Exhibit 1.1
CONFORMED COPY
$500,000,000
5-5/8% Senior Notes due 2008
Xxxx Xxxxxxx Financial Services, Inc.
UNDERWRITING AGREEMENT
November 29, 2001
November 29, 2001
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
as Representatives of the Several
Underwriters named in Schedule I hereto
c/x Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Fixed Income Syndicate (with
a copy to General Counsel)
Dear Sirs and Mesdames:
Xxxx Xxxxxxx Financial Services, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $500,000,000 aggregate principal amount
of its 5-5/8% Senior Notes due 2008 (the "Notes") to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom Xxxxxx Brothers Inc.
and Xxxxxx Xxxxxxx & Co. Incorporated are acting as representatives (the
"Representatives"). The Notes will be issued pursuant to an Indenture dated as
of November 29, 2001 and resolutions of officers authorized by the Board of
Directors of the Company dated as of November 29, 2001, (such resolutions and
Indenture being collectively referred to herein as the "Indenture") between the
Company and JPMorgan Chase Bank, as Trustee (the "Trustee"). This agreement
(this "Agreement") is to confirm the agreement concerning the purchase of the
Notes from the Company by the Underwriters. Certain terms used herein are
defined in Section 13 hereof.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a registration
statement (Registration No. 333-62668) on Form S-3, including a related
basic prospectus, for registration under the Act of the offering and sale
of various securities of the Company, including the Notes. The Company may
have filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to the
Representatives. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a
final prospectus supplement relating to the Notes in accordance with Rules
430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form
of final prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the Company has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and the
Final Prospectus. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
the Representatives prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final
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Prospectus) as the Company has advised the Representatives, prior to the
Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x). The Commission has not issued any order preventing or
suspending the use of any Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules and regulations
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date the Indenture did
or will comply in all material respects with the applicable requirements of
the Trust Indenture Act and the rules and regulations thereunder; and, on
the Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to (1) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (2) the information contained in
or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto). There is no contract or document
required to
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be described in the Registration Statement or the Final Prospectus or to be
filed as an exhibit to the Registration Statement or to a document
incorporated by reference into the Registration Statement which is not
described or filed as required.
(c) Ernst & Young LLP, whose report is included or incorporated by
reference in the Registration Statement and the Final Prospectus, are
independent certified public accountants with respect to the Company and
its subsidiaries, as required by the Act. The financial statements
(including the related notes and supporting schedules) included or
incorporated by reference in the Registration Statement, any Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus
present fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at
the dates and for the periods indicated and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated and conform in all
material respects with the Act, except as otherwise noted therein; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly in all materials respects the
information required to be stated therein.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Final Prospectus and to
enter into and perform its obligations under this Agreement and the
Indenture and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as
a whole (collectively, the "Xxxx Xxxxxxx Enterprise").
(e) There are no subsidiaries that constitute "significant
subsidiaries" (as defined in Rule 1-02(w) of Regulation S-X promulgated by
the Commission) which
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are not listed on Annex A hereto. Each of the subsidiaries listed on Annex
A hereto (the "Significant Subsidiaries") has been duly incorporated or
organized, as the case may be, and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be. Each Significant Subsidiary has the
power, corporate and other, and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Xxxx Xxxxxxx Enterprise; all of the issued and
outstanding shares of capital stock of each Significant Subsidiary have
been duly validly authorized and issued, are fully paid and non- assessable
and, in the percentages set forth on Annex A hereto, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equitable claims or other adverse claims.
(f) This Agreement has been duly authorized, executed and delivered
by the Company.
(g) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law). The Indenture (i) has been duly qualified under the Trust
Indenture Act, (ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms to the description thereof in the
Registration Statement and the Final Prospectus.
(h) The Notes have been duly and validly authorized by the Company
for issuance and sale to the Underwriters pursuant to this Agreement and,
when executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered
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to the Underwriters against payment therefor in accordance with the terms
hereof, will have been validly issued and delivered, free of any preemptive
or similar rights to subscribe to or purchase the same arising by operation
of law or under the certificate of incorporation or by-laws of the Company
or otherwise, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization or other similar laws relating to
or affecting the enforcement of creditors' rights generally and by general
equitable principles, and the Notes conform, or will conform, to the
description thereof in the Registration Statement and the Final Prospectus.
