EXHIBIT 10.25
INFINITY PROPERTY AND CASUALTY CORPORATION
$200,000,000
5.50% NOTES DUE 2014
PURCHASE AGREEMENT
February 11, 2004
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
as Representatives of the Initial Purchasers
Ladies and Gentlemen:
1. Infinity Property and Casualty Corporation, an Ohio
corporation (the "COMPANY"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the Initial Purchasers named in Schedule I
hereto (the "INITIAL PURCHASERS"), for whom UBS Securities LLC and Xxxxxx
Brothers, Inc. (the "Representatives") are acting as representatives, an
aggregate principal amount of $200,000,000 of its 5.50% Senior Notes Due 2014
(the "SECURITIES"). The Securities will be issued under an indenture (the
"INDENTURE") dated as of the Closing Date (as hereinafter defined) between the
Company and American Stock Transfer & Trust Company, as trustee (the "TRUSTEE").
In connection with the sale of the Securities, the Company has prepared
an offering memorandum, dated the date hereof, in form and substance
satisfactory to the Initial Purchasers. As used in this Agreement, "Offering
Memorandum" means, collectively, the preliminary offering memorandum dated as of
February 10, 2004 (the "PRELIMINARY OFFERING MEMORANDUM") and the offering
memorandum dated the date hereof (the "OFFERING MEMORANDUM"), each as amended or
supplemented to the date hereof, including any and all exhibits thereto and any
information incorporated by reference therein. The Offering Memorandum sets
forth certain information concerning the Company and the Securities. The Company
hereby confirms that it has authorized the use of the Offering Memorandum, and
any amendment or supplement thereto prepared by the Company in accordance with
this Agreement, in connection with the offer and sale of the Securities by the
Initial Purchasers. Unless stated to the contrary, any references herein to the
terms "amend", "amendment" or "supplement" with respect to the Offering
Memorandum shall be deemed to refer to and include any information filed under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), subsequent
to the date and time that this Agreement is executed and delivered by the
parties hereto (the "EXECUTION TIME"), through the Closing Date, which is
expressly incorporated by reference therein.
The Initial Purchasers and their direct and indirect transferees of the
Securities will be entitled to the benefits of the Exchange and Registration
Rights Agreement, to be dated as of February 17, 2004 (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company has agreed, among other things, to
file under the Securities Act of 1933, as amended (the "ACT"), with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
relating to an offer to exchange any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company (the
"Exchange Securities"), which debt securities are substantially identical to the
Securities, except that they have been registered pursuant to an effective
registration statement under the Securities Act.
The Company has (i) acquired all of the issued and outstanding capital
stock of each of Atlanta Casualty Company, Infinity Insurance Company, Leader
Insurance Company and Windsor Insurance Company, (ii) executed and delivered (or
caused one or more of the appropriate Company subsidiaries to execute and
deliver) the agreements set forth on Exhibit A hereto (as amended through the
date of this Agreement, the "INCEPTION AGREEMENTS") including without limitation
the Reinsurance Agreement between Windsor Insurance Company and Great American
Insurance Company and certain affiliates pursuant to which, among other things,
the Company's subsidiaries reinsure certain personal lines property and casualty
insurance business written by Great American Insurance Company and (iii)
consummated or caused the consummation of the transactions contemplated by the
Inception Agreements. All of the foregoing are referred to collectively herein
as the "FORMATION." For all purposes of this Agreement, the subsidiaries of the
Company include Atlanta Casualty Company, Infinity Insurance Company, Leader
Insurance Company and Windsor Insurance Company.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Initial Purchasers that:
(a) The Preliminary Offering Memorandum as of its date
and the Offering Memorandum as of its date and on the Closing Date, did not, and
will not (and any amendment or supplement thereto prepared by the Company in
accordance with this Agreement, will not), contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the Initial
Purchasers specifically for use therein.
(b) The documents filed with the Commission after the
date of the Preliminary Offering Memorandum through the date of this Agreement,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; and any further documents so filed
after the date of the Offering Memorandum through the Closing Date, when they
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
(c) The Securities satisfy the eligibility requirements
of Rule 144A(d)(3) under the Act.
