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EXHIBIT 1.1
REINSURANCE GROUP OF AMERICA, INCORPORATED
5,300,000 SHARES
NON-VOTING COMMON STOCK
($0.01 PAR VALUE)
UNDERWRITING AGREEMENT
_______ ___, 1998
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
CONNING & COMPANY
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, Reinsurance Group of America, Incorporated, a Missouri
corporation (the "Company"), hereby addresses you as the representatives (the
"Representatives") of each of the persons, firms and corporations listed on
Schedule I hereto (collectively, the "Underwriters") and hereby confirms its
agreement with the several Underwriters as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to the
Underwriters 5,300,000 shares of its Non-Voting Common Stock, par value $0.01
per share (the "Non-Voting Common Stock," such shares of Non-Voting Common
Stock being herein referred to as the "Firm Shares"). Solely for the purpose
of covering over-allotments in the sale of the Firm Shares, the Company further
proposes to grant to the Underwriters the right to purchase up to an additional
795,000 shares of its Non-Voting Common Stock (the "Option Shares"), as
provided in Section 3 of this Agreement. The Firm Shares and the Option Shares
are herein sometimes referred to as the "Shares" and are more fully described
in the Prospectus hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to
the Underwriters, and each such Underwriter agrees, severally and not jointly,
(a) to purchase from the Company, pro rata, at a purchase price of $___ per
share, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) to purchase from the Company any
additional number of Option Shares which such Underwriter may become obligated
to purchase pursuant to Section 3 hereof.
The Company will deliver definitive certificates for the Firm Shares at
the office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., [77 WATER STREET, NEW YORK, NEW YORK
ZIP CODE] ("▇▇▇▇▇▇▇' Office"), or such other place as you and the Company may
mutually agree upon, for the accounts of the Underwriters against payment to
the Company of the purchase price for the Firm Shares sold by them to the
several Underwriters by wire transfer or certified or bank cashiers' check in
clearing house (immediately available) funds payable to the order of the
Company and delivered to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or at such other place as may be agreed upon between you and the Company (the
"Place of Closing"), at 10:00 a.m., St. Louis
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time, on ____________, 1998, or at such other time and date not later than
[FIVE (5)] full business days thereafter as you and the Company may agree, such
time and date of payment and delivery being herein called the "Closing Date."
The certificates for the Firm Shares so to be delivered will be made
available to you for inspection at ▇▇▇▇▇▇▇' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior
to the Closing Date and will be in such names and denominations as you may
request at least two (2) full business days prior to the Closing Date.
It is understood that an Underwriter, individually, may (but shall not be
obligated to) make payment on behalf of the other Underwriters whose checks
shall not have been received prior to the Closing Date for Shares to be
purchased by such Underwriter. Any such payment by an Underwriter shall not
relieve the other Underwriters of any of their obligations hereunder.
It is understood that the Underwriters propose to offer the Shares to the
public upon the terms and conditions set forth in the Registration Statement
hereinafter defined.
The Company hereby confirms its engagement of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
as, and ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., hereby confirms its agreement with the
Company to render services as, a "qualified independent underwriter," within
the meaning of Rule 2720 of the National Association of Securities Dealers,
Inc. Conduct Rules ("Conduct Rule 2720") with respect to the offering and sale
of the Shares. ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., solely in its capacity as the
qualified independent underwriter and not otherwise, is referred to herein as
the "QIU." As compensation for the services of the QIU hereunder, the Company
agrees to pay the QIU $_____ on the Closing Date. The price at which the
Shares will be sold to the public will not be higher than the maximum price
recommended by the QIU.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. The Company hereby
grants an option to the Underwriters to purchase from it up to 795,000 Option
Shares on the same terms and conditions as the Firm Shares; provided, however,
that such option may be exercised only for the purpose of covering any
over-allotments which may be made by them in the sale of the Firm Shares. No
Option Shares shall be sold or delivered unless the Firm Shares previously have
been, or simultaneously are, sold and delivered.
The option is exercisable on behalf of the several Underwriters by you, as
Representatives, at any time, and from time to time, before the expiration of
30 days from the date of this Agreement, for the purchase of all or part of the
Option Shares covered thereby, by notice given by you to the Company in the
manner provided in Section 13 hereof, setting forth the number of Option Shares
as to which the Underwriters are exercising the option, and the date of
delivery of said Option Shares, which date shall not be more than [FIVE (5)]
business days after such notice unless otherwise agreed to by the parties. You
may terminate the option at any time, as to any unexercised portion thereof, by
giving written notice to the Company to such effect.
You, as Representatives, shall make such allocation of the Option Shares
among the Underwriters as may be required to eliminate purchases of fractional
Shares.
Delivery of the Option Shares with respect to which the options shall have
been exercised shall be made to or upon your order at ▇▇▇▇▇▇▇' Office (or at
such other place as you and the Company may mutually agree upon), against
payment by you of the per share purchase price to the Company by wire transfer
or certified or bank cashier's check or checks, payable in clearing house
(immediately available) funds. Such payment and delivery shall be made at
10:00 a.m.,
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St. Louis time, on the date designated in the notice given by you as above
provided for (which may be the same as the Closing Date), unless some other
date and time are agreed upon, which date and time of payment and delivery are
called the "Option Closing Date." The certificates for the Option Shares so
to be delivered will be made available to you for inspection at ▇▇▇▇▇▇▇'
Office at least one full business day prior to the Option Closing Date and
will be in such names and denominations as you may request at least two (2)
full business days prior to the Option Closing Date. On the Option Closing
Date, the Company shall provide the Underwriters such representations,
warranties, agreements, covenants, opinions, letters, certificates and other
documents with respect to the Option Shares as are required to be delivered on
the Closing Date with respect to the Firm Shares.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. (a) The
Company represents and warrants to and agrees with each Underwriter that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"); a registration statement
(Registration No. 333-51777) on Form S-3 with respect to the Shares and
the associated Preferred Stock Purchase Rights (the "Rights"), including
a preliminary prospectus, and such amendments to such registration
statement as may have been required to the date of this Agreement, have
been prepared by the Company pursuant to and in conformity with the
requirements of the Act, and the Rules and Regulations thereunder (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") and have been filed with the Commission under the Act.
Copies of such registration statement, including any amendments thereto,
each related preliminary prospectus (meeting the requirements of Rule 430
or 430A of the Rules and Regulations) contained therein, and the
exhibits, financial statements and schedules thereto have heretofore been
delivered by the Company to you. If such registration statement has not
become effective under the Act, a further amendment to such registration
statement, including a form of final prospectus, necessary to permit such
registration statement to become effective will be filed promptly by the
Company with the Commission. If such registration statement has become
effective under the Act, a final prospectus containing information
permitted to be omitted at the time of effectiveness by Rule 430A of the
Rules and Regulations will be filed promptly by the Company with the
Commission in accordance with Rule 424(b) of the Rules and Regulations.
The term "Registration Statement" as used herein means the registration
statement as amended at the time it becomes or became effective under the
Act (the "Effective Date"), including financial statements and all
exhibits and all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act and, if applicable, the information
deemed to be included by Rule 430A of the Rules and Regulations. The
term "Prospectus" as used herein means (i) the prospectus as first filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations,
or (ii) if no such filing is required, the form of final prospectus
included in the Registration Statement at the Effective Date, or (iii) if
a Term Sheet or Abbreviated Term Sheet (as such terms are defined in Rule
434(b) and 434(c), respectively, of the Rules and Regulations) is filed
with the Commission pursuant to Rule 424(b)(7) of the Rules and
Regulations, the Term Sheet or Abbreviated Term Sheet and the last
Preliminary Prospectus filed with the Commission prior to the time the
Registration Statement became effective, taken together (including, in
each case, the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act). The term "Preliminary Prospectus" as
used herein shall mean a preliminary prospectus as contemplated by Rule
430 or 430A of the Rules and Regulations included at any time in the
Registration Statement. "Material Adverse Effect" shall mean any material
adverse effect on the
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condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, taken as a whole.
(ii) The Commission has not issued, and is not to the knowledge of
the Company threatening to issue, an order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus nor instituted
proceedings for that purpose. Each Preliminary Prospectus at its date of
issue, the Registration Statement and the Prospectus and any amendments
or supplements thereto contains or will contain, as the case may be, all
statements which are required to be stated therein by, and in all
material respects conform or will conform, as the case may be, to the
requirements of, the Act and the Rules and Regulations. Neither the
Registration Statement nor any amendment thereto, as of the applicable
Effective Date, and neither the Prospectus nor any supplement thereto
contains or will contain, as the case may be, any untrue statement of a
material fact or omits or will omit, as the case may be, to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted from
the Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, information
relating to the Underwriters and furnished to the Company in writing by
or on behalf of the Underwriters expressly for use therein (as provided
in Section 12).
(iii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and the rules and regulations adopted by the Commission
thereunder (the "1934 Act Rules and Regulations"), and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement became effective and at the Closing Date, did
not or will not, as the case may be, 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.
