11,000,000 Preferred Securities
CONSECO FINANCING TRUST I
(a Delaware Trust)
9.16% Trust Originated Preferred Securities(sm) ("TOPrS(sm)")
(Liquidation Amount of $25.00 per Preferred Security)
UNDERWRITING AGREEMENT
November 14, 1996
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SANDS BROTHERS & CO., LTD.
As the Representatives of the several Underwriters
c/x Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Conseco Financing Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.), and Conseco, Inc., an Indiana corporation (the "Company" and, together
with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with
Xxxxxxx Xxxxx & Co., Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx"), Xxxx Xxxxxx Xxxxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, PaineWebber Incorporated, Prudential Securities
Incorporated and Sands Brothers & Co., Ltd. as representatives (in such
capacity, collectively, the "Representatives") of the
----------------
(sm) "Trust Originated Preferred Securities" and "TOPrS" are
service marks of Xxxxxxx Xxxxx & Co. Inc.
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several Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the sale by the
Trust and the purchase by the Underwriters, acting severally and not jointly, of
the respective number of 9.16% Trust Originated Preferred Securities
(liquidation amount of $25 per preferred security) of the Trust ("Preferred
Securities") set forth in said Schedule A, except as may otherwise be provided
in the Pricing Agreement, as hereinafter defined. The Preferred Securities will
be guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Preferred Securities Guarantee")
pursuant to the Preferred Securities Guarantee Agreement (the "Preferred
Securities Guarantee Agreement"), dated as of November 19, 1996, between the
Company and Fleet National Bank, as trustee (the "Guarantee Trustee"), and in
certain circumstances described in the Prospectus, the Trust will distribute
Subordinated Debentures (as defined herein) to holders of Preferred Securities.
The 11,000,000 Preferred Securities to be purchased by the Underwriters,
together with the related Preferred Securities Guarantee and the Subordinated
Debentures, are collectively referred to herein as the "Securities".
Prior to the purchase and public offering of the Preferred Securities
by the several Underwriters, the Offerors and the Representatives, acting on
behalf of the several Underwriters, shall enter into an agreement substantially
in the form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement
may take the form of an exchange of any standard form of written
telecommunication between the Offerors and the Representatives and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Preferred Securities will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution and delivery of
the Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
The Company, the Trust, Conseco Financing Trust II and Conseco
Financing Trust III (collectively, the "Conseco Trusts") have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333- 14991) and pre-effective amendment nos. 1 and 2 thereto
covering the registration of securities of the Company and the Conseco Trusts,
including the Securities, under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses, and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and the Company has filed such post-effective amendments thereto
as may be required prior to the execution of the Pricing Agreement. Such
registration statement, as so amended, has been declared effective by the
Commission. Such registration statement, as so amended, including the exhibits
and schedules thereto, if any, and the information, if any, deemed to
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be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the
"Rule 430A Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule
434 Information"), is referred to herein as the "Registration Statement"; and
the final prospectus and the prospectus supplement relating to the offering of
the Securities, in the form first furnished to the Underwriters by the Company
for use in connection with the offering of the Securities, are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the execution of the
applicable Pricing Agreement; provided, further, that if the Offerors file a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462(b) Registration Statement; and provided, further, that if the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Company in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Purchase Agreement to the date of the Prospectus shall mean
the date of the Term Sheet. A "preliminary prospectus" shall be deemed to refer
to any prospectus used before the registration statement became effective and
any prospectus that omitted, as applicable, the Rule 430A Information, the Rule
434 Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Pricing Agreement. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in
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the Registration Statement, such preliminary prospectus or the Prospectus, as
the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Represen tatives deem advisable after
the Pricing Agreement has been executed and delivered and the Declaration (as
defined herein), the Indenture (as defined herein), and the Preferred Securities
Guarantee Agreement have been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities," and together
with the Preferred Securities, the "Trust Securities"), as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation and redemption (the "Common
Securities Guarantee" and together with the Preferred Securities Guarantee, the
"Guarantees") pursuant to the Common Securities Guarantee Agreement (the "Common
Securities Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), dated as of November 19, 1996,
between the Company and the Guarantee Trustee, as Trustee, and will be used by
the Trust to purchase $275,000,000 of 9.16% subordinated deferrable interest
debentures (the "Subordinated Debentures") issued by the Company. The Preferred
Securities and the Common Securities will be issued pursuant to the amended and
restated declaration of trust of the Trust, dated as of November 14, 1996 (the
"Declaration"), among the Company, as Sponsor, Xxxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxx and Xxxxxxxx X. Xxxxx (the "Regular Trustees"), Fleet National Bank, as
Property Trustee (the "Property Trustee"), and First Union Bank of Delaware (the
"Delaware Trustee," and, together with the Property Trustee and the Regular
Trustees, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Subordinated Debentures
will be issued pursuant to an indenture, dated as of November 14, 1996 (the
"Base Indenture"), between the Company and Fleet National Bank as trustee (the
"Debt Trustee"), as supplemented by the First Supplemental Indenture dated as of
November 14, 1996 (the "Supplemental Indenture," and together with any other
amendments or supplements thereto, the "Indenture"), between the Company and the
Debt Trustee.
