Exhibit 4.3
FORM OF
FORM OF , dated as of May __, 2003 (the
"") by and between AmerUs Group Co. (the "Company"), and
_______ not individually but solely as Purchase Contract Agent and as
attorney-in-fact of the holders of Purchase Contracts (each as defined in the
Purchase Contract Agreement (as defined herein)), and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated Amount $_____ of
its Securities (the "Securities") under the Purchase Contract Agreement, dated
as of May __, 2003 by and between the Purchase Contract Agent and the Company
(the "Purchase Contract Agreement"); and
WHEREAS, the Securities will initially consist of _______ Income
PRIDES, each such security consisting of a __% Note initially due May 16,
2008 issued by the Company in the principal amount of $25 (a "Debt Security")
and a Purchase Contract issued by the Company ("Purchase Contract") pursuant to
the Purchase Contract Agreement and _____ Growth PRIDES each such security
consisting of certain U.S. Treasury Securities and a Purchase Contract.
WHEREAS, the Debt Securities will be pledged pursuant to the Pledge
Agreement (the "Pledge Agreement"), dated as of May __, 2003, by and between the
Company, _______, as Collateral Agent, Securities Intermediary and Custodial
Agent (the "Collateral Agent") and the Purchase Contract Agent, to secure an
Income PRIDE holder's obligations under the related Purchase Contract on the
Purchase Contract Settlement Date; and
WHEREAS, the Debt Securities of such holders electing to have their
Debt Securities that are not pledged pursuant to the Pledge Agreement
remarketed, or of such Type A Security holders who have elected not to settle
the Purchase Contracts related to their Type A Security from the proceeds of a
Cash Settlement and who have not early settled their Purchase Contracts, will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable interest rate on the Debt Securities will be
reset to the Reset Rate on the Reset Date; and
WHEREAS, the Company has requested Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as the Reset Agent and as the
Remarketing Agent and as such to perform the services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein stated, the Pledge Agreement.
Section 2. Appointment and Obligations of Reset Agent and Remarketing
Agent; Remarketing.
(a) Appointment and Obligations. The Company hereby appoints Xxxxxxx
Xxxxx, and Xxxxxxx Xxxxx hereby accepts such appointment, (i) as the Reset Agent
to determine, and in consultation with the Company and in the manner provided
for in the Debt Securities and the Purchase Contract Agreement, the Reset Rate
and (ii) as the exclusive Remarketing Agent to remarket the Debt Securities as
provided in Section 2(b), pursuant to the Remarketing Underwriting Agreement
attached hereto as Exhibit A, among the Company, the Purchase Contract Agent and
the Remarketing Agent (with such changes as the Company, the Purchase Contract
Agent and the Remarketing Agent may agree upon, it being understood that changes
may be necessary in the representations, warranties, covenants and other
provisions of the Remarketing Underwriting Agreement due to changes in law or
facts and circumstances). Pursuant to the Remarketing Underwriting Agreement,
the Remarketing Agent, either as the sole remarketing underwriter or as the
representative of a syndicate including the Remarketing Agent and one or more
other remarketing underwriters designated by the Remarketing Agent, will agree,
subject to the terms and conditions set forth therein, that the Remarketing
Agent and any such other remarketing underwriters will purchase, severally, the
Debt Securities to be sold by the holder or holders of Debt Securities or Income
PRIDES on the dates and at the prices described in Section 2(b).
(b) Remarketing Procedures.