(iv) The filing of the Registration Statement and the execution and
delivery of this Agreement have been duly authorized by the Board of
Directors of the Company; this Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms (except to the extent the enforceability of the indemnification and
contribution provisions of Section 7 hereof may be limited by public
policy considerations as expressed in the Act as construed by courts of
competent jurisdiction, and except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting creditors' rights generally and by general principles of
equity); the issuance and sale of the Shares, together with the
associated Rights, by the Company and the execution, delivery and
performance of this Agreement and the consummation of the transactions
herein contemplated will not result in a violation of the Company's
articles of incorporation or bylaws, or result in a breach or violation
of any of the terms and provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or any of its subsidiaries
under, any statute, bond, debenture, note other evidence of indebtedness,
or any agreement, indenture, mortgage, deed of trust, sale and leaseback
arrangement, joint venture or other instrument to which the Company or
any of its subsidiaries is a party or by which they are bound or to which
any of the properties or assets of the Company or any of its subsidiaries
is subject, or any order or
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decree, or any statute, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or their properties, except to such extent as does not have
a Material Adverse Effect; no authorization, approval, consent, order,
registration or qualification of or with any court or governmental body,
authority or agency is required with respect to the Company in connection
with the transactions contemplated by this Agreement except such as may
be required under the Act or the Rules and Regulations or as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD"), The New York Stock Exchange, Inc. (the "NYSE") or under any
state securities laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(v) Registration statements with respect to the Shares and the
Rights have been carefully prepared by the Company pursuant to and in
conformity with the 1934 Act and the 1934 Act Rules and Regulations, and
have been filed with the Commission under the Act, and such registration
statements have become effective under the 1934 Act or will become
effective when the Registration Statement is declared effective.
(vi) The Company and each of its subsidiaries are duly incorporated
and are validly existing as corporations in good standing under the laws
of their respective jurisdictions of incorporation, with full power and
authority (corporate and other) to own, lease and operate their
properties and conduct their business as described in the Prospectus, are
duly qualified, licensed or authorized in each other jurisdiction where
it is required to be so qualified, licensed or authorized to conduct its
business as described in the Prospectus, in each case with such
exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; the Company and each of its subsidiaries hold
all licenses, certificates, permits and approvals from all state,
federal, foreign and other regulatory authorities, and have satisfied in
all material respects the requirements imposed by regulatory bodies,
administrative agencies or other governmental bodies, agencies or
officials, that are required for the Company and its subsidiaries
lawfully to own, lease and operate its properties and conduct their
businesses as described in the Prospectus, and, each of the Company and
its subsidiaries is conducting its business in compliance
with all of the laws, rules and regulations of each jurisdiction
in which it conducts its business (including, without limitation,
insurance and insurance holding company laws, rules and regulations) in
each case with such exceptions, individually or in the aggregate, as
would not have a Material Adverse Effect; the Company and each of its
subsidiaries has filed all notices, reports, documents or other
information ("Notices") required to be filed under applicable laws,
rules and regulations, including, without limitation, the insurance
laws and regulations of the State of Missouri and the insurance laws and
regulations of other jurisdictions which are applicable to it, in each
case, with such exceptions as would not have a Material Adverse Effect;
and, except as otherwise specifically described in the Prospectus,
neither the Company nor any of its subsidiaries has received any
notification from any court or governmental body, authority
or agency, including without limitation, any insurance regulatory
authority, to the effect that any additional authorization, approval,
order, consent, license, certificate, permit, registration or
qualification ("Approvals") from such regulatory authority is needed to
be obtained by any of them, in any case where it could be reasonably
expected that obtaining such Approvals or the failure to obtain such
Approvals would have a Material Adverse Effect; and, no insurance
regulatory agency or body has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by any subsidiary of
the Company to its parent.
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(vii) No Notices or Approvals are required to be filed or obtained
prior to the Closing Date by the Company or any of its subsidiaries in
connection with the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares, together with the
associated Rights, or the transactions contemplated hereby.
(viii) The Company is not, nor after giving effect to the offering
and sale of the Shares, will it be (i) an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or (ii) a "holding company"
or a "subsidiary company" or an "affiliate" of a holding company within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(ix) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree. Subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company and its subsidiaries taken as a
whole have not incurred any material liabilities or material obligations,
direct or contingent, other than in the ordinary course of business, or
entered into any material transactions not in the ordinary course of
business, and there has not been any material change in the capital stock
or long-term debt of the Company and its subsidiaries taken as a whole or
any material adverse change in the condition (financial or other), net
worth, business, affairs, management, prospects or results of operations
of the Company and its subsidiaries taken as a whole. The Company and
its subsidiaries have filed all necessary federal, state and foreign
income and franchise tax returns and paid all taxes shown as due thereon,
all tax liabilities are adequately provided for on the books of the
Company and its subsidiaries, and the Company and its subsidiaries have
made all necessary payroll tax payments and are current and up-to-date
with respect thereto as of the date of this Agreement, except to such
extent as would not have a Material Adverse Effect; and the Company and
its subsidiaries have no knowledge of any tax proceeding or action
pending or threatened against the Company or its subsidiaries which might
have a Material Adverse Effect.
(x) Except as described in the Prospectus, there is not now pending
or, to the knowledge of the Company, threatened or contemplated, any
action, suit or proceeding to which the Company or its subsidiaries is a
party before or by any court or public, regulatory or governmental agency
or body which might be expected to have a Material Adverse Effect
(individually or in the aggregate) or affect the power or ability of the
Company to perform its obligations under this Agreement; and there are no
contracts or documents of the Company or its subsidiaries which would be
required to be filed as exhibits to the Registration Statement by the Act
or by the Rules and Regulations which have not been filed as exhibits to
the Registration Statement or incorporated by reference therein.
(xi) The Company has duly and validly authorized capital stock as
described in the Prospectus; all outstanding shares of Common Stock, and
associated Rights, of the Company and the Shares, and associated Rights,
conform in all material respects, or when issued will conform in all
material respects, to the description thereof in the Prospectus and have
been, or, when issued and paid for will be, duly authorized, validly
issued, fully paid and non-assessable; and the issuance of the Shares,
and associated Rights, to be
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purchased from the Company hereunder is not subject to preemptive or
other similar rights. All corporate action required to be taken by the
Company for the authorization, issue and sale of the Shares, and
associated Rights, has been duly and validly taken.
(xii) The entities listed on Schedule II hereto are the only
subsidiaries, direct or indirect, of the Company. The Company, owns,
directly or indirectly through other subsidiaries, the percentage
indicated on Schedule II of the outstanding shares of capital stock or
other securities evidencing equity ownership of such subsidiaries, free
and clear of any security interest, claim, lien, limitation on voting
rights or encumbrances; and all of such securities have been duly
authorized, validly issued, are fully paid and non-assessable and were
not issued in violation of any preemptive or similar rights. Except as
described in the Registration Statement, there are no outstanding
subscriptions, rights, warrants, calls, commitments of sale or options to
acquire, or instruments convertible into or exchangeable for, any such
shares of capital stock or other equity interest of such subsidiaries.
(xiii) The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that: (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4)
the recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
thereto.
(xiv) The 1997 annual statements of each of the Company's insurance
subsidiaries and the statutory statements of admitted assets, liabilities
and surplus and statutory statements of operations included in such
statutory annual statements together with related schedules and notes,
have been prepared, in all material respects, in conformity with
statutory accounting principles or practices prescribed or permitted by
the appropriate insurance department of the jurisdiction of domicile of
each such subsidiary, and such statutory accounting practices have been
applied on a consistent basis throughout the periods involved, except as
may otherwise be indicated therein or in the notes thereto, and present
fairly, in all material respects, the statutory financial position of the
subsidiaries as of the dates thereof, and the statutory basis results of
operations of the subsidiaries for the periods covered thereby.
(xv) KPMG Peat Marwick LLP, the accounting firm which has certified
the financial statements filed with or incorporated by reference in and
as a part of the Registration Statement, is an independent public
accounting firm within the meaning of the Act and the Rules and
Regulations.
(xvi) The consolidated financial statements and schedules of the
Company, including the notes thereto, filed with (or incorporated by
reference) and as a part of the Registration Statement, comply in all
material respects with the Act and the Rules and Regulations and present
fairly the consolidated financial position of the Company and its
subsidiaries as of the respective dates thereof and their consolidated
results of operations and their consolidated cash flows for the
respective periods covered thereby, and have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved except as otherwise disclosed in
the Prospectus. The selected financial data included or incorporated by
reference in the
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Registration Statement and Prospectus comply in all material respects
with the Act and the Rules and Regulations, present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements, except as otherwise
disclosed in the Prospectus. The operating and other statistical data
included or incorporated by reference in the Registration Statement and
Prospectus comply in all material respects with the Act and the Rules and
Regulations and presents fairly the information shown therein.
(xvii) Neither the Company nor any subsidiary is (i) in default with
respect to its articles of incorporation or bylaws or (ii) in default in
the performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in any
other contract, indenture, mortgage, deed of trust, sale and leaseback
arrangement, joint venture or other instrument to which it is a party;
provided that the representation in subparagraph (ii) hereof shall not
apply to defaults which would not have a Material Adverse Effect.
(xviii) Neither the Company nor any subsidiary is in violation of
any other laws, ordinances or governmental rules or regulations to which
it is subject, including, without limitation, Section 13 of the 1934 Act,
and neither the Company nor any subsidiary has failed to obtain any other
license, permit, franchise, easement, consent, or other governmental
authorization necessary to the ownership, leasing and operation of its
properties or to the conduct of its business, which violation or failure
would have a Material Adverse Effect.