SECTION 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the date of the Pricing Agreement
(such later date being hereinafter referred to as the "Representation Date")
that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or, to the knowledge and information
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of the Offerors after due and diligent inquiry, threatened by the Commission.
(ii) The Company and the Conseco Trusts meet, and at the
respective times of the commencement and consummation of the Offering of the
Securities will meet, the requirements for the use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act. At the respective times the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendments thereto (including the filing of the Company's most
recent Annual Report on Form 10-K with the Commission) became effective and at
each Representation Date, the Registration Statement, any Rule 462 Registration
Statement and any amendments and supplements thereto complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations") and did not and will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
At the date of the Prospectus and at the Closing Time, the Prospectus and any
amendments and supplements thereto did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. If the Offerors elect to rely upon Rule 434 of
the 1933 Act Regulations, the Offerors will comply with the requirements of Rule
434. Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to (A) statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Offerors in writing by any Underwriter through
Xxxxxxx Xxxxx expressly for use in the Registration Statement or the Prospectus
or (B) that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the 1939 Act.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, if applicable,
each preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or the Prospectus, at the time they
were or hereafter are filed or last amended, as the case may be, with the
Commission, complied and
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will comply in all material respects with the requirements of the 1934 Act, and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and at the time of filing or as of the time of any subsequent
amendment, did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were or
are made, not misleading; and any additional documents deemed to be incorporated
by reference in the Registration Statement or the Prospectus will, if and when
they are filed with the Commission, or when amended, as appropriate, comply in
all material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading after the date hereof; provided, however, that
this representation and warranty shall not apply to statements contained in or
omitted from the Registration Statement or the Prospectus in reliance upon, and
in conformity with, information furnished to the Company in writing by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement or the Prospectus.
(iv) Xxxxxxx & Xxxxxxx, LLP, the accountants who certified the
financial statements and supporting schedules of the Company included or
incorporated by reference in the Registration Statement, are independent public
accountants with respect to the Company and its subsidiaries as required by the
1933 Act and the 1933 Act Regulations.
(v) The financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the
results of their operations for the periods specified. Except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis. The supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information required
to be included therein. The ratios of earnings to fixed charges (including
preferred stock dividends) included in the Prospectus have been calculated in
compliance, in all material respects, with Item 503(d) of Regulation S-K of the
Commission. The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma financial
statements of the Company and its subsidiaries and the related notes thereto
included in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma
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financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(vi) The statutory financial statements of each of the
Company's insurance subsidiaries, from which certain ratios and other
statistical data contained in the Registration Statement have been derived, have
for each relevant period been prepared in accordance with accounting practices
prescribed or permitted by the National Association of Insurance Commissioners,
and with respect to each insurance subsidiary, the appropriate Insurance
Department of the state of domicile of such insurance subsidiary, and such
accounting practices have been applied on a consistent basis throughout the
periods involved, except as disclosed therein.
(vii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as otherwise
stated or contemplated therein, (A) there has been no material adverse change
and no development which would reasonably be expected to result in a material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, or
American Travellers Corporation ("American Travellers"), Capitol American
Financial Corporation ("Capitol American") and Transport Holdings Inc.
("Transport Holdings") (each, an "Acquired Company" and collectively, the
"Acquired Companies") and their respective subsidiaries, in each case,
considered as one enterprise, (B) there have been no transactions entered into
by the Company or any of its subsidiaries which are material to the Company and
its subsidiaries, considered as one enterprise, or any of the Acquired Companies
or their respective subsidiaries, in each case, considered as one enterprise,
other than those entered into in the ordinary course of business, and (C) except
for regular quarterly dividends, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital stock
or by any of the Acquired Companies on any class of their capital stock.
(viii) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Indiana, with corporate
power and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Prospectus or in the
Company's Annual Report filed on Form 10-K for the year ended December 31, 1995;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing
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would not reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise.
