Exhibit 1.1
THE PHOENIX COMPANIES, INC.
6,000,000 EQUITY UNITS
(INITIALLY CONSISTING OF 6,000,000 CORPORATE UNITS)
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UNDERWRITING AGREEMENT
GENERAL TERMS AND CONDITIONS
December 16, 2002
To the Underwriters
named in Schedule I to the Pricing Agreement
attached hereto as Annex I.
Ladies and Gentlemen:
From time to time The Phoenix Companies, Inc., a Delaware corporation (the
"COMPANY"), proposes to enter into one or more Pricing Agreements in the form of
Annex I hereto (each, a "PRICING AGREEMENT") which incorporates by reference
these Underwriting Agreement General Terms and Conditions (this "UNDERWRITING
AGREEMENT"), with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to issue and sell to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "UNDERWRITERS" with respect to such
Pricing Agreement and the securities specified therein) certain Corporate Units
(as defined below) of the Company specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "FIRM SECURITIES"). If
specified in such Pricing Agreement, the Company may grant to the Underwriters
the right to purchase at their election an additional number of Corporate Units,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities, if any,
which the Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively called the "DESIGNATED SECURITIES".
Each "CORPORATE UNIT" is a unit with a stated amount of $25 (the "STATED
AMOUNT") comprised of (a) a stock purchase contract (a "PURCHASE CONTRACT", and
collectively with each other Purchase Contract, the "PURCHASE CONTRACTS") under
which (i) the holder of a Corporate Unit (a "HOLDER," and collectively with
other Holders of Corporate Units, the "HOLDERS") will purchase from the Company
on February 16, 2006 (the "SETTLEMENT DATE"), for $25 per Corporate Unit, a
number of shares of common stock, par value $0.01 per share, of the
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Company (the "COMMON STOCK"), as set forth in the Purchase Contract Agreement
(as defined below) together with the rights (the "RIGHTS") evidenced by such
Common Stock to the extent provided in the Stockholder Rights Agreement dated as
of June 19, 2001 between the Company and EquiServe Trust Company, N.A., as
rights agent (unless such Rights generally shall have been redeemed or
terminated previously) and (ii) the Company will pay quarterly contract
adjustment payments at the rate of 0.65% of the Stated Amount per year, and (b)
$25 principal amount of the Company's Notes due February 16, 2008 (a "NOTE" and
collectively with each other Note, the "NOTES").
In accordance with the terms of a Purchase Contract Agreement (the
"PURCHASE CONTRACT AGREEMENT") to be dated as of the Time of Delivery (as
defined below) between the Company and SunTrust Bank, as Purchase Contract Agent
(the "PURCHASE CONTRACT AGENT"), pursuant to which the Purchase Contracts will
be issued, the holders of the Corporate Units will pledge all of their
respective title, right and interest in and to the Notes constituting part of
the Corporate Units to SunTrust Bank, as Collateral Agent (the "COLLATERAL
AGENT"), pursuant to a Pledge Agreement (the "PLEDGE AGREEMENT") to be dated as
of the Time of Delivery among the Company, the Purchase Contract Agent and the
Collateral Agent, to secure the Holders' obligations under the Purchase
Contracts. The Purchase Contract Agreement and the Pledge Agreement are herein
collectively referred to as the "EQUITY UNIT AGREEMENTS."
The Notes will be issued pursuant to the Subordinated Indenture (the "BASE
INDENTURE"), to be dated the First Time of Delivery (as defined below) between
the Company and SunTrust Bank, as indenture trustee (the "TRUSTEE"), as
supplemented by the First Supplemental Indenture (the "FIRST SUPPLEMENTAL
INDENTURE") to be dated as of the Time of Delivery between the Company and the
Trustee. The Base Indenture, as so amended or supplemented, is herein referred
to as the "INDENTURE."
Pursuant to a Remarketing Agreement (the "REMARKETING AGREEMENT") to be
dated as of the Time of Delivery among the Company, the Purchase Contract Agent
and the Remarketing Agent (as defined in the Remarketing Agreement, the
"REMARKETING AGENT"), the Remarketing Agent, will remarket the Notes, subject to
the terms and conditions set forth therein.
The terms and rights of the Corporate Units shall be as specified in the
Pricing Agreement.
A registration statement on Form S-3 (File No. 333-101629) in respect of
the Designated Securities has been filed with the Securities and Exchange
Commission (the "COMMISSION"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "ACT"), relating to the registration of
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certain securities of the Company, including the Corporate Units, the Purchase
Contracts, the Notes and the Common Stock (the "SHELF SECURITIES"), to be sold
from time to time by the Company. The registration statement as amended at the
time it became effective, including information if any deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, but excluding such Forms T-1 as are attached as exhibits thereto, is
hereinafter referred to as the "REGISTRATION STATEMENT," and the prospectus
included therein relating to the Shelf Securities at the time the Registration
Statement became effective is hereinafter referred to as the "BASIC PROSPECTUS."
The Basic Prospectus, as supplemented by the prospectus supplement dated
December 16, 2002 (the "PROSPECTUS SUPPLEMENT"), relating to the Corporate
Units, in the form first used to confirm sales of the Corporate Units is
hereinafter referred to as the "PROSPECTUS." If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Underwriting Agreement to the
Registration Statement, the Basic Prospectus, the preliminary form of Prospectus
relating to the Corporate Units (a "PRELIMINARY PROSPECTUS") filed with the
Commission or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this Agreement or
the date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be, and any reference to "AMEND," "AMENDMENT" or "SUPPLEMENT"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Corporate Units in the Pricing
Agreement relating thereto will act as representatives (the "REPRESENTATIVES").
The term "REPRESENTATIVES" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who act
without any firm being designated as its or their representatives. The
Underwriting Agreement shall not be construed as an obligation of the Company to
sell any of the Corporate Units or as an obligation of the Underwriters to
purchase any of the Corporate Units. The obligation of the Company to issue and
sell any of the Corporate Units and the obligation of any of the Underwriters to
purchase any of the Corporate Units shall be evidenced by the Pricing Agreement
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with respect to the Designated Securities specified therein. Each Pricing
Agreement shall specify the aggregate number of the Designated Securities, the
initial public offering price of such Designated Securities or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters, the number of
such Designated Securities to be purchased by each Underwriter and the
commission, if any, payable to such Underwriters with respect thereto and shall
set forth the date, time and manner of delivery of, and payment for, the Firm
Securities and Optional Securities, if any. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under any Pricing Agreement shall be several and
not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the Act. Each of the Registration
Statement and any Rule 462(b) Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued under the Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
threatened by the Commission.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, the Registration Statement, the Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT") and did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
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Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus.
Each Preliminary Prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act.
