EXHIBIT 1.1
7,707,856 Shares
LANDAMERICA FINANCIAL GROUP, INC.
Common Stock
UNDERWRITING AGREEMENT
February 15, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
BEAR, XXXXXXX & CO. INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
and Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx,
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. Reliance Insurance Company, a Pennsylvania
corporation ("Selling Stockholder") proposes to sell an aggregate of 7,707,856
outstanding shares ("Firm Securities") of the common stock, no par value
("Securities"), of LandAmerica Financial Group, Inc., a Virginia corporation
(the "Company"), and also proposes to sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than 1,156,178 additional outstanding
shares ("Optional Securities") of the Company's Securities as set forth below.
The Firm Securities and the Optional Securities are herein collectively called
the "Offered Securities". The Selling Stockholder hereby agrees with the Company
and with the several Underwriters named in Schedule A hereto ("Underwriters") as
follows:
2. Representations and Warranties of the Company and the Selling
Stockholder.
(a) The Company represents and warrants to, and agrees with, the
Selling Stockholder and the several Underwriters that:
(i) Registration statements (Nos. 333-46191 and
333-46211) relating to the Offered Securities, including forms of
prospectuses, have been filed with the Securities and Exchange
Commission (the "Commission") and have been declared effective under
the Securities Act of 1933, as amended (the "Act"). Such registration
statements (the "initial registration statements") are not proposed to
be amended and no post-effective amendment has been filed as of the
date of this Agreement. For purposes of this Agreement, "Effective
Time" with respect to the initial registration statements means the
date and time as of which such registration statements were declared
effective by the Commission. "Effective Date" with respect to the
initial
registration statements means the date of the Effective Time thereof.
The initial registration statements, as amended at their Effective
Time, including all material incorporated by reference therein, and
including all information (if any) deemed to be a part of the initial
registration statements as of their respective Effective Times pursuant
to Rule 430A(b) ("Rule 430A(b)") under the Act, are hereinafter
collectively referred to as the "Registration Statements" and
individually as a "Registration Statement". The base prospectuses
included within the Registration Statements, as supplemented by the
prospectus supplement relating to the Offered Securities, as filed with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act, including all material incorporated by
reference in such prospectus, are hereinafter referred to collectively
as the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) (A) On the Effective Date of each Registration
Statement, each 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
(B) on the date of this Agreement, each Registration Statement
conforms, and at the time of the filing of the Prospectus pursuant to
Rule 424(b) each Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act and the Rules and
Regulations, and none of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or the Prospectus based upon written information furnished by any
Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of Virginia, 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 where the failure to be so
qualified would not 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").
(iv) Each subsidiary of the Company set forth on Schedule
B hereto (each a "Principal Subsidiary" and collectively the "Principal
Subsidiaries") has been duly incorporated and is a validly 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 Principal Subsidiary 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 have a Material Adverse Effect; all of the issued and
outstanding capital stock of each Principal Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable and
is owned by the Company; and all of the capital stock of each Principal
Subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding
shares of capital stock of the Company have been duly authorized,
validly issued, and fully paid and are nonassessable and
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conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Securities.
(vi) None of the Company or any of the Principal
Subsidiaries is in violation of its charter or bylaws.
(vii) 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 the Company, or
any Underwriter, for a brokerage commission, finder's fee or other like
payment.
(viii) Except for the Registration Rights Agreement between
the Company and the Selling Stockholder dated February 27, 1998 (the
"Registration Rights Agreement") relating to the Offered Securities,
which has been duly described in the Registration Statements, 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 a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(ix) The Securities are listed on The New York Stock
Exchange.
(x) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(xi) The execution, delivery and performance of this
Agreement by the Company, and its consummation of the transactions
herein contemplated, 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 Principal Subsidiary or any of their properties, or any
agreement or instrument to which the Company or any such Principal
Subsidiary is a party or by which the Company or any such Principal
Subsidiary is bound or to which any of the properties of the Company or
any such Principal Subsidiary is subject, or the charter or by-laws of
the Company or any such Principal Subsidiary.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company.