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(d) Neither the Company nor any of its Affiliates (as
defined in Rule 501(b) under the Act), nor any person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) in connection with any offer
or sale of the Securities in the United States.
(e) Neither the Company nor any of its Affiliates, nor
any person acting on its or their behalf, has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any security, in a
manner that would cause the Securities to be required to be registered under the
Act.
(f) Except as disclosed in the Offering Memorandum, there
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any Initial
Purchaser for a brokerage commission, finder's fee or other like payment.
(g) The Company has not taken, directly or indirectly,
any action designed to cause or which has constituted or which might reasonably
be expected to cause or result under the Exchange Act or otherwise in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(h) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Ohio, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Memorandum; and the Company is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification.
(i) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Offering Memorandum; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification except where the failure to so qualify would not have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole ("Material Adverse Effect"); all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and except as otherwise disclosed in
the Offering Memorandum, the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(j) The Formation did not, and will not, result in any
tax liability to the Company or any of its subsidiaries.
(k) Except as disclosed in the Offering Memorandum, the
Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by them;
and except as disclosed in the Offering Memorandum, the Company and its
subsidiaries
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hold any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to be
made thereof by them.
(l) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated (or contemplated by the
Offering Memorandum to be operated) by them and have not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect.
(m) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(n) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated (or contemplated by the Offering Memorandum
to be operated) by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect.
(o) Except as disclosed in the Offering Memorandum,
neither the Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(p) Except as disclosed in the Offering Memorandum, there
are no pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, the Indenture or the Registration Rights
Agreement or which are otherwise material in the context of the sale of the
Securities; and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated;
(q) The financial statements included or incorporated by
reference in the Offering Memorandum present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Memorandum, such financial
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statements have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis and the
assumptions used in preparing the pro forma financial statements included in the
Offering Memorandum provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those assumptions,
and the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts. The
Company's ratios of earnings to fixed charges set forth in the Offering
Memorandum have been calculated in compliance with Item 503(d) of Regulation S-K
under the Securities Act.
(r) Except as disclosed in the Offering Memorandum, since
December 31, 2002 there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in the
Offering Memorandum, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(s) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(t) The Securities have been duly authorized and, when
executed and authenticated in accordance with the Indenture and delivered and
paid for pursuant to this Agreement, will have been duly executed and delivered
and will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and entitled to the benefits of the Indenture; and the Exchange
Securities have been duly authorized by the Company, and, when duly executed,
issued and authenticated in accordance with the Indenture, will constitute valid
and legally binding obligations of the Company, enforceable against the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles and entitled to the benefits
of the Indenture.
(u) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Registration Rights Agreement has been duly
authorized by the Company and, when executed and delivered by the Company, will
constitute a valid and legally binding instrument of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to general equity principles and to
any applicable public policy that may limit or restrict the validity or
enforceability of indemnities or agreements that contain indemnities with
respect to liabilities under the Act.
(w) The Indenture has been duly authorized and, when
executed and delivered by the Company, will constitute a valid and legally
binding instrument of the Company enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
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creditors' rights and to general equity principles; and the Registration Rights
Agreement, Securities and the Indenture will conform in all material respects to
the descriptions thereof in the Offering Memorandum.
(x) The issue and sale of the Securities and the
compliance by the Company with all of the terms thereof and of the Indenture,
the Registration Rights Agreement and this Agreement, and the consummation of
the transactions contemplated herein and therein and of the Formation will not
and did not, as the case may be, result in a breach or violation of any of the
terms or provisions of, or constitute a default under (i) 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) the charter or by-laws
(or similar corporate documents) of the Company or any of its subsidiaries; or
(iii) any law, statute or any order, rule or regulation of any court or
regulatory authority or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of its or their properties, except, in
the case of clauses (i) and (iii) above, for such breaches, defaults and
violations that would not result in a Material Adverse Effect or affect the
validity of the Securities; and (assuming the accuracy and completeness of the
representations and warranties of the Initial Purchasers contained herein and
the compliance by the Initial Purchasers with their obligations hereunder) no
registration of the Securities under the Act, or qualification of the Indenture
under the Trust Indenture Act, is required for (i) the offer or sale of the
Securities by the Company to the Initial Purchasers or (ii) the re-offer and
initial resale of the Securities by the Initial Purchasers to "qualified
institutional buyers" (as defined in Rule 144A under the Act) in the manner
contemplated by this Agreement and as described in the Offering Memorandum, no
consent, approval, authorization, registration or qualification of or with any
court or any regulatory authority or other governmental agency or body is
required for the issue and sale of the Securities or the consummation of the
other transactions contemplated by this Agreement, the Registration Rights
Agreement or the Indenture, except for the registration of the substantially
similar debt securities under the Act, and the qualification of an indenture
under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"),
as specifically set forth in the Registration Rights Agreement, and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky or insurance securities laws in
connection with the purchase and distribution by the Initial Purchasers of the
Securities.