(ix) Each of the subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own,
lease and operate its properties and to conduct its business as presently
conducted and as described in the Prospectus or in the Company's Annual Report
filed on Form 10-K for the year ended December 31, 1995; and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not reasonably be expected to
have a material adverse effect on the condition, financial or otherwise, or the
earnings or business affairs of the Company and its subsidiaries, considered as
one enterprise; and the outstanding shares of capital stock of each subsidiary
of the Company have been duly authorized and validly issued, are fully paid and
nonassessable and, except as described in the Prospectus, all such shares are
owned by the Company or by a subsidiary of the Company.
(x) The Company and each of its subsidiaries hold all material
licenses, certificates and permits from governmental authorities (including,
without limitation, insurance licenses from the insurance departments of the
various states where the subsidiaries write insurance business (the "Insurance
Licenses") which are necessary to the conduct of their businesses; the Company
and its subsidiaries have fulfilled and performed all material obligations
necessary to maintain their respective Insurance Licenses, and no event or
events have occurred which could reasonably be expected to result in the
impairment, modification, termination or revocation of such Insurance Licenses.
(xi) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus; since the date indicated in the
Prospectus there has been no change in the consolidated capitalization of the
Company and its subsidiaries (except for subsequent issuances, if any, pursuant
to stock option agreements or employee benefit plans); and all of the issued and
outstanding capital stock of the Company has been duly authorized and validly
issued, is fully paid and nonassessable and conforms to the descriptions thereof
contained in the Prospectus and the Registration Statement.
(xii) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and
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Prospectus and to enter into and perform its obligations under this Agreement,
the Pricing Agreement, the Preferred Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business as a foreign
company and is in good standing in each jurisdiction in which such qualification
is necessary, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust; the Trust is not a party
to or otherwise bound by any agreement other than those described in the
Prospectus; the Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an association
taxable as a corporation.
(xiii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and will represent undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and at the Closing Time all
of the issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(xiv) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by each of the Offerors.
(xv) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and delivery
of the Declaration by the Property Trustee and the Delaware Trustee, the
Declaration will, at the Closing Time, be a valid and binding obligation of the
Company and the Regular Trustees, enforceable against the Company and the
Regular Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) (the "Bankruptcy Exceptions") and will conform
in all material respects to the description thereof contained in the Prospectus.
(xvi) Each of the Guarantee Agreements has been duly
authorized by the Company and, when validly executed and delivered by the
Company, and, in the case of the Preferred Securities Guarantee Agreement,
assuming due authorization, execution and delivery of the Preferred Securities
Guarantee by the Guarantee Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except to the extent that enforcement
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thereof may be limited by the Bankruptcy Exceptions, and each of the Guarantees
and the Guarantee Agreements will conform in all material respects to the
description thereof contained in the Prospectus.
(xvii) The Preferred Securities have been duly authorized for
issuance and sale to the Underwriters and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust and
will conform in all material respects to the description thereof contained in
the Prospectus; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights.
(xviii) The Indenture has been duly authorized and qualified
under the 1939 Act and, at the Closing Time, will have been duly executed and
delivered and will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions; the
Indenture will conform in all material respects to the description thereof
contained in the Prospectus.
(xix) The Subordinated Debentures have been duly authorized by
the Company and, at the Closing Time, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions, and will be in the form
contemplated by, and entitled to the benefits of, the Indenture and will conform
in all material respects to the description thereof in the Prospectus.
(xx) Each of the Regular Trustees of the Trust is an employee
of the Company and has been duly authorized by the Company to execute and
deliver the Declaration.
(xxi) Each of (A) the Agreement and Plan of Merger, dated as
of August 25, 1996 (the "American Travellers Merger Agreement"), by and between
the Company and American Travellers, (B) the Agreement and Plan of Merger, dated
as of August 25, 1996 (the "Capitol American Merger Agreement"), by and among
the Company, CAF Acquisition Company ("CAF") and Capitol American, and (C) the
Agreement and Plan of Merger, dated as September 25, 1996 (the "Transport
Holdings Merger Agreement" and together with the American Travellers Merger
Agreement and the Capitol American Merger Agreement, the "Merger Agreements") by
and between the Company and Transport Holdings, has been duly authorized,
executed and delivered by the Company and, in the case of the Capitol American
Merger Agreement, CAF and constitute valid and binding obligations of the
Company and, in the case of the Capitol American Merger Agreement, CAF
enforceable against the
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Company and, in the case of the Capitol American Merger Agreement, CAF in
accordance with their terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions, and neither the Company nor CAF, nor, to the knowledge
and information of the Company after due and diligent inquiry, any of the
Acquired Companies is in default in the observance of the terms and conditions
thereof.
