Exhibit 1.1
NYMAGIC, INC.
(a New York corporation)
2,000,000 Shares of Common Stock
(par value $1.00 per share)
UNDERWRITING AGREEMENT
December 11, 2003
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxx, Xxxxx Xxxxx, Incorporated
as Representatives of the several Underwriters
c/o Keefe, Xxxxxxxx & Xxxxx, Inc.
4th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
NYMAGIC, INC., a New York corporation (the "Company"), and the
certain shareholders named in Schedule A hereto (the "Selling Shareholders"),
confirm their respective agreements with Xxxxx, Xxxxxxxx & Xxxxx, Inc.
("KBW"), Friedman, Billings, Xxxxxx & Co., Inc. ("FBR") and Xxxxxx, Xxxxx
Xxxxx, Incorporated ("FBW") and each of the other Underwriters named in
Schedule B hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom KBW, FBR and FBW are acting as representatives (in such
capacity, the "Representatives"), with respect to (i) the sale by the Selling
Shareholders, acting severally and not jointly, of the respective numbers of
the 2,000,000 shares of Common Stock, par value $1.00 per share, of the
Company ("Common Stock") set forth on Schedule A hereto and the purchase by
the Underwriters, acting severally and not jointly, of the respective numbers
of the 2,000,000 shares of Common Stock set forth on Schedule B hereto and
(ii) the grant by the Selling Shareholder named in Schedule C hereto (the
"Option Securities Selling Shareholder") to the Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase
all or any part of 150,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 2,000,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part
of the 150,000 shares of Common Stock subject to the option described in
Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities."
The Company and the Selling Shareholders understand that the
Underwriters propose to make a public offering of the Securities as soon as
the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-106547)
covering the registration of the Securities under the Securities Act of 1933,
as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has
been declared effective by the Commission and the Company has filed such
post-effective amendments thereto as may be required prior to the execution
and delivery of this Agreement and each such post-effective amendment has been
declared effective by the Commission. Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act, at the time it became effective is herein called the "Registration
Statement." Each prospectus used before such Registration Statement became
effective, and any prospectus and preliminary prospectus supplement that
omitted, as applicable, the Rule 430A Information or other information to be
included upon pricing in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the initial delivery of the Prospectus, is herein
called a "preliminary prospectus." The Company has filed a preliminary
prospectus supplement in accordance with the provisions of Rule 424(b) under
the 1933 Act Regulations and, promptly after the execution and delivery of
this Agreement, the Company will prepare and file a final prospectus
supplement in accordance with the provisions of Rule 424(b) under the 1933 Act
Regulations. The final prospectus, as supplemented by the final prospectus
supplement, relating to the offering of the Securities, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein called the
"Prospectus." The information included in such Prospectus that was omitted
from the Registration Statement at the time it became effective but that is
deemed to be part of such Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Registration Statement, any preliminary prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each
of the Registration Statement and any post-effective amendment
thereto has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. The Registration
Statement meets the requirements of Rule 415(a) under the 1933 Act
and the Registration Statement, with respect to the Securities, meets
the requirements of Section 415(a)(1)(i) under the 1933 Act.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither
the Prospectus nor any amendments or supplements thereto, at the time
the Prospectus or any such amendment or supplement was issued and at
the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
relating to the Underwriters and the underwriting of the Securities
furnished to the Company in writing by any Underwriter through KBW
expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
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(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations") and, when
read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants with
respect to the Company within the meaning of Rule 2-01 of Regulation
S-X under the 1933 Act, as amended by Section 201 of the
Xxxxxxxx-Xxxxx Act of 2002, including the applicable rules and
regulations promulgated by the Commission thereunder (the
"Xxxxxxxx-Xxxxx Act").
(iv) Financial Statements.
(A) The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated Subsidiaries (as defined below) at the
dates indicated and the statement of income, stockholders' equity and
cash flows of the Company and its consolidated Subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with accounting principles generally accepted in the
United States of America ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial data included or
incorporated by reference in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement.
(B) Each Subsidiary of the Company that is engaged in
the business of insurance or reinsurance (collectively, the
"Insurance Subsidiaries") has timely filed all applicable annual and
quarterly financial statements required by the laws and regulations
of each of their domiciliary jurisdictions ("Regulatory Financial
Statements"). Each of the Regulatory Financial Statements has been
prepared in accordance with Statutory Accounting Principles ("SAP"),
consistently applied, as prescribed by the relevant state insurance
regulatory authority and fairly presents the financial position of
the relevant Insurance Subsidiary as of the date therein. Except for
liabilities fully reflected or reserved against in the Regulatory
Financial Statements of the relevant Insurance Subsidiary, such
Insurance Subsidiary has no liabilities, obligations or claims
(absolute, accrued, fixed or contingent, matured or unmatured,
asserted or unasserted, known or unknown, or otherwise).
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(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, and no event or condition has occurred that would
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company of
its obligations hereunder (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of the
Subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and the Subsidiaries
considered as one enterprise and (C) except for regular quarterly
dividends on the Common Stock in amounts per share that are
consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of New York and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material
Adverse Effect.
(vii) Good Standing of Subsidiaries. Each direct and
indirect subsidiary of the Company (each a "Subsidiary" and,
collectively, the "Subsidiaries"), other than Insurance Subsidiaries,
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect. Each Insurance Subsidiary has
been duly organized and is validly existing as an insurance company
under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect. Each Insurance Subsidiary is currently rated
"A" (Excellent) by A.M. Best Company, Inc. ("A.M. Best") and neither
the Company nor any Insurance Subsidiary has received any
communication from A.M. Best that A.M. Best intends to lower or
remove such rating. Except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
such Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest,
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mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder
of such Subsidiary. There are no issued and outstanding options,
warrants, rights, securities, contracts, commitments, understandings
or arrangements by which the Subsidiaries are bound to issue any
additional shares of their capital stock or options to purchase
shares of their capital stock. The only subsidiaries of the Company
are the subsidiaries listed on Schedule E hereto and Schedule E
accurately sets forth the jurisdiction of organization of each such
Subsidiary and all of the jurisdictions in which such Subsidiary is
required to qualify as a foreign corporation (whether by reason of
the ownership or leasing of property or the conduct of business).
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable.
(ix) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The
Securities to be purchased by the Underwriters from the Selling
Shareholders have been duly authorized by the Company and are validly
issued, fully paid and non-assessable; the Common Stock conforms to
all statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any Subsidiary is in violation of any provision of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of
the Company or any Subsidiary is subject (collectively, the
"Agreements and Instruments"), except for such defaults that would
not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the sale of the Securities) and compliance by the Company
with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to, (A) any of the Agreements and
Instruments, (B) the provisions of the charter or by-laws of the
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Company or any Subsidiary or (C) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
assets, properties or operations except, in the case of clauses (A)
and (C) above only, for such conflicts, breaches, defaults, liens,
charges, encumbrances or violations that would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means
any event or condition that gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any Subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the
knowledge of the Company, is imminent.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental authority, agency, instrumentality, self-regulatory
body, commission (including departments of insurance) or other body,
domestic or foreign (a "Governmental Entity"), now pending, or, to
the knowledge of the Company, threatened or contemplated, against or
affecting the Company or any Subsidiary, that is required to be
disclosed in the Registration Statement (other than as disclosed
therein, including through incorporation by reference), or that might
result in a Material Adverse Effect, or that might materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; all pending legal or
governmental proceedings to which the Company or any Subsidiary is a
party or of which any of their respective properties or assets is the
subject that are not described in the Registration Statement,
including ordinary routine litigation incidental to the business,
could not result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and
the Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, or presently
employed by them, and neither the Company nor any of the Subsidiaries
has received any notice or is otherwise aware of any infringement of
or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances that would
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render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of the Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy that, individually or
in the aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Manipulation. Neither the Company nor
affiliate has taken, nor will they take, directly or indirectly, any
action that is designed to or that has constituted or that would be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(xvii) Absence of Further Requirements. (A) No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or Governmental Entity, (B) no
authorization, approval, vote or other consent of any shareholder of
the Company and (C) no authorization, approval, vote or other consent
of any other person or entity, is necessary or required for the
performance by the Company of its obligations hereunder, in
connection with the execution and delivery of this Agreement by the
Company, the offering or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement,
except such as have been already obtained under the 1933 Act or the
1933 Act Regulations, such as have been obtained under the voting
agreement described in the Prospectus or as may be required under
state securities laws.
