Guarantees and the
consummation of the transactions contemplated therein have been
obtained.
Moreover, such counsel shall confirm that nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement, including any information provided pursuant to Rule 430A and related
schedules and Rule 434 (except for financial statements or other financial
information included or incorporated by reference therein, as to which such
counsel need express no belief), at the time it became effective or at the
Representation Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (except for financial
statements and other financial information included or incorporated by reference
therein, as to which such counsel need express no belief), at the Representation
Date (unless the term "Prospectus" refers to a prospectus which has been
provided to each Underwriter by the Company for use in connection with the
offering of the Capital Securities which differs from the Prospectus on file at
the Commission at the time the Registration Statement became effective, in which
case at the time it is first provided to the Underwriters for such use) or at
Closing Time, included (or includes) an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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(2) The favorable opinion, dated as of the Closing Time, of
Xxxxx Xxxxxxxx Xxxx & Xxxxxxx, special counsel to the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect that the
statements in the Prospectus under the caption "United States Federal Income
Taxation" have been reviewed by such counsel and, insofar as they constitute
legal conclusions or matters of law, fairly summarize the matters referred to
therein.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Offerors, in
form and substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act,
and all filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a business
trust have been made.
(ii) Under the Delaware Act and the Declaration, the
Trust has the business trust power and authority to own property and
conduct its business, all as described in the Prospectus.
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against
the Company and the Trustees in accordance with its terms, subject, as
to enforcement, to (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and
other similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(iv) Under the Delaware Act and the Declaration, the
Trust has the business trust power and authority to (i) execute and
deliver, and to perform its obligations under, this Agreement and (ii)
issue, and perform its obligations under, the Trust Securities.
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations
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hereunder, have been duly authorized by all necessary action on the
part of the Trust.
(vi) Under the Delaware Act, the certificate attached
to the Declaration as Exhibit A-1 is an appropriate form of certificate
to evidence ownership of the Capital Securities; the Capital Securities
have been duly authorized by the Declaration and are duly and validly
issued and, subject to qualifications hereinafter expressed in this
paragraph (vi), fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the holders of the Capital
Securities, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation
Law of the State of Delaware; said counsel may note that the holders of
the Capital Securities may be obligated to make payments as set forth
in the Declaration.
(vii) The Common Securities have been duly authorized
by the Declaration and are duly and validly issued and represent
undivided beneficial interests in the assets of the Trust.
(viii) Under the Delaware Act and the Declaration,
the issuance of the Trust Securities is not subject to preemptive
rights.
(ix) The issuance and sale by the Trust of the Trust
Securities, the purchase by the Trust of the Subordinated Debentures,
the execution, delivery and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions contemplated hereby
and compliance by the Trust with its obligations hereunder and
thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any applicable Delaware
law or administrative regulation.
(4) The favorable opinion, dated as of Closing Time, of Xxxx &
Xxxxx, P.C., counsel to Fleet National Bank, as Property Trustee under the
Declaration, and Guarantee Trustee under the Capital Securities Guarantee
Agreements, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) Fleet National Bank is a national banking
association with trust powers, formed and authorized to transact the
business of banking under the laws of the United States with all
necessary power and authority to
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execute and deliver, and to carry out and perform its obligations under
the terms of the Declaration and the Capital Securities Guarantee
Agreement.
(ii) The execution, delivery and performance by the
Property Trustee of the Declaration and the execution, delivery and
performance by the Guarantee Trustee of the Capital Securities
Guarantee Agreement have been duly authorized by all necessary
corporate action on the part of the Property Trustee and the Guarantee
Trustee, respectively. The Declaration and the Capital Securities
Guarantee Agreement have been duly executed and delivered by the
Property Trustee and the Guarantee Trustee, respectively, and
constitute the legal, valid and binding obligations of the Property
Trustee and the Guarantee Trustee, respectively, enforceable against
the Property Trustee and the Guarantee Trustee, respectively, in
accordance with their terms, except to the extent the enforcement
thereof may be limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration and the Capital Securities Guarantee Agreement by the
Property Trustee and the Guarantee Trustee, respectively, do not
conflict with or constitute a breach of the Articles of Organization or
Bylaws of the Property Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any federal banking authority is
required for the execution, delivery or performance by the Property
Trustee and the Guarantee Trustee of the Declaration and the Capital
Securities Guarantee Agreement.
(5) The favorable opinion, dated as of Closing Time, of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the Underwriters, with
respect to the Capital Securities, the Indenture, the Capital Securities
Guarantee Agreement, this Agreement, the Registration Statement, the Prospectus
and other related matters as you may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P. may rely as to matters governed by the laws of
Indiana and Delaware upon the opinions referred to in Sections 5(b)(1) and
5(b)(3) hereto.
