Exhibit 10.1
$375,000,000
CINCINNATI FINANCIAL CORPORATION
6.125% Senior Notes due 2034
Purchase Agreement
October 27, 2004
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
As Representatives of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Cincinnati Financial Corporation, an Ohio corporation (the "COMPANY"),
proposes to issue and sell to the several Initial Purchasers listed in Schedule
1 hereto (the "INITIAL PURCHASERS"), for whom you are acting as representatives
(the "REPRESENTATIVES"), $375,000,000 principal amount of its 6.125% Senior
Notes due 2034 (the "SECURITIES"). The Securities will be issued pursuant to a
Supplemental Indenture to be dated the Closing Date (as defined below) to the
Indenture to be dated as of the Closing Date (together, the "INDENTURE") between
the Company and The Bank of New York Trust Company, N.A., as trustee (the
"TRUSTEE").
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
in reliance upon an exemption therefrom. The Company has prepared a preliminary
offering memorandum dated October 27, 2004 (the "PRELIMINARY OFFERING
MEMORANDUM") and will prepare an offering memorandum dated the date hereof (the
"OFFERING MEMORANDUM") setting forth information concerning the Company and the
Securities. Copies of the Preliminary Offering Memorandum have been, and copies
of the Offering Memorandum will be, delivered by the Company to the Initial
Purchasers pursuant to the terms of this Agreement. The Company hereby confirms
that they have authorized the use of the Preliminary Offering Memorandum and the
Offering Memorandum in connection with the offering and resale of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Offering Memorandum. References herein to the
Preliminary Offering Memorandum and the Offering Memorandum shall be deemed to
refer to and include any document incorporated by reference therein.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "REGISTRATION
RIGHTS AGREEMENT"), pursuant to which the Company will agree to file one or more
registration statements with the Securities and Exchange Commission (the
"COMMISSION") providing for the registration under the Securities Act of the
Securities or the Exchange Securities referred to (and as defined) in the
Registration Rights Agreement.
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees to issue
and sell the Securities to the several Initial Purchasers as provided in this
Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Company
the respective principal amount of Securities set forth opposite such Initial
Purchaser's name in Schedule 1 hereto at a price equal to 98.055% of the
principal amount thereof plus accrued interest, if any, from November 1, 2004 to
the Closing Date. The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company confirms that it has authorized the Initial Purchasers,
subject to the restrictions set forth below, to distribute copies of the
Offering Memorandum in connection with the offering of the Securities. Each
Initial Purchaser hereby severally makes to the Company the following
representations and agreements:
(i) it is a qualified institutional buyer within the meaning of Rule
144A under the Securities Act (a "QIB") and an accredited investor within
the meaning of Rule 501(a) under the Securities Act; and
(ii) (A) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer to sell, the Securities by means of
any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act ("REGULATION D")) or in
any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (B) it has solicited and will solicit offers for
the Securities only from, and has offered or sold and will offer, sell or
deliver the Securities only to persons who it reasonably believes to be
"qualified institutional buyers" within the meaning of Rule 144A under the
Securities Act and (C) that in selling the Securities it has taken or will
take reasonable steps to ensure that the purchaser of the Securities is
aware that such sale is being made in reliance on Rule 144A.
(c) Each Initial Purchaser acknowledges and agrees that the Company, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Sections 5(f) and 5(g), counsel for the
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Company and counsel for the Initial Purchasers, respectively, may rely upon the
accuracy of the representations and warranties of the Initial Purchasers, and
compliance by the Initial Purchasers with their agreements, contained in
paragraph (b) above, and each Initial Purchaser hereby consents to such
reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may
offer and sell Securities to or through any affiliate of an Initial Purchaser
and that any such affiliate may offer and sell Securities purchased by it to or
through any Initial Purchaser.
