2,700,000 shares
X. X. XXXXXXX CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
February 28, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. X. X. Xxxxxxx Corporation, a Delaware corporation
("Company"), proposes to issue and sell 2,700,000 shares ("Firm Securities") of
its common stock, $.20 par value ("Securities"), and also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 405,000 additional shares ("Optional Securities") of its Securities
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). The Firm Securities and the Optional Securities are
herein collectively called the "Offered Securities". The Company hereby agrees
with the several Underwriters named in Schedule A hereto ("Underwriters") as
follows:
2. Representations and Warranties of the Company.The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 33-95552), including a prospectus,
relating to the Registered Securities has been filed with the Securities
and Exchange Commission ("Commission") and has become effective. Such
registration statement, as amended at the time of this Agreement, is
hereinafter referred to as the "Registration Statement," and the prospectus
included in the Registration Statement, as supplemented as contemplated by
Section 5 to reflect the terms of the offering of the Offered Securities,
as first filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Securities Act of 1933 ("Act"), including
all material incorporated by reference therein, is hereinafter referred to
as the "Prospectus." No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act and the rules and regulations of
the Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and on the date of this Agreement, the Registration Statement
and the Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regulations; none of the Registration Statement,
Prospectus or the Preliminary Prospectus Supplement dated February 9, 2001
includes or will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through the
representatives or representatives of the Underwriters, if any
("Representatives"), specifically for use therein; and the documents
incorporated by reference in the Prospectus, at the time they were, or
hereafter, are filed with the Commission, complied and, at any time when a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, will
comply as to form in all material respects with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except in such
jurisdictions where the failure to be so qualified would not individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole ("Material Adverse Effect").
(d) Each Significant Subsidiary (as defined below) of the Company has
been duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each Significant Subsidiary of
the Company is, to the extent applicable, duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
individually or in the aggregate have a Material Adverse Effect; all of the
issued and outstanding capital stock of each Significant Subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each Significant Subsidiary owned
by the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects. As used herein, "Significant Subsidiaries" means
Berkley Regional Insurance Company, Berkley Insurance Company and Admiral
Insurance Company, which are currently the only operating insurance
companies that are "significant subsidiaries" of the Company as that term
is defined in Rule 1-02(w) of Regulation S-X of the Rules and Regulations.
(e) The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Offered Securities have
been delivered and paid for in accordance with this Agreement on each
Closing Date (as defined below), such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; the stockholders of the
Company have no preemptive rights with respect to the Securities; and the
authorized, issued and outstanding capital stock of the Company set forth
under the caption "Capitalization" in the Prospectus is accurate as of the
date of such information and has not materially changed since such date.
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against
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the Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(g) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(h) The Offered Securities have been approved for listing on The
Nasdaq Stock Market's National Market, subject to notice of issuance.
(i) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act, as
contemplated under Section 5(a) hereof, and such as may be required under
state securities laws.
(j) The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Company or any Significant Subsidiaries of the Company or any of their
material properties, or any material agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
(k) This Agreement has been duly authorized, executed and delivered by
the Company.
(l) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would affect the value
thereof or interfere with the use made or to be made thereof by them, other
than liens, encumbrances and defects that would not individually or in the
aggregate have a Material Adverse Effect; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would individually or in the aggregate have a Material Adverse Effect.
