Exhibit 1.1
$300,000,000
THE PHOENIX COMPANIES, INC.
____% QUARTERLY INTEREST BONDS DUE 2031 (QUIBS*)
FORM OF
UNDERWRITING AGREEMENT
December [ ], 2001
------------------
*QUIBS is a service mark of Xxxxxx Xxxxxxx Xxxx Xxxxxx & Co.
Exhibit 1.1
December ___, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The Phoenix Companies, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (each individually an "UNDERWRITER" and collectively, the
"UNDERWRITERS") for whom you are acting as Representatives (the
"REPRESENTATIVES"), $300,000,000 principal amount of its [ ]% Quarterly Interest
Bonds Due 2031 (the "SECURITIES") to be issued pursuant to the provisions of an
Indenture dated as of December [ ], 2001 (the "INDENTURE") between the Company
and SunTrust Bank, as Trustee (the "TRUSTEE").
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (File No. 333-73896),
including a prospectus, relating to the Securities. The registration statement
as amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT;"
the prospectus in the form first used to confirm sales of Securities is
hereinafter referred to as the "PROSPECTUS." If the Company has filed an
abbreviated registration statement to register an additional principal amount of
Securities 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.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as hereafter amended or supplemented, if
applicable, will not contain any 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, (ii) the
Registration Statement and the Prospectus comply and, as hereafter
amended or supplemented, if applicable, will comply, in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder; and (iii) the Prospectus does
not contain and, as hereafter amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter through you furnished to the Company in
writing by such Underwriter through you expressly for use therein or
(B) to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) 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"). The Company
has an authorized capitalization as set forth in the Prospectus, 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
non-assessable.
(d) Each subsidiary of the Company listed on Annex A hereto
(each a "SIGNIFICANT SUBSIDIARY" and 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
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organization, as the case may be. Each Significant Subsidiary has the
power, corporate and other, 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 A hereto, free and clear of all
liens, encumbrances, equitable claims or other adverse claims.
(e) The consolidated financial statements of the Company
included 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. Such financial statements have been prepared in
conformity with U.S. generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
and the Prospectus 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 the audited financial statements
included in the Registration Statement and the Prospectus.
(f) The statutory financial statements of the Company's
subsidiaries that are insurance companies (the "INSURANCE
SUBSIDIARIES"), from which certain ratios and other statistical data
filed as part of the Registration Statement have been derived have for
each relevant period been prepared in conformity with statutory
accounting practices required or permitted by the National Association
of Insurance Commissioners and by the insurance laws of their
respective states of domicile, and the rules and regulations
promulgated thereunder, and such statutory accounting practices have
been applied on a consistent basis throughout the periods involved,
except as may otherwise be indicated therein or in the notes thereto.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and when
executed and delivered by the Company and authenticated by the Trustee
will constitute a valid and binding agreement of the Company,
enforceable in accordance with its terms
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except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency or similar laws affecting creditors' rights generally; and
(ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity of at law).
(i) The Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized 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, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency or similar laws
affecting creditors' rights generally; and (ii) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity of at law).
(j) The Indenture and the Securities conform in all material
respects to the descriptions thereof contained in the Prospectus.
(k) 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,
(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) each of the Company and the Significant Subsidiaries has not
purchased any of its outstanding capital stock, other than in
accordance with the Company's share repurchase plan announced on
September 17, 2001, nor 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.
(l) 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
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and buildings by the Company and its subsidiaries, in each case except
as described in the Prospectus.
(m) 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 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.
(n) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, except as described in the
Prospectus, or, to the knowledge of the Company, is imminent.
(o) 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 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.
(p) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company 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, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture or the Securities, except such as have
been obtained under the Federal securities laws or state insurance laws
or may be required by the securities or Blue
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Sky laws of the various States or any foreign jurisdictions in
connection with the offer and sale of the Securities.
(q) 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
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(r) 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.
(s) The prospectus and any prospectus filed as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(t) None of the Company or any of its subsidiaries is and,
after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof 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
"INVESTMENT COMPANY ACT").