(xix) Except as described in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent licenses, trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Company nor any subsidiary has received any notice of infringement of or
conflict with asserted rights of others with respect to any patents,
patent licenses, trademarks, service marks or trade names which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(xx) The Company and its subsidiaries have good and marketable title
to all property owned by them, free and clear of all liens, encumbrances,
restrictions and defects except such as are described in the Prospectus
or do not interfere with the use made and proposed to be made of such
property; and any property held under lease or sublease by the Company or
its subsidiaries is held under valid, subsisting and enforceable leases
or subleases, and neither the Company nor any subsidiary has any notice
or knowledge of any material claim of any sort which has been, or may be,
asserted by anyone adverse to the Company's or any subsidiary's rights as
lessee or sublessee under any lease or sublease described above, or
affecting or questioning the Company's or any subsidiary's rights to the
continued possession of the leased or subleased premises under any such
lease or sublease in conflict with the terms thereof; except where the
failure to have such good and marketable title or valid, subsisting and
enforceable leases or subleases ,or such claim, would not have a Material
Adverse Effect.
(xxi) Except as described in the Prospectus, there is no factual
basis for any action, suit or other proceeding involving the Company or
its subsidiaries or any of their material assets for any failure of the
Company or any of its subsidiaries, or any predecessor thereof, to comply
with any requirements of federal, state or local regulation
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relating to air, water, solid waste management, hazardous or toxic
substances, or the protection of health or the environment; except where
such action, suit or other proceeding would not have a Material Adverse
Effect. Except as described in the Prospectus or as would not have
Material Adverse Effect, none of the property owned or leased by the
Company or any of its subsidiaries is, to the best knowledge of the
Company, contaminated with any waste or hazardous substances, and neither
the Company nor any of its subsidiaries may be deemed an "owner or
operator" of a "facility" or "vessel" which owns, possesses, transports,
generates or disposes of a "hazardous substance" as those terms are
defined in Section 9601 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
(xxii) No labor disturbance exists with the employees of the Company
or its subsidiaries or is imminent which would have a Material Adverse
Effect. None of the employees of the Company and its subsidiaries is
represented by a union and, to the best knowledge of the Company and its
subsidiaries, no union organizing activities are taking place. Neither
the Company nor any of its subsidiaries has violated any federal, state
or local law or foreign law relating to discrimination in hiring,
promotion or pay of employees, nor any applicable wage or hour laws, nor
any provision of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the rules and regulations thereunder, or analogous
foreign laws and regulations, which might result in a Material Adverse
Effect.
(xxiii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Company's Common Stock or Non-Voting Common Stock, and the Company is not
aware of any such action taken or to be taken by affiliates of the
Company.
(xxiv) All retrocessional treaties and arrangements to which the
Company is a party and which have not terminated or expired by their
terms are in full force and effect and none of the Company or any of its
subsidiaries is in violation of or in default in the performance,
observance or fulfillment of, any obligation, agreement, covenant or
condition contained therein, except to the extent that any such violation
or default could not reasonably be expected to have a Material Adverse
Effect; neither the Company nor any of its subsidiaries has received any
notice from any of the other parties to such treaties, contracts or
agreements that such other party intends not to perform such treaty,
contract or agreement in any respect that could reasonably be expected to
have a Material Adverse Effect; and, to the best knowledge of the
Company, the Company has no reason to believe that any of the other
parties to such treaties or arrangements will be unable to perform such
treaty or arrangement in any respect that could reasonably be expected to
have a Material Adverse Effect.
(xxv) The Company and each of its subsidiaries maintains insurance
covering their properties, personnel and business. Such insurance insures
against such losses and risks as are adequate in accordance with the
Company's perception of customary industry practice to protect the
Company and its subsidiaries and their businesses. Neither the Company
nor any of its subsidiaries has received notice from any insurer or agent
of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof
and will be outstanding and duly in force on the Closing Date.
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(xxvi) The Company and its subsidiaries have made no material
changes in their insurance reserving practices since December 31, 1997,
except where such insurance reserving practices could not reasonably be
expected to have a Material Adverse Effect.
(xxvii)Except as disclosed in the Prospectus, no holder of any
security of the Company has any right to require registration of shares
of Non-Voting Common Stock, Common Stock or any other security of the
Company because of the filing of the Registration Statement or the
consummation of the transactions contemplated hereby and, except as
disclosed in the Prospectus, no person has the right to require
registration under the Act of any shares of Non-Voting Common Stock,
Common Stock or other securities of the Company. No person has the
right, contractual or otherwise, to cause the Company to permit such
person to underwrite the sale of any of the Shares. Except for this
Agreement, there are no contracts, agreements or understandings between
the Company or any of its subsidiaries and any person that would give
rise to a valid claim against the Company, its subsidiaries or any
Underwriter for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Shares. Except as
disclosed in the Prospectus, there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments of
sale or liens related to or entitling any person to purchase or otherwise
to acquire any shares of, or any security convertible into or
exchangeable or exercisable for, the capital stock of, or other ownership
interest in, the Company.
(xxviiii) The Company is not aware of any threatened or pending
downgrading of RGA Reinsurance Company's "A+" claims-paying ability
rating from A.M. Best Company, Inc., A1 insurance financial strength
rating from ▇▇▇▇▇'▇ Investors Service, or AA claims-paying rating from
Standard & Poor's.
(b) Any certificate signed by any officer of the Company and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company, as applicable, to each Underwriter as to the matters
covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees with the
several Underwriters that:
(a) If the Registration Statement is not effective under the Act, the
Company will use its best efforts to cause the Registration Statement to become
effective as promptly as possible, and it will notify you, promptly after it
shall receive notice thereof, of the time when the Registration Statement has
become effective. The Company (i) will prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations, if required, a
Prospectus containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rule 430A of the
Rules and Regulations or otherwise or a Term Sheet or Abbreviated Term Sheet,
as applicable; (ii) will not file any amendment to the Registration Statement
or supplement to the Prospectus of which the Underwriters shall not previously
have been advised and furnished with a copy or to which the Underwriters shall
have reasonably objected in writing or which is not in compliance with the
Rules and Regulations; and (iii) will promptly notify you after it shall have
received notice thereof of the time when any amendment to the Registration
Statement becomes effective or when any supplement to the Prospectus has been
filed.
(b) The Company will advise the Underwriters promptly, after it shall
receive notice or obtain knowledge thereof, of any request of the Commission
for amendment of the
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Registration Statement or for supplement to the Prospectus or for any
additional information, or of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use of the
Prospectus or of the institution or threatening of any proceedings for that
purpose, and the Company will use its best efforts to prevent the issuance of
any such stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriters and their counsel in
endeavoring to qualify the Shares for sale, and the Rights for issuance, under
the securities laws of such jurisdictions as they may have designated and will
make such applications, file such documents, and furnish such information as
may be necessary for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to
file such a consent or to subject itself to taxation as doing business in any
jurisdiction where it is not now so taxed. The Company will, from time to
time, file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriters may reasonably request.
(d) The Company will deliver to, or upon the order of, the Underwriters,
without charge from time to time, as many copies of any Preliminary Prospectus
(including all documents incorporated by reference therein) as they may
reasonably request. The Company will deliver to, or upon the order of, the
Underwriters without charge as many copies of the Prospectus (including all
documents incorporated by reference therein), or as it thereafter may be
amended or supplemented, as they may from time to time reasonably request. The
Company consents to the use of such Prospectus by the Underwriters and by all
dealers to whom the Shares may be sold, both in connection with the offering or
sale of the Shares and for such other purposes and for such period of time
thereafter as the Prospectus is required by law to be delivered in connection
with the offering or sale of the Shares. The Company will deliver to the
Underwriters at or before the Closing Date a reasonable number of signed copies
of the Registration Statement and all amendments thereto including all exhibits
filed therewith or incorporated by reference therein and all documents
incorporated by reference in the Prospectus, and will deliver to the
Underwriters such number of copies of the Registration Statement, without
exhibits, and of all amendments thereto, as they may reasonably request.
(e) If, during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Company or in your judgment or in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or supplement the
Prospectus to comply with any law, the Company promptly will prepare and file
with the Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law.
(f) The Company will make generally available to its shareholders and will
file as an exhibit in a report pursuant to the 1934 Act, as soon as it is
practicable to do so, but in any event not later than 15 months after the
Effective Date of the Registration Statement, an earnings statement in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the Effective Date of the Registration Statement, which
earnings statement shall satisfy the
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requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations and will advise the Underwriters in writing when such statement
has been so made available.
(g) The Company will, for a period of five years from the Closing Date,
deliver to the Underwriters at their principal executive offices a reasonable
number of copies of annual reports, quarterly reports, current reports and
copies of all other documents, reports and information furnished by the Company
to its shareholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
1934 Act. The Company will deliver to the Underwriters similar reports with
respect to any significant subsidiaries, as that term is defined in the Rules
and Regulations, which are not consolidated in the Company's financial
statements. Any report, document or other information required to be furnished
under this paragraph (g) shall be furnished as soon as practicable after such
report, document or information becomes available.