(b) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective and at the time the
Prospectus was issued, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public accountants
as required by the Act.
(d) Financial Statements. The consolidated financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present fairly
the financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, provided that, such
financial statements relating to interim periods have been prepared in
accordance with GAAP for interim periods and accordingly do not include all
of the information and footnotes required by GAAP for complete financial
statements. The supporting schedules, if any, included in the Registration
Statement present fairly in accordance with GAAP the information required
to be stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
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the audited financial statements included or incorporated in the
Registration Statement.
The statutory financial statements of the Company's subsidiaries that
are insurance companies (the "INSURANCE SUBSIDIARIES"), from which certain
ratios and other statistical data included or incorporated by reference in
the Registration Statement have been derived have for each relevant period
been prepared in conformity with statutory accounting practices required or
permitted 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.
The data included or incorporated by reference in the Registration
Statement and the Prospectus related to assets under management by the
Company, Phoenix Life Insurance Company ("PHOENIX LIFE"), Phoenix Life's
affiliates, Phoenix Investment Partners, Ltd. ("PXP") and PXP's asset
managers are correct in all material respects.
(e) Internal Accounting Controls. The Company and each of 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 GAAP and statutory accounting practices, as
the case may be, 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.
(f) Good Standing of the Company. The Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the State of Delaware, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole (collectively, the "PHOENIX ENTERPRISE").
(g) Good Standing of Subsidiaries. Each subsidiary of the Company
listed on Annex V hereto (each a "SIGNIFICANT SUBSIDIARY" and
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collectively, the "SIGNIFICANT SUBSIDIARIES") has been duly incorporated or
organized, as the case may be, is validly existing as a corporation, stock
life insurance company or limited liability company, as the case may be, in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be. Each Significant Subsidiary has the
power, corporate or otherwise, and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Phoenix Enterprise; all of the issued shares of capital stock of
each Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company in the percentages set forth on Annex V hereto,
free and clear of all liens, encumbrances, equitable claims or other
adverse claims. Each subsidiary of the Company which meets the definition
of significant subsidiary contained in Rule 1-02 of Regulation S-X is
included on Annex V.
(h) No Material Adverse Change in Business. There has not occurred
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Phoenix Enterprise from that
set forth in the Registration Statement and the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement). Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
otherwise described in the Registration Statement or the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), (i) the Company and the Significant Subsidiaries have
not incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction not in the ordinary course of
business; (ii) none of the Significant Subsidiaries has purchased any of
its outstanding capital stock, and neither the Company nor any of the
Significant Subsidiaries has declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock other than ordinary and
customary dividends; and (iii) there has not been any material change in
(A) the short-term debt or long-term debt of the Company and the
Significant Subsidiaries considered as a whole or (B) the capital stock of
the Company and the Significant Subsidiaries.
(i) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except for (i)
subsequent issuances, if any, pursuant to this Agreement, pursuant to
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reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus and (ii) subsequent repurchases pursuant to
previously announced share repurchase plans). The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company.
(j) Authorization of Agreement. This Agreement and the Pricing
Agreement have been duly authorized, executed and delivered by the Company.
(k) Authorization and Description of Securities. The Designated
Securities to be issued and sold by the Company to the Underwriters
pursuant to the relevant Pricing Agreement have been duly and validly
authorized, and when executed and authenticated in accordance with the
provisions of the Purchase Contract Agreement and the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement and the Pricing Agreement, will be entitled to the
benefits of the Purchase Contract Agreement in the case of the Purchase
Contracts and the Indenture in the case of the Notes and will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency, or other similar laws
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law); provided, however, that upon the occurrence of a
Termination Event, the Bankruptcy Code (11 U.S.C. xx.xx. 101-1330, as
amended) should not substantively limit the provisions of Sections 3.15 and
5.06 of the Purchase Contract Agreement or Section 5.04 of the Pledge
Agreement that require termination of the Purchase Contracts and release of
the Collateral Agent's security interest in (a) the Notes, (b) the Treasury
Securities or (c) the applicable ownership interest of the Treasury
Portfolio, as applicable, and the transfer of such securities to the
Purchase Contract Agent, for the benefit of the Holders of the Equity Units
(as defined in the Prospectus); provided further, however, the Company
makes no representation as to whether a court exercising bankruptcy
jurisdiction might issue a temporary restraining order or provide other
interim relief that would delay the exercise of such termination right for
a period of time pending final adjudication of any challenge to the
exercise of such right during a bankruptcy case involving the Company; and
the Designated Securities will conform in all material
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respects to the descriptions thereof in the Prospectus.
(l) Absence of Conflicts. The execution and delivery by the Company
of, and the performance by the Company of its obligations under the
Corporate Units, the Purchase Contracts, the Notes, the Indenture, the
Purchase Contract Agreement, the Pledge Agreement, the Remarketing
Agreement, this Underwriting Agreement and the Pricing Agreement
(collectively the "TRANSACTION DOCUMENTS") will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
of the Company or Phoenix Life or any agreement or other instrument binding
upon the Company or any of the Significant Subsidiaries that is material to
the Phoenix Enterprise or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of the
Significant Subsidiaries.
(m) Absence of Labor Dispute. No material labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, which may be reasonably expected to
result in a material adverse effect on the Phoenix Enterprise.
(n) Absence of Proceedings. There are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or 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 described or filed as required.
(o) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or have the ability to acquire, all patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks
and trade names currently employed by them in connection with the business
now operated by them, except where the failure to own, possess or have the
ability to acquire such patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names would not, singly or
in the aggregate, have a material adverse effect on the Phoenix Enterprise,
and none of the Company nor its subsidiaries has received any notice of
infringement of or conflict with asserted rights of
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others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the Phoenix Enterprise.
(p) Absence of Further Requirements. No consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the issuance and sale of the Corporate Units or the
performance by the Company of its obligations under the Transaction
Documents, except such as have been obtained under the Federal securities
laws or state insurance laws or may be required by the securities or Blue
Sky laws of the various States or any foreign jurisdictions in connection
with the offer and sale of the Corporate Units.