2. Payment and Delivery. (a) Payment for and delivery of the Securities
will be made at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxx., Xxx
Xxxx, Xxx Xxxx at 10:00 A.M., New York City time, on November 1, 2004, or at
such other time or place on the same or such other date, not later than the
fifth business day thereafter, as the Representatives and the Company may agree
upon in writing. The time and date of such payment and delivery is referred to
herein as the "Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "GLOBAL NOTES"), with any
transfer taxes payable in connection with the sale of the Securities duly paid
by the Company. The Global Notes will be made available for inspection by the
Representative not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
3. Representations and Warranties of the Company. The Company
represents and warrants to each Initial Purchaser that:
(a) Offering Memorandum. The Preliminary Offering Memorandum, as of its
date, did not, and the Offering Memorandum, in the form first used by the
Initial Purchasers to confirm sales of the Securities and as of the Closing
Date, 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; provided that
the Company makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating
to any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through the Representatives expressly for use in the Preliminary
Offering Memorandum and the Offering Memorandum.
(b) Incorporated Documents. The documents incorporated by reference in the
Preliminary Offering Memorandum and the Offering Memorandum, when filed with the
Commission, conformed or will conform, as the case may be, in all material
respects with the requirements of the Exchange Act and did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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(c) Financial Statements. The financial statements and the related notes
thereto included or incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum comply as to form in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act, as applicable, and present fairly in all material respects the financial
position of the Company and its subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby; and the other financial information
included or incorporated by reference in the Preliminary Offering Memorandum and
the Offering Memorandum has been derived from the accounting records of the
Company and presents fairly in all material respects the information shown
thereby.
(d) No Material Adverse Change. Since June 30, 2004, except as set forth
in the Preliminary Offering Memorandum or the Offering Memorandum, (i) there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital stock
(other than quarterly cash dividends in the ordinary course of business declared
on August 13, 2004), or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
properties, management, financial position, results of operations or prospects
of the Company and its subsidiaries taken as a whole; (ii) none of the Company
or any of its subsidiaries has entered into any transaction or agreement that is
material to the Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) none of the Company or any of
its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in the Preliminary Offering
Memorandum and the Offering Memorandum.
(e) Organization and Good Standing. The Company and each of its
subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, results of operations or prospects of the
Company and its subsidiaries taken as a whole or on the performance by the
Company of its obligations under the Securities (a "MATERIAL ADVERSE EFFECT").
The subsidiaries of the Company listed in "Part I -- Item 1. Business" of the
Company's 2003 Annual Report on Form 10-K are the only significant subsidiaries
(the "SIGNIFICANT SUBSIDIARIES") of the Company.
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(f) Capitalization. All the outstanding shares of capital stock or other
equity interests of the Company and its subsidiaries have been duly and validly
authorized and issued, are fully paid and non-assessable (except as otherwise
described in the Offering Memorandum) and are owned directly or indirectly by
the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party.
(g) Due Incorporation and Compliance with Regulations. Each of the Company
and each insurance subsidiary of the Company is in compliance with the
requirements of the insurance laws of the jurisdiction of its incorporation or
domicile and any applicable regulations thereunder and has filed all reports,
registrations, documents or other information required to be filed thereunder,
except where the failure to comply or file would not have a Material Adverse
Effect; and each of the insurance subsidiaries is in compliance with the
insurance laws and regulations of each other jurisdiction that is applicable to
such insurance subsidiary, except where a failure to comply would not have a
Material Adverse Effect.
(h) Due Authorization. The Company has full right, power and authority to
execute and deliver this Agreement, the Securities, the Indenture, the Exchange
Securities and the Registration Rights Agreement (collectively, the "TRANSACTION
DOCUMENTS") and to perform its obligations hereunder and thereunder; and all
action required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(i) The Indenture. The Indenture has been duly authorized by the Company
and, when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute the valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, rehabilitation or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability (collectively, the "ENFORCEABILITY EXCEPTIONS"); and, on the
Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), and the rules and regulations of the Commission applicable to
an indenture that is qualified thereunder.