(xiii) Except as disclosed in the Prospectus, the Company
and its Principal 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
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its Principal Subsidiaries hold any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(xiv) Each of the Company and the Principal Subsidiaries:
(A) holds such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals from insurance
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departments and other governmental or regulatory authorities (each, an
"Authorization") (including, without limitation, insurance licenses
from the insurance regulatory agencies of the various states or other
jurisdictions where it conducts business (the "Insurance Licenses")),
and has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts
and other tribunals, including, without limitation, under any
applicable environmental laws (as defined below), as are necessary to
own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or Insurance License or to make any such filing or notice
would not, individually or in the aggregate, have a Material Adverse
Effect; and (B) has fulfilled and performed all material obligations
necessary to maintain such Authorizations and Insurance Licenses.
Except as would not, individually or in the aggregate, have a Material
Adverse Effect: (A) each such Authorization and Insurance License is
valid and in full force and effect and each of the Company and the
Principal Subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and (B) no event has occurred (including, without limitation,
the receipt of any notice from any authority or governing body, the
execution, delivery and performance of this Agreement by the Company,
the sale and delivery of the Offered Securities and the compliance by
the Company with all of the provisions hereof and the consummation by
the Company and the Principal Subsidiaries of the transactions
contemplated in this Agreement) which allows or, after notice or lapse
of time of both, would allow, revocation, suspension or termination of
any such Authorization or Insurance License or results or, after notice
or lapse of time or both, would result in any impairment of the rights
of the holder of any such Authorization or Insurance License.
(xv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
(xvi) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names, domain
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, or presently employed by them, except where the
failure to own, possess or otherwise be able to acquire such
intellectual property rights would not, individually or in the
aggregate, have a Material Adverse Effect, 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.
(xvii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, or
any rule, regulation, decision or order of any 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 might lead to such a claim.
(xviii) 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
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properties that, if determined adversely to the Company or any of its
subsidiaries, 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, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are overtly
threatened or, to the Company's knowledge, contemplated.
(xix) The financial statements, including the notes
thereto, included in each 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, if any, included in each Registration
Statement present fairly the information required to be stated therein;
and the assumptions used in preparing any pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xx) The statutory financial statements of the
subsidiaries that are insurance companies (the "Insurance
Subsidiaries"), from which certain ratios and other statistical data
filed as a part of each Registration Statement or included or
incorporated in the Prospectus have been derived: (A) have for each
relevant period been prepared in conformity with statutory accounting
practices required or permitted by the National Association of
Insurance Commissioners and by the insurance laws of their respective
states of domicile, and the rules and regulations promulgated
thereunder, and such statutory accounting practices have been applied
on a consistent basis throughout the periods involved, except as may
otherwise be indicated therein or in the notes thereto; and (B) present
fairly the statutory financial position of the Insurance Subsidiaries
as at the dates thereof, and the statutory basis results of operations
of the Insurance Subsidiaries for the periods covered thereby.
(xxi) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included 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, and, except as
disclosed in the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(xxii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxiii) The Company has consented to the sale of the Offered
Securities to the Underwriters pursuant to Section 4.2 of the Voting
and Standstill Agreement dated February 27, 1998, among the Company,
the Selling Stockholder and Reliance Group Holdings, Inc.
(xxiv) The Company will cause the letters described in
Section 6(a) and 6(i) and the opinions described in Sections 6(d) and
6(e) to be addressed to the Selling Stockholders.
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(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters and the Company that:
(i) The Selling Stockholder is the sole beneficial owner
on the date hereof of (A) 4,039,473 shares of common stock, no par
value, of the Company and (B) the 2,200,000 shares of 7% Series B
Cumulative Convertible Preferred Stock, no par value, of the Company
convertible into the 4,824,561 shares of common stock which, together
with the aforementioned 4,039,473 shares, comprise the Offered
Securities. On each Closing Date hereinafter mentioned the Selling
Stockholder will have valid and unencumbered title to the Offered
Securities to be delivered by the Selling Stockholder on such Closing
Date and full right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver the Offered Securities to be
delivered by the Selling Stockholder on such Closing Date hereunder;
and upon the delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by the
Selling Stockholder on such Closing Date.