Neither the filing of the Registration Statement nor the offering or sale
of the Notes as contemplated by this Agreement gives rise to any rights,
other than those which have been duly waived or satisfied, for or relating
to the registration of any securities of the Company. The capitalization of
the Company as of the date of the most recent balance sheet included in the
Final Prospectus is as set forth in the Final Prospectus. The Company has
all requisite corporate power and authority to issue, sell and deliver the
Notes in accordance with and upon the terms and conditions set forth in
this Agreement and in the Registration Statement and the Final Prospectus.
All corporate action required to be taken by the Company for the
authorization, issuance, sale and delivery of the Notes to be sold by the
Company hereunder has been, or, on or before the Closing Date will have
been, validly and sufficiently taken.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-
laws of the Company or any agreement or other instrument binding upon the
Company or any of the Significant Subsidiaries that is material to the Xxxx
Xxxxxxx Enterprise, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of the
Significant Subsidiaries, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for
the performance by the
6
Company of its obligations under this Agreement, except such as have been
obtained under the Federal securities laws or state insurance laws or may
be required by the securities or Blue Sky laws of the various states or the
securities laws of any foreign country in connection with the offer and
sale of the Notes.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, except for
the issuance of CDN$175.0 million of debt securities and the issuance in
the ordinary course of business of commercial paper pursuant to the
Company's $1.0 billion commercial paper program, (1) the Company and the
Significant Subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction
not in the ordinary course of business; (2) each of the Company and the
Significant Subsidiaries has not purchased any of its outstanding capital
stock (other than, with respect to the Company, pursuant to the Company's
publicly announced $1.0 billion stock repurchase authorization and pursuant
to the Company's employee stock plans and agreements), nor declared, paid
or otherwise made any dividend or distribution of any kind on its capital
stock other than ordinary and customary dividends (including dividends or
distributions in the ordinary course by Xxxx Xxxxxxx Life Insurance
Company, a Massachusetts corporation ("JHLICO"), to the Company; and (3)
there has not been any material change in (A) the short-term debt or long-
term debt of the Company and its subsidiaries considered as a whole or (B)
the capital stock of the Company and the Significant Subsidiaries, except
in each case as described in the Final Prospectus.
(k) There has not occurred any material adverse change, or any
development reasonably likely to result in a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Xxxx Xxxxxxx Enterprise, from that set forth
in the Final Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of
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its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Final Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Final Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(m) None of the Company or any of the Significant Subsidiaries is
required to, nor will it be required to after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Final Prospectus, register as an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(n) Each of the Company and the Significant Subsidiaries has all
necessary consents, licenses, authorizations, approvals, exemptions,
orders, certificates and permits (collectively, the "Consents") of and
from, and has made all filings and declarations (collectively, the
"Filings") with, all insurance regulatory authorities, all Federal, state,
local and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, necessary to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Final Prospectus, except where the failure to have such
Consents or to make such Filings would not, individually or in the
aggregate, have a material adverse effect on the Xxxx Xxxxxxx Enterprise;
all such Consents and Filings are in full force and effect, the Company and
the Significant Subsidiaries are in compliance with such Consents and
neither the Company nor any of the Significant Subsidiaries has received
any notice of any inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation or
limitation of any such Consent or otherwise impose any limitation on the
conduct of the business of the Company or any of the Significant
Subsidiaries, except as set forth in the Final Prospectus or any such
failure to be in full force and effect, failure to be in compliance with,
suspension, revocation or limitation which would not, singly or in the
aggregate, have a material adverse
8
effect on the Xxxx Xxxxxxx Enterprise; JHLICO is in compliance with, and
conducts its businesses in conformity with, all applicable insurance laws
and regulations, except where the failure to so comply or conform would not
have a material adverse effect on the Xxxx Xxxxxxx Enterprise.
(o) The documents incorporated by reference into the Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus, at
the time they were or are filed with the Commission, conform or will
conform, as the case may be, with the requirements of the Act and the
Exchange Act, and did not or will not, as the case may be, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(p) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes to facilitate the
sale or resale of the Notes.
(q) The Notes will be pari passu with all existing and future
unsecured and unsubordinated indebtedness of the Company.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company, at a price equal to 99.097% of the principal amount thereof, plus
accrued interest, if any, from December 6, 2001, the principal amount of Notes
set forth in Schedule I hereto opposite its name.
The Company hereby agrees that, without the prior written consent of
the Representatives on behalf of the Underwriters, it will not, during the
period ending on the later of (1) the termination of trading restrictions for
the Notes and (2) the Closing Date, directly or indirectly, issue, sell, offer
to sell, grant any option for the sale of or otherwise dispose of, any debt
securities substantially similar to the Notes in the same market as the Notes.