(y) Each subsidiary of the Company which is engaged in
the business of insurance or reinsurance (collectively, the "INSURANCE
SUBSIDIARIES") holds such insurance licenses, certificates and permits from
governmental authorities (including, without limitation, from the insurance
regulatory agencies of the various jurisdictions where it conducts business (the
"INSURANCE LICENSES")) as are necessary to the conduct of its business as
described in the Offering Memorandum; the Company and each Insurance Subsidiary
have fulfilled and performed all obligations necessary to maintain the Insurance
Licenses; except as disclosed in the Offering Memorandum, there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or
investigation that could reasonably be expected to result in the revocation,
termination or suspension of any Insurance License which would, individually or
in the aggregate, have a Material Adverse Effect; and except as disclosed in the
Offering Memorandum, no insurance regulatory agency or body has issued, or
commenced any proceeding for the issuance of, any order or decree impairing,
restricting or prohibiting the payment of dividends by any Insurance Subsidiary
to its parent.
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(z) Except as disclosed in the Offering Memorandum, the
Company and its Insurance Subsidiaries have made no material change in their
insurance reserving practices since December 31, 2002.
(aa) All reinsurance treaties, contracts or agreements to
which any Insurance Subsidiary is a party are in full force and effect and no
Insurance Subsidiary is in violation of, or in default in the performance,
observance or fulfillment of, any obligation, agreement, covenant or condition
contained therein; no Insurance Subsidiary has received any notice from any of
the other parties to such treaties, contracts or agreements that such other
party intends not to perform such treaty, contract or agreement and, to the best
knowledge of the Company and the Insurance Subsidiaries, the Company and the
Insurance Subsidiaries have no reason to believe that any of the other parties
to such treaties, contracts or agreements will be unable to perform such treaty,
contract or agreement except to the extent adequately and properly reserved for
in the audited historical financial statements of the Company included in the
Offering Memorandum, except where such default or inability to perform would
not, individually or in the aggregate, have a Material Adverse Effect.
(bb) The statutory financial statements of the Insurance
Subsidiaries, from which certain ratios and other statistical data included in
the Offering Memorandum have been derived, have been prepared for each relevant
period in conformity with statutory accounting principles or practices required
or permitted by the National Association of Insurance Commissioners and by the
appropriate Insurance Department of the jurisdiction of domicile of each
Insurance Subsidiary, and such statutory accounting practices have been applied
on a consistent basis throughout the periods involved, except as may otherwise
be indicated therein or in the notes thereto, and present fairly in all material
respects the statutory financial position of the Insurance Subsidiaries as of
the dates thereof, and the statutory basis results of operations of the
Insurance Subsidiaries for the periods covered thereby.
(cc) The Company is not aware of any threatened or pending
downgrading of any Insurance Subsidiaries' claims-paying ability rating from
A.M. Best Company, Inc. or financial strength rating from Standard & Poor's
Rating Services, Inc. or Fitch, Inc.
(dd) Ernst & Young LLP, which has certified certain
financial statements of the Company and its subsidiaries and delivered its
report with respect to the audited consolidated financial statements and
schedules included or incorporated by reference in the Offering Memorandum, is
or was independent public accountants with respect to the Company when serving
as the Company's accountants within the meaning of the Act and the applicable
published rules and regulations thereunder.