(h) The Company will apply the proceeds from the sale of the Shares as set
forth in the description under "Use of Proceeds" in the Prospectus, which
description complies in all respects with the requirements of Item 504 of
Regulation S-K.
(i) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Shares under the Act.
(j) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will furnish to you, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of the
Company and its subsidiaries for any periods subsequent to the periods covered
by the financial statements appearing in the Registration Statement and the
Prospectus.
(k) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will not issue any press releases or other communications
directly or indirectly and will hold no press conferences with respect to the
Company or any of its subsidiaries, the financial condition, results of
operations, business, properties, assets or liabilities of the Company or any
of its subsidiaries, or the offering of the Shares, without your prior written
consent.
(l) The Company will use its best efforts to obtain approval for, and
maintain the quotation of the Shares on the NYSE.
(m) For a period of 90 days from the Effective Date, the Company will
not, directly or indirectly offer, sell, contract to sell or otherwise dispose
of any shares of the Company's Common Stock or Non-Voting Common Stock, any
securities convertible or exchangeable for Common Stock or Non-Voting Common
Stock or any other rights to acquire such shares without the prior written
consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., except for the Shares sold hereunder and
except for sales of shares of Common Stock to the Company's employees pursuant
to the exercise of options under the Company's stock option plans outstanding
on the date of this Agreement.
(n) During any period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will promptly file all
documents required to be filed with the Commission pursuant to Sections 13, 14
or 15(d) of the 1934 Act.
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6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase and pay for the Shares, as provided herein, shall
be subject to the accuracy in all material respects, as of the date hereof and
as of the Closing Date (and, if applicable, the Option Closing Date), of the
representations and warranties of the Company contained herein, to the
performance in all material respects by the Company of its covenants and
obligations hereunder, and to the following additional conditions:
(a) All filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made or should be made within the time periods
required by the Act and the Rules and Regulations. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time,
shall have been issued and no proceeding for that purpose shall have been
initiated or, to the knowledge of the Company or any Underwriter, threatened or
contemplated by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Underwriters.
(b) No Underwriter shall have disclosed in writing to the Company on or
prior to the Closing Date (and, if applicable, the Option Closing Date), that
the Registration Statement or Prospectus or any amendment or supplement thereto
contains an untrue statement of fact which, in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel and
Secretary for the Company, addressed to you and dated the Closing Date (and,
if applicable, the Option Closing Date), to the effect that:
(i) The Company and its U.S. subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the states in which they are incorporated, with full
power and authority (corporate and other) to own, lease and operate their
properties and conduct their business as described in the Prospectus; the
Company and its U.S. subsidiaries are duly qualified, licensed or
authorized in each other jurisdiction where it is required to be so
qualified, licensed or authorized to conduct its business as described in
the Prospectus, except where the failure to be so qualified would not
have a Material Adverse Effect.
(ii) The entities listed on Schedule II are the only subsidiaries,
direct or indirect, of the Company. The Company owns directly or
indirectly through other subsidiaries, the percentage indicated on
Schedule II of the outstanding shares of capital stock or other
securities evidencing equity ownership of such subsidiaries, and all such
securities have been duly authorized, validly issued, are fully paid and
non-assessable and, to the knowledge of such counsel, are owned by the
Company free and clear of any security interest, claim, lien, limitation
on voting rights or encumbrances and were not issued in violation of any
preemptive or similar rights; and there are no outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any such shares of
capital stock or other equity interest of such subsidiaries.
(iii) The Company has duly and validly authorized capital stock as
set forth under the caption "Capitalization" in the Prospectus; all
outstanding shares of Common
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Stock, and associated Rights, of the Company and the Shares, and
associated Rights, conform, or when issued will conform, to the
description thereof in the Prospectus under the caption "Description of
Capital Stock," and have been duly authorized, validly issued, fully paid
and non-assessable; and the issuance of the Shares, and associated
Rights, to be sold by the Company have been duly authorized and, when
delivered and paid for in accordance with this Agreement, will be validly
issued, fully paid and non-assessable. All corporate action required to
be taken by the Company for the authorization, issue and sale of the
Shares, and associated Rights, has been duly and validly taken. The
Shares, and associated Rights, are duly authorized for listing, subject
to official notice of issuance and evidence of satisfactory distribution,
on the NYSE. The form of specimen certificate representing the Shares
filed as an exhibit to the Registration Statement is in valid and
sufficient form. The holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other similar rights under
the Company's articles of incorporation or any agreement or other
instrument to which the Company is a party, and except as described in
the Prospectus, there are no outstanding subscriptions, rights, warrants,
calls, commitments or sale or options to acquire, or instruments
convertible into or exchangeable for, shares of Voting Common Stock or
Non-Voting Common Stock.
(iv) To the knowledge of such counsel, the Company and each of its
U.S. subsidiaries hold all licenses, certificates, permits and approvals
from all state, federal, foreign and other regulatory authorities, and
have satisfied in all material respects the requirements imposed by
regulatory bodies, administrative agencies or other governmental bodies,
agencies or officials, that are required for the Company and its U.S.
subsidiaries lawfully to own, lease and operate their properties and
conduct their businesses as described in the Prospectus, and, each of the
Company and its U.S. subsidiaries is conducting its business in
compliance in all material respects with all of the laws, rules and
regulations of each jurisdiction in which it conducts its business
(including, without limitation, insurance and insurance holding company
laws, rules and regulations); the Company and each of its subsidiaries
has filed all Notices required to be filed under applicable laws, rules
and regulations, including, without limitation, the insurance laws and
regulations of the State of Missouri and the insurance laws and
regulations of other jurisdictions which are applicable to it, in each
case, with such exceptions as would not have a Material Adverse Effect;
and, except as otherwise specifically described in the Prospectus,
neither the Company nor any of its U.S. subsidiaries has received any
notification from any court or governmental body, authority or agency,
including, without limitation, any insurance regulatory authority, to the
effect that any additional Approvals from such regulatory authority is
needed to be obtained by any of them, in any case where it could be
reasonably expected that obtaining such Approvals or the failure to
obtain such Approvals would have a Material Adverse Effect.
(v) The Company and each of its U.S. subsidiaries has filed all
Notices pursuant to, and has obtained all Approvals required to be
obtained under, and has otherwise complied with all requirements of, all
applicable insurance laws and regulations (excluding insurance securities
laws other than those of the State of Missouri), in connection with the
issuance and sale of the Shares and associated Rights, in each case
(other than the insurance laws and regulations of the State of Missouri,
as to which no exception is taken) with such exceptions, individually or
in the aggregate, as would not affect the validity of the Shares and
associated Rights, their issuance or the transactions contemplated hereby
or have a Material Adverse Effect; and no such Notices or Approvals are
required to be filed or obtained by any of the U.S. subsidiaries in
connection with the execution, delivery and performance of this
Agreement, the issuance
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and sale of the Shares and associated Rights, or the transactions
contemplated hereby, in each case (other than the insurance laws of the
State of Missouri, as to which no exception is taken) with such
exceptions, individually or in the aggregate, as would not affect the
validity of the Shares or associated Rights, their issuance or the
transactions contemplated hereby or have a Material Adverse Effect.
Except as described in the Prospectus, no insurance regulatory agency or
body issued any order or decree impairing, restricting or prohibiting the
payment of dividends by any U.S. subsidiary of the Company to its parent,
other than such orders or decrees the issuance of which could not
reasonably be expected to have a Material Adverse Effect.
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and legally binding obligation
of the Company. The issuance and sale of the Shares, together with the
associated Rights, by the Company and the execution, delivery and
performance of this Agreement and the consummation of the transactions
herein contemplated will not result in a violation of the Company's
articles of incorporation or bylaws, or result in a breach or violation
of any of the terms and provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company or any of its U.S.
subsidiaries under, any statute, bond, debenture, note, other evidence of
indebtedness, or any agreement, indenture, mortgage, deed of trust, sale
and leaseback arrangement, joint venture or other instrument to which the
Company or any of its U.S. subsidiaries is a party or by which they are
bound or to which any of the properties or assets of the Company or any
of its U.S. subsidiaries is subject, or any order or decree, or any
statute, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its U.S. subsidiaries or
their properties, except to such extent as does not have a Material
Adverse Effect.
(vii) The Rights have been duly authorized and validly issued and
when the Shares have been issued and delivered to and paid for by the
Underwriters pursuant to this Agreement the Rights will be fully paid and
non-assessable (subject to the terms and conditions of the Rights as
applicable to their exercise).
(viii) To the knowledge of such counsel, (A) there are no material
(individually, or in the aggregate) legal, governmental or regulatory
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or of which the business or properties of the
Company or any of its subsidiaries is the subject which are not disclosed
in the Registration Statement and Prospectus; (B) there are no contracts
or documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which are not described or filed as required; and
(C) there are no statutes, rules or regulations required to be described
in the Registration Statement or Prospectus which are not described as
required.