(xviii) Possession of Licenses and Permits. The Company and
the Subsidiaries possess such certificates, authorities, permits,
licenses, approvals, consents and other authorizations (collectively,
other than the Insurance Licenses (as defined below), "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to have such certificates,
authorities, permits, licenses, approvals, consents and other
authorizations would not have a Material Adverse Effect; the Company
and the Subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
comply would not, individually or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not, individually or in the
aggregate, result in a Material Adverse Effect; and neither the
Company nor any of the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses that, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(xix) Insurance Licenses. The Company and each Insurance
Subsidiary holds such insurance licenses, certificates and permits
from any Governmental Entity (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 Prospectus, except where
the failure to have such licenses, certificates and permits would not
have a Material Adverse Effect; the Company and each Insurance
Subsidiary have fulfilled and performed all obligations necessary to
maintain such Insurance Licenses, except where the failure to have
fulfilled and performed such obligations would not have a Material
Adverse Effect; there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or investigation that
would result in the revocation, termination or suspension of any
Insurance License or that would otherwise restrict any Insurance
Subsidiary from engaging in the insurance business it currently
conducts, the effect of which would, individually or in the
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aggregate, result in a Material Adverse Effect; except as set forth
under the heading "Voting Agreement--Regulatory Considerations" in
the Prospectus, 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; and neither the Company nor any
of the Subsidiaries has received any notice of proceedings relating
to the revocation or modification of any such Insurance Licenses
that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xx) Regulatory Filings. Except as set forth in the
Prospectus or as could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, the Company and
each Subsidiary has filed or otherwise provided all reports, data,
other information and applications required to be filed with or
otherwise provided to the office of the Superintendent of the New
York State Insurance Department, and all other Governmental Entities
with jurisdiction over the Company and each Subsidiary and all
required regulatory approvals in respect thereof are in full force
and effect on the date hereof. All such regulatory filings were in
compliance with applicable law when filed and no deficiencies have
been asserted by such Governmental Entity with respect to any such
regulatory filings that have not been satisfied, except where such
non-compliance or deficiencies would not result in a Material Adverse
Effect.
(xxi) Compliance With Law. The Company and the Subsidiaries
are in compliance with all laws administered by and all regulations
of any Governmental Entity applicable to them, except where such
non-compliance would not result in a Material Adverse Effect, and
neither the Company nor any Subsidiary has been advised by any
Governmental Entity that it is not in material compliance therewith.
Except as set forth under the heading "Voting Agreement--Regulatory
Considerations" in the Prospectus or as set forth on Schedule G
hereto, neither the Company nor any Subsidiary is a party to any
agreement or memorandum of understanding with, or a party to a
commitment letter or similar undertaking with, or is subject to any
order or directive by, or is the recipient of a supervisory letter
from, any Governmental Entity which restricts the conduct of its
business or in any way relates to its capital adequacy, its
accounting practices, its reserving practices or its management, nor
has the Company or any Subsidiary been advised by any Governmental
Entity that it is contemplating issuing or requesting (or considering
the appropriateness of issuing or requesting) any of the foregoing.
The Company has in place reasonable procedures and controls designed
to ensure compliance with any U.S. sanctions administered by the
Office of Foreign Asset Controls of the United States Treasury
Department.
(xxii) Insurance Reserving Practices. Except as disclosed in
the Prospectus, the Company and its Insurance Subsidiaries have made
no material change in their insurance reserving practices or the
method by which they calculate reserves since June 30, 2003.
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(xxiii) Reinsurance Treaties. All reinsurance treaties and
arrangements pursuant to which any Insurance Subsidiary cedes
material risk for which any Insurance Subsidiary may be liable 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,
except where the failure to be in full force and effect or where such
violation or default would not, individually or in the aggregate,
have a Material Adverse Effect; 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 and, to the knowledge of the Company and the Insurance
Subsidiaries, none of the other parties to such treaties or
arrangements will be unable to perform such treaty or arrangement
except to the extent adequately and properly reserved for in the
consolidated financial statements of the Company included or
incorporated by reference in the Prospectus, except where such
nonperformance would not, individually or in the aggregate, have a
Material Adverse Effect.
(xxiv) Title to Property. The Company and the Subsidiaries
have good and marketable title to all real property owned by the
Company and the Subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (A) are described in the
Prospectus or (B) do not, individually or in the aggregate,
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company or any of the Subsidiaries; and all of the leases and
subleases material to the business of the Company and the
Subsidiaries, considered as one enterprise, and under which the
Company or any of the Subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any Subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or
any Subsidiary under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company or such
Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxv) Investment Company Act. The Company is not, and upon
the sale of the Securities as contemplated herein and the application
of the net proceeds therefrom as described in the Prospectus will not
be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxvi) Environmental Laws. Except as described in the
Registration Statement and except as would not, individually or in
the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of the Subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products,
asbestos-containing materials or molds (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and
the Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
10
compliance with their requirements, except where the failure to have
such permits, authorizations and approvals would not result in a
Material Adverse Effect, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings
relating to any Environmental Law against the Company or any of the
Subsidiaries and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
Governmental Entity, against or affecting the Company or any of the
Subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxvii) Registration Rights. Except with respect to the
Registration Rights Agreement, dated as of January 31, 2003, between
the Company and Conning Capital Partners VI, L.P. ("Conning"), there
are no persons with registration rights or other similar rights to
have the offer and sale of any securities (debt or equity) (A)
registered pursuant to the Registration Statement or included in the
offering contemplated by this Agreement or (B) otherwise registered
by the Company under the 1933 Act.
(xxviii) No Adverse Rights. Except as described in the
Prospectus, (A) neither the Company nor any of the Subsidiaries nor
any shareholders of the Company or any of the Subsidiaries nor, to
the knowledge of the Company, any other person has any preemptive
rights, rights of first refusal, options, warrants, scrip, rights to
subscribe for, puts, calls, agreements, understandings, claims or
other commitments or other similar right to purchase any of the
Securities and, without limitation to the foregoing, the Company
hereby waives any preemptive rights, rights of first refusal,
options, warrants, scrip, rights to subscribe for, puts, calls,
agreements, understandings, claims or other commitments or other
similar right it may have to purchase any of the Securities, (B) none
of the outstanding shares of capital stock of the Company, including
the Securities to be purchased by the Underwriters from the Selling
Shareholders, was issued in violation of any preemptive rights,
rights of first refusal or other similar rights of any securityholder
of the Company and (C) there are no shareholders agreements, voting
agreements or other similar agreements with respect to the Common
Stock that are effective with respect to the Securities.