(ee) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
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Any certificate signed by any officer of the Company and delivered to
the Initial Purchasers or counsel for the Initial Purchasers in connection with
the offering of the Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Initial Purchaser.
3. Purchase, Offering and Delivery. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to the Initial
Purchasers, and each Initial Purchaser, severally and not jointly, on the basis
of the representations and warranties contained herein, agrees to purchase from
the Company the respective principal amount of Securities set forth opposite
such Initial Purchaser's name in Schedule I hereto, at a purchase price of
98.978% of the principal amount thereof, plus any accrued interest from February
17, 2004 to the date of payment and delivery.
The Securities to be purchased by the Initial Purchasers will be
represented by one or more global Securities in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Company will deliver the Securities to
the Initial Purchasers, against payment by the Initial Purchasers of the
purchase price therefor by wire transfer of federal (same-day) funds to the
account specified by the Company to the Initial Purchasers at least forty-eight
hours in advance, by causing DTC to credit the Securities to the accounts of the
Initial Purchasers at DTC. The delivery of and payment for the securities shall
be made at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to by the Company and
the Initial Purchasers) at 9:00 a.m., New York City time, on February 17, 2004
or such other time and date as the Representatives and the Company may agree
upon in writing. Such time and date for delivery of the Securities is herein
called the "CLOSING DATE". The Company will cause specimen copies of the
certificates representing the Securities to be made available to the Initial
Purchasers for checking at least forty-eight hours prior to the Closing Date at
the office of Xxxxx Xxxxxxxxxx LLP.
4. Representations and Warranties of the Initial Purchasers.
(a) Each Initial Purchaser represents and warrants to,
and agrees with, the Company that:
(i) It has not offered or sold, and will not
offer or sell, any Securities except to entities it reasonably believes
to be qualified institutional buyers (as defined in Rule 144A under the
Act) and that, in connection with each such sale, it has taken or will
take reasonable steps to ensure that the purchaser of such Securities
is aware that such sale is being made in reliance on Rule 144A.
(ii) Neither it, nor any of its Affiliates nor
any person acting on its behalf, has made or will make offers or sales
of the Securities in the United States by means of any form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act).
(iii) Any offer or sale of the Securities through
an electronic medium has been and will be made in accordance in all
material respects with the Act.
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5. Covenants of the Company. The Company covenants and agrees
with the Initial Purchasers that:
(a) The Company will not amend or supplement the Offering
Memorandum, without the prior written consent of the Representatives. The
Company will not file any document under the Exchange Act after the date of the
Offering Memorandum through the Closing Date unless, prior to such proposed
filing, the Company has furnished the Initial Purchasers with a copy of such
document for their review and the Representatives have not reasonably objected
to the filing of such document. The Company will promptly advise the Initial
Purchasers when any document filed under the Exchange Act through the Closing
Date shall have been filed with the Commission.
(b) If any event occurs as a result of which the Offering
Memorandum as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it should be necessary to amend or supplement the
Offering Memorandum to comply with applicable law, the Company promptly (i) will
notify the Initial Purchasers in writing of any such event and (ii) subject to
the requirements of paragraph (a) of this Section 5, will prepare an amendment
or supplement which will correct such statement or omission or effect such
compliance. The expense of complying with the requirements of this Section 5(b)
shall be borne by the Company.
(c) The Company will furnish to the Initial Purchasers
copies of the Offering Memorandum, and all amendments and supplements thereto,
in each case as soon as available and in such quantities as the Initial
Purchasers request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers under the
laws of such jurisdictions as the Initial Purchasers may designate and will
maintain such qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, or taxation in any
jurisdiction where it is not now so subject. The Company will promptly advise
the Initial Purchasers in writing of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(e) Neither the Company nor any of its Affiliates, nor
any person acting on its or their behalf, will, directly or indirectly, offer or
sell any security, or solicit offers to buy any security, in a manner that would
cause the Securities to be required to be registered under the Act.
(f) The Company will not, and will not permit any of its
Affiliates, nor any person acting on its or their behalf, to engage in any form
of general solicitation or general advertising (within the meaning of Regulation
D under the Act) in connection with any offer or sale of the Securities in the
United States.