(j) The Registration Rights Agreement. This Agreement has been duly
authorized, executed and delivered by the Company; and the Registration Rights
Agreement has been duly authorized by the Company and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to the Enforceability
Exceptions, and except that rights to indemnity and contribution thereunder may
be limited by applicable law and public policy.
(k) The Securities. The Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance
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with their terms, subject to the Enforceability Exceptions, and will be entitled
to the benefits of the Indenture.
(l) The Exchange Securities. On the Closing Date, the Exchange Securities
will have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as contemplated by the Registration Rights
Agreement, will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company, as issuer, enforceable
against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(m) No Violation or Default. None of the Company or any of its
subsidiaries is (i) in violation of its charter, by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(n) No Conflicts. The execution, delivery and performance by the Company
of each of the Transaction Documents to which each is a party, the issuance and
sale of the Securities and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents
will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation of
the provisions of the charter, by-laws or similar organizational documents of
the Company or any of its subsidiaries or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(o) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company of each of the Transaction Documents, the issuance and sale of
the Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents,
except for such consents, approvals, authorizations, orders and registrations or
qualifications as may be required (i) under applicable state securities and
insurance securities laws in connection with the purchase and resale of the
Securities by the Initial Purchasers and (ii) with respect to the
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Indenture and Exchange Securities under the Securities Act and Trust Indenture
Act and applicable state securities and insurance securities laws as
contemplated by the Registration Rights Agreement.
(p) Legal Proceedings. Except as described in the Preliminary Offering
Memorandum and the Offering Memorandum, there are no local, state or federal
governmental or regulatory investigations, actions, suits or proceedings pending
to which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject that,
individually or in the aggregate, if determined adversely to the Company or any
of its subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and to the best knowledge of the Company, no such investigations,
actions, suits or proceedings are threatened or contemplated by any state or
federal governmental or regulatory authority or threatened by others.
(q) Independent Accountants. Deloitte & Touche LLP, who have certified
certain financial statements of the Company and its subsidiaries, are
independent registered public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants and its
interpretations and rulings thereunder.
(r) Investment Company Act. 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 Offering Memorandum none
of them will be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder
(collectively, "INVESTMENT COMPANY ACT").
(s) Bank Holding Company Act. All of the Company's investments in entities
subject to regulation under the Bank Holding Company Act of 1956, as amended
(the "BHCA"), comply in all material respects with the requirements of the BHCA,
and no consents, approvals or filings are required for such investments under
the BHCA, except for such consents, approvals or filings (i) which have been
granted or made and are in full force and effect or (ii) which, if not granted,
made or obtained, or which are not in full force and effect, would not have a
Material Adverse Effect.
(t) No Broker's Fees. None of the Company or any of its subsidiaries is a
party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against any of them or any
Initial Purchaser for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Securities.
(u) Rule 144A Eligibility. On the Closing Date, the Securities will not be
of the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in an automated
inter-dealer quotation system; and each of the Preliminary Offering Memorandum
and the Offering Memorandum, as of its respective date, contains or will contain
(or incorporates or will incorporate by reference) all the information that,
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if requested by a prospective purchaser of the Securities, would be required to
be provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(v) No Integration. None of the Company or any of its affiliates (as
defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(w) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has solicited offers for, or offered or sold, the Securities by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
(x) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) and their compliance with their agreements set forth therein, it is not
necessary, in connection with the issuance and sale of the Securities to the
Initial Purchasers and the offer, resale and delivery of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement and the Offering
Memorandum, to register the Securities under the Securities Act or to qualify
the Indenture under the Trust Indenture Act.
(y) No Stabilization. The Company has not taken, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
(z) Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained or incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(aa) Taxes. The Company and its subsidiaries have paid all federal, state,
local and foreign taxes and filed all tax returns required to be paid or filed
through the date hereof, except for any such failure to pay or file which,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; and except as otherwise disclosed in the Preliminary
Offering Memorandum and the Offering Memorandum, there is no material tax
deficiency that has been, or could reasonably be expected to be, asserted
against the Company or any of its subsidiaries or any of their respective
properties or assets.