(xxix) Tax Matters. The Company and each Subsidiary have
filed all tax returns required to be filed, which returns are true
and correct, and neither the Company nor any Subsidiary is in
default, or has been advised that it may be in default, in the
payment of any taxes, including penalties and interest, assessments,
fees and other charges, shown thereon due or otherwise assessed,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without
interest which were payable pursuant to said returns or any
assessments with respect thereto.
11
(xxx) Accounting Controls. The Company has established and
maintains disclosure controls and procedures (as such term is defined
in Rules 13a-14 and 15d-14 under the 0000 Xxx) that (A) are designed
to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, particularly during the periods in
which the filings made by the Company with the Commission which it
may make under Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act are
being prepared, (B) have been evaluated for effectiveness as of a
date within 90 days prior to the filing of the Company's most recent
Annual Report filed with the Commission and (C) are effective to
perform the functions for which they were established. The
accountants and the Audit Committee of the Board of Directors of the
Company have been advised of (x) any significant deficiencies in the
design or operation of internal controls which could adversely affect
the Company's ability to record, process, summarize, and report
financial data and (y) any fraud, whether or not material, that
involves management or other employees who have a role in the
Company's internal controls; any material weaknesses in internal
controls have been identified for the accountants; and since the date
of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(xxxi) Compliance with Xxxxxxxx-Xxxxx Act. There is and has
been no failure on the part of the Company and any of the Company's
directors and officers, in their capacities as such, to comply with
the provisions of the Xxxxxxxx-Xxxxx Act and the Company is in
compliance in all material respects with all applicable provisions of
the Xxxxxxxx-Xxxxx Act.
(xxxii) Listing; Stock Certificates. The Securities are
listed on the New York Stock Exchange (the "NYSE") and the Company
has taken no action designed to, or likely to have the effect of,
delisting the Securities on the NYSE. The Securities to be sold by
the Selling Shareholders to the Underwriters pursuant to this
Agreement are not, and, upon delivery to the Underwriters, will not
be, subject to any stop transfer instructions or similar restrictions
on transfer and the certificates evidencing such Securities will not,
upon delivery to the Underwriters, bear any restrictive legends.
(xxxiii) Rule 2710. The Registration Statement complies with
the standards for Form S-3 in effect prior to October 21, 1992 (for
purposes of the exemption from filing provided for by Rule
2710(b)(7)(C)(i) of the Conduct Rules of the National Association of
Securities Dealers (the "NASD")).
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally and not jointly represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time and, in the case of
the Option Securities Selling Shareholder, as of each such Date of Delivery,
and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. Such Selling Shareholder has
reviewed and is familiar with the Registration Statement and the
Prospectus and, with respect to any statements or omissions in the
Registration Statement and the Prospectus under the caption "Selling
Shareholders" relating to such Selling Shareholder, neither the
Prospectus nor any amendments or supplements thereto includes or will
include any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
12
the light of the circumstances under which they were made, not
misleading; such Selling Shareholder is not prompted to sell the
Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any Subsidiary of the Company
that is not set forth in the Prospectus.
(ii) Power and Authority. Such Selling Shareholder has the
full right, power and authority to execute and deliver this Agreement
and the Power of Attorney and Custody Agreement, in the form of
previously delivered to the Representatives (the "Power of Attorney
and Custody Agreement"), to sell, transfer and deliver the Securities
to be sold by such Selling Shareholder hereunder and to consummate
the transactions contemplated herein and under the Power of Attorney
and Custody Agreement.
(iii) Authorization. All necessary action has been taken by
such Selling Shareholder to authorize the execution and delivery of
this Agreement and the Power of Attorney and Custody Agreement, the
sale and delivery of the Securities to be sold by such Selling
Shareholder, to consummate the transactions contemplated herein and
under the Power of Attorney and Custody Agreement and for such
Selling Shareholder to comply with its obligations hereunder and
under the Power of Attorney and Custody Agreement. Mellon Investor
Services LLC, as custodian (the "Custodian"), is authorized to
deliver the Securities to be sold by such Selling Shareholder
hereunder and to accept payment therefor; and Xxxx X. Xxxx, as
attorney-in-fact (the "Attorney-in-Fact"), is authorized to execute
and deliver this Agreement and the certificate referred to in Section
5(f) hereof or that may be required pursuant to Sections 5(n) and
5(o) hereof on behalf of such Selling Shareholder, to sell, assign
and transfer to the Underwriters the Securities to be sold by such
Selling Shareholder hereunder, to determine the purchase price to be
paid by the Underwriters to such Selling Shareholder, as provided in
Section 2(a) hereof, to authorize the delivery of the Securities to
be sold by such Selling Shareholder hereunder, to accept payment
therefor, and otherwise to act on behalf of such Selling Shareholder
in connection with this Agreement.
(iv) Due Execution. This Agreement and the Power of Attorney
and Custody Agreement has been duly executed and delivered by or on
behalf of such Selling Shareholder and the Power of Attorney and
Custody Agreement is a valid and binding agreement of such Selling
Shareholder.
(v) Non-Contravention. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the
sale and delivery of the Securities to be sold by such Selling
Shareholder and the consummation of the transactions contemplated
herein and under the Power of Attorney and Custody Agreement and
compliance by such Selling Shareholder with his or its obligations
hereunder and under the Power of Attorney and Custody Agreement do
not and will not, whether with or without the giving of notice or
passage of time or both, violate or constitute a breach of, or
default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by such
Selling Shareholder or any property or assets of such Selling
Shareholder pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder may be bound, or to which any of
the property or assets of such Selling Shareholder is subject, nor
will any such action result in any violation of (A) the provisions of
13
the operating agreement, trust agreement or other organizational
instrument of such Selling Shareholder, if applicable, or (B) any
applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over such Selling
Shareholder or any of his or its properties, except, in the case of
clause (B) only, for such violations that would not have a material
adverse effect on the ability of such Selling Shareholder to
consummate the transactions contemplated herein or under the Power of
Attorney and Custody Agreement or the ability of such Selling
Shareholder to comply with the provisions hereof or thereof.
(vi) Good and Valid Title. Such Selling Shareholder has and
will, at the Closing Time and, in the case of the Option Securities
Selling Shareholder, as of each such Date of Delivery, be the sole
legal, beneficial and registered owner of, and have good and valid
title to, the Securities to be sold by such Selling Shareholder
hereunder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind, other than
pursuant to this Agreement; and upon delivery of such Securities and
payment of the purchase price therefor as herein contemplated, each
of the Underwriters will receive good and valid title to the
Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind.
(vii) Absence of Manipulation. Such Selling Shareholder has
not taken, and will not take, directly or indirectly, any action that
is designed to or that has constituted or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(viii) Absence of Further Requirements. (A) No filing with,
or consent, approval, authorization, order, registration,
qualification or decree of, any court or Governmental Entity, (B) no
authorization, approval, vote or other consent of any shareholder of
the Company and (C) no authorization, approval, vote or other consent
of any other person or entity, is necessary or required for the
performance by such Selling Shareholder of his or its obligations
hereunder or in the Power of Attorney and Custody Agreement or, in
connection with the execution and delivery of this Agreement by such
Selling Shareholder, the offer, sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by
this Agreement, except such as may have previously been made or
obtained under the 1933 Act or the 1933 Act Regulations or as may be
required under state securities laws.