(c) Between the date of this Agreement and prior to the Closing Time,
no material adverse change shall have occurred in
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the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiaries considered
as one enterprise, whether or not in the ordinary course of business.
(d) At Closing Time, the Underwriters shall have received a certificate
of an executive officer of the Company and a certificate of a Regular Trustee of
the Trust, and dated as of Closing Time, to the effect that:
(i) There has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not in the ordinary course of
business.
(ii) The representations and warranties in Section 1
hereof are true and correct as though expressly made at and as of
Closing Time.
(iii) The Trust and the Company have complied with
all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to Closing Time.
(iv) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) At the time of the execution of this Agreement, the Underwriters
shall have received from Coopers & Xxxxxxx, L.L.P., with respect to the Company
a letter dated such date, in form and substance satisfactory to the
Underwriters, to the effect that (i) they are independent public accountants
with respect to the Company and its subsidiaries, as applicable, within the
meaning of the 1933 Act, the 1933 Act Regulations; (ii) it is their opinion that
the financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus and covered by their
opinions therein comply with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations;
(iii) based upon limited procedures set forth in detail in such letter, nothing
has come to their attention which causes them to believe that (A) the unaudited
financial information of the Company and its subsidiaries, as applicable,
included or incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the applicable
accounting
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requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited financial statements included in the Registration Statement, or (B)
as of a specified date not more than five days prior to the date of this
Agreement with respect to the Company there was any increase in consolidated
long-term debt or, at the date of the latest available balance sheet read by
such accountants, there was any decrease in consolidated total assets or
shareholders' equity, as compared with amounts shown on the latest balance sheet
included in the Registration Statement and the Prospectus, or (C) for the period
from the closing date of the latest income statement included in the
Registration Statement and the Prospectus to the closing date of the latest
available income statement read by such accountants, there were any decreases,
as compared with the corresponding period of the previous year and with the
period of corresponding length ended the date of the latest income statement
included in the Registration Statement and the Prospectus, in consolidated
premiums (including annuity deposits, if applicable) collected, net investment
income, total revenues, net income, earnings applicable to common stock or net
income per fully diluted common share except, in all cases set forth in this
clause (iii), for changes, increases or decreases which the Registration
Statement and the Prospectus discloses have occurred or may occur or which are
described in such letter; (iv) they have examined the statutory financial
statements of each of the Company's insurance subsidiaries required to have such
an audit, as applicable, and in their opinion such statements, with respect to
each insurance subsidiary, have for each relevant period been prepared in
accordance with accounting practices prescribed or permitted by the appropriate
Insurance Department of the state of domicile of such subsidiary, and such
accounting practices have been applied on a consistent basis throughout the
periods involved, except as disclosed therein; and (v) in addition to the
examination referred to in their opinions and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages, ratios and
financial information that has been derived from the accounting and financial
records of the Company that are subject to internal accounting controls which
are included or incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Underwriters, and has found such
amounts, percentages, ratios and financial information to be in agreement with
the relevant accounting and financial records of the Company and its
subsidiaries identified in such letter, as applicable.
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(f) At the Closing Time, the Underwriters shall have received from
Coopers & Xxxxxxx, L.L.P., with respect to the Company a letter dated as of the
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that (i) such
statements shall include any financial statements and pro forma financial
information incorporated by reference in the Registration Statement and the
Prospectus which are filed subsequent to the date of this Agreement and prior to
the Closing Date and (ii) the specified date referred to shall be a date not
more than five days prior to the Closing Time and, if the Company has elected to
rely on Rule 430A under the 1933 Act Regulations, to the further effect that
they have carried out procedures as specified in clause (iv) of subsection (e)
of this Section with respect to certain amounts, percentages and financial
information specified by the Underwriters and deemed to be a part of the
Registration Statement pursuant to Rule 430(A)(b) and has found such amounts,
percentages and financial information to be in agreement with the records
specified in such clause (iv).
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling it to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(h) At the Closing Time, the Capital Securities shall be rated at least
"BBB-" by Standard & Poor's Ratings Services, and the Trust shall have delivered
to the Underwriters a letter dated the Closing Time, from such rating agency, or
other evidence satisfactory to the Underwriters, confirming that the Capital
Securities have such rating; and between the date of this Agreement and the
Closing Time, there shall not have occurred a downgrading in the rating assigned
or the placing of the Capital Securities under negative or developing outlook to
the Capital Securities or any of the Company's other debt securities by any
nationally recognized statistical rating organization, and no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Capital Securities or
any of the Company's other debt securities.