(ix) To the knowledge of such counsel, neither the Company nor any
U.S. subsidiary (i) is in default with respect to its articles of
incorporation or bylaws; (ii) is in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any other contract,
indenture, mortgage, deed of trust, sale and leaseback arrangement, joint
venture or other instrument to which it is a party; (iii) is in violation
of any other laws, ordinances or governmental rules or regulations to
which it is subject, including, without limitation, Section 13 of the
1934 Act, or (iv) has failed to obtain any other license, permit,
franchise, easement, consent, or other governmental authorization
necessary to the
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ownership, leasing and operation of its properties or to the conduct of
its business; provided that the representations in subparagraph (ii),
(iii) and (iv) hereof shall not apply to defaults which would not have a
Material Adverse Effect..
(x) The statements made in the Prospectus under the caption
"Business-Regulation" and the [third] paragraph on the inside front cover
of the Prospectus, to the extent that they constitute summaries of
documents referred to therein or matters of law or legal conclusions,
have been reviewed by such counsel and are accurate summaries and fairly
present the information disclosed therein.
Such counsel shall confirm that during the preparation of the Registration
Statement and Prospectus, such counsel participated in conferences with the
Representatives and their counsel and with officers and representatives of the
Company, at which conferences the contents of the Registration Statement and
the Prospectus were discussed, reviewed and revised. On the basis of the
information which was developed in the course thereof, considered in light such
counsel's understanding of applicable law and the experience gained by such
counsel through his practice thereunder, such counsel shall confirm that
nothing came to his attention that would lead him to believe that either the
Registration Statement, as of the Effective Date, 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, in the light of the
circumstances under which they were made, not misleading, or the Prospectus or
any amendment or supplement thereto as of the Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than the
financial statements or other financial data as to which such counsel need
express no opinion).
In rendering the foregoing opinion, such counsel may rely, provided that
the opinion shall state that you and he are entitled to so rely, (1) as to
matters involving laws of any jurisdiction other than Missouri or the United
States, upon opinions addressed to the Underwriters of other counsel
satisfactory to them and ▇▇▇▇▇ ▇▇▇▇ LLP, and (2) as to all matters of fact,
upon certificates and written statements of the executive officers of, and
accountants for, the Company, provided such counsel shall state in his opinion
that he believes that he and the Underwriters are justified in relying thereon.
(d) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of ▇▇▇▇▇, Rice & Fingersh, special counsel for
the Company, addressed to you and dated the Closing Date (and, if applicable,
the Option Closing Date), to the effect that:
(i) The Company and its U.S. subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the states in which they are incorporated, with full
power and authority (corporate and other) to own, lease and operate their
properties and conduct their business as described in the Prospectus; the
Company and its U.S. subsidiaries are duly qualified, licensed or
authorized in each other jurisdiction where it is required to be so
qualified, licensed or authorized to conduct its business as described in
the Prospectus, except where the failure to be so qualified would not
have a Material Adverse Effect.
(ii) The outstanding shares of capital stock of the Company's U.S.
subsidiaries have been duly authorized , validly issued, are fully paid
and non-assessable and, to the knowledge of such counsel after due
inquiry, are owned by the Company free and clear of any security
interest, claim, lien, limitation on voting rights or encumbrances and
were
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not issued in violation of any preemptive or similar rights; and there
are no outstanding subscriptions, rights, warrants, calls, commitments of
sale or options to acquire, or instruments convertible into or
exchangeable for, any such shares of capital stock or other equity
interest of such subsidiaries.
(iii) The Company has duly and validly authorized capital stock as
described in the Prospectus; all outstanding shares of Common Stock, and
associated Rights, of the Company and the Shares, and associated Rights,
conform, or when issued will conform, to the description thereof in the
Prospectus, and have been, or, when issued and paid for will be, duly
authorized, validly issued, fully paid and non-assessable; and the
issuance of the Shares, and associated Rights, to be sold by the Company
in accordance with this Agreement is not subject to preemptive or other
similar rights. All corporate action required to be taken by the Company
for the authorization, issue and sale of the Shares, and associated
Rights, has been duly and validly taken. The Shares, and associated
Rights, are duly authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution, on the NYSE. The
form of specimen certificate representing the Shares filed as an exhibit
to the Registration Statement is in valid and sufficient form. The
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive rights under the Company's articles of
incorporation or any agreement or other instrument to which the Company
is a party, and except as described in the Prospectus, there are no
outstanding subscriptions, rights, warrants, calls, commitments or sale
or options to acquire, or instruments convertible into or exchangeable
for, shares of Voting Common Stock or Non-Voting Common Stock.
(iv) The Registration Statement has become effective under the Act;
any required filing of the Prospectus or any supplement thereto pursuant
to Rule 424(b) or otherwise has been made in the manner and within the
time period required thereby; and, to the knowledge of such counsel after
due inquiry, 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 contemplated under the
Act.
(v) The Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or
issue date, comply as to form and appear on their face to be
appropriately responsive in all material respects to the requirements of
Form S-3 under the Act and the applicable Rules and Regulations (except
that such counsel need express no opinion as to the financial statements
or other financial data) and, as of the date they were filed with the
Commission, the documents incorporated by reference in the Prospectus
appear on their face to comply as to form and to be appropriately
responsive in all material respects with the requirements of the 1934 Act
and the applicable 1934 Act Rules and Regulations (except that such
counsel need express no opinion as to the financial statements or other
financial data).
(vi) The descriptions contained or incorporated by reference in the
Registration Statement and Prospectus of contracts and other documents
filed as exhibits to the Registration Statement are accurate in all
material respects; all other material agreements between the Company and
third parties expressly referenced in the Prospectus are legal, valid and
binding obligations of the Company.
(vii) No authorization, approval, consent, order, registration or
qualification of or with of any court or governmental body, authority or
agency is required with respect to the Company or any of its subsidiaries
in connection with the execution, delivery and
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performance of this Agreement, and the issuance and sale of the Shares,
and associated Rights, the transactions contemplated hereby (other than
with respect to insurance laws and regulations, as to which such counsel
need not express any opinion), except such as may be required under the
Act or the Rules and Regulations or as may be required by the NASD or
under state securities laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and legally binding
obligation of the Company. The issuance and sale of the Shares, together
with the associated Rights, by the Company and the execution, delivery
and performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a violation of the
Company's articles of incorporation or bylaws, or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or any of its
U.S. subsidiaries under, any statute, bond, debenture, note, other
evidence of indebtedness, or any agreement, indenture, mortgage, deed of
trust, sale and leaseback arrangement, joint venture or other instrument
to which the Company or any of its U.S. subsidiaries is a party or any of
by which they are bound or to which any of the properties or assets of
the Company or any of its U.S. subsidiaries is subject (each as such has
been filed by the Company as an exhibit to its Annual Report on Form 10-K
for the year ended December 31, 1997 or Quarterly Report on Form 10-Q for
the three-months ended March 31, 1998), or any order or decree, or any
statute, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its U.S. subsidiaries or
their properties (other than insurance laws and regulations, as to which
such counsel need not express an opinion), except to such extent as does
not have a Material Adverse Effect.
(ix) The Rights have been duly authorized and validly issued and
when the Shares have been issued and delivered to and paid for by the
Underwriters pursuant to this Agreement the Rights will be fully paid and
non-assessable (subject to the terms and conditions of the Rights as
applicable to their exercise).
(x) To the knowledge of such counsel, (A) there are no material
(individually, or in the aggregate) legal, governmental or regulatory
proceedings pending or threatened to which the Company or any subsidiary
is a party or of which the business or properties of the Company or any
subsidiary is the subject which are not disclosed in the Registration
Statement and Prospectus; (B) there are no contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which are not described or filed as required; and (C) there are no
statutes or regulations required to be described in the Registration
Statement or Prospectus which are not described as required.
(xi) The statements made in the Prospectus under the captions
"Business--Certain Relationships and Related Transactions," "Description
of Capital Stock," "Certain Charter and Bylaw Provisions," "Certain U.S.
Tax Considerations for Non-U.S. Holders" and _________, and in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997
under Item 13, "Certain Relationships and Related Transactions," to the
extent that they constitute summaries of documents referred to therein or
matters of law or legal conclusions, have been reviewed by such counsel
and are accurate summaries and fairly present the information disclosed
therein.
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(xii) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xiii) To such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement pursuant to any agreement.
Such counsel shall confirm that during the preparation of the Registration
Statement and Prospectus, such counsel participated in conferences with the
Representatives and their counsel and with officers and representatives of the
Company, at which conferences the contents of the Registration Statement and
the Prospectus were discussed, reviewed and revised. On the basis of the
information which was developed in the course thereof, considered in light such
counsel's understanding of applicable law and the experience gained by such
counsel through their practice thereunder, such counsel shall confirm that
nothing came to their attention that would lead them to believe that either the
Registration Statement, as of the Effective Date, 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, in the light of the
circumstances under which they were made, not misleading, or the Prospectus or
any amendment or supplement thereto as of the Closing Date, contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than the
financial statements or other financial data as to which such counsel need
express no opinion).
In rendering the foregoing opinion, such counsel may rely, provided that
the opinion shall state that you and they are entitled to so rely, (1) as to
matters involving laws of any jurisdiction other than Missouri or the United
States, upon opinions addressed to the Underwriters of other counsel
satisfactory to them and ▇▇▇▇▇ ▇▇▇▇ LLP, and (2) as to all matters of fact,
upon certificates and written statements of the executive officers of, and
accountants for, the Company, provided such counsel shall state in their
opinion that they believe that they and the Underwriters are justified in
relying thereon.