(ii) (A) On the Effective Date of each Registration
Statement, each Registration Statement conformed in all respects to the
requirements of the Act and the 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 (B) on the date of this Agreement
each Registration Statement conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b), each Registration Statement and the
Prospectus will conform, in all respects to the requirements of the Act
and the Rules and Regulations, and none of such documents includes, or
will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The two
preceding sentences apply only to the extent that any statements in or
omissions from a Registration Statement or the Prospectus are based
upon written information furnished to the Company by the Selling
Stockholder specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling Stockholder
and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or
other like payment.
(iv) The Selling Stockholder on the date hereof possesses
and will possess on each Closing Date hereinafter mentioned adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies, including without limitation the Insurance
Department of the Commonwealth of Pennsylvania and all other state
insurance departments having jurisdiction over the Selling Stockholder,
necessary to enter into this Agreement and to sell, assign, transfer
and deliver the Offered Securities to be delivered by the Selling
Stockholder on such Closing Date hereunder.
(v) The execution, delivery and performance of this
Agreement and the Custody Agreement of even date herewith (the "Custody
Agreement"), between the Selling Stockholder, the Company and EquiServe
Trust Company, N.A., as custodian, relating to the custody of the
Offered Securities and certain other matters, by the Selling
Stockholder, the compliance by the Selling Stockholder with all the
provisions hereof and thereof and the consummation by the Selling
Stockholder of the transactions contemplated in this Agreement and in
the Custody Agreement will not: (A) require any consent, approval,
authorization or other order of, or
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qualification with, any court or governmental body or agency (except
(1) such as may be required under the insurance securities laws or the
securities or Blue Sky laws of the various jurisdictions, (2) the
approval of the Insurance Department of the Commonwealth of
Pennsylvania relating to the sale of the Offered Securities by the
Selling Stockholder (the "PID Letter"), and (3) such as have already
been obtained); (B) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of
the Selling Stockholder, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which the Selling Stockholder
is a party or by which the Selling Stockholder or its property is
bound; (C) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Selling Stockholder or its
property; except, in the case of clauses (B) and (C), to the extent
that any such conflict with, breach, violation, default, suspension,
termination or revocation would not, individually or in the aggregate,
have a Material Adverse Effect on the business, prospects, financial
condition or results of operations of the Selling Stockholder.
(vi) The Selling Stockholder will cause the opinions
described in Sections 6(f) and 6(g) to be addressed to the Company.
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 Selling Stockholder
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Selling Stockholder, at a purchase price of
$34.335 per share, the respective numbers of Firm Securities set forth opposite
the names of the Underwriters in Schedule A hereto.
The Selling Stockholder will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to Credit Suisse First Boston
Corporation ("CSFBC") drawn to the order of Reliance Insurance Company at the
office of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000 (the "Designated Office"), at 9:30 A.M., New York time, on
February 22, 2001, or at such other time not later than seven full business days
thereafter as CSFBC and the Selling Stockholder determine, such time being
herein referred to as the "First Closing Date". For purposes of Rule 15c6-1
under the Exchange Act, 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 and
Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") request and will be made
available for checking and packaging at the Designated Office at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from the Representatives given to the
Company and the Selling Stockholder 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 Selling Stockholder 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 Firm Securities set
forth opposite such Underwriter's name bears to the total number of Firm
Securities (subject to adjustment by the Representatives 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
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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 the Representatives to the Selling Stockholder.
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 the
Representatives but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The Selling
Stockholder will deliver the Optional Securities being purchased on each
Optional Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price in Federal (same day) funds
by official bank check or checks or wire transfer to an account at a bank
acceptable to the Representatives drawn to the order of Reliance Insurance
Company, at the Designated Office. 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 the Representatives request
upon reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the Designated Office 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 Selling Stockholder and
the Underwriters. (a) The Company agrees with the several Underwriters and the
Selling Stockholder that:
(i) The Company will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) not later
than the second business day following the execution and delivery of
this Agreement. The Company will advise the Representatives promptly of
any such filing pursuant to Rule 424(b).
(ii) The Company will advise CSFBC promptly of any
proposal to amend or supplement either Registration Statement as filed
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent, and the Company will also advise CSFBC
promptly of the effectiveness of any amendment or supplementation of
either Registration Statement or the Prospectus and of the institution
by the Commission of any stop order proceedings in respect of a
Registration Statement 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.
(iii) 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 will promptly notify the Representatives 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
the Representatives' 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.