(g) The Company will not take, directly or indirectly,
any action designed to or which has constituted or which might reasonably be
expected to cause or result, under the
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Exchange Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(h) The Company will provide to each holder of the
Securities and to each prospective purchaser (as designated by such holder) of
the Securities, upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Act. This
covenant is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such restricted
securities.
(i) The Company will pay or cause to be paid the
following:
(i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the distribution
of the Securities and all other expenses in connection with the
preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Initial Purchasers;
(ii) any stamp or transfer taxes in connection
with the original issuance and sale of the Securities;
(iii) the cost of preparing this Agreement, the
Registration Rights Agreement, the Indenture and any other documents to
be delivered by the Company in connection with the offering, purchase,
sale and delivery of the Securities;
(iv) the cost of preparing the Securities;
(v) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with the Indenture and the Securities;
(vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and
expenses of counsel for the Initial Purchasers relating to such
registration and qualification);
(vii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective Initial Purchasers of the Securities; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, Section 7, Section 9 and
Section 13 hereof, the Initial Purchasers will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes
on resale of any of the Securities by them, and any expenses connected
with any offers they may make.
(j) During the period beginning on the date hereof and
continuing to and including fifteen business days after the Closing Date the
Company will not, without the prior
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consent of the Representatives, offer or sell any of its United States dollar
denominated long-term, unsecured debt securities that are substantially similar
to the Securities.
6. Conditions of the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase and pay for the Securities
will be subject to the accuracy, at the Execution Time and as of the Closing
Date of the representations and warranties on the part of the Company herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) For the period from and after the Execution Time and
prior to the Closing Date:
(i) there shall not have occurred any change, or
any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of the Company or its subsidiaries which, in the judgment of
the Representatives, is so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated in the Offering Memorandum; and
(ii) there shall not have occurred any
downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
downgrading in the insurance claims paying ability rating of any
Insurance Subsidiary by A.M. Best Company, or any public announcement
that any such organization has under surveillance or review such rating
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating).
(b) The Initial Purchasers shall have received an opinion
of Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L., counsel for the Company, dated the
Closing Date, to the effect that:
(i) The Company has been duly incorporated and
is an existing corporation in good standing under the laws of the State
of Ohio, with corporate power and authority to own its properties and
conduct its business as described in the Offering Memorandum; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification;
(ii) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Memorandum; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification except where the failure to so qualify would not result
in a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid
-11-
and nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects;
(iii) The Company has corporate power and
authority to enter into and perform its obligations under this
Agreement, the Registration Rights Agreement, the Indenture and the
Securities;
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding instrument of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(v) The Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding instrument of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; provided that such counsel need not express
any opinion regarding the enforceability of provisions therein relating
to indemnification, exculpation or contribution, to the extent that
such provisions may be held contrary to federal or state securities
laws;
(vi) The Securities have been duly authorized and
executed by the Company, and when authenticated in accordance with the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms and entitled to the benefits of the Indenture, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vii) The Exchange Securities have been duly
authorized by the Company, and, when duly executed and authenticated in
accordance with the Indenture, and delivered pursuant to the exchange
offer contemplated by the Registration Rights Agreement, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
of the Indenture, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) The issue and sale of the Securities and the
compliance by the Company with all of the terms thereof and of the
Indenture, the Registration Rights Agreement and this Agreement, and
the consummation of the transactions contemplated herein and therein
and of the Formation will not and did not, as the case may be, result
in a breach or violation of any of the terms or provisions of, or
constitute a default under (i)
-12-
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) the charter or by-laws (or similar
corporate documents) of the Company or any of its subsidiaries; or
(iii) any law, statute or any order, rule or regulation of any court or
regulatory authority or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of its or their
properties, except, in the case of clauses (i) and (iii) above, for
such breaches, defaults and violations that would not result in a
Material Adverse Effect or affect the validity of the Securities; and
(assuming the accuracy and completeness of the representations and
warranties of the Initial Purchasers contained herein and the
compliance by the Initial Purchasers with their obligations hereunder)
no registration of the Securities under the Act, or qualification of
the Indenture under the Trust Indenture Act, is required for (i) the
offer or sale of the Securities by the Company to the Initial
Purchasers or (ii) the re-offer and initial resale of the Securities by
the Initial Purchasers to "qualified institutional buyers" (as defined
in Rule 144A under the Act) in the manner contemplated by this
Agreement and as described in the Offering Memorandum, no consent,
approval, authorization, registration or qualification of or with any
court or any regulatory authority or other governmental agency or body
is required for the issue and sale of the Securities or the
consummation of the other transactions contemplated by this Agreement,
the Registration Rights Agreement or the Indenture, except for the
registration of the substantially similar debt securities under the
Act, and the qualification of an indenture under the Trust Indenture
Act, as specifically set forth in the Registration Rights Agreement,
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky or
insurance securities laws in connection with the purchase and
distribution by the Initial Purchasers of the Securities.