9
3. Terms of Public Offering. The Company is advised by the
Representatives that the Underwriters propose to make a public offering of their
respective portions of the Notes as soon after the Registration Statement and
this Agreement have become effective as in the judgment of the Representatives
is advisable. The Company is further advised by the Representatives that the
Notes are to be offered to the public initially at 99.722% of the principal
amount thereof (the "Public Offering Price") and to certain dealers selected by
the Representatives at a price that represents a concession not in excess of
0.375% of the principal amount thereof under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a concession, not in
excess of 0.250% of the principal amount thereof, to any Underwriter or to
certain other dealers.
4. Payment and Delivery. Payment for the Notes shall be made to the
Company in Federal or other funds immediately available in Boston,
Massachusetts, to a U.S. bank account specified by the Company no later than two
Business Days prior to the Closing Date; against delivery of such Notes for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on December 6, 2001, or at such other time on the same or such other date,
not later than three Business Days after the foregoing date, as shall be
designated, at the sole option of the Representatives, in writing, such right to
extend to be exercised reasonably and such date to be reasonably acceptable to
the Company. The time and date of such payment are hereinafter referred to as
the "Closing Date".
Delivery of the Notes shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
Time shall be of the essence, and delivery of the Notes at the time and place
specified in this Agreement is a further condition to the obligations of each
Underwriter.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Notes to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Notes on the Closing Date are
subject to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become
10
effective prior to the Execution Time, unless the Underwriters agree in
writing to a later time, the Registration Statement will become effective
not later than (i) 6:00 PM New York City time, on the date of determination
of the Public Offering Price, if such determination occurred at or prior to
3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the Public Offering Price was determined, if
such determination occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened; and any request of the Commission for
additional information (to be included in the Registration Statement or the
Final Prospectus or otherwise) shall have been disclosed to the
Representatives and complied with to the satisfaction of the
Representatives.
(b) No Underwriter shall have been advised by the Company or shall
have discovered and disclosed to the Company that the Registration
Statement or the Final Prospectus or any amendment or supplement thereto,
contains an untrue statement of fact which in the opinion of the
Representatives, or in the opinion of counsel to the Underwriters, is
material, or omits to state a fact which, in the opinions of the
Representatives, or in the opinion of counsel to the Underwriters, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities, financial strength or claims paying ability, as the case
may be, by A.M. Best Company,
11
Inc., Xxxxx'x Investor Services, Inc., Standard & Poor's Rating Group
or Duff & Xxxxxx Inc.; and
(ii) there shall not have occurred any change, or any development
reasonably likely to result in a prospective change, in the condition,
financial or otherwise, or in the earnings, reserves, surplus,
business or operations of the Xxxx Xxxxxxx Enterprise, from that set
forth in the Final Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in
the judgment of the Representatives, is material and adverse and that
makes it, in the judgment of the Representatives, impracticable or
inadvisable to market the Notes on the terms and in the manner
contemplated in the Final Prospectus.
(d) The Underwriters shall have received on the Closing Date
certificates, dated the Closing Date and signed by an executive officer or
the Treasurer of the Company to the effect set forth in Section 5(c)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer or officers signing and delivering such certificates may
rely upon the best of their knowledge as to proceedings threatened.