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(iv) 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 date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date hereof, which will satisfy the provisions of Section 11(a)
of the Act. The Company will furnish to the Representatives copies of
each Registration Statement, each related preliminary prospectus, and,
so long as a prospectus relating to the Offered Securities is required
to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as the
Representatives reasonably request. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the execution and delivery of this Agreement. All other such
documents shall be so furnished as soon as available.
(v) The Company will pay the following expenses incident
to the performance of its obligations under this Agreement: (A) any
filing fees and other expenses (other than fees and disbursements of
counsel to the Selling Stockholder and the Underwriters) incurred in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as the Representatives designate and the
printing of memoranda relating thereto, (B) any applicable filing fee
incident to the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, (C) expenses incurred in
printing and distributing the Prospectus, any preliminary prospectus or
preliminary prospectus supplement or any amendments or supplements to
the Prospectus to the Underwriters, (D) the fees and disbursements of
the Company's counsel and its independent public accountants, and (E)
all other expenses related to the performance of the Company's
obligations under this Agreement and the transactions contemplated
hereby.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and mutually agree and will continue such
qualifications in effect so long as required for the distribution.
(vii) 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 (A) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed
to stockholders, and (B) from time to time, such other information
concerning the Company as the Representatives may reasonably request.
(viii) 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, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representatives. Notwithstanding the foregoing,
during such period (A) the Company may grant stock options and make
stock awards pursuant to the Company's existing stock option and other
employee benefit plans, and (B) the Company may issue shares of Common
Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof.
(b) The Selling Stockholder agrees with the several Underwriters
and the Company that:
9
(i) The Selling Stockholder will pay: (A) the fees and
disbursements of its counsel; (B) the travel, lodging, food and other
expenses incurred in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities ("Roadshow Expenses"),
up to a maximum of $75,000; (C) any transfer taxes on the sale of the
Offered Securities to the Underwriters; and (D) all other expenses
related to the performance of the Selling Stockholder's obligations
under this Agreement and the transactions contemplated hereby.
(ii) The Selling Stockholder agrees to deliver to CSFBC
(attention: Transactions Advisory Group) and Xxxxxx Xxxxxxx on or prior
to the First Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof).
(iii) The Selling Stockholder agrees, for a period of 90
days after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, without the prior written consent of the Representatives.
(c) The Representatives agree with the Company and the Selling
Stockholder that the Representatives will pay the Roadshow Expenses in excess of
$75,000.
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 and the Selling
Stockholder herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholder of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter,
dated the date of delivery thereof (which shall be on or prior to the
date of this Agreement) of Ernst & Young 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 schedules, if any, and the notes thereto, audited by them
and incorporated by reference in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange 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 the unaudited financial statements
incorporated by reference in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above (with respect only to clause (A) below), a
reading of minutes of specified meetings of the shareholders,
board of directors and executive committees of the Company and
certain of its subsidiaries, a reading of the latest available
interim financial statements of the Company,
10
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
incorporated by reference in the Registration
Statements do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the Exchange Act and the related
published rules and regulations thereunder or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, there was any
change in the capital stock or any increase in notes
payable of the Company and its consolidated
subsidiaries or any change in consolidated total
assets or consolidated shareholders' equity, as
compared with amounts shown on the latest balance
sheet incorporated by reference in the Registration
Statements; or
(C) for the period from the closing
date of the latest income statement incorporated by
reference in the Registration Statements 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 operating premiums or
total or per share amounts of consolidated operating
revenues or net income;
(D) at a specified date not more than
three days prior to the date thereof, there was any
change in capital stock or notes payable of the
Company or, at the end of the month immediately
preceding, any decrease in consolidated assets or
shareholders' equity as compared with amounts shown
on the latest balance sheet incorporated by reference
in the Registration Statements; or
(E) for the period from the closing
date of the latest available income statement to the
end of the month immediately preceding, there was any
decrease, as compared with the corresponding period
in the preceding year, in consolidated operating
revenues or consolidated net income.
except in all cases set forth in clauses (B), (C), (D) and (E)
above for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified 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 financial
statements incorporated by reference in the Registration
Statements or 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.
11
For purposes of this subsection, "Prospectus" shall mean the
prospectuses included in the Registration Statements, including the
prospectus supplement relating to the sale of the Offered Securities.