(1) On each Reset Announcement Date, the Agent shall give Holders of
Debt Securities (whether held as a component of Income PRIDES or separately with
such Debt Securities held separately being referred to as "Separate Notes")
notice of the remarketing to occur on the associated Remarketing Date. The
Company or the Agent, at the Company's request, shall request not later than
seven nor more than 15 calendar days prior to any Remarketing Date, that the
Clearing Agency notify the Clearing Agency participants of such Remarketing
Date. The Agent shall notify, by 10:00 a.m., New York City time, on the third
Business Day preceding such Remarketing Date, the Remarketing Agent and the
Collateral Agent of the aggregate principal amount of Debt Securities included
in the Income PRIDES, which shall be remarketed. On the third Business Day
preceding such Remarketing Date, no later than by 10:00 a.m., New York City
time, pursuant to the terms of the Pledge Agreement, the Custodial Agent will
notify the Remarketing Agent of the aggregate principal amount of Separate Notes
to be remarketed. No later than 10:00 a.m., New York City time, on the Business
Day immediately preceding such Remarketing Date, the Collateral Agent and the
Custodial Agent, pursuant to the terms of the Pledge Agreement, will deliver for
remarketing to the Remarketing Agent all Debt Securities to be remarketed. Upon
receipt of such notice from the Agent and the Custodial Agent and such Debt
Securities from the Collateral Agent and the Custodial Agent, the Remarketing
Agent will, on such Remarketing Date, use its reasonable efforts to sell such
Debt Securities on such date at the Reset Rate. The sale of the Debt Securities
will be settled on or prior to the third Business Day following such Remarketing
Date on which the Debt Securities were successfully remarketed. The
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Remarketing Agent will use the proceeds from a successful remarketing to
purchase the Remarketing Treasury Portfolio. On or prior to the third Business
Day following the Remarketing Date on which the Debt Securities are successfully
remarketed, the Remarketing Agent shall deliver the Remarketing Treasury
Portfolio to the Agent, which shall thereupon deliver the Remarketing Treasury
Portfolio to the Collateral Agent. The Collateral Agent, for the benefit of the
Company, will thereupon apply the Remarketing Treasury Portfolio, in accordance
with the Pledge Agreement, to secure such Holders' obligations under the
Purchase Contracts. In the event of a successful remarketing pursuant, the
Remarketing Agent will deduct the Remarketing Fee after allowing for the
Remarketing Treasury Portfolio Purchase Price. The Remarketing Agent will remit
(1) the portion of the proceeds from the remarketing attributable to the
Separate Notes to the holders of Separate Notes that were remarketed and (2) the
remaining portion of the proceeds, less those proceeds used to purchase the
Remarketing Treasury Portfolio, to the Agent for the benefit of the Holders of
the Debt Securities included in Income PRIDES that were remarketed, all
determined on a pro rata basis, in each case, on or prior to the third Business
Day following the Remarketing Date on which the Notes were successfully
remarketed. Holders whose Notes are so remarketed will not otherwise be
responsible for the payment of any Remarketing Fee in connection therewith.
(2) In the event of any Failed Remarketing on any Remarketing Date,
(i) the Company shall publish a notice of such Failed Remarketing in an
Authorized Newspaper within two Business Days immediately following such
Remarketing Date; and (ii) the Debt Securities shall be returned to the
Collateral Agent and the Custodial Agent.
Section 3. Fees. The Reset Agent shall receive from the Company a
reasonable and customary fee for acting as the Reset Agent (the "Reset Agent
Fee"); provided, however, that if the Remarketing Agent shall also act as the
Reset Agent, then the Reset Agent shall not be entitled to receive any such
Reset Agent Fee. Payment of such Reset Agent Fee shall be made by the Company on
the third Business Day immediately preceding the Purchase Contract Settlement
Date in immediately available funds or, upon the instructions of the Reset
Agent, by certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent and Reset
Agent. (a) The Company may in its absolute discretion replace Xxxxxxx Xxxxx as
the Remarketing Agent and/or as the Reset Agent in its capacity hereunder by
giving notice prior to 3:00 p.m., New York City time, on the eleventh Business
Day immediately prior to any Remarketing Date or the Purchase Contract
Settlement Date. Any such replacement shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and/or the Reset Agent. Upon
providing such notice, the Company shall use all reasonable efforts to appoint
such a successor and to enter into a with such successor
as soon as reasonably practicable.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from its duties
and obligations hereunder as the Remarketing Agent and/or as the Reset Agent by
giving notice prior to 3:00 p.m., New York City time, on the eleventh Business
Day immediately prior to any Remarketing Date or the Purchase Contract
Settlement Date. Any such resignation shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and/or the Reset Agent. Upon
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receiving notice from the Remarketing Agent and/or the Reset Agent that it
wishes to resign hereunder, the Company shall appoint such a successor and enter
into a with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. The Remarketing Agent, when acting
hereunder or under the Remarketing Underwriting Agreement or acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Debt Securities. With respect to any Debt
Securities owned by it, the Remarketing Agent may exercise any vote or join in
any action with like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual capacity, either as principal or agent, may
also engage in or have an interest in any financial or other transaction with
the Company as freely as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus. In connection with the
Remarketing, if and to the extent required (in the opinion of counsel for either
the Remarketing Agent or the Company) by applicable law, regulations or
interpretations in effect at the time of such Remarketing, the Company shall use
its reasonable efforts to have a registration statement relating to the Debt
Securities effective under the Securities Act of 1933 by the third Business Day
immediately preceding each Remarketing Date, shall furnish a current prospectus
and/or prospectus supplement to be used in each remarketing by the remarketing
underwriter or underwriters under the Remarketing Underwriting Agreement, and
shall pay all expenses relating thereto.
