Exhibit 1.2
OHIO CASUALTY CORPORATION
FORM OF
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (PREFERRED SHARES)
From time to time, Ohio Casualty Corporation, an Ohio corporation (the
"Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities (the "Offered Securities") to the
several underwriters named therein. The standard provisions set forth herein
may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time shares of its serial
preferred shares, without par value, (the "Preferred Shares") or Depositary
Shares (as defined below). If the Prospectus (as defined below) so provides,
the Preferred Shares shall be deposited by the Company against delivery of
receipts (the "Depositary Receipts") to be issued by the bank or trust company
named in the Prospectus as the depositary (such bank or trust company being
referred to herein as the "Depositary") under a Deposit Agreement, to be dated
as of the date specified in the Prospectus (the "Deposit Agreement"), among
the Company, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. Such Depositary Receipts will evidence
Depositary Shares (the "Depositary Shares") and each Depositary Share will
represent the fractional interest in a Preferred Share specified in the
Prospectus. The Preferred Shares or the Depositary Shares, as the case may be,
are herein referred to as the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to
the Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). The term "Registration Statement" means the registration
statement as amended to the date of the Underwriting Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities together with the Basic Prospectus. As used herein, the
terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include, in each case, the material, if any,
incorporated by reference therein.
The Offered Securities shall include the Firm Securities (the "Firm
Securities"), which the Underwriters have agreed to purchase on the Closing
Date together with any Optional Securities (as hereinafter defined), which the
Underwriters may elect to purchase pursuant to Article III hereof. The term
"Underwriters' Securities" means the Offered Securities to be purchased by the
Underwriters herein.
II.
The Company is advised by the party that signs the Underwriting
Agreement as manager (the "Manager") that the Underwriters propose to make a
public offering of their respective portions of the Underwriters' Securities
as soon after this Agreement is entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters' Securities
are set forth in the Prospectus.
III.
The Company may specify in the Underwriting Agreement applicable to any
Firm Securities that the Company grants to the Underwriters the right (an
"Over-allotment Option") to purchase at their election up to the number of
Securities (the "Optional Securities") set forth in the Underwriting
Agreement. Upon written notice from the Manager given to the Company not more
than 30 days subsequent to the date of the initial offering of the Securities,
the Underwriters may purchase all or less than all of the Optional Securities,
which shall be at the purchase price per Security to be paid for the Firm
Securities. Such Optional Securities shall be purchased for the account of
each Underwriter in the same proportion as the number of shares of Firm
Securities set forth opposite such Underwriter's name bears to the total
number of shares of Firm Securities (subject to adjustment by the Manager to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion
thereof may be surrendered and terminated at any time upon notice by the
Manager to the Company.
IV.
Payment for the Underwriters' Securities shall be made by wire transfer
or by certified or official bank check or checks payable to the order of the
Company in New York Clearing House or similar next day funds at the time and
place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the
date of delivery. For the purpose of expediting the checking and packaging of
the Underwriters' Securities, such Underwriters' Securities shall be available
for inspection by the Manager not later than 2:00 P.M., New York City time, on
the business day prior to the Closing Date (as hereinafter defined). The time
and date of such payment and delivery with respect to the Firm Securities is
herein referred to as the "First Closing Date," and with respect to the
Optional Securities, if any, is herein referred to as the "Second Closing
Date," which may be the First Closing Date (the First Closing Date and the
Second Closing Date, if any, being sometimes referred to herein as a "Closing
Date").
V.
The several obligations of the Underwriters to purchase and pay for the
Firm Securities on the First Closing Date and the Optional Securities on the
Second Closing Date are subject to the following conditions:
(a) The representations and warranties of the Company contained herein
shall be true and correct in all material respects on such Closing Date, and
the Company shall have complied with its agreements hereunder.
(b) The Prospectus as amended or supplemented in relation to the
Underwriters' Securities shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and regulations under the Act. No stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Underwriters' satisfaction;
and there shall have been no material adverse change in the condition
(financial or otherwise) of the Company and its material subsidiaries, taken
as a whole, or in the earnings or business affairs of the Company and its
material subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, from that set forth in the Registration Statement
and the Prospectus.
(c) The Company shall have furnished to the Manager, on such Closing
Date, a certificate, dated as of such Closing Date, of an authorized executive
officer of the Company stating that:
(i) The representations, warranties and agreements of the
Company herein are true an correct in all material respects as of
such Closing Date; the Company has complied in all material respects
with its agreements contained herein; and the conditions set forth in
clause (b) above have been fulfilled; and
(ii) Such officer has carefully examined the Registration
Statement and Prospectus and, in such officer's opinion, (A) as of
the date of the Prospectus, (1) the Registration Statement did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (2) the Prospectus did not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (B) since the date of the
Prospectus, no event has occurred which should have been set forth in
a supplement to or amendment of the Prospectus which has not been set
forth in such a supplement or amendment.