All financial statements and schedules, if any, included in material
incorporated by reference into the Prospectus shall be deemed included
in the Registration Statements 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. Prior to such Closing Date, no stop order
suspending the effectiveness of either Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholder, the Company
or the Representatives, 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 or its subsidiaries 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 suspension or limitation of trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market, or
any setting of minimum prices for trading on such exchange or the
Nasdaq National Market, or any suspension of trading of any securities
of the Company on any exchange 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 such Closing Date, of Williams, Mullen, Xxxxx & Xxxxxxx, P.C.,
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 Commonwealth of Virginia, with corporate power and
authority 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 where the failure to be so qualified
would not, individually or in the aggregate, have a Material
Adverse Effect.
(ii) As of such Closing Date, each Principal
Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation with the corporate power and
authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties.
(iii) As of such Closing Date, each Principal
Subsidiary is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing
of property requires such
12
qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a Material
Adverse Effect.
(iv) (A) All of the outstanding shares of capital
stock of Lawyers Title Company and LandAmerica OneStop, Inc.,
have been duly authorized and validly issued and are fully
paid and nonassessable, and are owned by the Company, directly
or indirectly through one or more subsidiaries, and at the
Closing Date will be owned directly or through subsidiaries by
the Company, and to the knowledge of such counsel, free and
clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature (except restrictions on
transfer of securities imposed by applicable state and federal
securities laws and state insurance holding company laws).
(B) To such counsel's knowledge, all of the
outstanding shares of capital stock of Lawyers Title Insurance
Corporation have been duly authorized and validly issued and
are fully paid and nonassessable. Such shares are owned by the
Company, directly or indirectly through one or more
subsidiaries, and at the Closing Date will be owned directly
or through subsidiaries by the Company, and to such counsel's
knowledge, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature (except
restrictions on transfer of securities imposed by applicable
state and federal securities laws and state insurance holding
company laws).
(C) To such counsel's knowledge, all of the
outstanding shares of capital stock of Commonwealth Land Title
Insurance Company, Transnation Title Insurance Company and
Commonwealth Land Title Company, have been duly authorized and
validly issued and are fully paid and nonassessable, and are
owned by the Company, directly or indirectly through one or
more subsidiaries, and at the Closing Date will be owned
directly or through subsidiaries by the Company free and clear
of any security interest, claim, lien, encumbrance or adverse
interest of any nature (except restrictions on transfer of
securities imposed by applicable state and federal securities
laws and state insurance holding company laws).
(v) To such counsel's knowledge, none of the Company or
any of the Principal Subsidiaries is in violation of its respective
charter or bylaws and none of the Company or any of the Principal
Subsidiaries is in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and the Principal Subsidiaries, taken as a
whole, to which the Company or any of the Principal Subsidiaries is a
party or by which the Company or any of the Principal Subsidiaries or
their respective properties is bound.
(vi) The Offered Securities delivered on such Closing Date
and all other outstanding shares of the Common Stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(vii) Except as described in the Prospectus (or in the
documents incorporated therein by reference), there are no outstanding:
(A) securities or obligations of the
13
Company convertible or exchangeable for any capital stock of the
Company; (B) warrants, rights or options to subscribe for or purchase
from the Company any such capital stock or any such convertible or
exchangeable securities or obligations; or (C) obligations for the
Company to issue such shares, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or obligations.
(viii) Except for the Registration Rights Agreement, 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 Statements or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(ix) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act.
(x) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except as disclosed in the Prospectus and
except such as have been obtained and made under the Act and such as
may be required under state securities laws (including insurance
securities laws).
(xi) The execution, delivery and performance of this
Agreement by the Company and its consummation of the transactions
herein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (A) any
statute, rule, regulation or order of any governmental agency or body
or court having jurisdiction over the Company or any Principal
Subsidiary or any of their properties, (B) any agreement or instrument
to which the Company or any such Principal Subsidiary is a party or by
which the Company or any such Principal Subsidiary is bound or to which
any of the properties of the Company or any such Principal Subsidiary
is subject, or (C) the charter or by-laws of the Company or any such
Principal Subsidiary, except, with respect to (A) and (B), to the
extent that any such breach, violation or default would not,
individually or in the aggregate, have a Material Adverse Effect.