(q) Possession of Licenses and Permits. Each of the Company and its
subsidiaries has all necessary consents, licenses, authorizations,
approvals, exemptions, orders, certificates and permits (collectively, the
"CONSENTS") of and from, and has made all filings and declarations
(collectively, the "FILINGS") with, all insurance regulatory authorities,
all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, necessary
to own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except where the
failure to have such Consents or to make such Filings would not,
individually or in the aggregate, have a material adverse effect on the
Phoenix Enterprise; all such Consents and Filings are in full force and
effect, the Company and its subsidiaries are in compliance with such
Consents and neither the Company nor any of its subsidiaries has received
any notice of any inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation or
limitation of any such Consent or otherwise impose any limitation on the
conduct of the business of the Company or any of its subsidiaries, except
as set forth in the Prospectus or any such failure to be in full force and
effect, failure to be in compliance with, suspension, revocation or
limitation which would not, singly or in the aggregate, have a material
adverse effect on the Phoenix Enterprise; to the knowledge of the Company,
no insurance regulatory agency or body has issued any order or decree
impairing, restricting or prohibiting the payment of dividends by Phoenix
Life Insurance Company or any other Insurance Subsidiary to its parent
which would have individually or in the aggregate, a material adverse
effect on the Phoenix Enterprise; and each of the Company and each
subsidiary thereof that is required to be organized or licensed as an
insurance company in its jurisdiction of incorporation is in compliance
with, and conducts its businesses in conformity with, all applicable
insurance laws and regulations, except where the failure to so comply or
conform would not have a material adverse effect on the Phoenix Enterprise.
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(r) Title to Property. The Company and its subsidiaries have good and
valid title in fee simple to all real property and good and valid title to
all personal property owned by them which is material to, and used in the
conduct of, the business of the Phoenix Enterprise, in each case free and
clear of all liens, encumbrances and defects except (i) such as are
described in the Prospectus, (ii) leases entered into in the ordinary
course of business or (iii) such as do not materially affect the value of
such property and do not materially interfere with the use made and
currently proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings that are material to the
business of the Phoenix Enterprise held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as do not materially interfere with the use
made and proposed to be made of such property and buildings by the Company
and its subsidiaries, in each case except as described in the Prospectus.
(s) Investment Company Act. None of the Company or any of its
subsidiaries is, or upon the issuance and sale of the Corporate Units as
herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended (the "1940 ACT").
(t) Broker-Dealer Subsidiaries and Investment Advisor Subsidiaries.
Each subsidiary of the Company which is engaged in the business of acting
as a broker-dealer or an investment advisor (respectively, a "BROKER-DEALER
SUBSIDIARY" and "INVESTMENT ADVISOR SUBSIDIARY") is duly licensed or
registered as a broker-dealer or investment advisor, as the case may be, in
each jurisdiction where it is required to be so licensed or registered to
conduct its business, in each case, with such exceptions as would not have,
individually or in the aggregate, a material adverse effect on the Phoenix
Enterprise; each Broker-Dealer Subsidiary and each Investment Advisor
Subsidiary has all other necessary approvals of and from all applicable
regulatory authorities, including any self-regulatory organization, to
conduct its businesses, in each case with such exceptions, as would not
have, individually or in the aggregate, a material adverse effect on the
Phoenix Enterprise; except as otherwise provided in the Prospectus, none of
the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries has
received any notification from any applicable regulatory authority to the
effect that any additional approvals from such regulatory authority are
needed to be obtained by such subsidiary in any case where it could be
reasonably expected that (i) any of the Broker-Dealer Subsidiaries or
Investment Advisor Subsidiaries would in fact be required either to obtain
any such
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additional approvals or cease or otherwise limit engaging in certain
business; and (ii) the failure to have such approvals or such limitations
on business would have a material adverse effect on the Phoenix Enterprise;
and each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is
in compliance with the requirements of the broker-dealer and investment
advisor laws and regulations of each jurisdiction which are applicable to
such subsidiary, and has filed all notices, reports, documents or other
information required to be filed thereunder, in each case with such
exceptions as would not have, individually or in the aggregate, a material
adverse effect on the Phoenix Enterprise.
(u) Environmental Laws. The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, Federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses; and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Phoenix
Enterprise.
(v) Registration Rights. Other than with respect to the Company's
Directors Stock Plan, the Company's Stock Incentive Plan and any
tax-qualified defined contribution pension or savings plans, 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 or to require the Company to include such securities with the
Designated Securities registered pursuant to the Registration Statement.
(w) Purchase Contract Agreement and Pledge Agreement. The Purchase
Contract Agreement and the Pledge Agreement have each been duly authorized
by the Company, and, assuming due authorization thereof by the other
parties thereto, when duly executed and delivered in accordance with their
terms by the Company and the other parties thereto will each be, a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is
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considered in a proceeding at law or in equity); provided, however, that
upon the occurrence of a Termination Event (as defined in the Purchase
Contract), the Bankruptcy Code (11 U.S.C.ss.ss.101-1330, as amended) should
not substantively limit the provisions of Sections [3.15] and [5.06] of the
Purchase Contract Agreement or Section [5.04] of the Pledge Agreement that
require termination of the Purchase Contracts and release of the Collateral
Agent's security interest in (1) the Notes, (2) the Treasury Securities (as
defined in the Purchase Contract Agreement) or (3) the applicable ownership
interest of the Treasury Portfolio (as defined in the Purchase Contract
Agreement), as applicable, and the transfer of such securities to the
Purchase Contract Agent, for the benefit of the Holders of the Equity
Units; provided further, however, the Company makes no representation as to
whether a court exercising bankruptcy jurisdiction might issue a temporary
restraining order or provide other interim relief that would delay the
exercise of such termination right for a period of time pending final
adjudication of any challenge to the exercise of such right during a
bankruptcy case involving the Company. The Purchase Contract Agreement and
the Pledge Agreement will conform in all material respects to the
descriptions thereof in the Prospectus.
(x) The Remarketing Agreement. The Remarketing Agreement has been
duly authorized by the Company and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Remarketing Agreement
will conform in all material respects to the description thereof in the
Prospectus.
(y) Listing Application; Registration. As of the date hereof, the
Company has filed with the Commission a registration statement on Form 8-A
under the Exchange Act with respect to the Corporate Units and the shares
of Common Stock to be issued and sold by the Company pursuant to the
Purchase Contracts and the Company has applied to list the Corporate Units
on the New York Stock Exchange (the "EXCHANGE");
(z) Underlying Common Stock. (i) The shares of Common Stock to be
issued and sold by the Company pursuant to the Purchase Contracts have been
duly authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Purchase Contract Agreement, will be
validly issued, fully paid and non-assessable and will conform to the
description thereof in the Prospectus and (ii) the
13
Rights, if any, issuable upon satisfaction of Holders' obligations under
the Purchase Contracts have been duly authorized and, when and if issued in
accordance with the terms of the Purchase Contract Agreement and the
Stockholder Rights Agreement, will have been validly issued and will
conform to the description thereof in the Prospectus.
(aa) Indenture. The Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when the Base Indenture and
the First Supplemental Indenture are executed and delivered by the Company
and the Trustee (and assuming due authorization, execution and delivery of
the Base Indenture and First Supplemental Indenture by the Trustee), the
Indenture will constitute a valid and binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The
Indenture will conform in all material respects to the description thereof
in the Prospectus.