(e) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of _____________, Canadian counsel to the
Company, addressed to you and dated the Closing Date (and, if applicable, the
Option Closing Date), to the effect that:
(i) Each of the Company's Canadian subsidiaries has been duly
incorporated and is validly existing under the laws of its respective
jurisdiction of incorporation, with full corporate power and authority to
own, lease and operate their properties and conduct their business as
described in the Prospectus; the Company's Canadian subsidiaries are duly
qualified, licensed or authorized in each other jurisdiction where it is
required to be so qualified, licensed or authorized to conduct its
business as described in the Prospectus, except where the failure to be
so qualified would not have a Material Adverse Effect.
(ii) The execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the associated Rights,
and the consummation of the transactions contemplated hereby will not
violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or require consent
under, or result in the imposition of a lien or encumbrance on any
properties of
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the Company's Canadian subsidiaries, or an acceleration of indebtedness
pursuant to, (i) the constating documents of any of the Company's
Canadian subsidiaries, (ii) any material bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument
known to such counsel to which any of the Company's Canadian
subsidiaries is a party or by which any of them or their property is or
may be bound, (iii) any statute, rule or regulation known to such
counsel to be applicable to any of the Company's Canadian subsidiaries
or any of their assets or properties, or (iv) any judgment, order or
decree of any Canadian court or governmental agency or authority having
jurisdiction over any of the Company's Canadian subsidiaries or their
assets or properties. No consent, approval, authorization or order of,
or filing, registration, qualification, license or permit of or with,
any Canadian court or governmental agency, body or administrative agency
is required for the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby.
(iii) To the best knowledge of such counsel, no action has been
taken and no Canadian statute, rule or regulation or order has been
enacted, adopted or issued by any Canadian governmental agency that
prevents the issuance of the Shares or the associated Rights; no
injunction, restraining order or order of any nature by a Canadian court
of competent jurisdiction has been issued that prevents the issuance and
sale of the Shares or the associated Rights and to the best knowledge of
such counsel, no action, suit or proceeding is pending against or
affecting or threatened against, any of the Company's Canadian
subsidiaries before any court or arbitrator or any governmental body,
agency or official which, if adversely determined, would prohibit,
interfere with or adversely affect the issuance or marketability of the
Shares or the associated Rights or in any manner draw into question the
validity of this Agreement and the Shares or the associated Rights or
have a Material Adverse Effect.
(iv) To the best knowledge of such counsel, each of the Company's
Canadian subsidiaries holds all licenses, certificates, permits and
approvals from all state, federal, foreign and other regulatory
authorities, and have satisfied in all material respects the requirements
imposed by regulatory bodies, administrative agencies or other
governmental bodies, agencies or officials, that are required for the
Company's Canadian subsidiaries lawfully to own, lease and operate their
properties and conduct their businesses as described in the Prospectus,
and, each of the Company's Canadian subsidiaries is conducting its
business in compliance in all material respects with all of the laws,
rules and regulations of each jurisdiction in which it conducts its
business (including, without limitation, insurance and insurance holding
company laws, rules and regulations); each of the Company's Canadian
subsidiaries has filed all Notices required to be filed under applicable
laws, rules and regulations, including, without limitation, the insurance
laws and regulations of the jurisdictions which are applicable to it, in
each case, with such exceptions as would not have a Material Adverse
Effect; and, except as otherwise specifically described in the
Prospectus, none of the Company's subsidiaries has received any
notification from any court or governmental body, authority or agency,
including without limitation, any insurance regulatory authority, to the
effect that any additional Approvals from such regulatory authority is
needed to be obtained by any of them, in any case where it could be
reasonably expected that obtaining such Approvals or the failure to
obtain such Approvals would have a Material Adverse Effect. To the best
of such counsel's knowledge, no insurance regulatory agency or body has
issued any order or decree impairing, restricting or prohibiting the
payment of dividends by any subsidiary of the Company to its parent.
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(v) As of the Closing Date and as of the date of each Prospectus,
all of the outstanding shares of capital stock of each of the Company's
Canadian subsidiaries have been duly and validly authorized and issued
and are fully paid and non-assessable and, except as otherwise set forth
in the Prospectus, all outstanding shares of capital stock of the
Company's Canadian subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries and all such shares so held by the
Company are held free and clear of any security interest, claim, lien,
limitation on voting rights or encumbrances.
(vi) The descriptions contained in the Prospectus in the third
paragraph on the inside front cover and under the heading
"Business-Regulation," insofar as they summarize provisions of documents,
matters of Canadian law or legal conclusions, fairly summarize such
provisions of documents, matters of Canadian law or legal conclusions in
all material respects.
The opinions of such counsel described in this paragraph shall be rendered
to you at the request of the Company and shall so state therein. Such opinions
may contain customary recitals, conditions and qualifications and may state
that, as to matters of New Brunswick law it is relying on an opinion of New
Brunswick counsel, provided such counsel shall state in their opinion that they
believe that they and the Underwriters are justified in relying thereon.
(f) On the Closing Date (and, if applicable, the Option Closing Date), you
shall have received the opinion of Barbados counsel to the Company, addressed
to you and dated the Closing Date (and, if applicable, the Option Closing
Date), to the effect that:
(i) RGA Reinsurance Company (Barbados) Ltd. has been duly
incorporated and is validly existing under the laws of Barbados, with
full corporate power and authority to own, lease and operate their
properties and conduct its business as described in the Prospectus; RGA
Reinsurance Company (Barbados) Ltd. Is duly qualified, licensed or
authorized in each other jurisdiction where it is required to be so
qualified, licensed or authorized to conduct its business as described in
the Prospectus, except where the failure to be so qualified would not
have a Material Adverse Effect.
(ii) The execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares, and the consummation of
the transactions contemplated hereby and thereby will not violate,
conflict with or constitute a breach of any of the terms or provisions
of, or a default under (or an event that with notice or the lapse of
time, or both, would constitute a default), or require consent under, or
result in the imposition of a lien or encumbrance on any properties of
the RGA Reinsurance Company (Barbados) Ltd., or an acceleration of
indebtedness pursuant to, (i) the constituting documents of RGA
Reinsurance Company (Barbados) Ltd., (ii) any material bond, debenture,
note, indenture, mortgage, deed of trust or other agreement or instrument
known to such counsel to which RGA Reinsurance Company (Barbados) Ltd. is
a party or by which it or its property is or may be bound, (iii) any
statute, rule or regulation known to such counsel to be applicable to RGA
Reinsurance Company (Barbados) Ltd. or any of its assets or properties,
or (iv) any judgment, order or decree of any Barbados court or
governmental agency or authority having jurisdiction over RGA Reinsurance
Company (Barbados) Ltd. or its assets or properties. No consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any Barbados court or
governmental agency, body or administrative agency is required
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for the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby.
(iii) To the best knowledge of such counsel, no action has been
taken and no Barbados statute, rule or regulation or order has been
enacted, adopted or issued by any Barbados governmental agency that
prevents the issuance of the Shares or the associated Rights; no
injunction, restraining order or order of any nature by a Barbados court
of competent jurisdiction has been issued that prevents the issuance and
sale of the Shares or the associated Rights and to the best knowledge of
such counsel, no action, suit or proceeding is pending against or
affecting or threatened against, RGA Reinsurance Company (Barbados) Ltd.
before any court or arbitrator or any governmental body, agency or
official which, if adversely determined, would prohibit, interfere with
or adversely affect the issuance or marketability of the Shares or the
associated Rights or in any manner draw into question the validity of
this Agreement and the Shares or the associated Rights or have a Material
Adverse Effect.
(iv) To the best knowledge of such counsel, RGA Reinsurance Company
(Barbados) Ltd. holds all licenses, certificates, permits and approvals
from all state, federal, foreign and other regulatory authorities, and
has satisfied in all material respects the requirements imposed by
regulatory bodies, administrative agencies or other governmental bodies,
agencies or officials, that are required for RGA Reinsurance Company
(Barbados) Ltd. lawfully to own, lease and operate its properties and
conduct its business as described in the Prospectus, and, RGA Reinsurance
Company (Barbados) Ltd. is conducting its business in compliance in all
material respects with all of the laws, rules and regulations of each
jurisdiction in which it conducts its business (including, without
limitation, insurance and insurance holding company laws, rules and
regulations); RGA Reinsurance Company (Barbados) Ltd. has filed all
Notices required to be filed under applicable laws, rules and
regulations, including, without limitation, the insurance laws and
regulations of the jurisdictions which are applicable to it, in each
case, with such exceptions as would not have a Material Adverse Effect;
and, except as otherwise specifically described in the Prospectus, RGA
Reinsurance Company (Barbados) Ltd. has not received any notification
from any court or governmental body, authority or agency, including
without limitation, any insurance regulatory authority, to the effect
that any additional Approvals from such regulatory authority is needed to
be obtained by any of it, in any case where it could be reasonably
expected that obtaining such Approvals or the failure to obtain such
Approvals would have a Material Adverse Effect. To the best of such
counsel's knowledge, no insurance regulatory agency or body has issued
any order or decree impairing, restricting or prohibiting the payment of
dividends by any subsidiary of the Company to its parent.