(m) The Company and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its Significant Subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(n) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions, in each jurisdiction
in which such filings or approvals are required, except where the failure
to have made such filings or receive such approvals in any such
jurisdiction would not have
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individually or in the aggregate a Material Adverse Effect; each of the
Company's Significant Subsidiaries that is required to be organized and
licensed as an insurance or reinsurance company (the "Insurance
Subsidiaries") in its jurisdiction of incorporation is duly organized and
licensed as an insurance or reinsurance company in its respective
jurisdiction of incorporation, and each such Significant Subsidiary is duly
licensed or authorized as an insurer or reinsurer (the "Insurance
Licenses") in each other jurisdiction in which such licensing or
authorization is required, except where the failure to be so licensed or
authorized in any such jurisdiction would not have individually or in the
aggregate a Material Adverse Effect; there is no pending or, to the
knowledge of the Company, threatened action, suit, proceeding or
investigation that would reasonably be expected to lead to the revocation,
termination or suspension of any such Insurance Licenses, the revocation,
termination or suspension of which would have individually or in the
aggregate a Material Adverse Effect; and except as disclosed in the
Prospectus, no insurance regulatory agency or body has issued any order or
decree impairing, restricting or prohibiting the payment of dividends of
any Company subsidiary to its respective parent which would have
individually or in the aggregate a Material Adverse Effect.
(o) The Company and each of its Significant Subsidiaries is in
compliance with the requirements of all laws, ordinances, governmental
rules or regulations or court decree to which it may be subject, and has
filed all notices, reports, documents or other information required to be
filed thereunder, except where the failure to so comply or file would not,
individually or in the aggregate, have a Material Adverse Effect.
(p) Neither the Company nor any of its Insurance Subsidiaries is in
violation of, or in default in the performance, observance or fulfillment
of, any obligation, agreement, covenant or condition contained in
reinsurance treaties, contracts, agreements and arrangements to which the
Company or any of its Insurance Subsidiaries is a party, except for such
violations or defaults which would not individually or in the aggregate
have a Material Adverse Effect; neither the Company nor any of its
Insurance Subsidiaries has received any notice from any of the other
parties to such treaties, contracts, agreements or arrangements that such
other party intends not to perform its obligations thereunder and none of
them has any reason to believe that any of the other parties to such
treaties, contracts, agreements or arrangements will be unable to perform
its obligations thereunder, except to the extent that such nonperformance
would not individually or in the aggregate have a Material Adverse Effect.
(q) To the knowledge of the Company and its Insurance Subsidiaries, no
change in any insurance law or regulation is pending that would reasonably
be expected to have individually or in the aggregate a Material Adverse
Effect, except as described in the Prospectus.
(r) No labor dispute with the employees of the Company or any
Significant Subsidiary exists or, to the knowledge of the Company, is
imminent that would reasonably be expected to have individually or in the
aggregate a Material Adverse Effect.
(s) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them and have not
received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect.
(t) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any
4
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject
to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending investigation
which would reasonably be expected to lead to such a claim.
(u) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that would individually
or in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement; and no such actions, suits or proceedings are, to the
Company's knowledge, threatened or contemplated.
(v) KPMG LLP, who have certified the financial statements and
supporting schedules of the Company and its subsidiaries contained or
incorporated by reference in the Prospectus, are independent public
accountants within the meaning of the Act and the Rules and Regulations;
the financial statements included in the Registration Statement and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis
and the schedules included or incorporated in the Registration Statement
present fairly the information required to be stated therein; and except as
disclosed in the Prospectus, the Company and its Insurance Subsidiaries
have made no material change in their insurance reserving practices since
the most recent audited financial statements included in the Prospectus.
(w) The statutory annual and quarterly statements of the Insurance
Subsidiaries required to file such statutory statements and the statutory
balance sheets and income statements included in such statutory annual and
quarterly statements, most recently filed in each jurisdiction, have been
prepared in conformity with required or permitted or prescribed statutory
accounting principles or practices applied on a consistent basis, except as
may otherwise be indicated in the notes thereto, and present fairly the
financial position of the Insurance Subsidiaries (on a statutory basis) for
the period covered thereby.