(bb) Notes. The Notes have been duly authorized by the Company, and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement and the Pricing Agreement, will constitute
valid and binding obligations of the Company, entitled to the benefits
provided by the Indenture, and enforceable against the Company in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity). The Notes will conform in all material
respects to the description thereof contained in the Prospectus.
(cc) Documents Required to Be Filed or Described. There are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described
as required.
(dd) Confirmation of Representations, Warranties and Agreements. The
Company hereby repeats and confirms as if set forth in full herein each of
the representations, warranties and agreements made by it in the Pledge
Agreement and agrees that such representations, warranties and agreements
are made hereby for the benefit of and may be
14
relied upon by the Underwriters and counsel to the Underwriters.
(ee) Company Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
3. Upon the execution of the Pricing Agreement and authorization by the
Representatives of the release of the Firm Securities, the several Underwriters
propose to offer the Firm Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "OVERALLOTMENT OPTION") to purchase at their election a certain number
of Optional Securities, on the terms set forth in such Pricing Agreement, for
the sole purpose of covering sales of Corporate Units in excess of the number of
Firm Securities. Any such election to purchase Optional Securities may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by the Representatives
but in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless the Representatives and the Company otherwise agree in
writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Pricing Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Securities shall be, in each
case, the number of Optional Securities which the Company has been advised by
the Representatives have been allocated to such Underwriter; provided that, if
the Company has not been so advised, the number of Optional Securities to be so
added shall be, in each case, that proportion of Optional Securities which the
number of Firm Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate number of Firm Securities (rounded as the
Representatives may determine to the nearest 40 Corporate Units). The total
number of Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate number of Firm Securities set
forth in Schedule I to such Pricing Agreement plus the aggregate number of
Optional Securities which the Underwriters elect to purchase.
4. Certificates for the Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
15
specified in such Pricing Agreement, (including, if so specified, in global
form) and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, (i) with respect to the Firm Securities, all in the manner
and at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "FIRST TIME OF
DELIVERY," and (ii) with respect to the Optional Securities, if any, in the
manner and at the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "SECOND TIME OF DELIVERY." Each such time
and date for delivery is herein called a "TIME OF DELIVERY." For purposes of
this Agreement, "NEW YORK BUSINESS DAY" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters of the Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Corporate Units in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities, or, if applicable, such earlier time
as may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Corporate Units and prior to the Time of Delivery for such Corporate Units
which shall be disapproved by the Representatives for such Corporate Units
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Corporate
Units, and during such same
16
period to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Corporate Units, of the
suspension of the qualification of such Corporate Units for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of
any prospectus relating to the Corporate Units or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Corporate Units for
offering and sale under the securities laws (including applicable laws
relating to the issuance of securities by insurance companies or their
affiliates) of such jurisdictions within the United States as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Corporate
Units, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) Prior to 12:00 p.m., New York City time, on the business day next
succeeding the date of the Pricing Agreement applicable to the Corporate
Units and from time to time, to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Corporate Units and if at such time any event shall
have occurred 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 in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each
17
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) Without the prior written consent of each of the Representatives
on behalf of the Underwriters, it will not, during the period beginning
from the date of the Pricing Agreement for the Designated Securities and
continuing to and including the date 90 days after the date of the
Prospectus Supplement (the "LOCK-UP PERIOD"), (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend or otherwise transfer or dispose of, directly or indirectly, any
Equity Units, Purchase Contracts or shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Equity
Units, Purchase Contracts or shares of Common Stock or (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Equity Units, Purchase
Contracts or shares of Common Stock, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Equity Units,
Purchase Contracts or shares of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale
of Designated Securities to the Underwriters hereunder and under the
Pricing Agreement, (b) the issuance by the Company of shares of Common
Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, (c) any shares of Common Stock of the Company to be
issued in connection with the Treasury Units (as defined in the Prospectus)
or the Corporate Units to be created or recreated upon substitution of
pledged securities or issuable upon settlement of the Treasury Units or
Corporate Units, (d) any capital stock issued or options to purchase shares
of the Company's Common Stock granted pursuant to employment benefit plans
of the Company or other employee on non-employee director compensation
arrangements or agreements in existence as of the date of the Prospectus,
or (e) any capital stock or any securities convertible into or exercisable
or exchangeable for capital stock of the Company as consideration for any
acquisition by the
18
Company, provided that any such transaction is not required to be
registered under the Act and any recipients of such capital stock or
securities during the Lock-Up Period agree in writing not to sell or
otherwise transfer such capital stock or securities during the Lock-Up
Period.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Designated Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, any Transaction Document, any Blue Sky Memorandum, closing
documents (including compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Corporate Units; (iii) all
expenses in connection with the qualification of the Corporate Units for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey(s); (iv) the cost of preparing certificates at the Time of Delivery for
the Corporate Units, the Treasury Units (as defined in the Prospectus) and the
Notes; (v) the cost and charges of any transfer agent or registrar or dividend
disbursing agent and any securities intermediary in connection with the
Transaction Documents and of the Purchase Contract Agent and the Collateral
Agent; and (vi) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 12 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Corporate Units by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement applicable to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
19
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with.
(b) Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the Pricing
Agreement applicable to the Designated Securities, the validity of the
Designated Securities being delivered at such Time of Delivery, the
Registration Statement, the Prospectus and such other related matters as
the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Debevoise & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion dated each Time of Delivery for such
Designated Securities, in form and substance satisfactory to you, to the
effect set forth in Annex II to this Underwriting Agreement.
(d) Xxxxx X. Xxxx, Executive Vice President and General Counsel to
the Company, shall have furnished to you his written opinion, dated each
Time of Delivery for such Designated Securities, in form and substance
satisfactory to you, to the effect set forth in Annex III to this
Underwriting Agreement.