(v) As of the Closing Date and as of the date of each Prospectus,
all of the outstanding shares of capital stock of RGA Reinsurance Company
(Barbados) Ltd. have been duly and validly authorized and issued and are
fully paid and non-assessable and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the RGA
Reinsurance Company (Barbados) Ltd. are owned by the Company either
directly or through wholly owned subsidiaries and all such shares so held
by the Company are held free and clear of any security interest, claim,
lien, limitation on voting rights or encumbrances.
(vi) The descriptions contained in the Prospectus under the heading
"Business-Regulation," insofar as they summarize provisions of documents,
matters of Barbados law or legal
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conclusions, fairly summarize such provisions of documents, matters of
Barbados law or legal conclusions in all material respects.
The opinions of such counsel described in this paragraph shall be rendered
to you at the request of the Company and shall so state therein. Such opinions
may contain customary recitals, conditions and qualifications
(g) You shall have received on the Closing Date (and, if applicable, the
Option Closing Date), from ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Underwriters, such
opinion or opinions, dated the Closing Date (and, if applicable, the Option
Closing Date) with respect to the incorporation of the Company, the validity of
the Shares, the Registration Statement, the Prospectus and other related
matters as you may reasonably require; the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to review or pass on the matters referred to in this Section 6 and in
order to evidence the accuracy, completeness and satisfaction of any of the
representations, warranties or conditions herein contained.
(h) You shall have received at or prior to the Closing Date from ▇▇▇▇▇
▇▇▇▇ LLP a memorandum or memoranda, in form and substance satisfactory to you,
with respect to the qualification for offering and sale by the Underwriters of
the Shares under state securities or Blue Sky laws of such jurisdictions as the
Underwriters may have designated to the Company.
(i) On the business day immediately preceding the date of this Agreement
and on the Closing Date (and, if applicable, the Option Closing Date), you
shall have received from KPMG Peat Marwick LLP, a letter or letters, dated the
date of this Agreement and the Closing Date (and, if applicable, the Option
Closing Date), respectively, in form and substance satisfactory to you,
confirming that they are independent public accountants with respect to the
Company within the meaning of the Act and the published Rules and Regulations,
and the answer to Item 509 of Regulation S-K set forth in the Registration
Statement is correct insofar as it relates to them, and stating to the effect
set forth in Schedule III hereto.
(j) Except as contemplated in the Prospectus, (i) neither the Company nor
any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and (ii) subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent, or
entered into transactions, and there shall not have been any change in the
capital stock or long-term debt of the Company and its subsidiaries or any
change in the condition (financial or other), net worth, business, affairs,
management, prospects or results of operations of the Company or its
subsidiaries, the effect of which, in any such case described in clause (i) or
(ii), is in your judgment so material or adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered on such Closing Date (and, if applicable, the Option Closing
Date) on the terms and in the manner contemplated in the Prospectus.
(l) There shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or the establishing on such exchanges
by the Commission or by such exchanges of minimum or maximum prices which are
not in force and effect on the date hereof; (ii) a
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general moratorium on commercial banking activities declared by either federal,
New York or Missouri authorities; (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares,
and the associated Rights, in the manner contemplated in the Prospectus; (iv)
any calamity or crisis, change in national, international or world affairs,
act of God, change in the international or domestic markets, or change in the
existing financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in this clause (iv) makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares, and associated Rights, in the manner contemplated in
the Prospectus; or (v) the enactment, publication, decree, or other
promulgation of any federal or state statute, regulation, rule, or order of
any court or other governmental authority, or the taking of any action by any
federal, state or local government or agency in respect of fiscal or monetary
affairs, if the effect of any such event specified in this clause (v) in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares, and the associated Rights, in the
manner contemplated in the Prospectus.
(m) You shall have received certificates, dated the Closing Date (and, if
applicable, the Option Closing Date) and signed by the President and the Chief
Financial Officer of the Company stating that (i) they have carefully examined
the Registration Statement and the Prospectus as amended or supplemented and
all documents incorporated by reference therein and nothing has come to their
attention that would lead them to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto or any
documents incorporated by reference therein as of their respective effective,
issue or filing dates, contained, and the Prospectus as amended or supplemented
and all documents incorporated by reference therein and when read together with
the documents incorporated by reference therein, at such Closing Date, contains
any untrue statement of a material fact, or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and, that (ii) all representations and warranties made herein by
the Company are true and correct at such Closing Date, with the same effect as
if made on and as of such Closing Date, and all agreements herein to be
performed or complied with by the Company on or prior to such Closing Date have
been duly performed or complied with by the Company.
(n) You shall have received agreements from (i) GenAmerica Corporation,
General American Life Insurance Company and Equity Intermediary Company, and
(ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, that for a period of 90 days and 45 days,
respectively, from the Effective Date they and he, as the case may be, will
not, directly or indirectly offer, sell, contract to sell or otherwise dispose
of any shares of the Company's Common Stock or Non-Voting Common Stock, any
securities convertible or exchangeable for Common Stock or Non-Voting Common
Stock or any other rights to acquire such shares without the prior written
consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
(o) The Company shall not have failed, refused, or been unable, at or
prior to the Closing Date (and, if applicable, the Option Closing Date) to have
performed in all material respects any agreement on its respective part to be
performed or any of the conditions herein contained and required to be
performed or satisfied by them at or prior to such Closing Date.
(p) The Company shall have furnished to you at the Closing Date (and, if
applicable, the Option Closing Date) such further information, certificates and
documents as you may have reasonably requested.
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(r) The Shares and associated Rights shall have been approved for trading
upon official notice of issuance on the NYSE.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the several Underwriters. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall not have
been satisfied at or prior to the Closing Date (and, if applicable, the Option
Closing Date) or waived by you in writing, this Agreement may be terminated by
you on notice to the Company.
7. INDEMNIFICATION. (a) The Company will indemnify and hold harmless each
Underwriter (including, without limitation, the QIU in its capacity as
qualified independent underwriter within the meaning of Conduct Rule 2720) and
each person, if any, who controls any Underwriter within the meaning of the Act
or the 1934 Act, from and against any and all losses, claims, damages, and
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages, and all liabilities and expenses (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any blue sky application or other document executed by the Company or
based on any information furnished in writing by the Company, filed in any
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof ("Blue Sky Application"), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, such
Preliminary Prospectus or the Prospectus, or such amendment or supplement, or
any Blue Sky Application in reliance upon and in conformity with written
information furnished to the Company by you or by any Underwriter through you,
expressly for use in the preparation thereof (as provided in Section 12); and
provided, further, that if any Preliminary Prospectus or the Prospectus
contained any alleged untrue statement or allegedly omitted to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading and such statement or omission shall have been corrected
in a revised Preliminary Prospectus or in the Prospectus or in an amended or
supplemented Prospectus, the Company shall not be liable to any Underwriter or
controlling person under this subsection (a) with respect to such alleged
untrue statement or alleged omission to the extent that any such loss, claim,
damage or liability of such Underwriter or controlling person results from the
fact that such Underwriter sold Shares to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, such revised
Preliminary Prospectus or Prospectus or amended or supplemented Prospectus,
provided that the Company has delivered copies thereof in requisite quantity on
a timely basis to permit such delivery or sending. This indemnity agreement
shall be in addition to any liabilities which the Company may otherwise have.
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(b) Each Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the Registration Statement
and, each person, if any, who controls the Company within the meaning of the
Act or the 1934 Act, from and against any and all losses, claims, damages, and
liabilities, joint or several, to which the Company or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, and liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, any amendment or supplement thereto, or
any Blue Sky Application or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, such
Preliminary Prospectus or the Prospectus, such amendment or supplement, or any
Blue Sky Application in reliance upon and in conformity with written
information furnished to the Company by any such Underwriter expressly for use
in the preparation thereof (as provided in Section 12); and will reimburse any
legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement shall be in addition to any liabilities which the Underwriters may
otherwise have.
(c) Any party which proposes to assert the right to be indemnified under
this Section 7 shall, within ten days after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party under this Section 7, notify
each such indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party of any such action, suit or proceeding shall not
relieve such indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such
action, suit or proceeding shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it shall wish, jointly with any other indemnifying party, similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such indemnified
party at the expense of the indemnifying party has been authorized by the
indemnifying party, (ii) the indemnified party shall have been advised by such
counsel in a written opinion that there may be a conflict of interest between
the indemnifying party and the indemnified party in the conduct of the defense,
or certain aspects of the defense, of such action (in which case the
indemnifying party shall not
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have the right to direct the defense of such action with respect to those
matters or aspects of the defense on which a conflict exists or may exist on
behalf of the indemnified party) or (iii) the indemnifying party shall not in
fact have employed counsel to assume the defense of such action, in any of
which events such fees and expenses to the extent applicable shall be borne by
the indemnifying party. An indemnifying party shall not be liable for any
settlement of any action or claim effected without its consent. Each
indemnified party, as a condition of such indemnity, shall cooperate in good
faith with the indemnifying party in the defense of any such action or claim.