(x) Each document filed pursuant to the Exchange
Act after the date of the Preliminary Offering Memorandum through the
Closing Date complied on its face as to form when so filed in all
material respects with the Exchange Act and the rules and regulations
of the Commission thereunder.
(xi) Insofar as the statements in the Offering
Memorandum under the captions "Description of Notes" and "Exchange
Offer; Registration Rights," purport to describe specific provisions of
the Securities, the Indenture or the Registration Rights Agreement,
such statements present in all material respects an accurate summary of
such provisions; insofar as the statements in the Offering Memorandum
under the caption "ERISA Considerations" purport to describe specific
provisions of the Employee Retirement Income Security Act of 1974, as
amended or any other law, rule or regulation, such statements present
in all material respects an accurate summary of such provisions;
(xii) The Company is not and, after giving effect
to the offering and sale of the Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940;
(xiii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court was or
is required to be obtained or made by the Company or any subsidiary of
the Company for the consummation of the Formation except such as have
been obtained;
-13-
(xiv) Except as disclosed in the Offering
Memorandum, to the knowledge of such counsel, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, the Indenture or the
Registration Rights Agreement or which are otherwise material in the
context of the sale of the Securities; and to the knowledge of such
counsel, no such actions, suits or proceedings are threatened or
contemplated;
(xv) To the knowledge of such counsel (after
reasonable investigation), each Insurance Subsidiary holds such
insurance licenses, certificates and permits from governmental
authorities (including, without limitation, Insurance Licenses) as are
necessary to the conduct of its business as described in the Offering
Memorandum; to the knowledge of such counsel, there is no pending or
threatened action, suit, proceeding or investigation that could
reasonably be expected to result in the revocation, termination or
suspension of any Insurance License which would have a Material Adverse
Effect; and except as disclosed in the Offering Memorandum, to the
knowledge of such counsel, no insurance regulatory agency or body has
issued, or commenced any proceeding for the issuance of, any order or
decree impairing, restricting or prohibiting the payment of dividends
by any Insurance Subsidiary to its parent;
(xvi) To the knowledge of such counsel, all
reinsurance treaties and arrangements to which any Insurance Subsidiary
is a party are in full force and effect and such counsel is not aware
of any violation of, or default in the performance, observance or
fulfillment of, any obligation, agreement, covenant or condition
contained therein by any Insurance Subsidiary; and
(xvii) The Formation did not, and will not, result
in any tax liability to the Company or any of its subsidiaries.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Initial Purchasers at which the
contents of the Offering Memorandum, and any supplements or amendments thereto,
and related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum (other than as
specified above), and any supplements or amendments thereto, on the basis of the
foregoing, nothing has come to their attention which would lead them to believe
that either the Offering Memorandum or any amendments thereto, as of its date or
at the Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief as to the financial statements and the notes related thereto and the
other financial data included or incorporated by reference in the Offering
Memorandum or any amendments or supplements thereto).
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of the
Company and public officials. Such
-14-
opinion shall state that Xxxxx Xxxxxxxxxx LLP may rely upon such opinion as to
matters of Ohio law in rendering its opinion pursuant to Section 6(c) hereof
(c) The Initial Purchasers shall have received from Xxxxx
Xxxxxxxxxx LLP, counsel for the Initial Purchasers, such opinion, dated the
Closing Date, with respect to the validity of the Securities, the Offering
Memorandum and other related matters as the Initial Purchasers may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
In rendering such opinion, Xxxxx Xxxxxxxxxx LLP may rely as to all
matters governed by Ohio law upon the opinion of Xxxxxxx, Muething & Xxxxxxx,
P.L.L. referred to above.