(bb) Licenses and Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective
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businesses as described in the Preliminary Offering Memorandum and the Offering
Memorandum, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect; and except as
described in the Preliminary Offering Memorandum and the Offering Memorandum,
none of the Company or any of its subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course.
(cc) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of their subsidiaries exists or, to the best
knowledge of the Company, is contemplated or threatened.
(dd) Statistical and Market Data. Nothing has come to the attention of the
Company that has caused the Company to believe that the statistical and
market-related data included or incorporated by reference in the Preliminary
Offering Memorandum and the Offering Memorandum is not based on or derived from
sources that are reliable and accurate in all material respects.
(ee) Controls. The Company and each of its subsidiaries referenced in
Section 3(e) hereof (i) maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed
in accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences, and (ii) the Company maintains a system of "disclosure controls and
procedures" (as such term is defined in Rule 13a-14(c) under the Exchange Act).
(ff) Xxxxxxxx-Xxxxx. The Company is in compliance in all material respects
with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 that are
effective.
4. Further Agreements of the Company. The Company covenants and agrees
with each Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial Purchasers
without charge as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto and
documents incorporated by reference therein) as the Initial Purchasers may
reasonably request.
(b) Amendments or Supplements. Before making or distributing any amendment
or supplement to the Preliminary Offering Memorandum or the Offering Memorandum
or filing with the Commission any document that will be incorporated by
reference therein, the Company will furnish to the Representatives and counsel
for the Initial Purchasers a copy of the proposed amendment or supplement or
document to be incorporated by reference therein for review, and
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will not distribute any such proposed amendment or supplement or file any such
document with the Commission to which the Representatives reasonably object.
(c) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) of the
issuance by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose;
(ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Securities as a result of which the Offering Memorandum
as then amended or supplemented would 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 existing when the Offering Memorandum
is delivered to a purchaser, not misleading; and (iii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or suspending any such qualification of the Securities and, if any
such order is issued, will use its reasonable best efforts to obtain as soon as
possible the withdrawal thereof.
(d) Ongoing Use of the Offering Memorandum. If at any time prior to the
completion of the initial offering of the Securities (i) any event shall occur
or condition shall exist as a result of which the Offering Memorandum as then
amended or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the Offering Memorandum
is delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Offering Memorandum to allow its ongoing use, the Company will
immediately notify the Initial Purchasers thereof and forthwith prepare and,
subject to paragraph (b) above, file with the Commission any document to be
incorporated by reference therein and furnish to the Initial Purchasers such
amendments or supplements to the Offering Memorandum as may be necessary so that
the statements in the Offering Memorandum as so amended or supplemented (or
including such document to be incorporated by reference therein) will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Offering Memorandum is delivered to a purchaser,
not misleading or so that the Offering Memorandum will comply in all material
respects with law.
(e) Blue Sky Compliance. The Company will cooperate with the Initial
Purchasers to qualify the Securities for offer and sale under the securities or
Blue Sky laws (including any applicable insurance laws relating to the issuance,
offer or sale of the Securities) of such jurisdictions as the Representatives
shall reasonably request and will continue such qualifications in effect so long
as required for the offering and resale of the Securities; provided that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii)
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file any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(f) Debt Securities. During the period from the date hereof through and
including the date that is 30 days after the date hereof, the Company will not,
without the prior written consent of the Representatives, offer, sell, contract
to sell or otherwise dispose of any debt securities issued or guaranteed by the
Company and having a maturity of more than one year.
(g) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Securities as described in the Offering Memorandum under the heading
"Use of Proceeds".
(h) Supplying Information. While the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will, during any period in which the Company is not
subject to and in compliance with Section 13 or 15(d) of the Exchange Act,
furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon the request of such holders or such
prospective purchasers, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.
(i) DTC. The Company will assist the Initial Purchasers in arranging for
the Securities to be eligible for clearance and settlement through The
Depository Trust Company ("DTC").