(e) On the date of the Pricing Agreement for the Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at each Time of Delivery for such
Designated Securities, PricewaterhouseCoopers LLP, the independent
accountants of the Company, shall have furnished to the Representatives a
letter, dated the date of the Pricing Agreement and a letter dated such
Time of Delivery, respectively, as to such matters ordinarily included in
accountants' "comfort letters" to underwriters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives;
(f) (i) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the
business, properties, financial condition or results of operations of the
20
Company and its subsidiaries, considered as a whole, from the dates as of
which information is given in the Registration Statement and the Prospectus
as amended or supplemented on or prior to the date of the Pricing Agreement
relating to the Designated Securities; and (ii) except as contemplated in
the Prospectus, since the respective dates as of which information is given
in the Prospectus as amended or supplemented on or prior to the date of the
Pricing Agreement relating to the Designated Securities there shall not
have been any change in the capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights, upon earn
outs of performance securities and upon conversions of convertible
securities, in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the Prospectus) or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the
business affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Prospectus as
amended on or prior to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company, any Subsidiary of the Company or any of the Company's
or any subsidiary's securities or in the rating outlook for the Company or
any subsidiary of the Company by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the Exchange or the Nasdaq National Market; (ii) a material suspension
or limitation in trading in the Company's securities on the Exchange or any
other exchange or over-the-counter market; (iii) a material disruption in
securities settlement payment or clearance services in the United States
shall have occurred; (iv) a general moratorium on commercial banking
21
activities declared by either Federal or New York State authorities; or (v)
a material adverse change in the financial markets, the outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war or other calamity or
crisis, if the effect of any such event specified in this clause (v) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the Prospectus as
amended or supplemented relating to the Designated Securities;
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Securities a
certificate or certificates of the Chief Financial Officer of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a), (f) and (g) of this Section and as to
such other matters as the Representatives may reasonably request; and
(j) The Representatives shall have received the "lock-up" agreements,
between them and certain executive officers and directors of the Company
relating to sales and certain other dispositions of shares of Common Stock
of the Company or certain other securities, each substantially in the form
attached as Annex IV to this Agreement, and such "lock-up" agreements shall
be in full force and effect on the Date of the Pricing Agreement.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter,
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Act as follows:
(i) against any and all loss, liability, claim and damage
(including, without limitation, any legal or other expenses reasonably
incurred in investigating or defending any such liability or claim)
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A or Rule 434 under the Act (the "RULE 430A/434
INFORMATION"), if applicable, or the omission or alleged omission
therefrom of a material fact required
22
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 8(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursement of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A/434 Information, if applicable, or any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that the foregoing indemnity with respect to
any Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages, or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Designated
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
23
liabilities, unless such failure is the result of noncompliance by the Company
with Section 5 (c) hereof.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A/434 Information, if
applicable, or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter expressly
for use in the Registration Statement (or any amendment thereto) or such
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. The indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel related to such
proceeding shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and the representation of both parties by
the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
24
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 8
or Section 9 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement or the nature contemplated by Section 8(a)(ii) effected without
its written consent only if (i) such settlement is entered into more that
45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
9. If the indemnification provided for in Section 8 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party, in lieu of such indemnification, shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Designated Securities pursuant to this Agreement and the Pricing
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Designated
Securities pursuant to this Agreement and the Pricing Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Designated Securities pursuant to this Agreement and the Pricing
Agreement (before deducting expenses) received by the Company and the total
underwriting discount and commissions received by the Underwriters, in each
25
case as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Designated Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable consideration referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
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.
For purposes of this Section 9, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter;
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 9 are several in
proportion to the number of Designated Securities set forth opposite their
26
respective names in Schedule 5 hereto and not joint.
10. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Corporate Units, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
all, but not less than all of such Corporate Units subject to such default on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, as the case may be, then the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to the Representatives to purchase such
Corporate Units on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Corporate Units, or the Company notifies the
Representatives that it has so arranged for the purchase of such Corporate
Units, the Representatives or the Company shall have the right to postpone a
Time of Delivery for such Corporate Units for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"UNDERWRITER" as used in the Pricing Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate number of such Corporate Units which remains unpurchased does
not exceed 10% of the aggregate number of the Designated Securities to be
purchased at the respective Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number
of Designated Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
27
of the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate number of Designated Securities which remains unpurchased
exceeds 10% of the aggregate number of the Designated Securities as
referred to in subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Designated
Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Sections 8 and 9 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
or incorporated by reference in the Pricing Agreement with respect to the
Designated Securities or made by or on behalf of them, respectively, pursuant to
such Pricing Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Corporate Units.
12. If for any reason Designated Securities are not delivered by or on
behalf of the Company as provided herein (other than in respect of a breach of
the Pricing Agreement by any Underwriter of Designated Securities covered by
such Pricing Agreement), the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
13. In all dealings under the Pricing Agreement applicable to the
Designated Securities, the Representatives of the Underwriters of the Designated
Securities shall act on behalf of each of such Underwriters, and the parties
thereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any such Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in such Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
28
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement with respect to the Designated Securities; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
The Phoenix Companies, Inc., Xxx Xxxxxxxx Xxx, Xxxxxxxx, XX 00000, attention
Xxxxx Xxxxxxx; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement and each Pricing Agreement with respect to the
Designated Securities shall be binding upon, and inure solely to the benefit of,
the Underwriters and the Company and, to the extent provided in Sections 8, 9
and 11 hereof, the officers, directors and affiliates of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of such Pricing Agreement. No
purchaser of any of the Corporate Units from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement. As used
herein, "BUSINESS DAY" shall mean any day other than a Saturday or Sunday or a
day on which banks in the City of New York are authorized or required to close.
16. These Underwriting Agreement General Terms and Conditions and each
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York.
17. The Agreement and each Pricing Agreement may be executed by any one or
more of the parties thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
29
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof.
Very truly yours,
THE PHOENIX COMPANIES, INC.
By: /s/ Xxxxx Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxx Xxxxxxxx
Title: Vice President
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By:/s/ X. Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO.
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
30
ANNEX I
PRICING AGREEMENT
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
December 16, 2002
Ladies and Gentlemen:
The Phoenix Companies, Inc., a Delaware corporation (the "COMPANY",
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement General Terms and Conditions dated December 16, 2002,
attached hereto, to issue and sell to the Underwriters named in Schedule I
hereto (the "UNDERWRITERS") the Corporate Units specified in Schedule II hereto
(the "DESIGNATED SECURITIES," consisting of Firm Securities and any Optional
Securities the Underwriters may elect to purchase). Each of the provisions of
the Underwriting Agreement General Terms and Conditions is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement. Each reference
to the Representatives herein and in the provisions of the Underwriting
Agreement General Terms and Conditions so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement General Terms and Conditions are used herein as therein
defined. The Representatives designated to act on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 13 of the
Underwriting Agreement General Terms and Conditions and the addresses of the
Representatives referred to in such Section 13 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree to purchase from the Company, at the time and place and at
the purchase price to the Underwriters set forth in Schedule II hereto, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto and, in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Securities, as provided below,
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Company
at the purchase price to
AI-1
the Underwriters set forth in Schedule II hereto such number of Optional
Securities (as to which such election shall have been exercised) determined
pursuant to Section 3 of the Underwriting Agreement General Terms and
Conditions, attached hereto.