(d) The Initial Purchasers shall have received a
certificate of the Chairman of the Board or Chief Executive Officer and the
Chief Financial Officer or Chief Accounting Officer of the Company, dated the
Closing Date, in which such officers shall state that the representations and
warranties of the Company in this Agreement are true and correct on and as of
the Closing Date, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied and that,
since the respective dates as of which information is given in the Offering
Memorandum there has not been any material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as specifically
set forth in the Offering Memorandum.
(e) At the Execution Time and at the Closing Date, the
Initial Purchasers shall have received a letter of Ernst & Young LLP, in form
and substance satisfactory to the Initial Purchasers, 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 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) The Company and the Initial Purchasers shall have
executed and delivered the Registration Rights Agreement (in form and substance
satisfactory to the Initial Purchasers), and the Registration Rights Agreement
shall be in full force and effect.
The Company will furnish the Initial Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the Initial
Purchasers reasonably request.
7. Indemnification. (a) The Company will indemnify and hold
harmless each Initial Purchaser, its partners, members, directors and officers
and each person, if any, who controls such Initial Purchaser within the meaning
of Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which the Initial Purchasers or such persons may become
subject, under the Act, the Exchange Act or other federal or state statutory law
or regulation, or at common law or otherwise (including in settlement of any
litigation), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Memorandum, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the
-15-
statements therein not misleading; and will reimburse each Initial Purchaser,
its partners, members, directors and officers and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the Act, for
any legal or other expenses incurred by the Initial Purchasers or such persons
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by the
Initial Purchasers specifically for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) The Initial Purchasers severally and not jointly will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the Act against any losses,
claims, damages or liabilities to which the Company or such controlling person
may become subject, under the Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of such Initial Purchaser), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Memorandum or any amendment or supplement thereto, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers specifically for use therein; and will reimburse any legal or
other expenses incurred by the Company or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which the
Initial Purchasers may otherwise have. The Company acknowledges that the
statements set forth in the third sentence of paragraph six related to
market-making activities; the first two sentences of paragraph seven related to
stabilization, syndicate covering transactions and over-allotment; and the
eighth full paragraph related to Market Axess Inc. under the heading "Plan of
Distribution" in the Offering Memorandum, constitute the only information
furnished in writing by or on behalf of the Initial Purchasers for inclusion in
the Offering Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement thereof;
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal (other than local
-16-
counsel) or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) 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 to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above and thereby lost its right to indemnification, then
each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits 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 which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), 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
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by the Initial Purchasers in respect thereof. The relative
fault 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 necessary in order to make the statements
therein not misleading relates to information supplied by the Company on the one
hand or by the Initial Purchasers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata
-17-
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Initial Purchaser shall be required to contribute any amount in excess of the
purchase discount or commission received by such Initial Purchaser in connection
with the Securities purchased by such Initial Purchaser.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
8. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such nondefaulting Initial Purchasers do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Initial Purchaser or the Company. In the event of a default by any
Initial Purchaser as set forth in this Section 8, the Closing Date shall be
postponed for such period, not exceeding two business days, as the Initial
Purchasers shall determine in order that the required changes in the Offering
Memorandum or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Initial Purchaser of
its liability, if any, to the Company or any nondefaulting Initial Purchaser for
damages occasioned by its default hereunder.
9. Termination of this Agreement. Prior to the Closing Date this
Agreement may be terminated by the Representatives by notice given to the
Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the
Nasdaq Stock Market ("Nasdaq"), or trading in securities generally on the New
York Stock Exchange ("NYSE") or Nasdaq shall have been suspended or limited, or
minimum or maximum prices shall have been generally established on the NYSE or
Nasdaq; (ii) a general banking moratorium shall have been declared by any U.S.