(x) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus, (i) there
has been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, (ii) there have not been any
transactions entered into by the Company or any of its
5
subsidiaries other than in the ordinary course of business which are
material to the Company and its subsidiaries taken as a whole, and, (iii)
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(z) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $39.37 per share, the respective
numbers of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives for the
accounts of the Underwriters, at the office of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., against payment of the purchase price in Federal (same day) funds by
wire transfer to an account at a bank acceptable to Credit Suisse First Boston
Corporation ("CSFBC"), at 10:00 A.M., New York time, on March 6, 2001, or at
such other time not later than seven full business days thereafter as CSFBC and
the Company determine, such time being herein referred to as the "First Closing
Date". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for checking and packaging at the above office of LeBoeuf, Lamb,
Xxxxxx & XxxXxx, L.L.P. at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from time
to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's name
bears to the total number of shares of Firm Securities (subject to adjustment by
CSFBC to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, at the office of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., against payment of the purchase price
therefor in Federal (same day) funds by wire transfer to an account at a bank
acceptable to CSFBC at the above office of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available
6
for checking and packaging at the above office of LeBoeuf, Lamb, Xxxxxx &
XxxXxx, L.L.P. at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(5) not later than the second business
day following the execution and delivery of this Agreement.
(b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will afford
CSFBC a reasonable opportunity to comment on any such proposed amendment or
supplement; and the Company will also advise CSFBC promptly of the filing
of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of this Agreement,
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as CSFBC reasonably requests. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided that in connection
7
therewith the Company shall not be required to qualify to do business in
any jurisdiction or to file or consent or otherwise subject itself to
service of process or taxation in any jurisdiction where it is not already
so subject.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as CSFBC may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel up to a maximum of
$10,000) incurred in connection with qualification of the Offered
Securities for sale and determination of their eligibility for investment
under the laws of such jurisdictions as CSFBC reasonably designates and the
printing of memoranda relating thereto, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities and for expenses incurred in distributing the
Prospectus, any preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to the Prospectus to the
Underwriters.
(i) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, enter into
a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing, or
to enter into any such transaction, swap, hedge or other arrangement,
without, in each case, the prior written consent of CSFBC, except issuances
of Securities or grants of options to purchase Securities pursuant to the
terms of any employee stock option plan, directors' stock option plan,
deferred compensation plan, employee stock purchase plan or dividend
reinvestment plan in effect on the date hereof.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of KPMG
LLP confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules
and any summary of earnings examined by them and included in the
Prospectus comply as to form in all
8
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, a reading of the minutes of meetings of the
stockholders and Boards of Directors of the Company and its
subsidiaries, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, and any summary of
earnings included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or any
material modifications should be made to such unaudited financial
statements and summary of earnings for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated premiums earned, net
investment income, consolidated revenue or the total or per share
amounts of net income or other amounts constituting such
"capsule" information and described in such letter do not agree
with the corresponding amounts set forth in the unaudited
consolidated financial statements or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of such letter, there
was any change in the capital stock, increase in long-term debt
or any decreases in consolidated total assets, or stockholders'
equity, as compared with amounts shown on the latest balance
sheet included in the Prospectus or statutory accounting
statements, as applicable; or
(D) for the period from the closing date of the latest
income statement included in 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 in consolidated net premiums written,
net premiums earned or in the total or per share amounts of
income before extraordinary items and cumulative effect or change
in accounting principle or of net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur, or which are described in such letter; and
9
(iv) they have compared all dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities; (ii) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange or on the NASDAQ
National Market, or any setting of minimum prices for trading on such
exchange or on the NASDAQ National Market, or any suspension of trading of
any securities of the Company on any exchange, the NASDAQ National Market
or in the over-the-counter market; (iii) any banking moratorium declared by
U.S. Federal or New York authorities; or (iv) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement;
(iii) The Offered Securities have been duly authorized by all
necessary corporate action and validly issued, are fully paid and
nonassessable and conform in all material respects to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no statutory preemptive rights with respect to the
Offered Securities;
10
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
such as may be required under state securities and insurance laws, and
the execution and delivery of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or
constitute a breach of, or default under, the certificate of
incorporation or by-laws of the Company;
(v) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the Registration Statement and the Prospectus (but not
including any document incorporated by reference therein), as of the
date of this Agreement, and any amendment or supplement thereto, and
as of its date, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The information in the Prospectus under the captions
"Description of Common Stock" and "Underwriting", to the extent that
such information is applicable to the Offered Securities and
constitutes matter of law or legal conclusions or descriptions of
documents referred to therein, has been reviewed by them and is
correct in all material respects; and
(viii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
In rendering such opinions, such counsel may state that (i) its
opinion is limited to matters governed by the Federal laws of the United
States of America, the laws of the State of New York and the corporate law
of the State of Delaware and (ii) it has relied, as to matters of fact and
to the extent it deems proper, on certificates of responsible officers of
the Company or public officials. In addition to the matters set forth
above, such counsel shall state that it has no reason to believe that the
Registration Statement, as of the date of this Agreement or as of the
Closing Date, or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
this Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to the financial
statements or other financial data contained in the Registration Statement
or the Prospectus.