(e) The Underwriters shall have received on the Closing Date an
opinion of XxXxxxxxx Will & Xxxxx, outside counsel for the Company, dated
the Closing Date, and containing such exceptions, qualifications and
limitations as are acceptable to such counsel and Cravath, Swaine & Xxxxx,
to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Final Prospectus and
is duly qualified to transact business and is in good standing in the
12
Commonwealth of Massachusetts;
(ii) the Indenture and the Notes conform in all material
respects as to legal matters to the respective statements
concerning them contained in the Registration Statement and the
Final Prospectus;
(iii) the Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement
of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture has been duly qualified under the Trust
Indenture Act and the rules and regulations thereunder;
(iv) the Notes have been duly authorized and executed by
the Company for issuance and sale to the Underwriters pursuant to
this Agreement and, assuming due authentication of the Notes by
the Trustee, upon delivery to the Underwriters against payment
therefor in accordance with the terms of this Agreement, will
have been validly issued and delivered, will be entitled to the
benefits of the Indenture and will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws or judicial decisions relating to or affecting
creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement will not violate
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any provision of New York or Federal law or of the General
Corporation Law of the State of Delaware or the Restated
Certificate of Incorporation or by-laws of the Company or any
agreement or other instrument filed as an exhibit to the
Registration Statement, or any judgment, order or decree known to
such counsel of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries, and no
consent, approval, authorization or order of, or qualification
with, any United States, Delaware (but only to the extent such
would be required by the General Corporation Law of the State of
Delaware) or New York governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, except such as have been obtained under the Federal
securities laws and such as may be required by the securities,
insurance or Blue Sky laws of the various states or the
securities laws of any foreign country in connection with the
offer and sale of the Shares by the Underwriters;
(vii) the statements (A) in the Final Prospectus under the
caption "Underwriting" (with respect solely to the description of
this Agreement contained therein) and (B) in the Registration
Statement in the first two paragraphs of Item 15, in each case
insofar as such statements purport to summarize the legal
matters, documents or proceedings referred to therein, fairly
summarize the matters referred to therein;
(viii) the Company is not required to, nor will it be
required to after giving effect to the offering and sale of the
Notes and the application of the proceeds thereof as described in
the Final Prospectus, register under the Investment Company Act
of 1940, as amended, as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(ix) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period
14
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have
been instituted or threatened; and such counsel is of the opinion
that the Registration Statement and Final Prospectus (except for
financial statements and notes thereto and schedules and other
financial and statistical data included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Act and the Trust Indenture Act and
the respective applicable rules and regulations of the Commission
thereunder; and
(x) each document incorporated by reference in the
Registration Statement as filed under the Exchange Act complied
when so filed as to form in all material respects with the
applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (except that no opinion
need be expressed as to the financial statements or notes thereto
and other financial and statistical data contained therein).
Such counsel shall also state that, although it has not itself
checked the accuracy and completeness of, or otherwise verified, and
is not passing upon and assumes no responsibility for the accuracy or
completeness of, the statements contained in the Registration
Statement or the Final Prospectus, except to the limited extent stated
in paragraphs (ii) and (vii) above, in the course of its review and
discussion of the contents of the Registration Statement and the Final
Prospectus with certain officers and employees of the Company and its
independent accountants, but without independent check or
verification, no facts have come to its attention which cause such
counsel to believe that the Registration Statement (other than the
financial statements and notes thereto, other financial and
statistical information and supporting schedules contained therein or
omitted therefrom, as to which such counsel need express no belief),
at the time it became effective or on the date the Registration
Statement was last deemed amended, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein
not
15
misleading, or that the Final Prospectus (other than the financial
statements and notes thereto, other financial and statistical
information and supporting schedules contained therein or omitted
therefrom, as to which such counsel need express no belief), as of its
date and as of the date of its opinion, contains any untrue statement
of a material fact or omits to state a material fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx X. Xxxx, Esq., Executive Vice President and General
Counsel of the Company, dated the Closing Date, and containing such
exceptions, qualifications and limitations as are acceptable to such
counsel and Cravath, Swaine & Xxxxx, to the effect that:
(i) each Significant Subsidiary of the Company has been
duly incorporated or organized, as the case may be, and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation or organization, as the
case may be;
(ii) to such counsel's knowledge, each Significant
Subsidiary of the Company has the power, corporate and other, and
authority to own its property and to conduct its business as
described in the Final Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not,
singly or in the aggregate, have a material adverse effect on the
Xxxx Xxxxxxx Enterprise;
(iii) all of the issued and outstanding shares of capital
stock of each Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and, in
the percentages set forth on Annex A hereto, are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
16
(iv) to such counsel's knowledge, each of the Company and
the Significant Subsidiaries has all necessary Consents of and
from, and has made all Filings with, all insurance regulatory
authorities, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, necessary to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Final Prospectus, except where the failure to
have such Consents or to make such Filings would not, singly or
in the aggregate, have a material adverse effect on the Xxxx
Xxxxxxx Enterprise; to such counsel's knowledge, all such
Consents and Filings are in full force and effect, the Company
and the Significant Subsidiaries are in compliance with such
Consents and neither the Company nor any of the Significant
Subsidiaries has received any notice of any inquiry,
investigation or proceeding that would reasonably be expected to
result in the suspension, revocation or limitation of any such
Consent or otherwise impose any limitation on the conduct of the
business of the Company or any of the Significant Subsidiaries,
except as set forth in the Final Prospectus or any such failure
to be in full force and effect, failure to be in compliance with,
suspension, revocation or limitation which would not, singly or
in the aggregate, have a material adverse effect on the Xxxx
Xxxxxxx Enterprise;
(v) none of the Significant Subsidiaries is required to,
nor will it be required to after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof
as described in the Final Prospectus, register under the
Investment Company Act of 1940, as amended, as an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended; and
(vi) the statements in the Company's Annual Report on Form
10-K for the year ended December 31, 2000 under the captions
"Regulation-- Regulation Governing Potential Acquisitions of
Control" and "Regulation--Regulation of Dividends and Other
17
Payments from Insurance Subsidiaries," in each case insofar as
such statements purport to constitute summaries of Massachusetts
law, fairly summarize the matters referred to therein.