(xxii) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, or in violation of any
applicable law, administrative regulation or administrative or court order or
decree, which violation or default would, singly or in the aggregate, reasonably
be expected to have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise; the Trust is not in violation of the
Declaration or its certificate of trust filed with the State of Delaware on
October 28, 1996 (the "Certificate of Trust"); the execution, delivery and
performance of this Agreement, the Pricing Agreement, the Declaration, the
Preferred Securities, the Common Securities, the Indenture, the Subordinated
Debentures, the Guarantee Agreements and the Guarantees and the consummation of
the transactions contemplated herein and therein, and compliance by the Offerors
with their respective obligations hereunder and thereunder will not conflict
with or constitute a breach of, or a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Trust, the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Trust, the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Trust, the Company or any of its subsidiaries is subject, except for a conflict,
breach, default, lien, charge or encumbrance which would not reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise, nor will such action result in any
violation of the provisions of the Certificate of Trust, the charter or by-laws
of the Company or any of its subsidiaries or any applicable law, administrative
regulation or administrative or court decree.
(xxiii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign (including,
without limitation, any proceeding to revoke or deny renewal of any Insurance
Licenses), now pending, or, to
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the knowledge and information of the Company after due and diligent inquiry,
threatened, against or affecting the Company or any of its subsidiaries or any
of the Acquired Companies or any of their respective subsidiaries which is
required to be disclosed in the Registration Statement or the Prospectus, or
which is reasonably likely to result in any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, or any of the
Acquired Companies and their respective subsidiaries, in each case, considered
as one enterprise, or which could be reasonably likely to materially and
adversely affect a material portion of the properties or assets thereof or which
is reasonably likely to materially and adversely affect the consummation of this
Agreement, the Pricing Agreement, the Guarantee Agreements, the Indenture or the
transactions contemplated herein or therein; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries or any of the
Acquired Companies or their respective subsidiaries is a party or of which any
of their respective property or assets is the subject which are not described in
the Registration Statement or the Prospectus, including ordinary routine
litigation incidental to the business of the Company or any of its subsidiaries,
or any of the Acquired Companies or their respective subsidiaries, are,
considered in the aggregate, not material; and there are no contracts or
documents of the Company or any of its subsidiaries or any of the Acquired
Companies or their respective subsidiaries which are required to be filed as
exhibits to the Registration Statement, or to be incorporated by reference
therein, by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations, which have not been so filed or incorporated by reference.
(xxiv) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the issuance
and sale of the Common Securities or the offering, issuance and sale of the
Preferred Securities, the Subordinated Debentures or the Guarantees hereunder,
or the consummation by the Offerors of any other transactions contemplated
hereby, except such as have been obtained and made under the federal securities
laws or state insurance laws and such as may be required under state or foreign
securities laws.
(xxv) The Securities conform in all material respects to the
statements relating therein contained in the Prospectus and the Registration
Statement.
(xxvi) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities registered as
part of the Registration Statement or included in the offering contemplated by
this Agreement.
(xxvii) No order preventing or suspending the use of any
preliminary prospectus with respect to the Securities has been issued and no
proceedings for that purpose are pending,
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threatened, or, to the knowledge and information of the Offerors after due and
diligent inquiry, contemplated by the Commission; to the knowledge and
information of the Offerors after due and diligent inquiry, no order suspending
the offering of the Securities in any jurisdiction designated by the
Underwriters pursuant to Section 3(f) of this Agreement has been issued and, to
the knowledge and information of the Offerors after due and diligent inquiry, no
proceedings for that purpose have been instituted or threatened or are
contemplated, and any request of the Commission for additional information (to
be included in the Registration Statement or Prospectus or otherwise) has been
complied with.
(xxviii) Each of the Offerors has full power and authority to
execute, deliver and perform its obligations under this Agreement, the Pricing
Agreement, the Declaration, the Guarantee Agreements and the Indenture and the
Offerors have full corporate power and authority to issue, sell and deliver the
Securities.
(xxix) The Offerors have not taken, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in manipulation of the price of the Securities or any of the capital stock of
the Company.
(xxx) None of the Trust or the Company or any of its
subsidiaries is, and upon the issuance and sale of the Securities as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus will not be, an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment Company Act
of 1940, as amended (the "1940 Act").
(xxxi) The Company is in compliance with all provisions of
Section 1 of the Laws of Florida, Chapter 92-198, An Act Relating to Disclosure
of Doing Business with Cuba.