federal, New York or Ohio authority; (iii) there shall have occurred any
outbreak or escalation of hostilities or any crisis or calamity involving or
affecting the United States (including without limitation an act of terrorism),
or any change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change in
U.S. or international political, financial or economic conditions, as in the
judgment of the Representatives is material and adverse and makes it
impracticable or inadvisable to market the Securities in the manner and on the
terms described in the Offering Memorandum or to enforce contracts for the sale
of securities; (iv) there shall have occurred a
-18-
material adverse change, or any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole, the effect of which is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated in the Offering
Memorandum; or (v) there has occurred a material disruption in commercial
banking or securities settlement or clearance services. Any termination pursuant
to this Section 9 shall be without liability on the part of (a) the Company to
the Initial Purchasers, except that if such termination is pursuant to clause
(i) (with respect to the Company's securities) or clause (iv) of this Section 9,
the Company shall be obligated to reimburse the expenses of the Initial
Purchasers pursuant to Section 13 hereof, (b) the Initial Purchasers to the
Company, or (c) of any party hereto to any other party except that the
provisions of Section 7 shall at all times be effective and shall survive such
termination.
10. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties, and other
statements of the Company or its officers and of the Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Initial Purchasers or the Company or any of its
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities.
11. Notices. All communications hereunder will be in writing and
shall be mailed, delivered or telephoned and confirmed to the parties as
follows:
If to the Initial Purchasers:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Debt Capital Markets, Financial Institutions Group
UBS Securities LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Fixed Income Syndicate
with a copy to:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Company:
-19-
Infinity Property and Casualty Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Any party hereto may change the address for receipt of
communications by giving written notice to the others.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the other
persons referred to in Section 7 hereof, and no other person will have any right
or obligation hereunder. No purchaser of the Securities from the Initial
Purchasers shall be deemed a successor or assign merely by reason of such
purchase.
13. Reimbursement of Expenses. If for any reason, other than by
reason of a default by any of the Initial Purchasers or the occurrence of any of
the events set forth in clauses (i) (exclusive of any action taken on the
Company's securities) through (iii) of Section 9 hereof, the Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Initial Purchasers for all out-of-pocket expenses (including fees
and disbursements of counsel) incurred by the Initial Purchasers in making
preparations for the purchase, sale and delivery of such Securities.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
-20-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us five counterparts hereof, whereupon it
will become a binding agreement between the Company and the Initial Purchasers
in accordance with its terms.
Very truly yours,
INFINITY PROPERTY AND CASUALTY
CORPORATION
By _________________________________
Name:
Title:
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
XXXXXX BROTHERS INC.
By _______________________________
Name:
Title:
UBS SECURITIES LLC
By _______________________________
Name:
Title:
By _______________________________
Name:
Title:
Acting on behalf of themselves and as the
representatives of the Initial Purchasers
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES
NAME OF INITIAL PURCHASER TO BE PURCHASED
------------------------------------------------------------ ---------------
Xxxxxx Brothers Inc. ....................................... $ 90,000,000
UBS Securities LLC ......................................... $ 90,000,000
Bear, Xxxxxxx & Co. Inc. ................................... $ 10,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.......... $ 10,000,000
Total ...... $200,000,000
============
I-1
EXHIBIT A
Formation and Separation Agreement between AFG and the Company
Reinsurance Agreement between Windsor Insurance Company, as Reinsurer and Great
American Insurance Company and Affiliates as Reassured
Investment Services Agreement between the Company and American Money Management
Services Agreement between AFG and the Company
Noncompetition Agreement between AFG and the Company
Tax Allocation Indemnification Agreement between AFG and the Company
License Agreement between Great American Insurance Company and the Company
Lease between Great American Insurance Company and Infinity for property located
at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
Lease between Great American Insurance Company and Infinity for St. Louis,
Missouri property
Sublease between Great American Insurance Company and Infinity for Windsor,
Connecticut property
Sublease between Great American Insurance Company and Infinity for Maitland,
Florida property
Sublease between Great American Insurance Company and Infinity for property
located at 00000 Xxxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxx
Sublease between Great American Insurance Company and Infinity for Parsippany,
New Jersey property
Sublease between Great American Insurance Company and Infinity for Raleigh,
North Carolina property
Sublease between Great American Insurance Company and Infinity for property
located at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
Sublease between Great American Insurance Company and Infinity for Exton,
Pennsylvania property
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