(u) 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
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of the Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries
would in fact be required either to obtain any such additional
approvals or cease or otherwise limit engaging in certain business; and
(ii) the failure to have such approvals or limiting such 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.
(v) 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.
(w) 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 Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Securities registered pursuant to the Registration
Statement.
(x) The Company and its subsidiaries have complied with all
provisions of Section 517.075, Florida Statutes relating to doing
business with the Government of Cuba or with any person or affiliate
located in Cuba.
(y) 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
7
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.
(z) The Securities have been approved for listing on the New
York Stock Exchange, Inc. (the "EXCHANGE"), subject to notice of
issuance, and, at the Closing Date (as defined in Section 4 hereof)
hereunder, the Securities issued at or prior to the time of delivery on
such Closing Date will be listed thereon.
2. Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth in Schedule I
hereto opposite its name at [ ]% of the principal amount thereof (the "PURCHASE
PRICE") plus accrued interest, if any, from December [ ], 2001 to the date of
payment and delivery.
3. Terms of Public Offering. The Company is advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Securities as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Company is
further advised by you that the Securities are to be offered to the public
initially at 100% of their principal amount (the "PUBLIC OFFERING PRICE") plus
accrued interest, if any, from December [ ], 2001 to the date of payment and
delivery and to certain dealers selected by you at a price that represents a
concession not in excess of [ ]% of their principal amount under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow,
8
a concession, not in excess of [ ]% of their principal amount, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Securities shall be
made to the Company in Federal or other funds immediately available in New York
City, at the following account: Chase Manhattan Bank, New York, New York, ABA
000000000, Account: The Phoenix Companies, Inc., Account No.: 323897266; against
delivery of the Securities through the facilities of the Depository Trust
Company for the respective accounts of the several Underwriters at 10:00 a.m.,
New York City time, on December [ ], 2001 or at such other time on the same or
such other date, not later than December [ ], 2001 as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "CLOSING DATE."
5. Conditions to the Underwriters' Obligations. The
obligations of the Company to sell the Securities to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Securities
on the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 5:30 p.m. (New York City time) on the
date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Phoenix Enterprise from that set forth in
the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse to the Phoenix
Enterprise and that makes it, in your judgment, impracticable
to market the Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) hereof and
to the effect that the representations and warranties of the Company
contained in this Agreement are
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true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions
on their part to be performed or satisfied hereunder on or before the
Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxxxx & Xxxxxxxx, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) 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;
(ii) the Indenture and the Securities conform as to
legal matters to the descriptions thereof contained in the
Prospectus;
(iii) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms
except as the enforceability thereof may be limited by (a)
bankruptcy, insolvency 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 of at law);
(iv) the Securities to be issued and sold by the
Company to the Underwriters hereunder have been duly
authorized and, when executed by the Company and authenticated
by the Trustee 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, will be entitled
to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with
their terms except as the enforceability thereof may be
limited by (a) bankruptcy, insolvency 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 of at law);
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the
10
Securities and the Indenture will not contravene 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 by-laws of the Company or, to
such counsel's knowledge, (A) any agreement or other
instrument filed as an exhibit to the Registration Statement
or (B) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of
its subsidiaries, 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 this Agreement, the
Securities and the Indenture, except such as have been
obtained under the Securities Act, the Securities Exchange
Act, as amended (the "Exchange Act") and the Trust Indenture
Act and such as 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 such counsel need
not express an opinion as to the accuracy or completeness of
the statements contained in the Registration Statement or
Prospectus;
(vii) the statements (A) in the Prospectus under the
captions "Regulation," "Description of the Senior Notes" and
"Underwriters" (with respect solely to the description of this
Agreement contained therein); and (B) in the Registration
Statement in Items 14 and 15, in each case insofar as such
statements constitute summaries of the legal matters or
documents and proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize in all material
respects the matters referred to therein;
(viii) the Company is not and, after giving effect to
the offering and sale of the 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
term is defined in the Investment Company Act;
(ix) the Registration Statement and Prospectus
(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 not express any opinion) comply as
to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder; and
(x) the Securities have been approved for listing on
the Exchange, subject to notice of issuance, and, at the
Closing Date, the
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Securities issued at or prior to the time of delivery on such
Closing Date will be listed thereon.