(xii) The Registration Statements were declared effective
under the Act as of the date and time specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the initial registration
statement, and, to such counsel's knowledge, no stop order suspending
the effectiveness of a Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or
are pending or have been overtly threatened under the Act, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the requirements of
the Act and the Rules and Regulations.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
14
(xiv) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus.
(xv) The statements under the captions "The Company,"
"Description of Capital Stock," "Shares Eligible for Future Sale" and
"Underwriting" in the Prospectus, insofar as such statements constitute
a summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings.
(xvi) After due inquiry, such counsel does not know of any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not so
described or filed as required, and the descriptions of the terms of
any such contracts, documents, statutes or regulations contained or
incorporated by reference in the Registration Statement or the
Prospectus are correct in all material respects.
(xvii) (A) Each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (except for financial
statements and other financial data included therein as to which no
opinion need be expressed), at the time it was filed or last amended,
complied when so filed or amended as to form in all material respects
with the requirements of the Exchange Act and (B) the Registration
Statements and the Prospectus and any supplement or amendment thereto
(except for the financial statements and other financial data included
therein as to which no opinion need be expressed) comply as to form in
all material respects with the requirements of the Act.
Such counsel shall also state that such counsel has participated in the
preparation of the Registration Statements and the Prospectus, including review
of the contents thereof and conferences with officers and other representatives
of the Company, representatives of the Selling Stockholder, representatives of
the independent accountants of the Company, and representatives of the
Underwriters and their counsel at which the contents of the Registration
Statements and the Prospectus were discussed, and although such counsel has not
independently verified and is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statements or the Prospectus (except as specified
elsewhere in such counsel's opinion), on the basis of the foregoing (relying as
to materiality where appropriate upon the opinions of officers of the Company),
nothing has come to such counsel's attention that caused them to believe that
the Registration Statements, at the time each became effective, and on the date
of this Agreement, 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, as of its date and as
of the date of such opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (except in each case as
to the financial statements and other financial data included therein as to
which no opinion need be expressed).
The opinion of Williams, Mullen, Xxxxx & Xxxxxxx, P.C. described in
Section 6(d) shall be rendered to you and the Selling Stockholder at the request
of the Company and shall so state therein.
15
(e) The Representatives shall have received an opinion
(satisfactory to you and counsel for the Underwriters), dated such Closing Date,
of Xxxxxxx X. Xxxxxx, III, Esq., Senior Vice President and General Counsel of
the Company, to the effect that:
(i) To such counsel's knowledge, after due inquiry, the
execution, delivery and performance of the Agreement by the Company,
the compliance by the Company with all the provisions thereof and the
consummation by the Company of the transactions contemplated in the
Agreement will not result in the suspension, termination or revocation
of any Authorization or Insurance License of the Company or any of the
Principal Subsidiaries or any other impairment of the rights of the
holder of any such Authorization or Insurance License.
(ii) Such counsel does not know of any legal or
governmental actions, suits or proceedings pending or threatened to
which the Company or any of the Principal Subsidiaries is or could be a
party or to which any of their respective property is or could be
subject that are required to be described in the Registration
Statements or the Prospectus and are not so described.
(iii) To such counsel's knowledge, after due inquiry, the
Company and the Principal Subsidiaries possess adequate Authorizations,
including Insurance Licenses, 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 Authorization
that, if determined adversely to the Company or any of the Principal
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(iv) To such counsel's knowledge, the Company and the
Principal Subsidiaries own or possess, or can acquire on reasonable
terms, all intellectual property rights currently employed by them in
connection with the business now operated by them except where the
failure to own or possess or otherwise be able to acquire such
intellectual property rights would not, individually or in the
aggregate, have a Material Adverse Effect; and, to such counsel's
knowledge, none of the Company or any of the Principal Subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of such intellectual property rights
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
The opinion of Xxxxxxx X. Xxxxxx, Esq., described in Section 6(e) shall
be rendered to you and to the Selling Stockholder at the request of the Company
and shall so state therein.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Selling Stockholder, to the effect that:
(i) The execution, delivery, and performance of this
Agreement and the Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby will not conflict with or result in a
violation of any of the terms or provisions of any statute or any
order, rule, or regulation known to such counsel of any court or
governmental agency or body of the State of New York or the United
States having jurisdiction over the Selling Stockholder or any of its
properties except to the extent that any such conflict or violation
would not, individually or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Selling Stockholder.