(j) No Resales by the Company. Until the issuance of the Exchange
Securities, the Company will not, and will not permit any of their affiliates
(as defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been acquired by any of them, except for Securities
purchased by the Company or any of their affiliates and resold in a transaction
registered under the Securities Act.
(k) No Integration. None of the Company or any of its affiliates (as
defined in Rule 501(b) of Regulation D) will, directly or through any agent
(other than the Initial Purchasers, as to which no covenant is given), sell,
offer for sale, solicit offers to buy or otherwise negotiate in respect of, any
security (as defined in the Securities Act), that is or will be integrated with
the sale of the Securities in a manner that would require registration of the
Securities under the Securities Act.
(l) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on their behalf
(other than the Initial Purchasers, as to which no covenant is given) will
solicit offers for, or offer or sell, the Securities by means of any form of
general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
11
(m) No Stabilization. The Company shall not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.
(n) Filing of Exchange Act Documents. The Company will file all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act within the time periods required by the Exchange Act.
5. Conditions of Initial Purchasers' Obligations. The obligation of each
Initial Purchaser to purchase Securities on the Closing Date as provided herein
is subject to the performance by the Company of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company and its respective
officers made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date.
(b) No Downgrade. Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any securities of or guaranteed
by the Company or in the "financial strength" rating of any of the Company's
insurance subsidiaries by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (including, without limitation, A.M. Best Co. and Fitch Ratings).
(c) No Material Adverse Change. Subsequent to the execution and delivery
of this Agreement, no event or condition of a type described in Section 3(d)
hereof shall have occurred or shall exist, which event or condition is not
described in the Offering Memorandum (excluding any amendment or supplement
thereto or any document filed with the Commission after the date hereof and
incorporated by reference therein) and the effect of which in the judgment of
the Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum.
(d) Officer's Certificate. The Representatives shall have received on and
as of the Closing Date a certificate of an executive officer of the Company who
shall execute such certificate on behalf of the Company, and not in his or her
individual capacity, who has specific knowledge of the Company's financial
matters and is reasonably satisfactory to the Representatives (i) confirming
that such officer has carefully reviewed the Offering Memorandum and, to the
best knowledge of such officer, the representation set forth in Section 3(a)
hereof is true and correct, (ii) confirming that the other representations and
warranties of the
12
Company in this Agreement are true and correct in all material respects and that
the Company has complied in all material respects with all agreements and
satisfied all conditions on their part to be performed or satisfied hereunder at
or prior to the Closing Date and (iii) to the effect set forth in paragraphs (b)
and (c) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing
Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the
request of the Company, letters dated the date hereof and the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained or incorporated by reference in the Preliminary Offering Memorandum
and the Offering Memorandum; provided that the letter delivered on the Closing
Date shall use a "cut-off" date no more than three business days prior to the
Closing Date.
(f) Opinions of Counsel for the Company. The Initial Purchasers shall have
received, at the request of the Company, written opinions of (i) Xxxxx
Xxxxxxxxxx LLP, New York counsel for the Company, (ii) Xxxxxxxx & Shohl LLP,
Ohio counsel for the Company, and (iii) Xxxx, Xxxx & Xxxxx LLC, special counsel
for the Company, each dated the Closing Date and addressed to the Initial
Purchasers and in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex A, Annex B and Annex C,
respectively.
(g) Opinion of Counsel for the Initial Purchasers. The Initial Purchasers
shall have received on and as of the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Initial Purchasers, with respect to such matters as
the Initial Purchasers may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable
them to pass upon such matters.
(h) Registration Rights Agreement. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Company.
(i) Good Standing. The Representative shall have received on and as of the
Closing Date reasonably satisfactory evidence of the good standing of the
Company and its Significant Subsidiaries in their respective jurisdictions of
organization and their good standing in such other jurisdictions as the
Representative may reasonably request, in each case in writing or any standard
form of telecommunication, from the appropriate governmental authorities of such
jurisdictions.
(j) DTC. The Securities shall be eligible for clearance and settlement
through DTC.