(xxxii) No "forward looking statement" (as defined in Rule 175
under the 1933 Act) contained in the Registration Statement, any preliminary
prospectus or the Prospectus was made or reaffirmed without a reasonable basis
or was disclosed other than in good faith.
(b) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the date of the Representation Date,
with respect to each of the Acquired Companies that:
(i) Such Acquired Company meets, and at the respective times
of the commencement and consummation of the Offering of the Securities will
meet, the requirements for the use of Form S-3 under the 1933 Act.
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(ii) With respect to such Acquired Company, the documents
incorporated or deemed to be incorporated by reference in the Registration
Statement or the Prospectus, at the time they were or hereafter are filed or
last amended, as the case may be, with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act, and the 1934 Act
Regulations, and at the time of filing or as of the time of any subsequent
amendment, did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were or
are made, not misleading; and, with respect to such Acquired Company, any
additional documents deemed to be incorporated by reference in the Registration
Statement or the Prospectus will, if and when they are filed with the
Commission, or when amended, as appropriate, comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading after the date hereof.
(iii) The accountants who certified the financial statements
and supporting schedules of such Acquired Company included or incorporated by
reference in the Registration Statement, are independent public accountants with
respect to the Company and its subsidiaries as required by the 1933 Act and the
1933 Act Regulations.
(iv) The financial statements of such Acquired Company
included or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present fairly the
financial position of such Acquired Company and its subsidiaries as of the dates
indicated and the results of their operations for the periods specified. Except
as otherwise stated in the Registration Statement, said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis. The supporting schedules included or incorporated
by reference in the Registration Statement present fairly the information
required to be included therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
(v) The statutory financial statements of each of such
Acquired Company's insurance subsidiaries, from which certain ratios and other
statistical data contained in the Registration Statement have been derived, have
for each relevant period been prepared in accordance with accounting practices
prescribed or permitted by the National Association of Insurance Commissioners,
and with respect to each insurance subsidiary, the appropriate Insurance
Department of the state of domicile of such insurance
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subsidiary, and such accounting practices have been applied on a consistent
basis throughout the periods involved, except as disclosed therein.
(vi) With respect to such Acquired Company, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, and except as otherwise stated or contemplated therein, (A)
there has been no material adverse change and no development which would
reasonably be expected to result in a material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of such Acquired
Company and its subsidiaries, considered as one enterprise, (B) there have been
no transactions entered into by such Acquired Company or any of its subsidiaries
which are material to such Acquired Company and its subsidiaries, considered as
one enterprise, other than those entered into in the ordinary course of
business, and (C) except for regular quarterly dividends, there has been no
dividend or distribution of any kind declared, paid or made by such Acquired
Company on any class of its capital stock.
(vii) Such Acquired Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of its
incorporation, with corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as described
in the Prospectus or in such Acquired Company's Annual Report filed on Form 10-K
for the year ended December 31, 1995; and such Acquired Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of such Acquired Company and its
subsidiaries, considered as one enterprise.
(viii) Such Acquired Company and each of its subsidiaries hold
all material licenses, certificates and permits from governmental authorities
(including, without limitation, Insurance Licenses) which are necessary to the
conduct of their businesses; such Acquired Company and its subsidiaries have
fulfilled and performed all material obligations necessary to maintain their
respective Insurance Licenses, and no event or events have occurred which could
reasonably be expected to result in the impairment, modification, termination or
revocation of such Insurance Licenses.
(ix) The authorized, issued and outstanding capital stock of
such Acquired Company is as set forth in the Prospectus; since the date
indicated in the Prospectus there has been no change in the consolidated
capitalization of such Acquired Company and its subsidiaries (except for
subsequent issuances, if
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any, pursuant to stock option agreements or employee benefit plans); and all of
the issued and outstanding capital stock of such Acquired Company has been duly
authorized and validly issued, is fully paid and nonassessable and conforms to
the descriptions thereof contained in the Prospectus and the Registration
Statement.
(x) The Merger Agreement between such Acquired Company and the
Company has been duly authorized, executed and delivered by such Acquired
Company, constitutes a valid and binding obligation of such Acquired Company,
enforceable against such Acquired Company in accordance with its terms except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions,
and such Acquired Company is not in default in the observance of the terms and
conditions thereof.