(g) The Underwriters shall have received on the Closing Date an
opinion of Cravath, Swaine & Xxxxx, counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in Sections
5(e)(ii), 5(e)(iii), 5(e)(iv), 5(e)(vii) (but only as to the
statements in the Final Prospectus under "Underwriting") and 5(e)(ix)
above.
Such counsel shall also state that it (i) has no reason to
believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Registration Statement and the prospectus
included therein at the time the Registration Statement became
effective or on the date the Registration Statement was last deemed
amended contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (ii) has no reason to
believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Final Prospectus contains any untrue statement
of a material fact or omits 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.
With respect to Section 5(e)(ix) above and the statements
described in the immediately preceding paragraph and in the final
paragraph of Section 5(e), XxXxxxxxx Will & Xxxxx and Cravath, Swaine
& Xxxxx may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the
Final Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent
check or verification, except as specified.
The opinion of XxXxxxxxx Will & Xxxxx described in Section 5(e)
above and the opinion of Xxxxx X. Xxxx, Esq., described in Section
5(f) above shall be rendered to the Underwriters at the request of the
Company and
18
shall so state therein.
(h) The Underwriters shall have received on the Closing Date, a
letter dated the Closing Date, in form and substance satisfactory to
the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus; provided that such letter shall use a "cut-off date" not
earlier than the date hereof.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to each of the Representatives, without charge, a
signed copy of the Registration Statement (including exhibits thereto)
and all amendments and supplements to any of such documents (including
any document filed under the Exchange Act and deemed to be
incorporated by reference in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus), in each case as soon as
available, and for delivery to each other Underwriter a conformed copy
of the Registration Statement (without exhibits thereto or documents
incorporated by reference therein) and to furnish to the
Representatives in New York City, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section 6(c) below,
as many copies of the Final Prospectus and any supplements and
amendments thereto or to the Registration Statement as the
Representatives may reasonably request.
(b) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Notes, the Company will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished the
19
Representatives a copy for their review prior to filing and will not
file any such proposed amendment or supplement to which the
Representatives reasonably object. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Final Prospectus is otherwise required
under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (3) when, prior to termination of the offering of the
Notes, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(c) If, during such period after the first date of the public
offering of the Notes as in the opinion of counsel for the
Underwriters the Final Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Final Prospectus in order to make the statements
therein, in the light
20
of the circumstances when the Final Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Final
Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Notes may have
been sold by the Representatives on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to
the Final Prospectus so that the statements in the Final Prospectus as
so amended or supplemented will not, in the light of the circumstances
when the Final Prospectus is delivered to a purchaser, be misleading
or so that the Final Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such U.S. jurisdictions as the
Representatives shall reasonably request and under the laws that
govern unregistered securities offerings in the foreign jurisdictions
identified in writing to you prior to the date hereof.
(e) To make generally available to the Company's security
holders and to the Representatives as soon as practicable an earnings
statement covering the twelve-month period ending December 31, 2002,
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's
accountants in connection with the registration and delivery of the
Notes under the Act and all other fees or expenses of the Company in
connection with the preparation and filing of the Registration
Statement, the Basic Prospectus any Preliminary Prospectus, the Final
Prospectus, the Indenture, the Statement of Eligibility and
Qualification of the Trustee on Form T-1 filed with the Commission
(the "Form T-1") and any
21
amendments or supplements of the foregoing and any documents
incorporated by reference into any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Notes to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection
with the offer and sale of the Notes under state securities laws and
all expenses in connection with the qualification of the Notes for
offer and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) any filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Notes by the
National Association of Securities Dealers, Inc., (v) any fees
required to be paid to rating agencies incurred in connection with the
rating of the Notes, (vi) the fees, costs and charges of the Trustee,
including the fees and disbursements of counsel for the Trustee, (vii)
any cost of printing certificates representing the Notes, (viii) the
costs and expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the marketing of the
offering of the Notes, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show, (ix) all other costs and expenses
incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section,
and (x) all expenses of the Company in connection with any offer and
sale of the Notes outside of the United States and filing fees in
connection with offers and sales outside of the United States;
provided, however, that the Underwriters shall reimburse the Company
on the Closing Date for $250,000
22
of such fees, disbursements and expenses. It is understood, however,
that except as provided in this Section, Section 7 entitled "Indemnity
and Contribution", and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, transfer taxes payable on resale
of any of the Notes by them and any advertising expenses connected
with any offers they may make.