(k) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
13
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser, its affiliates, directors
and officers and each person, if any, who controls such Initial Purchaser within
the meaning of 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, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto), or any omission or alleged
omission to state therein 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 insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representatives expressly for
use therein; provided, that with respect to any such untrue statement in or
omission from the Preliminary Offering Memorandum, the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any Initial
Purchaser to the extent that the sale to the person asserting any such loss,
claim, damage or liability was an initial resale by such Initial Purchaser and
any such loss, claim, damage or liability of or with respect to such Initial
Purchaser results from the fact that both (i) a copy of the Offering Memorandum
(excluding any documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of such
Securities to such person and (ii) the untrue statement in or omission from such
Preliminary Offering Memorandum was corrected in the Offering Memorandum unless,
in either case, such failure to deliver the Offering Memorandum was a result of
non-compliance by the Company with the provisions of Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the
Representative expressly for use in the Preliminary Offering Memorandum and the
Offering Memorandum (or any amendment or supplement thereto), it being
understood and agreed that the only such information consists of the following:
On the front cover of the Offering Memorandum: the "Issue Price"; In "Plan of
Distribution": the last sentence of the second full paragraph; the first full
paragraph under " -- Commissions and
14
Discounts"; the third sentence of the first full paragraph under " -- New
Issue"; the second full paragraph under " -- New Issue"; the first full
paragraph under " -- Price Stabilization and Short Positions".
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 6 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person 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 Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding 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 Indemnified Persons, and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. Any
such separate firm for any Initial Purchaser, its affiliates, directors and
officers and any control persons of such Initial Purchaser shall be designated
in writing by the Representatives and any such separate firm for the Company and
any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person 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
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, then the Indemnifying
Person 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 60 business days after receipt by such Indemnifying Party of the aforesaid
request, (ii) such Indemnifying
15
Person shall not have fully reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement and (iii) such Indemnified
Person shall have given the Indemnifying Person at least 30 days' prior written
notice of its intention to settle. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Initial Purchasers,
on the other, from the offering of the Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other, 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 Initial Purchasers, on the other, shall be
deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of the Securities and
the total discounts and commissions received by the Initial Purchasers in
connection therewith, as provided in this Agreement, bear to the aggregate
offering price of the Securities. The relative fault of the Company, on the one
hand, and the Initial Purchasers, 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 Initial Purchasers and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
6 were determined by pro rata allocation (even if the Initial Purchasers 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
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall an Initial Purchaser be required
to contribute any amount in excess of the amount by which the total discounts
and
16
commissions received by such Initial Purchaser with respect to the offering of
the Securities exceeds the amount of any damages that such Initial Purchaser 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 Initial Purchasers' obligations to contribute
pursuant to this Section 6 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, if 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 the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities or material disruption in clearance or settlement systems; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Securities on the terms and in the manner contemplated
by this Agreement and the Offering Memorandum or to enforce contracts for the
sale of the Securities.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any Initial
Purchaser defaults on its obligation to purchase the Securities that it has
agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their
discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Initial Purchaser, either the
non defaulting Initial Purchasers or the Company may postpone the Closing Date
for up to five full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the
Offering Memorandum that effects any such changes. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
17
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers. Any termination of this
Agreement pursuant to this Section 8 shall be without liability on the part of
the Company, except that the Company will continue to be liable for the payment
of expenses as set forth in Section 9 hereof and except that the provisions of
Section 6 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial Purchaser
of any liability it may have to the Company or any non-defaulting Initial
Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
agrees to pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Securities and any taxes payable in that connection; (ii) the costs incident
to the preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendment or supplement thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of
the Transaction Documents; (iv) the fees and expenses of the Company's counsel
and independent accountants; (v) the fees and expenses (not to exceed $7,500)
incurred in connection with the registration or qualification and determination
of eligibility for investment of the Securities under the laws of such
jurisdictions as the Representatives may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Initial Purchasers); (vi) any fees charged by rating
agencies for rating the Securities; (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such
parties); (viii) all expenses and application fees incurred in connection with
the approval of the Securities for book-entry transfer by DTC; and (ix) all
expenses incurred by the Company in connection with any "road show" presentation
to potential investors.