(d) The Manager shall have received, on such Closing Date, an opinion
of the counsel for the Company, dated as of such Closing Date, in
substantially the form set forth as Exhibit A.
(e) The Manager shall have received, on such Closing Date, an opinion
of the counsel for the Underwriters, dated as of such Closing Date, in
substantially the form set forth as Exhibit B.
(f) The Manager shall have received, on such Closing Date, a letter,
dated as of such Closing Date, in form and substance satisfactory to the
Manager, from Ernst & Young LLP, independent public accountants, 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 or incorporated by reference into
the Registration Statement and the Prospectus and with respect to certain
changes since the date of such financial statements and financial information.
(g) On or after the date of the Pricing Agreement relating to the
Offered Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred shares 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 or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities or preferred shares of the Company (other than
an announcement with positive implications of a possible upgrading, and no
implication of possible downgrading, of such rating) and (ii) no suspension or
material limitation on trading in securities generally on NASDAQ or of any
securities of the Company on any exchange or in the over-the- counter market
shall have occurred.
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, as many copies of the
Registration Statement, only one of which need include exhibits and materials,
if any, incorporated by reference therein, as the Manager may reasonably
request and, during the period mentioned in clause (c) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Manager may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect to the Registration Statement or Prospectus shall include all
documents filed by the Company with the Commission subsequent to the date of
the Basic Prospectus, pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which are deemed to be incorporated by reference
in the Prospectus.
(b) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Offered Securities in the form approved by the
Manager 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 day following the
execution and delivery of the Underwriting Agreement relating to the
applicable Offered Securities, and before amending or supplementing the
Registration Statement or the Prospectus with respect to the Offered
Securities, to promptly advise and furnish the Manager with a copy of each
such proposed amendment or supplement.
(c) If, during such period after the commencement of the public
offering of the Offered Securities that counsel for the Underwriters is of the
opinion that the Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the Prospectus as then
amended or supplemented would, in the opinion of Underwriters' counsel,
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, or if, in the opinion of
Underwriters' counsel, it is necessary to amend or supplement the Prospectus
to comply with law, forthwith at the Company's own expense, to amend or to
supplement the Prospectus and to furnish such amendment or supplement to the
Underwriters, so as to correct such statement or omission or effect such
compliance.
(d) Endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate.
(e) To make generally available to the Company's security holders as
soon as practicable, but no later than 18 months after the effective date of
the Registration Statement (as defined in Rule 158(c)), an earnings statement,
which shall satisfy the provisions of Section 11(a) of the Act and the rules
and regulations thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of (i) the date of
notice to the Company by the Manager of the termination of trading
restrictions, if any, with respect to the Offered Securities imposed by any
agreement among Underwriters or (ii) the applicable Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any securities of the
Company substantially similar to the Offered Securities or Securities
convertible into or exercisable or exchangeable for securities of the Company
which are substantially similar to the Offered Securities (except issuances
upon the conversion of securities or the exercise of warrants outstanding on
the date of the Underwriting Agreement), without the prior written consent of
the Manager.
(g) To advise the Manager promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the Offered
Securities becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement or to
any Prospectus (insofar as the amendment or supplement relates to or covers
the Offered Securities), (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any order
directed to any Prospectus or any document incorporated therein by reference
or the initiation or threat of any stop order proceeding or of any challenge
to the accuracy or adequacy of any document incorporated by reference in any
Prospectus (insofar as any such issuance or challenge relates to or covers the
Offered Securities), (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the initiation or threat of any proceeding for
that purpose and (v) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement or any
Prospectus or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein
not misleading (insofar as the Registration Statement or Prospectus relates to
or covers the Offered Securities).
(h) If, during the period referred to in clause (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(i) To pay the costs of printing this Agreement, the fees paid to
rating agencies in connection with the rating of the Securities, including the
Offered Securities, and all other costs and expenses incident to the
performance of the Company's obligations under this Agreement; provided that,
except as provided otherwise herein, the Underwriters shall pay their own
costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Offered Securities which they may sell, the expenses
incident to the performance of the Company's obligations under this Agreement,
and the expenses of advertising any offering of the Offered Securities made by
the Underwriters.
(j) Until the termination of the offering of the Offered Securities,
to file all documents, and any amendments to previously filed documents,
required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act in a timely manner.
VII.
The Company represents and warrants to each Underwriter as follows:
(a)(i) The Registration Statement has become effective; (ii) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder and, except as otherwise disclosed to the Manager, no
stop order directed to any document incorporated by reference in the
Prospectus has been issued, (iii) each part of the Registration Statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Act relating to the Securities, when such part
became effective, did 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, (iv) each preliminary prospectus,
if any, filed pursuant to Rule 424 under the Act complied when so filed in all
material respects with such Act and the applicable rules and regulations
thereunder, (v) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Act and the applicable rules and regulations thereunder, (vi) (1) the
Registration Statement does not contain and, as 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, and (2) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that these representations and
warranties do not apply to statements or omissions in the Registration
Statement, any preliminary prospectus or the Prospectus based upon information
furnished to the Company in writing by any Underwriter through the Manager
expressly for use therein.