(xi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign (including, without
limitation, any proceeding to revoke or deny renewal of any Insurance Licenses),
now pending, or, to the knowledge and information of such Acquired Company after
due and diligent inquiry, threatened, against or affecting such Acquired Company
which is required to be disclosed in the Registration Statement or the
Prospectus, or which is reasonably likely to result in any material adverse
change in the condition, financial or otherwise, or in the earnings or business
affairs of such Acquired Company and its subsidiaries, considered as one
enterprise, or which could be reasonably likely to materially and adversely
affect a material portion of the properties or assets thereof.
(c) Any certificate signed by any officer of the Company, any of the
Acquired Companies or a Trustee of the Trust and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or the Trust, as the case may be, to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the price per
security set forth in the Pricing Agreement, the number of Preferred Securities
set forth in Schedule A hereto opposite the name of such Underwriter, plus any
additional number of Preferred Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Offerors have elected not to rely upon Rule 430A of
the 1933 Act Regulations, the initial public offering price per Security and the
purchase price per Security
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to be paid by the several Underwriters for the Securities have each been
determined and set forth in the Pricing Agreement, dated the date hereof, and
any necessary amendments to the Registration Statement and the Prospectus will
be filed before the Registration Statement becomes effective.
(2) If the Offerors have elected to rely upon Rule 430A of the
1933 Act Regulations, the purchase price per Security to be paid by the several
Underwriters shall be an amount equal to the initial public offering price per
Preferred Security, less an amount per Preferred Security to be determined by
agreement between the Underwriters and the Offerors. The initial public offering
price per Preferred Security shall be a fixed price to be determined by
agreement between the Underwriters and the Offerors. The initial public offering
price and the purchase price, when so determined, shall be set forth in the
Pricing Agreement. In the event that such prices have not been agreed upon and
the Pricing Agreement has not been executed and delivered by all parties thereto
by the close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the Offerors and the
Underwriters.
(b) Delivery of certificates for the Securities shall be made at the
offices of the Underwriters in New York, and payment of the purchase price for
the Securities shall be made at the offices of LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as
shall be agreed upon by the Underwriters and the Offerors, at 10:00 a.m. (New
York time) on the third business day after the date the Registration Statement
becomes effective (or, if the Offerors have elected to rely upon Rule 430A, the
third full business day after execution of the Pricing Agreement (or, if pricing
of the Securities occurs after 4:30 p.m. Eastern time, on the fourth full
business day thereafter)), or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the Offerors
(such time and date of payment and delivery being herein called the "Closing
Time"). Payment for the Preferred Securities purchased by the Underwriters shall
be made to the Trust by wire transfer of immediately available funds, payable to
the order of the Trust, against delivery to the respective accounts of the
Underwriters of certificates for the Preferred Securities to be purchased by it.
Certificates for the Preferred Securities shall be in such denominations and
registered in such names as the Underwriters may request in writing at least two
full business days before the Closing Time. Xxxxxxx Xxxxx, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities, if any, to be
purchased by any Underwriter whose check has not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Preferred Securities will be
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made available for examination and packaging by the Underwriters no later than
10:00 a.m. (New York City time) on the last business day prior to the Closing
Time.
SECTION 3. Covenants of the Offerors. The Offerors agree with each
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Offerors
will cause the Prospectus, including as a part thereof a prospectus supplement
relating to the Securities to be filed with the Commission pursuant to Rule 424
of the 1933 Act Regulations and the Offerors will promptly advise the
Underwriters when such filing has been made. Prior to the filing, the Offerors
will cooperate with the Underwriters in the preparation of such prospectus
supplement to assure that the Underwriters have no reasonable objection to the
form or content thereof when filed or mailed.
(b) The Offerors, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the
1933 Act Regulations if and as applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of any
post-effective amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt of any comments from
the Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose and (v) of the issuance by any state securities
commission or other regulatory authority of any order suspending the
qualification or the exemption from qualification of the Securities under state
securities or Blue Sky laws or the initiation or threatening of any proceeding
for such purpose. The Offerors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) The Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise; will furnish the Underwriters with copies of any such Rule 462(b)
Registration Statement, Term Sheet, amendment, supplement or revision a
reasonable amount of time prior to such proposed filing or use, as the case may
be; and will not file any such Rule 462(b) Registration Statement, Term Sheet,
amendment, supplement or revision to which the Underwriters or counsel for the
Underwriters shall object.
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(d) The Company will deliver to Xxxxxxx Xxxxx and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts and will also deliver to Xxxxxxx Xxxxx,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. If applicable, the copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. If
applicable, the Prospectus and any amendments or supplements thereto furnished
to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934 Act to be delivered
in connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable opinion of
counsel for the Underwriters or for the Offerors, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Offerors will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or
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supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Offerors will furnish to the Underwriters, without charge, such number of
copies of such amendment or supplement as the Underwriters may reasonably
request.