16
(ii) Except for the registration of the Offered Securities
under the Act, the listing of the Offered Securities with the New York
Stock Exchange and such consents, approvals, authorizations,
registrations, or qualifications as may be required under the Act or
the Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Offered Securities
by the Underwriters, no consent, approval, authorization or order of,
or filing or registration with, any court or governmental agency or
body of the State of New York or the United States is required for the
execution, delivery and performance of this Agreement and the Custody
Agreement by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby.
(iii) Assuming that the Underwriters purchase the Offered
Securities to be delivered at the Closing Date for value and without
notice of any adverse claim as such term is used in Section 8-105 of
the Uniform Commercial Code as currently in effect in the State of New
York: (A) the delivery of certificates representing any Offered
Securities either registered in the name of the Underwriters or
effectively endorsed to the Underwriters or in blank will pass to the
Underwriters all rights that the Selling Stockholder has in such
Offered Securities, free and clear of all adverse claims, and (B) upon
the receipt by the Underwriters of a securities entitlement in any of
the Offered Securities as indicated by a book entry to the account of
the Underwriters on the books of The Depository Trust Company, an
action based on an adverse claim to such Offered Securities may not be
asserted against the Underwriters.
(iv) The Selling Stockholder is not and, on the Closing
Date will not be, required to register as an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
The opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx described in
Section 6(f) shall be rendered to you and to the Company at the request of the
Selling Stockholder and shall so state therein.
(g) The Representative shall have received an opinion,
dated such Closing Date, of Xxxx Xxxxxxx, Esq., Associate General
Counsel of the Selling Stockholder, to the effect that:
(i) The execution, delivery and performance of
this Agreement and the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under (A) any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body of the
Commonwealth of Pennsylvania having jurisdiction over the
Selling Stockholder or any of its properties, (B) any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the properties of the Selling
Stockholder is subject, (C) the charter or by-laws of the
Selling Stockholder; except, in the case of clauses (A) and
(B), to the extent that any such conflict or violation would
not, individually or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Selling Stockholder.
(ii) Except for the registration of the Offered
Securities under the Act, the listing of the Offered
Securities with the New York Stock Exchange and such consents,
17
approvals, authorizations, registrations, or qualifications as
may be required under the Act or the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Offered Securities by the
Underwriters, no consent, approval, authorization or order of,
or filing or registration with, any court or governmental
agency or body of the Commonwealth of Pennsylvania or the
United States is required for the execution, delivery and
performance of this Agreement and the Custody Agreement by the
Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and
thereby, except for the PID Letter, which has already been
obtained and is in full force and effect.
(iii) The Selling Stockholder is, and at the
Closing Date will be, duly incorporated and validly existing
as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania with the corporate power and
authority to consummate the transactions contemplated by this
Agreement.
(iv) Each of this Agreement and the Custody
Agreement has been duly authorized, executed and delivered by
the Selling Stockholder.
The opinion of Xxxx Xxxxxxx, Esq., described in Section 6(g) shall be
rendered to you and to the Company at the request of the Selling Stockholder and
shall so state therein.
(h) 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 Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholder 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 the incorporation of the Company
and all other matters governed by Virginia law upon the opinions of Williams,
Mullen, Xxxxx & Xxxxxxx, P.C. and Xxxxxxx X. Xxxxxx, III, Esq. referred to
above.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers shall
state that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or overtly threatened by the Commission; and, subsequent to the
respective dates 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 the Prospectus or as
described in such certificate. The President, Vice President and financial or
accounting officer delivering such certificate may rely upon the best of his or
her knowledge as to proceedings threatened.
(j) The Representatives shall have received a letter, dated such
Closing Date, of Ernst & Young 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.
18
The Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. The Representatives may in their
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
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 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 below as such in subsection (c).
(b) The Selling Stockholder 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 any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling Stockholder
shall only be subject to such liability to the extent that the untrue statement
or alleged untrue statement or omission or alleged omission is based upon
written information provided by the Selling Stockholder, it being understood and
agreed that the only information furnished by the Selling Stockholder consists
of the information in the first paragraph under the caption "The Selling
Shareholder" in the prospectus supplement constituting part of the Prospectus,
and the first paragraph under the caption "The Selling Shareholder" in each of
the base prospectuses constituting part of the Prospectus or contained in a
representation or warranty given by the Selling Stockholder in this Agreement.