11
(e) The Representative shall have received an opinion, dated the
Closing Date, of Xxx X. Xxxxxxxx, Senior Vice President and General Counsel
- Insurance Operations of the Company, to the effect that:
(i) The Company has an authorized capitalization as is set forth
in the Prospectus; and, to the best of such counsel's knowledge, the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities;
(ii) The Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not individually or in the aggregate have a Material Adverse Effect;
(iii) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, has the corporate
power and authority to own, lease and operate its properties and to
conduct the business described in the Registration Statement and, to
the extent applicable, is duly qualified as a foreign corporation to
transact business and is in good standing as such in each jurisdiction
in which it owns or leases substantial properties or in which the
conduct of its business requires such qualification (except in such
jurisdictions where the failure to be so qualified would not
individually or in the aggregate have a Material Adverse Effect) (such
counsel may note in his opinion that insurance laws of certain of such
jurisdictions where the Significant Subsidiaries hold an insurance
license do not require such due qualification as a foreign
corporation); except as set forth in the Registration Statement, all
of the issued and outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued
and are owned directly or indirectly by the Company, free and clear of
any pledges, liens, encumbrances, claims or equities; and all such
shares are fully paid and nonassessable;
(iv) There are no contracts, agreements or understandings known
to such counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act;
(v) To the best of such counsel's knowledge, there are no
licenses, franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be
described in the Registration Statement or to be filed as an exhibit
thereto other than those described therein or filed or incorporated by
reference as exhibits thereto;
(vi) The execution, delivery and performance of this Agreement
and the issuance and sale of the Offered Securities and compliance
with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any Significant Subsidiary of the Company or the charter or
by-laws of any such subsidiary, or, to the best of such counsel's
knowledge, any of their material properties, or any material
agreement, contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such subsidiary is
subject;
12
(vii) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions, in each
jurisdiction in which such filings or approvals are required, except
where the failure to have made such filings or receive such approvals
in any such jurisdiction would not reasonably be expected to have
individually or in the aggregate a Material Adverse Effect; each of
the Insurance Subsidiaries is duly organized and licensed as an
insurance or reinsurance company in its respective jurisdiction of
incorporation, and each such Insurance Subsidiary owns the Insurance
Licenses in each other jurisdiction in which such licensing or
authorization is required, except where the failure to be so licensed
or authorized in any such jurisdiction would not reasonably be
expected to have individually or in the aggregate a Material Adverse
Effect; there is no pending or, to the best of such counsel's
knowledge, threatened action, suit, proceeding or investigation that
would be reasonably likely to lead to the revocation, termination or
suspension of any such Insurance Licenses, the revocation, termination
or suspension of which would reasonably be expected to have
individually or in the aggregate a Material Adverse Effect; and except
as disclosed in the Prospectus, no insurance regulatory agency or body
has issued any order or decree impairing, restricting or prohibiting
the payment of dividends of any Company subsidiary to its respective
parent which would reasonably be expected to have individually or in
the aggregate a Material Adverse Effect;
(viii) Except as would not individually or in the aggregate have
a Material Adverse Effect, (i) to the best of such counsel's
knowledge, there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Registration
Statement, other than those disclosed therein, and (ii) there are no
pending legal or governmental proceedings, to the best of such
counsel's knowledge, to which the Company or any subsidiary is a party
or of which any of their property is the subject which are not
described in the Registration Statement but are required to be so
described in the Registration Statement, including ordinary routine
litigation incidental to the business;
(ix) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act (other than the
financial statements, supporting schedules and other financial
information included or incorporated by reference therein, as to which
no opinion need to be rendered), at the time they were filed with the