(ix) No Adverse Rights. Except as described in the
Prospectus, (A) neither such Selling Shareholder nor, to the
knowledge of such Selling Shareholder, any other person has any
preemptive rights, rights of first refusal, options, warrants, scrip,
rights to subscribe for, puts, calls, agreements, understandings,
claims or other commitments or other similar rights to purchase any
of the Securities that are to be sold by such Selling Shareholders to
the Underwriters pursuant to this Agreement and such Selling
Shareholder hereby waives any and all such preemptive rights, rights
of first refusal, options, warrants, scrip, rights to subscribe for,
puts, calls, agreements, understandings, claims or other commitments
or other similar rights it may have to purchase any of the Securities
(such waiver being made for the benefit of the Underwriters, the
Company and the other Selling Shareholders) and (B) there are no
shareholders agreements, voting agreements or other similar
14
agreements with respect to the Common Stock that are effective with
respect to the Securities owned or held by such Selling Shareholder;
and, except for shares of Common Stock that are owned or that will be
owned by such Selling Shareholder and are accurately described in the
Prospectus, such Selling Shareholder does not own or hold (directly
or indirectly, actually or beneficially) any Common Stock or other
capital stock of the Company or any securities convertible into or
exchangeable or exercisable for or repayable with any such Common
Stock or other capital stock of the Company, and does not have any
right or arrangement to acquire any Common Stock or other capital
stock, rights, warrants, options or other securities of the Company.
(x) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to
this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in
blank with signatures guaranteed, have been placed in custody with
the Custodian with irrevocable conditional instructions to deliver
such Securities to the Underwriters pursuant to this Agreement.
(xi) No Association with NASD. Neither such Selling
Shareholder nor any of his or its affiliates, as the case may be,
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any
other association with (within the meaning of paragraph (dd) of
Article I of the By-laws of the NASD), any member firm of the NASD.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of the Subsidiaries delivered to the Representatives or to
counsel for the Underwriters pursuant to the terms of this Agreement shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby; and any certificate signed by or on behalf of a
Selling Shareholder as such and delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by such
Selling Shareholder to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, each Selling Shareholder, severally and not jointly, agrees to sell to
each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from each Selling Shareholder, at the
price per share set forth in Schedule D, that proportion of the number of
Initial Securities set forth in Schedule A opposite the name of such Selling
Shareholder which the number of Initial Securities set forth in Schedule B
15
opposite the name of such Underwriter, plus any additional number of Initial
Securities that such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof, bears to the total number of Initial
Securities, subject, in each case, to such adjustments among the Underwriters
as the Representatives in their sole discretion shall make to eliminate any
sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Option Securities Selling Shareholder hereby
grants an option to the Underwriters, severally and not jointly, to purchase,
in addition to the Initial Securities, up to the amount of Option Securities
set forth opposite the name of such Option Securities Selling Shareholder on
Schedule C at the price per share set forth in Schedule D. The option hereby
granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by KBW to the Selling
Shareholders setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by KBW, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, then each of the
Underwriters, acting severally and not jointly, will purchase that proportion
of the total number of Option Securities then being purchased which the number
of Initial Securities set forth in Schedule B opposite the name of such
Underwriter bears to the total number of Initial Securities, subject, in each
case, to such adjustments as KBW in its discretion shall make to eliminate any
sales or purchases of fractional shares. If the option is exercised for a
portion, but not all, of the Option Securities, the Option Securities Selling
Shareholder will sell that proportion of the total number of Option Securities
then being purchased which the number of Option Securities set forth opposite
the name of such Option Securities Selling Shareholder bears to the total
number of Option Securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Representatives and the
Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with
the provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives and the
Company and the Selling Shareholders (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities
are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Option Securities Selling Shareholder on each Date of
Delivery as specified in the notice from the Representatives to the Option
Securities Selling Shareholder.
16
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by the Custodian
pursuant to each Selling Shareholder's Power of Attorney and Custody Agreement
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, that it
has agreed to purchase. KBW, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Restrictions on Transfer. Each of the Underwriters represents
to, and agrees with, the Company and the Selling Shareholders that:
(i) other than in connection with the offering, it has not
offered or sold and, during the period ending six months after the
closing date, it will not offer or sell any shares of Common Stock to
persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments, as principal or agent, for the purposes of their
business, or otherwise, in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995, as amended;
(ii) it has only communicated or caused to be communicated,
and will only communicate or cause to be communicated, any invitation
or inducement to engage in investment activity, within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the
"FSMA"), received by it in connection with the issue or sale of any
shares of Common Stock in circumstances in which section 21(1) of the
FSMA does not apply to the Company; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the shares of Common Stock in, from or otherwise
involving the United Kingdom.
(e) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations
and registered in such names as the Representatives may request in writing at
least one full business day before the Closing Time or the relevant Date of
Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and
packaging by the Representatives in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
17
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will cause the Prospectus to be filed
with the Commission pursuant to Rule 424(b) under the 1934 Act and will
promptly advise the Representatives when the Prospectus has been so filed,
and, prior to the termination of the offering of the Securities to which such
Prospectus relates, also will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take
such steps as shall be necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will use its best efforts to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object in writing.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, copies of signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and copies of signed copies of all consents
and certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
18
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the rules
and regulations of the Commission under the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Company, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus 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 not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company
will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may designate and
to maintain such qualifications in effect for a period of not less than one
year from the date of the execution and delivery of this Agreement; provided,
however, that the Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports as
may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
of the execution and delivery of this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to maintain the
listing of the Securities on the NYSE.
(i) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectus, the Company will not, without the prior
written consent of KBW, on behalf of the Underwriters, directly or indirectly
(A) offer, sell, offer to sell, contract to sell, hedge, pledge, grant any
option, right or warrant to purchase or otherwise transfer or dispose of any
shares of Common Stock or any other securities convertible into, or
exercisable or exchangeable for, shares of Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (B) enter into any swap or other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
19
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (A) or (B) is to be settled by delivery of
Common Stock or such other securities in cash or otherwise. The foregoing
sentence shall not apply to (w) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (x)
any shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectus or any substantially similar employee benefit plan approved by the
Board of Directors of the Company that provides for the issuance of not more
than 1,000,000 shares of Common Stock, (y) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend reinvestment plan
or (z) any shares of Common Stock issuable to Conning as described in the
Prospectus.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) Compliance with Xxxxxxxx-Xxxxx Act. The Company will remain in
compliance in all material respects with all applicable provisions of the
Xxxxxxxx-Xxxxx Act as in effect from time to time and will use its best
efforts to cause the Company's directors and officers, in their capacity as
such, to comply with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(l) Accounting Controls. The Company and the Subsidiaries will
maintain disclosure controls and procedures (as such term is defined in Rules
13a-14 and 15d-14 under the 0000 Xxx) that (A) are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer and its
Chief Financial Officer by others within those entities, particularly during
the periods in which the filings made by the Company with the Commission which
it may make under Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act are being
prepared, (B) have been evaluated for effectiveness as of a date within 90
days prior to the filing of the Company's most recent Annual Report filed with
the Commission and (C) are effective to perform the functions for which they
were established.
(m) Regulatory Filings. The Company and the Subsidiaries shall
cooperate with and furnish the Underwriters with all information as may be
reasonably necessary or advisable in connection with any statement, filing,
notice or application made with any Governmental Entity by the Underwriters in
connection with the transactions contemplated by this Agreement.
SECTION 4. Payment of Expenses.