18
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii) the
Company for any reason fails to tender the Securities for delivery to the
Initial Purchasers or (iii) the Initial Purchasers decline to purchase the
Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Initial Purchasers for all out-of-pocket costs and expenses
(including the fees and expenses of their counsel) reasonably incurred by the
Initial Purchasers in connection with this Agreement and the offering
contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and any controlling persons referred to herein, and the affiliates,
officers and directors of each Initial Purchaser referred to in Section 6
hereof. Nothing in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. No purchaser of Securities
from any Initial Purchaser shall be deemed to be a successor merely by reason of
such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or made by or on behalf of the Company or
the Initial Purchasers pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company or the
Initial Purchasers.
12. Miscellaneous. (a) Authority of the Representative. Any action by the
Initial Purchasers hereunder may be taken by UBS Securities LLC, acting as one
of the Representatives on behalf of the Initial Purchasers, and any such action
taken by such Representative shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative:
c/o UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000; Attention: Fixed Income Syndicate
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000.000.0000; Attn: Xxxxx X. Xxxxx
Notices to the Company shall be given to them at:
19
Cincinnati Financial Corporation
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000.000.0000; Attention: Chief Financial Officer
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000.000.0000; Attn: Xxxxxxxx Xxxxxxxx
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws rules of such state.
(d) Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each
of which shall be an original and all of which together shall constitute one and
the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
20
If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing below.
Very truly yours,
CINCINNATI FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Chief Financial Officer
Accepted as of the date hereof
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
Acting severally on behalf of themselves
and the several Initial Purchasers
named in Schedule 1 hereto.
By: UBS Securities LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Director
Debt. Capital Markets
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Director
Debt Capital Markets
21
Schedule 1
Initial Purchasers Principal Amount
------------------ ----------------
X.X. Xxxxxx Securities Inc. $150,000,000
UBS Securities LLC 150,000,000
X.X. Xxxxxxx & Sons, Inc. 18,750,000
Credit Suisse First Boston LLC 18,750,000
KeyBanc Capital Markets 18,750,000
Xxxxxx Brothers Inc. 18,750,000
------------
Total $375,000,000
ANNEX A
[Form of Opinion of Xxxxx Xxxxxxxxxx LLP]
(a) The Indenture constitutes a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms, subject to
the Enforceability Provisions; and the Indenture conforms in all material
respects with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture that is qualified
thereunder.
(b) The Securities constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.
(c) The Exchange Securities, when duly executed, authenticated, issued and
delivered as contemplated by the Registration Rights Agreement, will constitute
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the Indenture.
(d) The Registration Rights Agreement constitutes a valid and legally
binding agreement of the Company enforceable against the Company in accordance
with its terms, subject to the Enforceability Exceptions, and except that rights
to indemnity and contribution thereunder may be limited by applicable law and
public policy.
(e) Each of the Indenture, the Securities and the Registration Rights
Agreement conforms in all material respects to the description thereof contained
in the Preliminary Offering Memorandum and the Offering Memorandum.
(f) No consent, approval, authorization, order, registration or
qualification of or with any New York or federal court or arbitrator or
governmental or regulatory authority is required for the execution, delivery and
performance by the Company of each of the Transaction Documents, the issuance
and sale of the Securities and compliance by the Company with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations, orders and
registrations or qualifications as may be required (i) under applicable state
and insurance securities laws in connection with the purchase and resale of the
Securities by the Initial Purchasers and (ii) with respect to the Indenture and
the Exchange Securities under the Securities Act, Trust Indenture Act and
applicable state securities laws as contemplated by the Registration Rights
Agreement.