(g) The Offerors will use their best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or
foreign) as Xxxxxxx Xxxxx may designate; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as may be
required in connection with distribution of the Securities.
(h) The Company will make generally available to its securityholders as
soon as practicable, but not later than 45 days (or 90 days, in the case of a
period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(i) The Trust will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under " Use of
Proceeds".
(j) If, at the time that the Registration Statement became (or in the
case of a post-effective amendment becomes) effective, any information shall
have been omitted therefrom in reliance upon Rule 430A or Rule 434 of the 1933
Act Regulations, then immediately following the execution of the Pricing
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A or Rule 434 and Rule 424(b) of the
1933 Act Regulations, copies of an amended Prospectus, or Term Sheet, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted.
(k) If Offerors elect to rely upon Rule 462(b), the Offerors shall both
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933
Act Regulations by the earlier of (i) 10:00 p.m. Eastern time on the
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date of the Pricing Agreement and (ii) the time confirmations are sent or given,
as specified by Rule 462(b)(2).
(l) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(m) The Offerors will use its best efforts to effect the listing of the
Preferred Securities (including the Preferred Securities Guarantee with respect
thereto) on the New York Stock Exchange and to cause the Securities to be
registered under the 1934 Act. If the Preferred Securities are exchanged for
Subordinated Debentures, the Company will use its best efforts to effect the
listing of the Subordinated Debentures on the exchange on which the Preferred
Securities were then listed and to cause the Subordinated Debentures to be
registered under the 1934 Act.
(n) During a period of 90 days from the date of the Pricing Agreement,
neither the Trust nor the Company will, without the prior written consent of
Xxxxxxx Xxxxx on behalf of the Underwriters, directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise dispose of, or enter
into any agreement to sell, any Preferred Securities, any security convertible
into or exchangeable or exercisable for Preferred Securities, or the
Subordinated Debentures or any debt securities substantially similar to the
Subordinated Debentures or any equity securities substantially similar to the
Preferred Securities (except the Subordinated Debentures and the Preferred
Securities issued pursuant to this Agreement).
(o) During a period of one year from the Closing Time, to make
generally available to the Underwriters copies of all reports and other
communications (financial or other) mailed to stockholders, and to deliver to
the Underwriters promptly after they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
(such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission).
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and the
Pricing Agreement, including, without limitation, expenses related to the
following, if incurred: (i) the preparation, delivery, printing and filing of
the Registration Statement and Prospectus as originally filed (including
financial statements and exhibits) and of each amendment thereto, (ii) the
printing and delivery to the Underwriters of this Agreement, the Pricing
Agreement, any Agreement among Underwriters and such other documents as may be
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required in connection with offering, purchase, sale and delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Preferred Securities, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents (including the transfer agents
and registrars) as well as fees and disbursements of the Trustees and any
Depositary, and their respective counsel, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(g), including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any Legal Investment Survey, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus,
any Term Sheet and of the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any Legal Investment Survey, (viii) any fees payable in connection
with the rating of the Preferred Securities by nationally recognized statistical
rating organizations; (ix) the filing fees incident to, and the fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Preferred Securities; (x) any fees payable to the
Commission; and (xi) the fees and expenses incurred in connection with the
listing of the Preferred Securities and, if applicable, the Subordinated
Debentures on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.,
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Preferred Securities pursuant to
this Agreement are subject to the accuracy of the representations and warranties
of the Offerors herein contained or in certificates of any officer of the
Company or any subsidiary or the trustees of the Trust delivered pursuant to the
provisions hereof, to the performance by the Offerors of their obligations
hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the 1933 Act not later than 5:30
p.m., New York City time, on the date hereof, and on the date hereof and at the
Closing Time, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for
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additional information shall have been complied with to the satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A), or, if the Company
has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) At the Closing Time the Underwriters shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
Xxxxxxxx X. Xxxxx, Executive Vice President, Secretary and General Counsel of
the Company, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Indiana; and the Company has the corporate power and authority under
the laws of the State of Indiana and under its charter to own, lease
and operate its properties and to conduct its business as presently
conducted and as described in the Registration Statement and the
Prospectus or in the Company's Annual Report filed on Form 10-K for the
year ended December 31, 1995.
(ii) To the knowledge and information of such counsel
after due and diligent inquiry, the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not reasonably be expected to have a material adverse effect on
the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise.