The Company hereby grants to each of the Underwriters the right to purchase
on or before December 31, 2002 at their election up to the number of Optional
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any such election to
purchase Optional Securities may be exercised by written notice from the
Representatives to the Company given on or before the Business Day preceding
December 31, 2002, setting forth the aggregate number of Optional Securities to
be purchased and the date on which such Optional Securities are to be delivered,
as determined by the Representatives, but in no event earlier than the First
Time of Delivery or, unless the Representatives and the Company otherwise agree
in writing, no later than December 31, 2002.
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If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement General Terms and
Conditions incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters, on the one hand, and the Company, on
the other. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
THE PHOENIX COMPANIES, INC.
By: /s/ Xxxxx Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxx Xxxxxxxx
Title: Vice President
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ X. Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO.
INCORPORATED
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By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
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SCHEDULE I
MAXIMUM NUMBER OF
NUMBER OF OPTIONAL SECURITIES
FIRM SECURITIES WHICH MAY BE
UNDERWRITER TO BE PURCHASED PURCHASED
----------- --------------- ---------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,700,000 405,000
Xxxxxx Xxxxxxx & Co. Incorporated 2,700,000 405,000
Bear, Xxxxxxx & Co. Inc. 600,000 90,000
--------- -------
Total 6,000,000 900,000
========= =======
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SCHEDULE II
TITLE OF DESIGNATED SECURITIES: 7.25% Corporate Units
NUMBER OF DESIGNATED SECURITIES:
NUMBER OF FIRM SECURITIES: 6,000,000
MAXIMUM NUMBER OF OPTIONAL SECURITIES: 900,000
PURCHASE PRICE BY UNDERWRITER: $24.25 per Corporate Unit
PRICE TO PUBLIC PER CORPORATE UNIT: $25
GROSS SPREAD PER CORPORATE UNIT: 3.00%
REFERENCE PRICE (CLOSING PRICE OF COMPANY COMMON STOCK ON DECEMBER 16,
2002): $7.23
THRESHOLD APPRECIATION PRICE: $8.8206
PAYMENT DATES: February 16, May 16, August 16, November 16
CONTRACT ADJUSTMENT PAYMENT DATES: February 16, May 16, August 16, November 16
PURCHASE CONTRACT SETTLEMENT DATE: February 16, 2006
AGGREGATE PRINCIPAL AMOUNT OF NOTES: $150,000,000
AGGREGATE PRINCIPAL AMOUNT OF NOTES (IF THE UNDERWRITERS PURCHASE ALL OF THE
OPTIONAL SECURITIES): $172,500,000
MATURITY OF THE NOTES: February 16, 2008
INTEREST RATE ON THE NOTES: 6.60%
STOCK EXCHANGE LISTING: New York Stock Exchange
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Federal (same day) funds
FORM OF DESIGNATED SECURITIES:
SII-1
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian for
trading in the Same Day Funds Settlement System of DTC, and to be made available
for checking by the Representatives at least twenty-four hours prior to the Time
of Delivery at DTC.
TIME OF DELIVERY:
10:00 a.m. (New York City time) on December 20, 2002, or at such other time
and date as the Representatives and the Company may agree to in writing
CLOSING LOCATION:
Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
World Financial Center - North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SII-2
ANNEX II
FORM OF OPINION OF DEBEVOISE & XXXXXXXX TO BE DELIVERED PURSUANT TO SECTION
7(C) OF THE UNDERWRITING AGREEMENT GENERAL TERMS AND CONDITIONS
1. The Company is validly existing as a corporation in good standing
under the laws of the State of Delaware and has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus.
2. Each of the Purchase Contract Agreement, the Pledge Agreement, the
Base Indenture, the First Supplemental Indenture, the Remarketing Agreement, the
Equity Units, the Purchase Contracts and the Notes conform as to legal matters
to the descriptions thereof contained in the Prospectus.
3. Each of the Purchase Contract Agreement and the Pledge Agreement has
been duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws now or hereafter in effect affecting creditors' rights generally
and (b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law); provided, however, that upon
the occurrence of a Termination Event (as defined in the Purchase Contract), the
Bankruptcy Code (11 U.S.C. xx.xx. 101-1330, as amended) should not substantively
limit the provisions of Sections 3.15 and 5.06 of the Purchase Contract
Agreement or Section 5.04 of the Pledge Agreement that require termination of
the Purchase Contracts and release of the Collateral Agent's security interest
in (1) the Notes, (2) the Treasury Securities (as defined in the Purchase
Contract Agreement) or (3) the applicable ownership interest of the Treasury
Portfolio (as defined in the Purchase Contract Agreement), as applicable, and
the transfer of such securities to the Purchase Contract Agent, for the benefit
of the Holders of the Equity Units; provided further, however, that no opinion
is expressed as to whether a court exercising bankruptcy jurisdiction might
issue a temporary restraining order or provide other interim relief that would
delay the exercise of such termination right for a period of time pending final
adjudication of any challenge to the exercise of such right during a bankruptcy
case involving the Company. In addition, applicable state laws and
interpretations may affect the validity or enforceability of certain remedies
provided for in the Pledge Agreement, but such limitations do not, in our
opinion, make the remedies provided for therein inadequate for the practical
realization of the rights and benefits intended to be provided thereby (subject
to the other qualifications expressed in this letter).
4. The Designated Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized by the Company and, when
AII-1
executed by the Company and authenticated by the Purchase Contract Agent in
accordance with the provisions of the Purchase Contract Agreement and delivered
to and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement and the Pricing Agreement will be entitled to the
benefits of the Purchase Contract Agreement and will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting creditors' rights generally and (b) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law); provided, however, that upon the occurrence of a Termination
Event, the Bankruptcy Code (11 U.S.C. xx.xx. 101-1330, as amended) should not
substantively limit the provisions of Sections 3.15 and 5.06 of the Purchase
Contract Agreement or Section 5.04 of the Pledge Agreement that require
termination of the Purchase Contracts and release of the Collateral Agent's
security interest in (1) the Notes, (2) the Treasury Securities or (3) the
applicable ownership interest of the Treasury Portfolio, as applicable, and the
transfer of such securities to the Purchase Contract Agent, for the benefit of
the Holders of the Corporate Units; provided further, however, that no opinion
is expressed as to whether a court exercising bankruptcy jurisdiction might
issue a temporary restraining order or provide other interim relief that would
delay the exercise of such termination right for a period of time pending final
adjudication of any challenge to the exercise of such right during a bankruptcy
case involving the Company; and the Designated Securities conform as to legal
matters in all material respects to the description thereof in the Prospectus.