(g) Assuming the accuracy of the representations and warranties of the
Company contained in Sections 3(v) and (w) and the assuming the accuracy of the
representations and agreements of the Initial Purchasers in Section 1(b) of the
Purchase Agreement and compliance by the Company with the covenants in Sections
4(k) and 4(l), it is not necessary, in connection
with the issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in the
manner contemplated by this Agreement and the Offering Memorandum, to register
the Securities under the Securities Act or to qualify the Indenture under the
Trust Indenture Act; provided that such counsel need express no opinion on any
subsequent offers or sales, or deliveries of the Securities.
Such counsel shall also state that they have participated in conferences
with representatives of the Company and with representatives of their
independent accountants at which conferences the contents of the Preliminary
Offering Memorandum and the Offering Memorandum and any amendment and supplement
thereto and related matters were discussed and, although such counsel assume no
responsibility for the accuracy, completeness or fairness of the Preliminary
Offering Memorandum and the Offering Memorandum and any amendment or supplement
thereto (except as expressly provided above), nothing has come to the attention
of such counsel to cause such counsel to believe that the Offering Memorandum or
any amendment or supplement thereto, as of its date and the Closing Date,
contained or contains any untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than, in each
case, the financial statements and other financial information contained or
incorporated by reference therein, as to which such counsel need express no
belief).
In rendering such opinion, such counsel may rely (i) as to matters of
fact, on certificates of responsible officers of the Company and public
officials that are furnished to the Initial Purchasers and (ii) as to matters of
Ohio law, on the opinion of Xxxxxxxx & Shohl LLP.
The opinion of Xxxxx Xxxxxxxxxx LLP described above shall be rendered to the
Initial Purchasers at the request of the Company and shall so state therein.
ANNEX B
[Form of Opinion of Xxxxxxxx & Shohl LLP]
(a) The Indenture has been duly authorized, executed and delivered by
the Company.
(b) The Securities have been duly authorized, executed and delivered by
the Company and, when duly authenticated as provided in the Indenture and paid
for as provided in this Agreement, will be duly and validly issued and
outstanding.
(c) The Exchange Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as contemplated by
the Registration Rights Agreement, will be duly and validly issued and
outstanding.
(d) This Agreement has been duly authorized, executed and delivered by
the Company; and the Registration Rights Agreement has been duly authorized,
executed and delivered by the Company.
(e) The Company and each of its significant subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business
(based solely upon a review of certificates furnished by public officials) and
are in good standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a Material Adverse Effect.
(f) The Company has an authorized capitalization as set forth in the
Offering Memorandum under the heading "Capitalization".
(g) The Company has full right, power and authority to execute and
deliver each of the Transaction Documents to which each is a party and to
perform its obligations thereunder; and all corporate action required to be
taken for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions contemplated
thereby has been duly and validly taken.
(h) Each document incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum (other than the financial statements and
other financial information contained therein, as to which such counsel need
express no opinion), when filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder.
(i) The execution, delivery and performance by the Company of each of
the Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject and which in any such case are known to such counsel after due
investigation, (ii) result in any violation of the provisions of the charter,
by-laws or similar organizational documents of the Company or any of its
subsidiaries or (iii) result in the violation of any Ohio law or statute or any
judgment, order, rule or regulation of any Ohio court or arbitrator or
governmental or regulatory authority and which in any such case are known to
such counsel after due investigation, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(j) To the best knowledge of such counsel, except as described in the
Offering Memorandum, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject that, individually or in the
aggregate, if determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect.
(k) The descriptions in the Offering Memorandum of Ohio and federal
statutes, legal, governmental and regulatory proceedings and contracts and other
documents are accurate in all material respects.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials that
are furnished to the Initial Purchasers.
The opinion of Xxxxxxxx & Shohl LLP described above shall be rendered
to the Initial Purchasers at the request of the Company and shall so state
therein.
ANNEX C
[Form of Opinion of Xxxx, Xxxx & Xxxxx LLC]
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
Offering Memorandum will not be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act and the rules and regulations of the Securities and Exchange
Commission.
Exhibit A
[Form of Registration Rights Agreement]