Commission or delivered to the security holders, as the case may be,
complied as to form in all material respects with the requirements of
the Securities Exchange Act of 1934 and the rules and regulations
thereunder; and
(x) The descriptions in the Registration Statement and Prospectus
of legal and governmental proceedings and contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown; and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
In rendering such opinions, such counsel may state that (i) its
opinion is limited to matters governed by the Federal laws of the United
States of America, the laws of the State of New York and the corporate law
of the State of Delaware and (ii) it has relied, as to matters of fact and
to the extent it deems proper, on certificates of responsible officers of
the Company or public officials. In addition to the matters set forth
above, such counsel shall state that it has no reason to believe that the
Registration Statement, as of the date of this Agreement or as of the
Closing Date, or any amendment thereto, as of its date or as of the Closing
Date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
this Agreement or as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements
13
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no view as
to the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
(f) The Representatives shall have received from LeBoeuf, Lamb, Xxxxxx
& XxxXxx, L.L.P., counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Representatives 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.
(g) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(h) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
(i) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the directors of the
Company and Xx. Xxxxxxx X. Xxxxxxx and his immediate family.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter
14
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus or preliminary prospectus supplement the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Securities concerned, to the extent that a prospectus relating to
such Offered Securities was required to be delivered by such Underwriter under
the Act in connection with such purchase and any such loss, claim, damage or
liability of such Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph, the information with
respect to stabilizing, over-allotment and syndicate covering transactions and
penalty bids and passive market making contained in the bullet points in the
tenth paragraph and the information with respect to on-line distributions in the
eleventh paragraph, in each case under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be
15
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action 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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters,
16
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 9 (provided that if such default occurs
with respect to Optional Securities after the First Closing Date, this Agreement
will not terminate as to the Firm Securities or any Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (ii), (iii) or (iv) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at address and numbers of the Company set forth in the Registration
Statement, Attention: Xxx X. Xxxxxxxx, Senior Vice President; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
18
15. Submission to Jurisdiction. The Company hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
X. X. XXXXXXX CORPORATION
By /s/ Xxx X. Xxxxxxxx
------------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on behalf of themselves and
as the Representatives of the
several Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Managing Director
19
SCHEDULE A
Number of
Underwriter Firm Securities
----------- ---------------
Credit Suisse First Boston Corporation..................... 813,334
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated......... 813,333
Xxxxxx Xxxxxxx & Co. Incorporated.......................... 813,333
Banc of America Securities LLC............................. 20,000
Xxxxxxx & Partners Securities, LLC......................... 20,000
Xxxxxx, Xxxxx Xxxxx, Incorporated.......................... 20,000
First Union Securities, Inc................................ 20,000
Xxx-Xxxx, Xxxxxx Inc....................................... 20,000
Invemed Associates LLC..................................... 20,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC................................ 20,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc............................... 20,000
Monness, Crespi, Xxxxx & Co., Inc.......................... 20,000
Prudential Securities Incorporated......................... 20,000
Xxxxx XxxXxxxxx Incorporated............................... 20,000
Xxxxxxx Xxxxxx Xxxxxx Inc.................................. 20,000
Sandler X'Xxxxx & Partners, L.P............................ 20,000
---------
Total....................... 2,700,000