(b) Neither the Company nor any of its material subsidiaries is in
violation of its corporate charter or code or in default under any agreement,
indenture, mortgage, lease, note or instrument, which violation or default
would have a material adverse effect on the assets, operations, condition
(financial and otherwise) of the Company and its material subsidiaries taken
as a whole (a "Material Adverse Effect"); the execution, delivery and
performance of this Agreement, the Deposit Agreement, if any, and compliance
by the Company with the provisions of the Offered Securities will not (1)
conflict with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its material
subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument, or result in a violation of the corporate
charter or code of the Company or any of its material subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its material subsidiaries or their
respective properties or (2) have a Material Adverse Effect; and except as
required by the Act, the Exchange Act and applicable state securities or Blue
Sky laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution, delivery
and performance by the Company of this Agreement, the Deposit Agreement, if
any.
(c) Except as described in or contemplated by the Registration
Statement and the Prospectus, since the dates as of which information is given
in the Registration Statement and the Prospectus, no Material Adverse Effect
has occurred.
(d) Each of the accountants whose reports are incorporated by
reference in the Prospectus are independent public accountants as required by
the Act and the applicable rules and regulations thereunder.
(e) On the applicable Closing Date, (i) the Offered Securities will
have been validly authorized and, upon payment therefor as provided in this
Agreement, will be validly issued and fully paid and nonassessable and will
have the rights set forth in the Company's Restated Certificate of
Incorporation, including the applicable certificate of designation filed under
Section 502 of the Business Corporation Law of the State of New York and which
will have been timely filed, (ii) the Deposit Agreement in respect of the
Depositary Shares, if any, will have been validly authorized, executed and
delivered and will constitute, a legally binding obligation of the Company and
(iii) the Offered Securities and the Deposit Agreement, if any, will conform
to the descriptions thereof contained in the Prospectus.
(f) The Company and each of its material subsidiaries have been duly
incorporated, are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their
respective business requires such qualification and where the failure to be so
qualified would have a Material Adverse Effect, and have the corporate power
and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged.
(g) Except as described in each Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its material subsidiaries
which might result in any Material Adverse Effect or which is required to be
disclosed in the Registration Statement.
(h) The audited financial statements filed as part of or incorporated
by reference in the Registration Statement or Prospectus present, or (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will present
fairly, at all times during the period specified in clause (c) of Article VI
hereof, the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation is
being made) will be at all times during the period specified in clause (c) of
Article VI hereof, prepared in conformity with generally accepted accounting
principles.
(i) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Act or by the rules and
regulations thereunder, or which were required to be filed as exhibits to any
document incorporated by reference in any Prospectus by the Exchange Act or
the rules and regulations thereunder, which have not been filed as exhibits to
the Registration Statement or to such document or incorporated therein by
reference as permitted by such rules and regulations.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus as
amended or supplemented (if used within the period set forth in clause (c) of
Article VI hereof and 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, except to
the extent that such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information furnished in writing to the Company by any Underwriter
through the Manager expressly for use therein; provided, however, that the
foregoing indemnity with respect to preliminary prospectuses shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Offered Securities if such untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus is eliminated or remedied in the Prospectus and a copy of the
Prospectus (excluding documents incorporated by reference) has not been
furnished to such person at or prior to the written confirmation of the sale
of such Offered Securities to such person.
Each Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information furnished
in writing by such Underwriter through the Manager expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus as
amended or supplemented.
If any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing 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; 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 connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by the Manager in the case of parties
indemnified pursuant to the second preceding paragraph and by the Company in
the case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any 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.
If the indemnification provided for in this Article VIII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages 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 from
the offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other in connection with
the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or 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
Article VIII were determined by pro rata allocation or by any other method of
allocation which does not take account of the consideration referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party 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 Article VIII, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Offered Securities underwritten and distributed to the public by
such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Article VIII are several, in proportion to the
respective number of Offered Securities purchased by each of such
Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VIII
and the representations and warranties of the Company 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 any Underwriter
or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
IX.
This Agreement shall be subject to termination in the absolute discretion
of the Manager, by notice given to the Company, if prior to the Closing Date
(i) trading in securities generally on NASDAQ shall have been suspended or
materially limited, (ii) trading in the common stock of the Company has been
suspended, (iii) a general moratorium on commercial banking activities in the
State of New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Manager, impracticable to proceed with the public offering or
delivery of the Offered Securities on the terms and in the manner contemplated
in the Prospectus as amended or supplemented.