(d) If the indemnification provided for in this Section 7 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right to appeal) to
be unavailable to an indemnified party under subsections (a), (b) or (c) above
in respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters (including, without limitation, the QIU), on the
other hand, from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault, as
applicable, of the Company, on the one hand, and the Underwriters (including,
without limitation, the QIU), on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as other relevant
equitable considerations. The relative benefits received by, as applicable,
the Company, on the one hand, and the Underwriters (including, without
limitation, the QIU), on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue statement
of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) 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 which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter (including, without limitation, the QIU) shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
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(e) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability or claims that are the subject matter of
such action, suit or proceeding.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company contained in
Sections 7 and 11 herein or in certificates delivered pursuant hereto, and the
agreements of the Underwriters contained in Section 7 hereof, shall remain
operative and in full force and effect regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
Underwriter or any controlling person, the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of the Shares
to the Underwriters hereunder.
9. SUBSTITUTION OF UNDERWRITERS. (a) If any Underwriter shall default in
its obligation to purchase the Shares which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or parties
reasonably satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Shares, or the Company
notifies you that it has so arranged for the purchase of such Shares, you or
the Company shall have the right to postpone the Closing Date for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any persons substituted under this Section 9 with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company
as provided in subsection (a) above, the aggregate number of Shares which
remains unpurchased does not exceed one tenth of the total Shares to be sold on
the Closing Date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the Shares which such Underwriter agreed
to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters made by you or the Company
as provided in subsection (a) above, the number of Shares which remains
unpurchased exceeds one tenth of the total Shares to be sold on the Closing
Date, or if the Company shall not exercise the right described in subsection
(b) above to require the non-defaulting Underwriters to purchase Shares of the
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company except for the expenses to be borne by the Company and the
Underwriters as provided in Section 11 hereof and the
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indemnity and contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. EFFECTIVE DATE AND TERMINATION. (a) This Agreement shall become
effective at 1:00 p.m., St. Louis time, on the first business day following the
effective date of the Registration Statement, or at such earlier time after
the effective date of the Registration Statement as you in your discretion
shall first release the Shares and associated Rights for offering to the
public; provided, however, that the provisions of Section 7 and 11 shall at all
times be effective. For the purposes of this Section 10(a), the Shares shall
be deemed to have been released to the public upon release by you of the
publication of a newspaper advertisement relating to the Shares or upon release
of telegrams, facsimile transmissions or letters offering the Shares for sale
to securities dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time before it becomes
effective in accordance with Section 10(a) by notice to the Company; provided,
however, that the provisions of this Section 10 and of Section 7 and Section 11
hereof shall at all times be effective. In the event of any termination of this
Agreement pursuant to Section 9 or this Section 10(b) hereof, the Company shall
not then be under any liability to any Underwriter except as provided in
Section 7 or Section 11 hereof.
(c) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company if any condition specified in Section 6
hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except
as provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you by notice to the Company
as to any obligation of the Underwriters to purchase the Option Shares, if any
condition specified in Section 6 hereof shall not have been satisfied at or
prior to the Option Closing Date or as provided in Section 9 of this Agreement.
If you terminate this Agreement as provided in Sections 10(b), 10(c) or
10(d), you shall notify the Company by telephone or telegram, confirmed by
letter.
11. COSTS AND EXPENSES. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and public offering
thereof, including, without limitation, (a) the fees and expenses of the
Company's accountants and the fees and expenses of counsel for the Company, (b)
the preparation, printing, filing, delivery and shipping of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto and the printing, delivery and shipping of this Agreement,
the Agreement Among Underwriters, the Selected Dealer Agreement, Underwriters'
Questionnaires and Powers of Attorney and Blue Sky Memoranda, (c) the
furnishing of copies of such documents to the Underwriters, (d) the
registration or qualification of the Shares and associated Rights for offering
and sale under the securities laws of the various states or other
jurisdictions, including the reasonable fees and disbursements of Underwriters'
counsel relating to such registration or qualification, (e) the fees payable
to the NASD and the Commission in connection with their review of the proposed
offering of the Shares, (f) all printing and engraving costs related to
preparation of the certificates for the Shares, including transfer agent and
registrar fees, (g) all initial transfer taxes, if any, (h) all fees and
expenses relating to the authorization of the Shares and associated Rights for
trading on the NYSE, (i) all travel expenses, including air fare and
accommodation expenses, of representatives of the
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Company in connection with the offering of the Shares and associated Rights and
(j) all of the other costs and expenses incident to the performance by the
Company of the registration and offering of the Shares and associated Rights;
provided, however, that the Underwriters will bear and pay the fees and
expenses of the Underwriters' counsel (other than fees and disbursements
relating to the registration or qualification of the Shares and associated
Rights for offering and sale under the securities laws of the various states or
other jurisdictions), the Underwriters' out-of-pocket expenses, and any
advertising costs and expenses incurred by the Underwriters incident to the
public offering of the Shares and associated Rights.
If this Agreement is terminated by you in accordance with the provisions
of Section 10(c), the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel to the Underwriters.
12. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in
(i) footnotes (1) and (3) to the tables on the cover page of the Prospectus,
(ii) the last paragraph of the cover page of the Prospectus, (iii) the
"stabilization legend" on the inside front cover page of the Prospectus, and
(iv) the statements in the first, third, seventh, eighth and tenth paragraphs
and the third sentence of the sixth paragraph under the caption "Underwriting"
in the Prospectus constitute the only information furnished by or on behalf of
the Underwriters through you as such information is referred to in Section 4(a)
(ii) and Section 7 hereof.
13. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate, facsimile number (314)
289-7387, or if sent to the Company shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed to the Company at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number (314)
453-7464, Attention: Chief Financial Officer with a copy to the General
Counsel at facsimile number (▇▇▇) ▇▇▇-▇▇▇▇. Notice to any Underwriter pursuant
to Section 7 shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed to such Underwriter's address [AS IT APPEARS IN THE
UNDERWRITERS' QUESTIONNAIRE FURNISHED IN CONNECTION WITH THE OFFERING OF THE
SHARES OR] as [OTHERWISE] furnished to the Company.
14. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, corporation or other entity, other than the
parties hereto and their respective successors and assigns and the controlling
persons, officers and directors referred to in Section 7, 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 being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors and assigns and said controlling
persons and said officers and directors, and for the benefit of no other
person, corporation or other entity. No purchaser of any of the Shares from
any Underwriter shall be construed a successor or assign by reason merely of
such purchase.
In all dealings with the Company under this Agreement you shall act on
behalf of each of the several Underwriters, the Company shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of the
Underwriters, made or given by you on behalf of the Underwriters, as if the
same shall have been made or given in writing by the Underwriters.
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15. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
16. PRONOUNS. Whenever a pronoun of any gender or number is used herein,
it shall, where appropriate, be deemed to include any other gender and number.
17. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriters.
REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: __________________________
Name:_________________________
Title:________________________
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
CONNING & COMPANY
Accepted in St. Louis,
Missouri as of the date
first above written, on
behalf of ourselves and each
of the several Underwriters
named in Schedule I hereto.
By ▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By:_______________________
Name:_____________________
Title:____________________
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SCHEDULE I
Name Number of Shares
---- ----------------
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. _____
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation _____
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated _____
Chase Securities Inc. _____
Conning & Company _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
_____________________ _____
Total _____
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SCHEDULE II
LIST OF SUBSIDIARIES
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SCHEDULE III
Pursuant to Section 6(j) of the Underwriting Agreement, KPMG Peat Marwick
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or
incorporated by reference in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act and the applicable Rules and Regulations with respect
to registration statements on Form S-3.
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants ("AICPA") of the
unaudited consolidated interim financial statements and selected financial data
and unaudited condensed consolitated interim statements of income, balance
sheets and statements of cash flows and other selected financial data included
in (or incorporated by reference into) the Prospectus; and on the basis of
specified procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A) below comply as to form in all material respects with the applicable
accounting requirements of the Act Rules and Regulations, nothing came to their
attention that caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and Rules and Regulations.
(iv) The unaudited selected consolidated financial information with
respect to the results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus agrees with the
corresponding amounts (except for certain other financial data as specifically
noted in the procedures performed) in the audited financial statements for such
five fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K or the Company's Registration Statement
on Form S-3 (File No. 333-______) for such fiscal years.
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 303, 304, 305, 402 and 503(d), respectively, of
Regulation S-K.
(vi) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below,
performing the procedures specified by the AICPA for a review of interim
financial information as discussed in SAS No. 71, Interim Financial
Information, on the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the Company and
its subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the
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Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the unaudited
statements of consolidated income, statements of consolidated
financial position and statements of consolidated cash flows
included in the Prospectus for them to be in conformity with
generally accepted accounting principles, or the unaudited
statements of consolidated income, statements of consolidated
financial position and statements of consolidated cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations thereunder;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock or investment portfolio or any increase
in the consolidated long-term debt or total debt of the Company and
its subsidiaries, or any decreases in invested assets, total
assets, policy liabilities or stockholders' equity or other items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(E) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts
of consolidated net income or any other changes in any other items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except in
each case for changes, decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in such
letter.
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out
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certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives, which
are derived from the general accounting records of the Company and its
subsidiaries for the periods covered by their reports and any interim or other
periods since the latest period covered by their reports, which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in agreement.
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