Such counsel shall also state that, although it has not itself
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 (vii) above, in the course of its
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 its 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.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx X. Xxxx, Senior Vice President and General Counsel
of the Company, dated the Closing Date, to the effect that:
(i) each of the Company and each 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
Phoenix Enterprise;
(ii) each of the Company and each Significant
Subsidiary has the power, corporate and other, 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;
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(iii) 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 non-assessable;
(iv) 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,
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;
(v) 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;
(vi) each of the Company and its subsidiaries has all
necessary Consents of and from, and has made all 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
13
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;
(vii) the statements in the Prospectus under the
caption "Business - Legal Proceedings" fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize in all material
respects the matters referred to therein;
(viii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or 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 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;
(ix) this Agreement has been duly authorized,
executed and delivered by the Company; and
(x) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Securities and the Indenture will not violate
any provision of New York law or the Amended and Restated
Certificate of Incorporation or by-laws of the Company, except
that such counsel need not express an opinion as to the
accuracy or completeness of the statements contained in the
Registration Statement or Prospectus.
Such counsel shall also state that, although it has not itself
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 (vii) above, in the course of its
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 its 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
14
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.
(e) The Underwriters shall have received on the Closing Date
an opinion of XxXxxxx, Xxxx, Xxxxxx & XxxXxx, L.L.P., counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 5(c)(iv) hereof, 5(c)(vii) hereof (but only as to the
statements in the Prospectus under "Description of Senior Notes" and
"Underwriters"), 5(c)(ix) hereof and the final paragraph of Section
5(c) hereof.
With respect to (i) the final paragraph of Section 5(c)
hereof, Debevoise and Xxxxxxxx and LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.; and
(ii) the final paragraph of Section 5(d) hereof, Xxxxx X. Xxxx, each may state
that its or his belief is based upon its or his participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but without
independent check or verification, except as specified.
The opinions described in Section 5(c) and 5(d) hereof shall
be rendered to the Underwriters at the request of the Company and shall so state
therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from PricewaterhouseCoopers LLP, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided, that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof. The letter shall also state that the information
set forth under the captions "Prospectus Summary," "Risk Factors," "Use
of Proceeds," "Ratio of Earnings to Fixed Charges," "Capitalization,"
"Selected Historical Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations," and
"Business" which is expressed in dollars (or percentages derived from
such dollar amounts) and has been obtained from accounting records
which are subject to controls over financial reporting or which has
been derived directly from such accounting records by analysis or
computation, is in agreement with such records or computations made
therefrom.
15
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) to furnish to you, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 6(c) hereof, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request;
(b) before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule;
(c) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law;
(d) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject;
16
(e) to make generally available to the Company's security
holders and to you as soon as practicable but in any event not later
than 16 months after the effective date of the Registration Statement
(as defined in Rule 158(c)) an earning statement covering the
twelve-month period ending June 30, 2002 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of
the Commission;
(f) during the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than (i) the Securities;
and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of Xxxxxx Xxxxxxx;
(g) to use the net proceeds received by it from the sale of
the Securities as contemplated in this Agreement in the manner
specified in the Prospectus, as amended or supplemented, under the
caption "Use of Proceeds;" and
(h) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of one or
more global certificates representing the Securities under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of one or more global
certificates representing the Securities to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the cost of printing
or producing any Blue Sky or Legal Investment memorandum in connection
with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section
6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any such Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Securities by
the National Association of Securities Dealers, Inc., (v) all fees and
expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Securities and all
costs and expenses incident to listing the Securities on the Exchange,
(vi) the cost of printing certificates representing the Securities,
(vii) the costs and charges of any
17
transfer agent, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and, with the prior approval of the Company, the cost of any aircraft
chartered in connection with the road show, (ix) all document
production charges of counsel to the Underwriters incurred in
connection with the preparation of the Indenture; (x) the fees and
disbursements of the Trustee and its counsel, (xi) any fees charged by
rating agencies for the rating of the Securities, and (xii) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section 6, Section 7 hereof entitled "Indemnity and Contribution," and
the last paragraph of Section 9 hereof, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their
counsel, transfer taxes payable on resale of any of the Securities by
them and any advertising expenses connected with any offers they may
make.