(a) Expenses. Except as set forth in Section 4(b), the Company will
pay or cause to be paid all expenses incident to the performance of the
obligations of the Company and the Selling Shareholders under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed
and of each amendment thereto, (ii) the preparation, issuance and delivery of
the certificates for the Securities to the Underwriters, including any stock
or other transfer taxes and any stamp or other duties payable upon the sale or
delivery of the Securities to the Underwriters, if any, (iii) the fees and
disbursements of the Company's and the Selling Shareholders' counsel,
20
accountants and other advisors, (iv) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (v) the printing and delivery
to the Underwriters of copies of each preliminary prospectus and of the
Prospectus and any amendments or supplements thereto, (vi) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (vii) the fees and expenses of any transfer agent,
registrar or custodian for the Securities, (viii) if applicable, the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, any review by the NASD of the terms of the
sale of the Securities, (ix) the costs and expenses relating to investor
presentations on any "road show" undertaken in connection with the marketing
of the offering of the Securities, 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, travel and lodging expenses of the representatives and officers
of the Company and any such consultant, including the cost of any aircraft
chartered in connection with the road show and (x) all other costs and
expenses incident to the performance of the obligations of the Company and the
Selling Shareholders hereunder for which provision is not otherwise made in
this Section.
(b) Expenses of the Selling Shareholders. Each Selling Shareholder,
severally, will pay, if applicable, any stock or other transfer taxes and any
stamp, capital or other duties, taxes or charges payable upon the sale or
delivery of its Securities to the Underwriters.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the Underwriters for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders shall have
made or may make for the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any Subsidiary of the Company or on behalf of the Selling Shareholders
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Shareholders of their respective covenants and other
obligations hereunder, and to the following further conditions:
21
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and, at Closing Time, no stop order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters.
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown, Xxxx & Maw LLP, counsel for the Company, and Xxxx X.
Xxxx, Esq., the General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibits A-1 and A-2 hereto, respectively, and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxx Xxxxx & Xxxxxxx LLP, special counsel for the Selling
Shareholders, and Xxxxxxx Xxxxxx, P.A., Florida counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibits B-1 and B-2
hereto, respectively, and to such further effect as counsel to the
Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters in form and substance satisfactory to the Underwriters.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chief Executive
Officer or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the
Representatives shall have received a certificate of the Attorney-in-Fact on
behalf of the Selling Shareholders, dated as of Closing Time, to the effect
that (i) the representations and warranties of the Selling Shareholders
22
contained in Section 1(b) hereof are true and correct in all respects with the
same force and effect as though expressly made at and as of Closing Time and
(ii) the Selling Shareholders have complied in all material respects with all
agreements and all conditions on their part to be performed under this
Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from KPMG LLP a letter,
dated such date, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
consolidated financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from KPMG LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (g) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall
continue to be listed on the NYSE.
(j) Stock Certificates; Tax Forms. No later than noon (New York City
time) on the second business day immediately preceding the Closing Time, the
Custodian shall have received certificates for all of the Securities to be
sold by the Selling Shareholders pursuant to this Agreement, in form suitable
for transfer by delivery and accompanied by duly executed stock powers
endorsed in blank by such Selling Shareholders with signatures guaranteed, and
a properly completed and executed United States Treasury Department Form W-9
or W-8 BEN (or other applicable form) from each of the Selling Shareholders.
(k) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form of
Exhibit C hereto signed by the persons listed on Schedule F hereto.
(l) Maintenance of Rating. Since the execution of this Agreement,
there shall not have been any decrease in the rating of any of the Company's
or any of the Subsidiaries' securities or of the Company's or any of the
Subsidiaries' financial strength or claims paying ability by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the 0000 Xxx) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(m) Regulatory Approvals. The Underwriters shall have received all
necessary regulatory approvals from all applicable state agencies or
instrumentalities governing insurance companies in connection with the
purchase of the Securities.
(n) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and
warranties of the Company and the Option Securities Selling Shareholder
contained herein and the statements in any certificates furnished by the
23
Company and any Subsidiary and the Option Securities Selling Shareholder
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chief Executive Officer or a Vice President of the
Company and of the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(e) hereof remains true and correct as of such
Date of Delivery.
(ii) Certificate of Option Securities Selling Shareholder. A
certificate, dated such Date of Delivery, of the Attorney-in-Fact on
behalf of the Option Securities Selling Shareholder confirming that
the certificate delivered at the Closing Time pursuant to Section
5(f) remains true and correct as of such Date of Delivery.
(iii) Opinions of Counsel for Company. The favorable opinion
of Mayer, Brown, Xxxx & Maw LLP, counsel for the Company, and Xxxx X.
Xxxx, Esq., the General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions
required by Sections 5(b) hereof.
(iv) Opinions of Counsel for Option Securities Selling
Shareholder. The favorable opinion of Xxxxxxx Xxxxxx, P.A., counsel
for the Option Securities Selling Shareholder, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions
required by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. The favorable
opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from KPMG LLP, in
form and substance satisfactory to the Representatives and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(g)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than two days
prior to such Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents, certificates and opinions as they may reasonably require for the
purpose of enabling them to pass upon the sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
24
herein contained; and all proceedings taken by the Company and the Selling
Shareholders in connection with the sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as provided in this Agreement,
this Agreement, or, in the case of any condition to the purchase of Option
Securities on a Date of Delivery that is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company
and the Selling Shareholders at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company. The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any Governmental Entity, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(c) below) any such settlement is effected
with the written consent of the Company and the Selling Shareholders;
and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
KBW), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
Governmental Entity, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission or any such alleged
untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
25
provided, however, that the foregoing indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information relating to the
Underwriters and the underwriting of the Securities furnished to the Company
by any Underwriter through KBW expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided further that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, liability, claim, damage or expense
purchased Securities, or any person controlling such Underwriter, if a copy of
the 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
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
liabilities, claims, damages or expenses, unless such failure is the result of
noncompliance by the Company with Section 3(d) hereof.
(b) Indemnification of the Company, Directors and Officers and Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each
Selling Shareholder and each person, if any, who controls such Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, deemed to be a part
thereof, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through KBW
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party, and any
delay in such notification, 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 that it may
have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by KBW, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
26
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any Governmental Entity, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) Other Agreements with Respect to Indemnification. The provisions
of this Section shall not affect any agreement among the Company and the
Selling Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and such Selling Shareholder on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and such Selling Shareholder on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Selling Shareholders and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus bear to the aggregate initial public offering
27
price of the Securities as set forth on such cover, and, for the purpose of
allocation of benefits under this sentence, the Company shall be deemed to
have received all of the benefits received by the Selling Shareholders
hereunder.
The relative fault of the Company and each of the Selling
Shareholders on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or such
Selling Shareholder or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, each of the Selling Shareholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (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 above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
Governmental Entity, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged
omission.
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 Securities 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 any 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or
any Selling Shareholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or any Selling Shareholder, as the case may be. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule B hereto and not joint.
The provisions of this Section shall not affect any agreement among
the Company and any of the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of the
Subsidiaries or the Selling Shareholders submitted pursuant hereto, shall
28
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company or the Selling Shareholders, and shall survive delivery
of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time
at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there
has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representatives, impracticable
or inadvisable to market the Securities or to enforce contracts for the sale
of the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the NYSE, or if
trading generally on the American Stock Exchange or the NYSE or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other Governmental Entity, or if a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
29
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery that occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Option Securities Selling Shareholder to
sell the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement or, in the case of a Date of Delivery that is
after the Closing Time, that does not result in a termination of the
obligation of the Underwriters to purchase and the Option Securities Selling
Shareholder to sell the relevant Option Securities, as the case may be, either
(i) the Representatives or (ii) the Company and any Selling Shareholder shall
have the right to postpone Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders.