Section 7. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent and any other remarketing underwriters to
purchase and remarket the Debt Securities, as the case may be, shall be subject
to the terms and conditions of the Remarketing Underwriting Agreement.
(b) If at any time during the term of this Agreement, any Event of Default
(as defined therein) under the Indenture, or event that with the passage of time
or the giving of notice or both would become an Event of Default under the
Indenture, has occurred and is continuing, then the obligations and duties of
the Remarketing Agent under this Agreement shall be suspended until such default
or event has been cured. The Company will cause the Trustee to give the
Remarketing Agent notice of all such defaults and events of which the Trustee is
aware.
Section 8. Termination of . This Agreement shall
terminate as to the Remarketing Agent on the effective date of its replacement
pursuant to Section 4(a) hereof or pursuant to Section 4(b) hereof.
Notwithstanding any such termination, the obligations set forth in Section 2
(insofar as such Section relates to the payment of the Remarketing Fee) and
Section 3 hereof shall survive and remain in full force and effect until all
amounts payable under such Sections shall have been paid in full.
Section 9. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent hereunder shall be determined solely by the
express provisions of this Agreement and the Remarketing Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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Section 11. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof and except as otherwise provided herein, this
Agreement shall remain in full force and effect from the date hereof until the
first day thereafter on which no Debt Securities are outstanding.
Section 12. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of Xxxxxxx Xxxxx as the Remarketing Agent and the
Purchase Contract Agent. The rights and obligations of Xxxxxxx Xxxxx as the
Remarketing Agent and/or as the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the Company.
This Agreement shall inure to the benefit of and be binding upon the Company and
Xxxxxxx Xxxxx as the Remarketing Agent and/or as the Reset Agent and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of Securities merely because of such purchase.
Section 13. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provision of this Agreement.
Section 14. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
Section 16. Amendments. This Agreement may be amended by any instrument in
writing signed by the parties hereto.
Section 17. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to AmerUs Group Co., 000 Xxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000, Attention: _________; if to the Remarketing Agent or Reset Agent,
_______; and if to the Purchase Contract Agent, _______, or to such other
address as any of the above shall specify to the other in writing.
IN WITNESS WHEREOF, each of the Company, the Remarketing Agent and the
Purchase Contract Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized officers as of the date first above
written.
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AMERUS GROUP CO.
By:_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
__________________________________
__________________________________
By:_______________________________
Authorized Signatory
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By:_______________________________
Name:
Title:
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Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
____________ (the "Remarketing Underwriter") hereby agrees, subject to
the terms and conditions herein set forth or incorporated herein, to purchase
the Debt Securities as set forth in Schedule I hereto, that have been tendered
by the holders of the Income PRIDES for sale on _______.
1. Definitions. Capitalized terms used and not defined in this Agreement
shall have the meanings assigned to them in the purchase contract agreement (the
"Purchase Contract Agreement"), the pledge agreement (the "Pledge Agreement"),
the underwriting agreement, dated _______, between the Company and _______, as
underwriters with respect to the issuance and sale of the Securities (the
"Underwriting Agreement"), and the Indenture (For Unsecured Debt Securities
Series __), dated _____, between _______ and the Company (the "Indenture").
2. Registration Statement and Prospectus. If required (in the opinion of
counsel to either the Remarketing Underwriter or the Company) by applicable law,
the Company has filed with the Securities and Exchange Commission, and there has
become effective, a registration statement on Form S-3 (No. 333- ____),
including a prospectus, relating to the Debt Securities. Such registration
statement, as amended to the date of this Agreement, is hereinafter referred to
as the "Registration Statement", the prospectus included in the Registration
Statement is hereinafter referred to as the "Basic Prospectus" and the Basic
Prospectus, as amended or supplemented to the date of this Agreement to relate
to the Debt Securities and to the remarketing of the Debt Securities, is
hereinafter referred to as the "Final Prospectus" (including in each case all
documents incorporated by reference).