(g) Until termination of the offering of the Notes, the Company
shall timely file all documents and amendments to previously filed
documents required to be filed by it pursuant to Section 12, 13, 14 or
15(d) of the Exchange Act.
(h) The Company shall apply the net proceeds from the sale of
the Notes as set forth in the Final Prospectus.
(i) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Notes.
23
7. Indemnity and Contribution. (a) The Company, agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any Preliminary Final
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Notes, or any person controlling such Underwriter, if a copy of the Final
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of
the Notes to such person, and if the Final Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company and its directors and officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter
24
through the Representatives expressly for use in the Registration
Statement, any Preliminary Final Prospectus, the Final Prospectus or any
amendments or supplements thereto.
25
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of
both parties by the same counsel would be inappropriate due to differing
interests between them. It is understood that the indemnifying party shall not,
in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Any firm retained pursuant to the second immediately
preceding sentence shall be designated in writing by the Representatives, in the
case of parties indemnified pursuant to Section 7(a), and by the Company, in the
case of parties indemnified pursuant to Section 7(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. The foregoing sentence shall not expand the scope of the
indemnification provided in Section 7(a) or 7(b). No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
26
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to in Section 7(a) or 7(b), then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Notes or (ii) if the allocation provided by
clause 7(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Notes shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Notes
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Final Prospectus, bear to the aggregate
Public Offering Price of the Notes. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation
27
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall survive regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Notes.
28
8. Termination. This Agreement shall be subject to termination by
notice given by the Representatives to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, either the New York Stock Exchange or the National Association of
Securities Dealers, Inc. or the clearance or settlement of such trading
generally shall have been materially disrupted, (ii) trading of any securities
of the Company shall have been suspended on any exchange or in any over-the-
counter market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
(including, without limitation, an act of terrorism) that, in the judgment of
the Representatives, is material and adverse and (b) in the case of any of the
events specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or
together with any other such event, makes it, in the judgment of the
Representatives, impracticable or inadvisable to market the Notes on the terms
and in the manner contemplated in the Final Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Notes that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the principal amount
of Notes that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 9 by an amount in excess of one-ninth of
such
29
principal amount of Notes without the written consent of such Underwriter. If,
on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Notes and the aggregate principal amount of Notes with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Notes to be purchased, and arrangements satisfactory to the Representatives and
the Company for the purchase of such Notes are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Final Prospectus or in
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
13. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
30
"Act" shall mean the Securities Act of 1933, as amended and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Boston,
Massachusetts.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Notes that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Notes and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall
31
become effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
32
Please confirm, by signing and returning to us two counterparts of
this Agreement, that the Representatives are acting on behalf of themselves and
the several Underwriters and that the foregoing correctly sets forth the
Agreement between the Company and the several Underwriters.
Very truly yours,
XXXX XXXXXXX FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
Accepted as of the date hereof
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
By: Xxxxxx Brothers Inc.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
33
SCHEDULE I
UNDERWRITERS
Principal
Amount of Notes
Underwriter To Be Purchased
--------------------------------------------------------------------------------
Xxxxxx Brothers Inc........................................... $162,500,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated............................. $162,500,000
--------------------------------------------------------------------------------
ABN Amro Incorporated......................................... $ 25,000,000
--------------------------------------------------------------------------------
Banc of America Securities LLC................................ $ 25,000,000
--------------------------------------------------------------------------------
Credit Suisse First Boston Corporation........................ $ 25,000,000
--------------------------------------------------------------------------------
Xxxxxxx, Sachs & Co........................................... $ 25,000,000
--------------------------------------------------------------------------------
X.X. Xxxxxx Securities Inc.................................... $ 25,000,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx Barney Inc...................................... $ 25,000,000
--------------------------------------------------------------------------------
The Xxxxxxxx Capital Group, L.P............................... $ 25,000,000
--------------------------------------------------------------------------------
Total......................................................... $500,000,000
============
--------------------------------------------------------------------------------
ANNEX A
--------------------------------------------------------------------------------
% of Equity
-----------
Owned by
--------
Company
-------
Significant Subsidiary
----------------------
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1. Xxxx Xxxxxxx Life Insurance Company 100%
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