If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities that such Selling
Shareholder is obligated to sell hereunder, and the remaining Selling
Shareholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of Securities to be sold by them hereunder to the total
number to be sold by all Selling Shareholders as set forth in Schedule A
hereto, then the Underwriters may, at the option of the Representatives, by
notice from the Representatives to the Company and the non-defaulting Selling
Shareholders, either (a) terminate this Agreement without any liability on the
fault of any non-defaulting party except that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect or (b) elect to purchase the
Securities that the non-defaulting Selling Shareholders have agreed to sell
hereunder. No action taken pursuant to this Section 11 shall relieve any
Selling Shareholder so defaulting from liability, if any, in respect of such
default.
In the event of a default by any Selling Shareholder as referred to
in this Section 11, each of the Representatives, the non-defaulting Selling
Shareholders and the Company shall have the right to postpone Closing Time or
Date of Delivery for a period not exceeding seven days in order to effect any
required change in the Registration Statement or Prospectus or in any other
documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o Keefe, Xxxxxxxx &
Xxxxx, Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxxx X. XxXxxxxx; notices to the Company shall be directed to
NYMAGIC, Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of the Chief Executive Officer with a copy to the General Counsel;
and notices to the Selling Shareholders shall be directed to Xxxx Xxxxx &
Xxxxxxx LLP, Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxxx 00000.
30
SECTION 13. Tax Disclosure. Notwithstanding any other provision of
this Agreement, immediately upon commencement of discussions with respect to
the transactions contemplated hereby, the Company (and each employee,
representative or other agent of the Company) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure
of the transactions contemplated by this Agreement and all materials of any
kind (including opinions or other tax analyses) that are provided to the
Company relating to such tax treatment and tax structure. For purposes of the
foregoing, the term "tax treatment" is the purported or claimed federal income
tax treatment of the transactions contemplated hereby, and the term "tax
structure" includes any fact that may be relevant to understanding the
purported or claimed federal income tax treatment of the transactions
contemplated hereby.
SECTION 14. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Shareholders
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
[Signatures On Following Page]
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the
Underwriters, the Company and the Selling Shareholders in accordance with its
terms.
Very truly yours,
NYMAGIC, INC.
By: /s/ A. Xxxxxx Xxxxxx
------------------------------
Name: A. Xxxxxx Xxxxxx
Title: Executive Vice President
The Selling Shareholders
named in Schedule A hereto
By: /s/ Xxxx X. Xxxx
------------------------------
Xxxx X. Xxxx
As Attorney-in-Fact
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXXX, XXXXX XXXXX, INCORPORATED
For themselves and as Representatives
of the other Underwriters named in
Schedule A hereto.
By: XXXXX, XXXXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. XxXxxxxx
----------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Managing Director
32
SCHEDULE A
Number of
Initial
Securities
Name of Selling Shareholder to be Sold
----------------------------------------------------------------------- ----------
Xxxx X. Xxxxxxxx....................................................... 750,000
Xxxxxxxx Investments, LLC.............................................. 750,000
Xxxxxx X. Xxxxxxxxx 2000 Florida Intangible Tax Trust dated 12/12/00... 70,000
Xxxxxx X. Xxxxxxxx Xxxxxxxxx Family Foundation dated 3/24/98........... 130,000
Xxxxxx X. Xxxxxxxxx Charitable Lead Annuity Trust dated 3/30/00........ 160,000
Xxxxxxx X. Xxxxxxxxx Charitable Lead Unitrust dated 3/30/00............ 140,000
----------
Total.................................................................. 2,000,000
==========
Sch. A-1
SCHEDULE B
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Xxxxx, Xxxxxxxx & Xxxxx, Inc.......................................... 1,400,000
Friedman, Billings, Xxxxxx & Co., Inc................................. 400,000
Xxxxxx, Xxxxx Xxxxx, Incorporated..................................... 200,000
Total................................................................. 2,000,000
Sch. B-1
SCHEDULE C
Maximum Number
of Option
Securities to
Name of Option Securities Selling Shareholder be Sold
------------------------------------------------------------------------ --------------
Xxxxxx X. Xxxxxxxxx 2000 Florida Intangible Tax Trust dated 12/12/00.... 150,000
Total................................................................... 150,000
Sch. C-1
SCHEDULE D
NYMAGIC, INC.
2,000,000 Shares of Common Stock
(par value $1.00 per share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $24.65.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $23.294, being an amount equal to the initial
public offering price set forth above less $1.356 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities.
Sch. D-1
SCHEDULE E
LIST OF SUBSIDIARIES
Name of Subsidiary Jurisdiction of Organization
----------------------------------------------------------- ----------------------------
Insurance Companies and Lloyd's Corporate Capital Vehicle:
----------------------------------------------------------
New York Marine and General Insurance Company New York
Gotham Insurance Company New York
MMO UK, Ltd. United Kingdom
MMO EU, Ltd. United Kingdom
Insurance Underwriters and Managers:
------------------------------------
Mutual Marine Office, Inc. New York
Pacific Mutual Marine Office, Inc. California
Mutual Marine Office of the Midwest, Inc. Illinois
Sch. E-1
SCHEDULE F
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Conning Capital Partners VI, L.P.
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Investments, LLC
Xxxxxx X. Xxxxxxxxx 2000 Florida Intangible Tax Trust dated 12/12/00
Xxxxxx X. Xxxxxxxx Xxxxxxxxx Family Foundation dated 3/24/98
Xxxxxx X. Xxxxxxxxx Charitable Lead Annuity Trust dated 3/30/00
Xxxxxxx X. Xxxxxxxxx Charitable Lead Unitrust
Mariner Partners, Inc.
Xxxxxx X. Xxxxxxxx, III
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxx, Xx.
A. Xxxxxx Xxxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxxxxx
Xxxxx Xxxxxxxxxx
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Sch. F-1
SCHEDULE G
[Intentionally Omitted]
Sch. G-1
EXHIBIT A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of New York.
(ii) The Company has corporate power and authority to enter into and
perform its obligations under the Underwriting Agreement.
(iii) Except as described in the Prospectus, to our knowledge based on
our review of applicable contracts (as defined below) and based on
representations of the Company and the Selling Shareholders contained in the
Underwriting Agreement, (A) no person has any preemptive rights, rights of
first refusal, options, warrants, scrip, subscription rights, puts, calls,
agreements, understandings, claims or other commitments or other similar
rights to purchase any of the Securities that are to be sold by the Selling
Shareholders to the Underwriters pursuant to the Underwriting Agreement and
(B) there are no shareholders agreements, voting agreements or other similar
agreements with respect to the Common Stock that are effective with respect to
the Securities.
(iv) Each U.S. Subsidiary of the Company, other than Insurance
Subsidiaries, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation; and each Insurance Subsidiary
is validly existing as an insurance company under the laws of the jurisdiction
of its incorporation.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, as of the date of the final
prospectus supplement and as of the date hereof, and each amendment or
supplement to the Registration Statement and Prospectus, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to which we
express no opinion), complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(vii) The documents incorporated by reference or deemed to be
incorporated by reference in the Registration Statement and the Prospectus
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we express no opinion), taken together, as
of the date of the final prospectus supplement and as of the date hereof,
complied as to form in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations.