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(i) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agree ment may be
terminated by the Underwriters by notice to the Company at any time at or prior
to Closing Time, and such termi nation shall be without liability of any party
to any other party except as provided in Section 4.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and
against any and all losses, claims, damages, liabilities and judgments caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use therein, provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages and liabilities and judgments purchased Shares, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment.
(b) In case any action shall be brought against such
Underwriter or any person controlling any Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Company,
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such Underwriter shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses. Any
Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the employment of such counsel
has been specifically authorized in writing by the Company, (ii) the Company
shall have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both such
Underwriter or such controlling person and the Company and such Underwriter or
such controlling person shall have been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for such Underwriter and controlling persons, which firm shall be
designated in writing by DLJ and that all such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for any
settlement of any such action effected without the written consent of the
Company but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such controlling
person from and against any loss or liability by reason of such settlement.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and an
indemnified party shall have requested the indemnifying party to reimburse the
indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if
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(i) such settlement is entered into more than ten business days after the
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall have failed to reimburse the indemnified party in
accordance with such request for reimbursement prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, any person controlling the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the
Trust and each of the Regular Trustees of the Trust, to the same extent as the
foregoing indemnity from the Company to each Underwriter but only with reference
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus. In case any action shall be
brought against the Company, any of its directors, any such officer or any
person controlling the Company or the Trust or any of the Regular Trustees of
the Trust based on the Registration Statement, the Prospectus or any preliminary
prospectus and in respect of which indemnity may be sought against any
Underwriter, the Underwriter shall have the rights and duties given to the
Company (except that if the Company shall have assumed the defense thereof such
Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), and the Company, its
directors, any such officers and any person controlling the Company and the
Trust and each of the Regular Trustees of the Trust shall have the rights and
duties given to the Underwriter, by Section 6(b) hereof.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by
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the Company on the one hand and the Underwriters on the other hand from the
offering of the Capital 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 and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company,
and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Capital Securities,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 6(d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Capital 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 such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 6(d) are several in proportion to the respective member
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of Capital Securities purchased by each of the Underwriters hereunder and not
joint.
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company and the Trust
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Capital Securities to the Underwriters.
SECTION 8. Termination of Agreement.
(a) The Underwriters may terminate this Agreement, by notice
to the Company at any time at or prior to Closing Time, if (i) there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
or any development which could reasonably be expected to result in a prospective
material adverse change, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) there has occurred (A) any material adverse change in the financial markets
in the United States or, if the Capital Securities or any related underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets
or (B) any outbreak of hostilities or escalation of hostilities or other
calamity or crisis, or (C) any change or development involving a prospective
change in national or international political, financial or economic conditions
the effect of which is such as to make it, in the judgment of the Underwriter,
impracticable to market the Capital Securities or to enforce contracts for the
sale of the Capital Securities, or (iii) trading in securities of the Company
has been suspended or limited by the Commission, NASD, the American Stock
Exchange or the New York Stock Exchange, or if trading generally on either the
American Stock Exchange, the New York Stock Exchange or in the over-the-counter
market has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by such system or by order of the Commission,
NASD or any other governmental authority, (iv) a banking moratorium has been
declared by either Federal, New York or Indiana authorities or, if the Capital
Securities or any related Underlying Securities include Debt Securities
denominated or
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payable in, or indexed to, one or more foreign or composite currencies, by the
relevant authorities in the related foreign country or countries, (v) there has
been an enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company or
any of its subsidiaries, (vi) any action has been taken by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the financial markets in the
United States, or (vii) any condition specified in Section 5 shall not have been
fulfilled when and as required to be fulfilled.
(b) If this Agreement is terminated pursuant to this Section
8, such termination shall be without liability of any party to any other party
except as provided in Section 4, and provided, further, that Sections 1, 6 and 7
shall survive such termination and remain in full force and effect.
SECTION 9. 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 DLJ at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
Attention of Xxxxx Xxxxx and to Salomon Brothers at Seven Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx X. Xxxxx, Director, with a copy to
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx Xxxxx, Esq.; notices to the Company shall be
directed to it at 00000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000,
Attention: Xxxxxxxx X. Xxxxx, Esq.
SECTION 10. Parties. This Agreement shall inure to the benefit of and
be binding upon the Offerors and the Underwriters and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and their respective
successors and legal representatives, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or
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corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 11. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME UNLESS OTHERWISE INDICATED.
SECTION 12. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts, shall become a binding agreement
among the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
CONSECO, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
CONSECO FINANCING TRUST III
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
By XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
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SCHEDULE A
Number of Capital Securities
Underwriters to be Purchased
------------ ---------------
Xxxxxxxxx, Lufkin & Xxxxxxxx 150,000
Securities Corporation
Salomon Brothers Inc 150,000
---------------------------------------
Total 300,000
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