5. The Underwriting Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Company.
6. The execution and delivery by the Company of, and the performance by
the Company of its obligations under the Equity Units, the Purchase Contracts,
the Notes, the Indenture, the Purchase Contract Agreement, the Pledge Agreement,
the Remarketing Agreement, this Underwriting Agreement and the Pricing Agreement
(collectively the "TRANSACTION DOCUMENTS") and the consummation of the
transactions therein contemplated will not result in a violation of any
provision of New York or Federal law or of the General Corporation Law of the
State of Delaware or the Amended and Restated Certificate of Incorporation or
bylaws of the Company and no consent, approval, authorization or order of, or
qualification with, any United States, Delaware (but only to the extent such
would be required by the General Corporation Law of the State of Delaware), or
New York governmental body or agency is required for the performance by the
Company of its obligations under each of the Transaction Documents to which it
is a party, except such as have been obtained under the Securities Act and the
Securities Exchange Act of 1934, as amended, and such as
AII-2
may be required by the securities, insurance or Blue Sky laws of the various
States or any foreign jurisdiction in connection with the offer and sale of the
Securities by the Underwriters, except that we express no opinion as to the
accuracy or completeness of the statements contained in the Registration
Statement or the Prospectus except to the limited extent stated in paragraph 10
below.
7. The Notes have been duly authorized by the Company and, when executed
and authenticated by the Trustee in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters as part of the
Corporate Units in accordance with the terms of the Underwriting Agreement and
the Pricing Agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in law or equity), and will be entitled to the benefits of the
Indenture.
8. The Indenture (including the First Supplemental Indenture) has been
duly qualified under the Trust Indenture Act of 1939, as amended; the Indenture
(including the First Supplemental Indenture) has been duly authorized, executed
and delivered by the Company; and assuming due authorization, execution and
delivery by the Trustee, the Indenture is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
9. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company and assuming due authorization, execution and delivery
thereof by the other parties thereto, is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except as
(i) the enforceability thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and (ii) rights to indemnification and
contribution contained therein may be limited by state and federal securities
laws or the public policy underlying such laws.
10. The statements (a) in the Prospectus under the captions "Description
of the Equity Units," "Description of the Purchase Contracts,"
AII-3
"Certain Provisions of the Purchase Contracts, the Purchase Contract Agreement
and the Pledge Agreement," "Description of the Notes," "Description of Our Other
Indebtedness," "U.S. Federal Income Tax Consequences," "ERISA Considerations,"
and "Underwriting" (with respect solely to the description of the Underwriting
Agreement contained therein); (b) in the Base Prospectus under the captions
"Description of Debt Securities," "Description of the Capital Stock of The
Phoenix Companies, Inc." and "Description of Stock Purchase Contracts and Stock
Purchase Units"; and (c) in the Registration Statement in Item 15, in each case
insofar as such statements purport to summarize the legal matters or certain
provisions of the documents and proceedings referred to therein, are accurate
and fair in all material respects.
11. The Company is not and, after giving effect to the offering and sale
of the Designated Securities and the application of the proceeds thereof as
described in the Prospectus, will not be, required to register as an "investment
company" as such terms are defined in the Investment Company Act.
12. The Registration Statement and the Prospectus excluding the documents
incorporated by reference therein (except for financial statements and notes
thereto and schedules and other financial and statistical data and supporting
schedules included therein or omitted therefrom, as to which such counsel need
express no opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
13. (i) The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contracts have been duly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions of the
Purchase Contract Agreement, will be validly issued, fully paid and
non-assessable and will conform to the description thereof in the Prospectus as
amended or supplemented with respect to the Designated Securities and (ii) the
Rights, if any, issuable upon satisfaction of Holders' obligations under the
Purchase Contracts have been duly authorized and, when and if issued in
accordance with the terms of the Purchase Contract Agreement and the Rights
Agreement, will have been validly issued and will conform to the description
thereof in the Prospectus as amended or supplemented with respect to the
Designated Securities.
Such counsel shall also state that, although he or she has not himself or
herself checked the accuracy and completeness of or otherwise verified, and is
not passing upon and assume no responsibility for the accuracy or completeness
of the statements contained in the Registration Statement or the Prospectus,
except to the limited extent stated in paragraph 10 above, in the course of such
counsel's review and discussion of the contents of the Registration Statement
and the Prospectus with certain officers and employees of the Company and its
AII-4
independent accountants, but without independent check or verification, no facts
have come to such counsel's attention which cause such counsel to believe that
the Registration Statement (other than the financial statements and related
schedules and other financial and statistical data therein, as to which such
counsel needs express no belief), at the time it became effective, 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 contained therein not
misleading, or that the Prospectus (other than the financial statements and
related schedules and other financial and statistical data therein, as to which
such counsel needs express no belief), as of its date and as of the date of this
opinion, contained or contains any untrue statement of a material act or omitted
or omits to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
AII-5
ANNEX III
[Opinion of Xxxxx X. Xxxx]
1. Each of the Company and each subsidiary of the Company listed on
Annex A hereto (each a "Significant Subsidiary") is validly existing as a
corporation, life insurance company or a limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation, or organization, as the case may be, except to the extent that
the failure to be so incorporated, organized or existing or in good standing
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries taken as a whole (the "Phoenix Enterprise").
2. Each of the Company and each Significant Subsidiary has the power,
corporate or otherwise, and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not, singly or in the aggregate, have a material adverse
effect on the Phoenix Enterprise.
3. The Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization," and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable.
4. All of the issued shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued, are fully paid and
nonassessable and, with respect to the issued shares of capital stock of each
Significant Subsidiary, are owned directly or indirectly by the Company, in the
percentages set forth on Annex A hereto, free and clear of all liens,
encumbrances, equitable claims or other adverse claims.
5. The Company and its subsidiaries (A) are in compliance with any and
all applicable Environmental Laws, (B) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (C) are in compliance with all terms and
conditions of any such permit, license or approval, except in the case of clause
(A), (B) and (C) where such noncompliance would not, singly or in the aggregate,
have a material adverse effect on the Phoenix Enterprise.
6. Each of the Company and its subsidiaries has all necessary consents,
licenses, authorizations, approvals, exemptions, orders, certificates and
permits (collectively, the "Consents") of and from, and has made all filings and
AIII-1
declarations (collectively, the "Filings") with, all insurance regulatory
authorities, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, necessary to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except where the failure to
have such Consents or to make such Filings would not, individually or in the
aggregate, have a material adverse effect on the Phoenix Enterprise. All such
Consents and Filings are in full force and effect, the Company and its
subsidiaries are in compliance with such Consents and neither the Company nor
any of its subsidiaries has received any notice of any inquiry, investigation or
proceeding that would reasonably be expected to result in the suspension,
revocation or limitation of any such Consent or otherwise impose any limitation
on the conduct of the business of the Company or any of its subsidiaries, except
as set forth in the Prospectus or any such failure to be in full force and
effect, failure to be in compliance with, suspension, revocation or limitation
which would not, singly or in the aggregate, have a material adverse effect on
the Phoenix Enterprise. To my knowledge, no insurance regulatory agency or body
has issued any order or decree impairing, restricting or prohibiting the payment
of dividends by Phoenix Life or any other subsidiary of the Company that is an
insurance company to its parent which order or decree would have individually or
in the aggregate, a material adverse effect on the Phoenix Enterprise. Each of
the Company and each subsidiary thereof that is required to be organized or
licensed or licensed as an insurance company in its jurisdiction of corporation
is in compliance with, and conducts its businesses in conformity with, all
applicable insurance laws and regulations, except where the failure to so comply
or conform would not have a material adverse effect on the Phoenix Enterprise.