A-1-1
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable New York statutory
requirements, with any applicable requirements of the charter and by-laws of
the Company and the requirements of the NYSE.
(ix) The information in the Prospectus under "Risk Factors--Insurance
laws and regulations restrict our ability to operate," "Risk Factors--Failure
to comply with insurance laws and regulations could have a material adverse
effect on our business," "Risk Factors--Our holding company structure could
prevent us from paying dividends on our common stock," "Risk Factors--Because
a majority of our outstanding stock is subject to a voting agreement, our
other shareholders have limited ability to impact voting decisions," "Risk
Factors--The voting agreement and the large concentration of our stock
ownership in the hands of a few shareholders could impede a change of control
and could make it more difficult to effect a change in our management," "Risk
Factors--You may require regulatory approval if you wish to acquire a large
amount of common stock in the offering," and "Prospectus Supplement
Summary--Recent Developments--Litigation" and under Item 15 in Part II of the
Registration Statement, to the extent that it constitutes or summarizes
matters of United States federal, Illinois or New York law, statute or
regulation (but excluding the rules and regulations of the National
Association of Securities Dealers, Inc. and state securities or "blue sky"
laws) in each case which, in our opinion, based on our experience, is
applicable to transactions of the type contemplated by the Underwriting
Agreement (the "applicable law"), the Company's charter and by-laws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in
all material respects.
(x) All descriptions in the Registration Statement of the contracts
listed as exhibits to the Company's Annual Report on Form 10-K for the year
ended December 31, 2002 and Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2003, June 30, 2003 and September 30, 2003 (the "applicable
contracts") are accurate in all material respects.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or United States
federal or New York Governmental Entity under any applicable law, no
authorization, approval, vote or other consent of any shareholder of the
Company and no authorization, approval, vote or other consent of any other
person or entity, is necessary or required for or in connection with (w) the
performance by the Company of its obligations under the Underwriting
Agreement, (x) the execution and delivery of the Underwriting Agreement by the
Company, (y) the offering or sale of the Securities by the Selling
Shareholders or (z) the consummation of the transactions contemplated by the
Underwriting Agreement, except such as have been already made, waived or
obtained under the 1933 Act or the 1933 Act Regulations and under the voting
agreement described in the Prospectus or as may be required under state
securities laws.
(xii) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Registration Statement (including the sale
of the Securities) and compliance by the Company with its obligations under
the Underwriting Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any Subsidiary pursuant to (A) any of the applicable contracts,
(B) the provisions of the charter or by-laws of the Company or any U.S.
Subsidiary, or (C) any applicable law or any judgment, order, writ or decree
known to us of any court or Governmental Entity having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations,
except, in the case of clause (C) above only, for such conflicts, breaches,
defaults, liens, charges, encumbrances or violations that would not result in
a Material Adverse Effect.
A-1-2
(xiii) The Company is not, and upon the sale of the Securities as
contemplated in the Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the 1940 Act.
We have been advised by the staff of the Commission that the
Registration Statement has been declared effective under the 1933 Act. We
further advise you that, based solely on our conversations with the staff of
the Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or threatened by the Commission.
In addition, we have examined various documents and participated in
conferences with representatives of the Company and their accountants and with
your representatives and counsel at which times the contents of the
Registration Statement and the Prospectus and related matters were discussed,
and, although (except as set forth above) we are not passing upon and assume
no responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus or making any
representation that we have independently verified or checked the accuracy,
completeness or fairness of such statements, no facts have come to our
attention that cause us to believe that the Registration Statement (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we make no
statement), at the time such Registration Statement became effective,
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 therein not misleading or that the Prospectus (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we make no statement), as
of the date of the final prospectus or at the Closing Time, included or
includes an untrue statement of a material fact or omitted 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.
X-0-0
XXXXXXX X-0
FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus.
(ii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iii) The Company has _______ authorized shares of Common Stock of
which _______ are outstanding as of _______________, 2003; the shares of
issued and outstanding capital stock, including the Securities to be purchased
by the Underwriters from the Selling Shareholders, have been duly authorized
and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock, including the Securities to be purchased
by the Underwriters from the Selling Shareholders, was issued in violation of
any preemptive rights, rights of first refusal or other similar rights of any
securityholder of the Company; the Common Stock conforms to all statements
relating thereto contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; and no holder of
the Securities will be subject to personal liability by reason of being such a
holder.
(iv) Each Subsidiary of the Company, other than the Insurance
Subsidiaries, has been duly incorporated and has corporate power and authority
to own, lease and operate its properties and conduct its business as described
in the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect. Each
Insurance Subsidiary has been duly incorporated and has corporate power and
authority to own, lease and operate its properties and conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except
as otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary; there
are no issued and outstanding options, warrants, rights, securities,
contracts, commitments, understandings or arrangements by which the
Subsidiaries are bound to issue any additional shares of their capital stock
or options to purchase shares of their capital stock.
A-2-1
(v) Each Insurance Subsidiary has the appropriate licenses,
certificates of authority or authorizations to conduct its business as
described in the Prospectus.
(vi) To the best of my knowledge, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or Governmental
Entity, now pending, against or affecting the Company or any Subsidiary, that
is required to be disclosed in the Registration Statement (other than as
disclosed therein, including through incorporation by reference), or that
might result in a Material Adverse Effect, or that might materially and
adversely affect the properties or assets of the Company or such Subsidiary,
the consummation of the transactions contemplated in the Underwriting
Agreement or the performance by the Company of its obligations in connection
with the Underwriting Agreement; all pending legal or governmental proceedings
to which the Company or any Subsidiary is a party or of which any of their
respective properties or assets is the subject that are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not result in a Material Adverse Effect.
(vii) To the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto or to the documents incorporated by reference to the
Registration Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
X-0-0
XXXXXXX X-0
FORM OF OPINION OF SPECIAL COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or Governmental Entity,
and no authorization, approval, vote or other consent of any person or entity,
is necessary or required for the performance by Xxxx X. Xxxxxxxx ("Xxxxxxxx")
or Xxxxxxxx Investments, LLC, a Connecticut limited liability company
("BILLC") of his or its, as applicable, obligations pursuant to the
Underwriting Agreement or the Power of Attorney and Custody Agreement or, in
connection with the execution and delivery of the Underwriting Agreement by
Xxxxxxxx or BILLC, the offer, sale and delivery of the Securities or the
consummation of the transactions contemplated by the Underwriting Agreement,
except such as may have previously been made or obtained under the 1933 Act,
the 1933 Act Regulations or otherwise, or as may be required under state
securities laws.
(ii) The Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by or on behalf of Xxxxxxxx and BILLC, as
applicable, and constitutes the legal, valid, binding and enforceable
agreement of each of Xxxxxxxx and BILLC. Assuming the due authorization,
execution and delivery thereof by each of the Selling Shareholders (other than
Xxxxxxxx and BILLC), the Power of Attorney and Custody Agreement constitutes
the legal, valid, binding and enforceable agreement of each of the Selling
Shareholders (other than Xxxxxxxx and BILLC).
(iii) The Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of each of Xxxxxxxx and BILLC.
(iv) The Custodian has been duly authorized by each of Xxxxxxxx and
BILLC to deliver the Securities on behalf of each of Xxxxxxxx and BILLC and to
accept payment therefor in accordance with the terms of the Underwriting
Agreement. Assuming the due authorization, execution and delivery of the Power
of Attorney and Custody Agreement by each of the Selling Shareholders (other
than Xxxxxxxx and BILLC), the Custodian has been duly authorized by each of
the Selling Shareholders (other than Xxxxxxxx and BILLC) to deliver the
Securities on behalf of such Selling Shareholders and to accept payment
therefor in accordance with the terms of the Underwriting Agreement.