(c) 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, and the
Selling Stockholder, its directors and officers and each person, if any, who
controls the Selling Stockholder within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
the Company or the Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
19
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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 an indemnified party 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 under the caption "Underwriting", the information contained in the
first paragraph and the following table under the caption "Underwriting" and the
information contained in the tenth paragraph under the caption "Underwriting."
(d) 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 an indemnifying party
under subsection (a), (b) or (c) 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), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an 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
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 (which
consent shall not be unreasonably withheld, delayed or conditioned), 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.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) 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), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholder 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 and
the Selling Stockholder 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 and the Selling
Stockholder 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 Selling Stockholder bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be
20
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, the Selling
Stockholder 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 (e) 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 (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten 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
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder
under this Section shall be in addition to any liability which the Company and
the Selling Stockholder 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 a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
(g) In addition to the agreements among the parties relating to
indemnification and contribution set forth in this Section 7, the parties
acknowledge that the Selling Stockholder and the Company have entered into
certain agreements relating to indemnification and contribution obligations as
between themselves contained within the Registration Rights Agreement; provided,
however, that nothing contained within the Registration Rights Agreement shall
affect the rights of any indemnified party hereunder to obtain indemnification
or contribution in accordance with the terms herewith.
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,
the Representatives may make arrangements satisfactory to the Selling
Stockholder for the purchase of such Offered Securities by other persons,
including any of the Underwriters, 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 the Representatives and the Selling Stockholder
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
21
Underwriter, the Company or the Selling Stockholder, 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 Selling Stockholder, 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 Selling
Stockholder, 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 and the Selling Stockholder shall
remain responsible for the respective expenses to be paid or reimbursed by them
pursuant to Section 5 and the respective obligations of the Company, the Selling
Stockholder, 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 due to the occurrence of any event specified in clause (i) 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. 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 (i), (ii), (iii) or
(iv) of Section 6(c), the Selling Stockholder 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 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Transactions Advisory
Group and Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at LandAmerica Financial Group, Inc., 000 Xxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx, III, Esq., or, if sent to the
Selling Stockholder, will be mailed, delivered or telegraphed and confirmed to
Reliance Insurance Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx
Xxxxxx, Esq.; 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.
22
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC and Xxxxxx Xxxxxxx 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, construed
and enforced in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.
The Company and the Selling Stockholder hereby submit 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.
23
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 among the
Selling Stockholder, the Company and the several Underwriters in accordance with
its terms.
Very truly yours,
LANDAMERICA FINANCIAL GROUP, INC.
By /s/
..................................
Name:
Title:
RELIANCE INSURANCE COMPANY
By /s/
..................................
Name:
Title:
24
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
BEAR, XXXXXXX & CO. INC.
Acting on behalf of themselves and
as the Representatives of the
several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/
.......................................
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/
.......................................
Name:
Title:
25
SCHEDULE A
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation............... 3,277,687
Xxxxxx Xxxxxxx & Co. Incorporated.................... 3,277,687
Bear, Xxxxxxx & Co. Inc.............................. 936,482
X.X. Xxxxxxx & Sons, Inc............................. 24,000
Banc of America Securities LLC....................... 24,000
First Union Securities, Inc.......................... 24,000
Invemed Associates LLC............................... 24,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated... 24,000
Prudential Securities Incorporated................... 24,000
U.S. Bancorp Xxxxx Xxxxxxx Inc....................... 24,000
Xxxxxxxxx & Company LLC.............................. 12,000
Xxxxxx, Xxxxx Xxxxx, Incorporated.................... 12,000
Xxx-Xxxx, Xxxxxx Inc................................. 12,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc......................... 12,000
----------
Total....................................... 7,707,856
==========
26
SCHEDULE B
PRINCIPAL SUBSIDIARIES OF LANDAMERICA FINANCIAL GROUP, INC.
Lawyers Title Insurance Corporation
Commonwealth Land Title Insurance Company
Transnation Title Insurance Company
Commonwealth Land Title Company
Lawyers Title Company
LandAmerica OneStop, Inc.
27