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of Sections ____ and
____ of the Underwriting Agreement shall be incorporated, as applicable into
this Agreement and made applicable to the obligations of the Remarketing
Underwriter, except as explicitly amended hereby.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" or the "Representative" or "Representatives", as
the case may be, shall be deemed to refer to the Remarketing Underwriter; (ii)
all references therein to the "Securities" which are the subject thereof shall
be deemed to refer to the Debt Securities as defined herein; (iii) all
references therein to the "Closing Date" shall be deemed to refer to the
Remarketing Closing Date specified in Schedule I hereto (the "Remarketing
Closing Date"); (iv) all references therein to the "Registration Statement", the
"Basic Prospectus" and the "Final Prospectus" shall be deemed to refer to the
Registration Statement, the Basic Prospectus and the Final Prospectus,
respectively, as defined herein.
4. Purchase and Sale; Remarketing Underwriting Fee. Subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth or incorporated herein, the Remarketing Underwriter agrees to purchase
from the registered holder or holders thereof in the manner specified in Section
5 hereof, the principal amount of remarketed Debt
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Securities set forth in Schedule I hereto at a purchase price not less than [
[100%] OF THE AGGREGATE PRINCIPAL AMOUNT OF SUCH DEBT SECURITIES, PLUS ANY
ACCRUED AND UNPAID INTEREST THEREON.] In connection therewith, the registered
holder or holders thereof agree, in the manner specified in Section 5 hereof, to
pay to the Remarketing Underwriter the Remarketing Fee, from any amount received
from such remarketing in excess of the aggregate principal amount of such
remarketed Debt Securities, plus any accrued and unpaid interest.
5. Delivery and Payment. Delivery of payment for the remarketed Debt
Securities and payment of the Remarketing Underwriting Fee shall be made on the
Remarketing Closing Date at the location and time specified in Schedule I hereto
(or such later date not later than five business days after such date as the
Remarketing representatives shall designate), which date and time may be
postponed by agreement between the Remarketing Underwriter, the Company, and the
registered holder or holders thereof. Delivery of the remarketed Debt Securities
and payment of the Remarketing Underwriting Fee shall be made to the Remarketing
Underwriter [to or upon the order of the [registered holder or holders of the
remarketed Debt Securities] by certified or official bank check or checks drawn
on or by a New York Clearing House bank and payable in immediately available
funds] [in immediately available funds by wire transfer to an account or
accounts designated by the [Company] [registered holder or holders of the
remarketed Debt Securities]] or, if the remarketed Debt Securities are
represented by a Global Security, by any method of transfer agreed upon by the
Remarketing Underwriter and the Depositary for the Debt Securities under the
Indenture.
[It is understood that any registered holder or, if the Debt Securities
are represented by a Global Security, any beneficial owner, that has an account
at the Remarketing Underwriter and tenders its Debt Securities through such
account will not be required to pay any fee or commission to the Remarketing
Underwriter.]
If the Debt Securities are not represented by a Global Security,
certificates for the Debt Securities shall be registered in such names and
denominations as the Remarketing Underwriter may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company,
and the [registered holder or holders thereof] agree to have such certificates
available for inspection, packaging and checking by the Remarketing Underwriter
in New York, New York not later than 1:00 p.m. on the Business Day prior to the
Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents or
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All written notices
and confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to AmerUs Group Co., 000 Xxxxxx Xxxxxx, Xxx Xxxxxx, XX 00000,
Attention: ________; if to the Remarketing Agent or Reset Agent, to _______; and
if to the Purchase Contract Agent, to _______, or to such other address as any
of the above shall specify to the other in writing.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Remarketing Underwriters.
Very truly yours,
AMERUS GROUP CO.
By:________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
__________________________________
__________________________________
By:_______________________________
Authorized Signatory
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By:_______________________________
Name:
Title:
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SCHEDULE I
Title of Securities: ___% Series __ Senior Notes due ____
Principal Amount of Securities: $
Underwriting Agreement, dated as of _________ __, ____, between the Company and
_______________________________________
Remarketing [Underwriting] Fee: _____ % ($_____)
Remarketing Closing Date, Time and Location: _______________________
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