(v) The Attorney-in-Fact has been duly authorized by each of Xxxxxxxx
and BILLC to execute and deliver the Underwriting Agreement and certain
certificates, as the case may be, pursuant to Section 5 thereunder on behalf
of each of Xxxxxxxx and BILLC, to sell, assign and transfer to the
Underwriters the Securities to be sold by each of Xxxxxxxx and BILLC, to
determine the purchase price to be paid by the Underwriters to each of
Xxxxxxxx and BILLC, to accept payment therefor, and otherwise to act on behalf
of each of Xxxxxxxx and BILLC in connection with the Underwriting Agreement.
(vi) The execution and delivery of the Underwriting Agreement and the
Power of Attorney and Custody Agreement and the sale and delivery of the
Securities to be sold by each Selling Shareholder and the consummation of the
transactions contemplated under the Underwriting Agreement and the Power of
Attorney and Custody Agreement and compliance by such Selling Shareholder with
his or its obligations under the Underwriting Agreement and the Power of
B-1-1
Attorney and Custody Agreement do not and will not, whether with or without
the giving of notice or passage of time or both, result in any violation of
the provisions of (a) the operating agreement of BILLC in the case of BILLC,
(b) the Voting Agreement applicable to the Selling Shareholders, (c) the
Securities Purchase Agreement applicable to BILLC or (d) any statute, law,
rule or regulation of any federal, Connecticut or New York court or
governmental authority or any judgment, order or injunction known to us which
is applicable to either Xxxxxxxx or BILLC, or any of their respective assets,
properties or businesses.
(vii) Each Selling Shareholder is the sole legal, beneficial and
registered owner of, and has good and valid title to, the Securities to be
sold by such Selling Shareholder pursuant to the Underwriting Agreement, free
and clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind, other than pursuant to the Underwriting
Agreement; and upon delivery of such Securities and payment of the purchase
price therefor as contemplated in the Underwriting Agreement, each of the
Underwriters will receive good and valid title to the Securities purchased by
it from such Selling Shareholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.
(viii) Except as described in the Prospectus, and based solely on a
certificate of the Selling Shareholders, there are no shareholders agreements,
voting agreements or other similar agreements with respect to the Common Stock
that are effective with respect to the Securities.
X-0-0
XXXXXXX X-0
FORM OF OPINION OF FLORIDA COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) The execution, delivery and performance by the Xxxxxx X. Xxxxxxxxx
2000 Florida Intangible Tax Trust, Xxxxxx X. Xxxxxxxx Xxxxxxxxx Family
Foundation, Xxxxxx X. Xxxxxxxxx Charitable Lead Annuity Trust and Xxxxxxx X.
Xxxxxxxxx Charitable Lead Unitrust (collectively, the "Trust Shareholders") of
the Underwriting Agreement and the Power of Attorney and Custody Agreement
(together, the "Transaction Documents") have been duly authorized by all trust
action necessary on the part of each respective Trust Shareholder and the
Trust Shareholders have duly executed and delivered the Power of Attorney and
Custody Agreement.
(ii) The Underwriting Agreement has been duly executed and delivered
by or on behalf of each Trust Shareholder.
(iii) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any Florida court or Florida
governmental entity, and based solely on our review of the organizational
documents of the Trust Shareholders and the Voting Agreement applicable to the
Trust Shareholders, no authorization, approval, vote or other consent of any
person or entity, is necessary or required for the performance by the Trust
Shareholders of their respective obligations pursuant to the Transaction
Documents or, in connection with the execution and delivery of the Transaction
Documents by the Trust Shareholders, the offer, sale and delivery of the
Securities or the consummation of the transactions contemplated by the
Underwriting Agreement.
(iv) The Custodian has been duly authorized by each of the Trust
Shareholders to deliver the Securities on behalf of each of the Trust
Shareholders and to accept payment therefor in accordance with the terms of
the Underwriting Agreement.
(v) The Attorney-in-Fact has been duly authorized by each of the Trust
Shareholders to execute and deliver the Underwriting Agreement and certain
certificates, as the case may be, pursuant to Section 5 thereunder on behalf
of each of the Trust Shareholders, to sell, assign and transfer to the
Underwriters the Securities to be sold by each of the Trust Shareholders, to
determine the purchase price to be paid by the Underwriters to each of the
Trust Shareholders, to accept payment therefor, and otherwise to act on behalf
of each of the Trust Shareholders in connection with the Underwriting
Agreement.
(vi) The execution and delivery of the Transaction Documents and the
sale and delivery of the Securities to be sold by each Trust Shareholder and
the consummation of the transactions contemplated herein and under the Power
of Attorney and Custody Agreement and compliance by such Trust Shareholder
with its obligations under the Transaction Documents do not and will not,
whether with or without the giving of notice or passage of time or both,
result in any violation of (A) the provisions of the organizational documents
referred to in opinion (ii) above or the Designation Agreement dated _________
applicable to such Trust Shareholder or (B) any statute, law, rule or
regulation of any Florida court or governmental authority or any judgment,
order or injunction known to us which is applicable to any Trust Shareholder,
or any of their respective assets, properties or businesses.
X-0-0
XXXXXXX X
XXXX XX XXXX-XX XXXXXX
, 0000
XXXXX, XXXXXXXX & XXXXX, INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXXX, XXXXX XXXXX, INCORPORATED
as Representatives of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
c/o Keefe, Xxxxxxxx & Xxxxx, Inc.
4th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by NYMAGIC, INC.
-----------------------------------------
Ladies and Gentlemen:
The undersigned, a shareholder, optionholder, officer and/or director
of NYMAGIC, INC., a New York corporation (the "Company"), understands that
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"), Friedman, Billings, Xxxxxx & Co., Inc.
and Xxxxxx, Xxxxx Xxxxx, Incorporated propose to enter into an Underwriting
Agreement (the "Underwriting Agreement") with the Company and the Selling
Shareholders providing for the public offering of shares (the "Securities") of
the Company's common stock, par value $1.00 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a shareholder, optionholder, officer and/or director of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Underwriting Agreement that, during a period of
180 days from the date of the Underwriting Agreement, the undersigned will
not, without the prior written consent of KBW, on behalf of the underwriters
to be named in the Underwriting Agreement, directly or indirectly, (i) offer,
sell, offer to sell, contract to sell, hedge, pledge, grant any option, right
or warrant to purchase, or otherwise transfer or dispose of any shares of the
Common Stock or any other securities convertible into, or exercisable or
exchangeable for, shares of Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap
or transaction described in clause (i) or (ii) is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise.
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Very truly yours,
Signature:
---------------------------
Print Name:
--------------------------
The foregoing is accepted and agreed to as of the date first written above:
XXXXX, XXXXXXXX & XXXXX, INC.
By: ________________________
Name:
Title:
OWNERSHIP OF COMMON STOCK AND OTHER SECURITIES:
Type of Security Number of Shares*
--------------------------------------------------- ---------------------
Common Stock.....................................
Options..........................................
Warrants.........................................
Convertible Securities...........................
Other (please describe):
* For securities other than Common Stock, indicate the aggregate number of
shares of Common Stock into which or for which such securities are
convertible, exchangeable or exercisable.
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