7. After due inquiry, I do not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries are a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or 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 described or filed as
required.
8. The Underwriting Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Company.
9. The execution and delivery by the Company of, and the performance by
the Company of its obligations under the Transaction Documents and the
consummation of the transactions therein contemplated will not violate any
provision of New York law, the Amended and Restated Certificate of
Incorporation, the by-laws of the Company or any agreement or other instrument
filed by the Company with the Commission, or any judgment, order or decree of
AIII-2
any governmental body, agency or court having jurisdiction over the Company or
any of its subsidiaries, except that such counsel need not express an opinion as
to the accuracy or completeness of the statements contained in the Registration
Statement or the Prospectus.
10. The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which such counsel needs express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the Securities Exchange
Act of 1934, as amended, or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder, and based upon specified participation
of such counsel in connection with the preparation of the Registration
Statement, such counsel has no reason to believe that any of such documents,
when they became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the Act, 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,
and in the case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein in the light of the circumstances under which they were made when such
documents were so filed, not misleading; and such counsel does not know of any
amendment to the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required; it being
understood that such counsel needs express no opinion as to the financial
statements or other financial data included in any of the documents mentioned in
this clause and that such counsel may state that he has not independently
verified factual statements in any such document;
11. (i) The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contracts have been duly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions of the
Pricing Agreement and the Purchase Contract Agreement, will be validly issued,
fully paid and non-assessable and will conform to the description thereof in the
Prospectus as amended or supplemented with respect to the Designated Securities
and (ii) the Rights, if any, issuable upon satisfaction of Holders' obligations
under the Purchase Contracts have been duly authorized and, when and if issued
in accordance with the terms of the Purchase Contract Agreement and the Rights
Agreement, will have been validly issued and will conform to the description
thereof in the Prospectus as amended or supplemented with respect to the
Designated Securities.
AIII-3
12. No consent, approval, authorization or order of, or qualification
with any New York governmental body or agency pursuant to the insurance laws of
New York is required for the performance by the Company of its obligations under
each of the Transaction Documents to which it is a party, except such as have
already been obtained.
13. None of the Company or any of its subsidiaries is and, after giving
effect to the offering and sale of the Designated Securities and the application
of the proceeds thereof as described in the Prospectus, will be, required to
register as an "investment company" as such terms are defined in the Investment
Company Act.
14. The statements in the Prospectus under the caption "Regulation,"
insofar as such statements purport to summarize the legal matters or certain
provisions of the documents and proceedings referred to therein, are accurate
and fair in all material respects.
Such counsel shall also state that, although he or she has not himself or
herself checked the accuracy and completeness of, or otherwise verified, and is
not passing upon and assumes no responsibility for the accuracy or completeness
of, the statements contained in the Registration Statement or the Prospectus,
except to the limited extent stated in paragraph 14 above, in the course of such
counsel's review and discussion of the contents of the Registration Statement
and the Prospectus with certain officers and employees of the Company and its
independent accountants, but without independent check or verification, no facts
have come to such counsel's attention which cause such counsel to believe that
the Registration Statement (other than the financial statements and notes
thereto, other financial and statistical data and supporting schedules contained
therein or omitted therefrom, as to which such counsel need express no belief),
at the time it became effective, 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 contained therein not misleading, or that the
Prospectus (other than the financial statements and notes thereto, other
financial and statistical data and supporting schedules contained therein or
omitted therefrom, as to which such counsel need express no belief), as of its
date and as of the date of such counsel's opinion, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
AIII-4
ANNEX IV
[Form of Lock-Up Agreement]
December 16, 2002
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center - North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
As Representatives of the several Underwriters
Re: Proposed Public Offering by The Phoenix Companies, Inc.
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("XXXXXXX XXXXX") and Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX
XXXXXXX" and together with Xxxxxxx Xxxxx, the "REPRESENTATIVES") propose to
enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with The
Phoenix Companies, Inc., a Delaware corporation (the "COMPANY"), providing for
the public offering (the "PUBLIC OFFERING") by the several Underwriters,
including the Representatives (the "UNDERWRITERS"), of 6,000,000 Equity Units
initially consisting of 6,000,000 Corporate Units (the "UNITS").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Equity Units, Purchase
Contracts or shares of the Company's Common Stock, par value $0.01 per share
(the "COMMON STOCK") or any securities convertible into or exercisable or
exchangeable for the Equity Units, the Purchase Contracts or shares of Common
Stock or (2) enter into any
AIV-1
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Equity Units, the Purchase
Contracts or shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (i) offers, sales, gifts, assignments or transfers of shares of Common Stock
or options to purchase shares of Common Stock made to (A) members of the
immediate family of the undersigned, (B) corporations, partnerships, limited
liability companies or other entities to the extent such entities are
wholly-owned by the undersigned and/or members of the immediate family of the
undersigned, (C) charitable organizations, or (D) pledges of shares of Common
Stock to a bank or other financial institution, solely to the extent that in the
case of clauses (A), (B), (C) and (D) each recipient agrees to be bound by the
restrictions set forth herein, (ii) transfers of shares of Common Stock or
options to purchase shares of Common Stock made to any trust for the direct or
indirect benefit of the undersigned or any party listed in (i) above, provided
that the trustee of the trust agrees to be bound by the restrictions set forth
herein, or (iii) the exercise of options and transfers of shares of Common Stock
to the Company used to pay taxes applicable to the exercise of options and
reloading those options in accordance with the Company's stock option
arrangements. In addition, the undersigned agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 90 days after
the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
AIV-2
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
--------------------------------------
(Name)
--------------------------------------
(Address)
AIV-3
ANNEX V
SIGNIFICANT SUBSIDIARY COMPANY'S OWNERSHIP INTEREST
---------------------- ----------------------------
Phoenix Life Insurance Company 100%
PM Holdings, Inc. 100%
PHL Variable Insurance Company, Inc. 100%
Phoenix Investment Partners, Ltd. 100%
AV-1