7. Indemnity and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that the Company will not be liable in any such case to the
extent that any such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for
use therein; 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
18
confirmation of the sale of the 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 liabilities, unless such
failure is the result of noncompliance by the Company with Section 6(a)
hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and its directors and officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section 7(a) or 7(b)
hereof, such person (the "INDEMNIFIED PARTY") shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing (it being understood that failure to promptly notify
the indemnifying party shall relieve such indemnifying party from
liability hereunder to the extent that, in the reasonable judgment of
such indemnified party, it is materially prejudiced by not having
received such prompt notice) and 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 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 representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx, in the case of parties
indemnified pursuant to Section 7(a) hereof and by the Company, in the
case of parties indemnified pursuant to Section 7(b) hereof. The
indemnifying party shall not be liable for any settlement of any
19
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request; and (ii) the indemnified party shall
have given the indemnifying party at least 10 days' prior written
notice of its intent to enter into such settlement, including a summary
of the material terms thereof and such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section
7(a) or 7(b) hereof is (other than as a result of the provisions
contained in Section 7(a)) unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities or (ii) if the allocation provided
by clause 7(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 7(d)(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 that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Securities. 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 the untrue or alleged untrue statement of a
20
material fact or the 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. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d) hereof. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company,
its officers or directors or any person controlling the Company; and
(iii) acceptance of and payment for any of the Securities.
8. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange or the National Association of Securities Dealers, Inc.,
or minimum or maximum prices
21
for trading shall have been fixed or maximum ranges for prices shall have been
required, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or a material disruption in
commercial banking in the U.S. shall have occurred or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse; and (b) in the case of any of the events specified in clauses 8(a)(i)
through 8(iv) above, such event, singly or together with any other such event,
makes it, in your judgment impracticable to market, sell or deliver the
Securities on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that, the principal amounts of
Securities set forth opposite their respective names in Schedule I bears to the
sum of the principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided,
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased on such date, and arrangements satisfactory
to you and the Company for the purchase of such Securities are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either you or the Company shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall
22
be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
23
12. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
The Phoenix Companies, Inc.
By:________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:________________________
Name:
Title:
24
SCHEDULE I
PRINCIPAL AMOUNT OF SECURITIES TO BE
UNDERWRITER PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated .......................................................$[ ]
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ......................................$[ ]
X.X. Xxxxxxx & Sons, Inc. ...............................................................$[ ]
Bear, Xxxxxxx & Co. Inc. ................................................................$[ ]
Xxxxxxx Xxxxx Xxxxxx Inc. ...............................................................$[ ]
UBS Warburg LLC .........................................................................$[ ]
Bank of America Securities LLC...........................................................$[ ]
Deutsche Bank Xxxx. Xxxxx.................................................................$[ ]
Fleet Securities, Inc....................................................................$[ ]
Wachovia Securities......................................................................$[ ]
Total ......................................$300,000,000
============
1
ANNEX A
SIGNIFICANT SUBSIDIARY COMPANY'S OWNERSHIP
INTEREST
Phoenix Life Insurance Company 100%
Phoenix Investment Partners, Ltd. 100%
Phoenix Equity Planning Corporation 100%
PXP Securities Corporation 100%
X.X. Xxxxxxxx & Co., Inc. 100%
PM Holdings, Inc. 100%
PHL Associates, Inc. 100%
Duff & Xxxxxx Investment Management Co. 100%
Seneca Capital Management, LLC 68.4%
Xxxxx Xxxxxxxx & Associates, Inc. 100%
Phoenix/Xxxxx Advisers LLC 100%
Walnut Asset Management LLC 75.0%
PFG Holdings, Inc. 66.7%
PFG Distribution Company 66.7%(100%
subsidiary of
PFG Holdings, Inc.)
Main Street Management Company 80.0%
1