X.
If any one or more of the Underwriters shall fail or refuse to purchase
Offered Securities which it or they have agreed to purchase hereunder, and the
aggregate number of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of the Underwriters' Securities, the other
Underwriters shall be obligated severally in the proportions which the number
of Offered Securities set forth opposite their names in the Underwriting
Agreement bear to the aggregate number of Offered Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Underwriters'
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase; provided that in no event shall the number of Offered
Securities which any Underwriter has agreed to purchase pursuant to the
Underwriting Agreement be increased pursuant to this paragraph in excess of
one-ninth of such number of Offered Securities without the written consent of
such Underwriter. In any such case either the Manager 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. If any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate number of Offered Securities,
with respect to which such default occurs is more than one-tenth of the
aggregate number of the Underwriters' Securities, and arrangements
satisfactory to the Manager and the Company for the purchase of such Offered
Securities are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non- defaulting
Underwriter or of the Company. 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.
XI.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
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 Securities.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Manager as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
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 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 the
Offered Securities.
This Agreement may be signed in any number of counterparts, each of which
shall be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed the __ day of _________, [YEAR].
OHIO CASUALTY CORPORATION
By:
------------------------------
[Seal]
Attest:
______________________________
EXHIBIT A
[FORM OF OPINION OF COUNSEL FOR THE COMPANY]
(i) the Company has been duly incorporated, is validly existing and
in good standing under the laws of its jurisdiction of incorporation, with
power and authority (corporate and other) to own its properties and is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership of property or the conduct of its
businesses requires such qualification and where the failure to be so
qualified would result in a material adverse effect on the financial condition
or operation of the Company and its material subsidiaries taken as a whole;
(ii) the Securities have been duly authorized, and, when issued and
delivered to and paid for by the Underwriters in accordance with the terms of
the Underwriting Agreement, will be validly issued, fully paid and
nonassessable and will have the rights set forth in the Company's Articles of
Incorporation, including the Certificate of Designation;
(iii) the Certificate of Designation has been filed with the
Secretary of State of the State of Ohio in accordance with Ohio Revised Code;
(iv) the Underwriting Agreement has been validly authorized, executed
and delivered by the Company;
(v) [the Deposit Agreement has been validly authorized, executed and
delivered by the Company and constitutes a legally binding obligation of the
Company enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;]
(vi) the execution and delivery and performance of [the Deposit
Agreement and the] Underwriting Agreement by the Company and sale of the
Offered Securities as provided in the Underwriting Agreement will not
contravene any provision of applicable law or the Company's Articles of
Incorporation or Code of Regulations or, to our knowledge after reasonably
inquiry, any agreement, indenture or instrument binding upon the Company, and
no consent, approval or authorization of any governmental agency or authority
(other than in connection or in compliance with the provisions of any state
securities or Blue Sky laws, as to which we express no opinion) is required
for the performance by the Company of the Underwriting Agreement;
(vii) [the [common shares, par value $0.125 per share (the "Common
Shares"),] [or set forth title of other securities issuable upon conversion]
of the Company issuable upon [conversion] [exchange] of the Offered Securities
in accordance with the terms thereof have been duly authorized and reserved
for issuance upon such [conversion] [exchange], and, when issued and delivered
upon such [conversion] [exchange], will be duly authorized and validly issued
and will be fully paid and non-assessable; the stockholders of the Company
have no preemptive rights with respect to such [Common Shares] issuable upon
[conversion] [exchange] of such Offered Securities; and such [Common Shares
conform on all material respects to the description of the [Common Shares]
contained in the Registration Statement and the Prospectus];
(viii) we do not know of any litigation or any governmental
proceeding pending or threatened against the Company or any of its material
subsidiaries that would affect the subject matter of the Underwriting
Agreement or is required to be disclosed in the Registration Statement or
Prospectus that is not disclosed and correctly summarized therein;
(ix) to the best of our knowledge, neither the Company nor its
material subsidiaries are in violation in any material respect of their
corporate charters or codes, or in default in any material respect under any
agreement, indenture or instrument material to the Company and its material
subsidiaries taken as a whole; and
(x) the Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by the
Company prior to the sale of the Offered Securities (other than the financial
statements and related schedules therein, as to which we express no opinion)
comply as to form in all material respects with the requirements of the Act
and the rules and regulations thereunder; and we do 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.
EXHIBIT B
[FORM OF OPINION OF THE COUNSEL FOR THE UNDERWRITERS]
1. The Company has been duly incorporated and is validly existing and in
good standing under the laws of the State of Ohio.
2. The Offered Securities (other than Contract Securities) have been duly
authorized, issued and delivered.
3. [Each of the Deposit Agreement and] The Underwriting Agreement has
been duly authorized, executed and delivered by the Company.