(iii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to stock option agreements or
employee benefit plans), and the shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
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incorporation, has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently
conducted and as described in the Registration Statement and the
Prospectus or in the Company's Annual Report filed on Form 10-K for the
year ended December 31, 1995. Nothing has come to the attention of such
counsel to lead such counsel to believe that any subsidiary is not duly
qualified as a foreign corporation to transact business or is not in
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify or be in good standing
would not reasonably be expected to have a material adverse effect on
the condition, financial or otherwise, or the earnings or business
affairs of the Company and its subsidiaries considered as one
enterprise. All of the shares of issued and outstanding capital stock
of each subsidiary of the Company have been duly authorized and validly
issued, are fully paid and nonassessable, and, except as set forth in
the Prospectus, all such shares are owned by the Company or by a
subsidiary of the Company.
(v) The forms of certificates used to evidence the
Securities comply with all applicable statutory requirements, with any
applicable requirements of the Company's Amended Articles of
Incorporation and by-laws, and with the requirements of the New York
Stock Exchange.
(vi) The Trust is not required to be qualified and in
good standing as a foreign company in Indiana, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Trust; and the Trust is not a party to
or otherwise bound by any agreement other than those described in the
Prospectus.
(vii) The Declaration has been duly authorized,
executed and delivered by the Company and the Trustees and is a valid
and binding obligation of the Company, enforceable against the Company
and each of the Regular Trustees in accordance with its terms, except
as enforcement thereof may be limited by the Bankruptcy Exceptions; and
the Declaration has been duly qualified under the 1939 Act.
(viii) All legally required proceedings in connection
with the authorization, issuance and validity of the Securities and the
sale of the Securities in accordance with this Agreement (other than
the filing of post-issuance reports, the non-filing of which would not
render the Securities invalid) have been taken and all legally required
orders, consents or other authorizations or approvals of any other
public boards or bodies in connection with the authorization, issuance
and validity of the Securities and the sale of the Securities in
accordance with this Agreement (other than in connection with or in
compliance with the provisions of the securities or Blue Sky laws of
any
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jurisdictions, as to which no opinion need be expressed) have been
obtained and are in full force and effect.
(ix) The Registration Statement, including any Rule
462(b) Registration Statement, is effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings therefor
initiated, or, to such counsel's knowledge and information after due
and diligent inquiry, threatened by the Commission.
(x) The Registration Statement, including any Rule
462(b) Registration Statement, each of the incorporated documents and
the Prospectus, and each amendment or supplement thereto (other than
the financial statements or other financial information or statistical
data included therein and the Statements of Eligibility on Forms T-1
with respect to each of the Property Trustee, the Debt Trustee and the
Guarantee Trustee, as to which no opinion need be rendered), as of
their respective effective or issue dates, or when amended, as
appropriate, complied as to form in all material respects with the
requirements of the 1933 Act or the 1934 Act and the Rules and
Regulations thereunder; and the Declaration, the Indenture, the
Preferred Securities Guarantee Agreement filed with the Commission as
part of the Registration Statement complied as to form in all material
respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(xi) Each of the documents incorporated by reference
in the Registration Statement or the Prospectus at the time they were
filed or last amended (other than the financial statements or other
financial or statistical data included therein, as to which such
counsel need express no belief) complied as to form in all material
respects with the requirements of the 1934 Act, and the 1934 Act
Regulations, as applicable.
(xii) The Company and each of the Conseco Trusts meet
the registrant requirements for use of Form S-3 under the 1933 Act
Regulations.
(xiii) The Common Securities, the Preferred
Securities, the Subordinated Debentures, each of the Guarantees, the
Declaration, the Indenture and each of the Guarantee Agreements conform
in all material respects to the descriptions thereof contained in the
Prospectus.
(xiv) The information in the Prospectus under the
captions "The Company", "Pending Acquisitions By The Company", "Conseco
Financing Trust I", "Risk Factors", "Use of Proceeds", "Capitalization",
"Description of the
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Preferred Securities", "Description of the Trust Guarantee",
"Description of the Subordinated Debentures" and "Effect of Obligations
under the Subordinated Debentures and the Trust Guarantee", to the
extent that they involve matters of law, summaries of legal matters,
the Company's Charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects.
(xv) All of the issued and outstanding Common
Securities of the Trust are directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(xvi) This Agreement and the Pricing Agreement have
been duly authorized, executed and delivered by each of the Trust and
the Company and constitute valid and binding obligations of the Company
and the Trust, enforceable against the Company and the Trust in
accordance with their terms, except (1) to the extent that enforcement
thereof may be limited by Bankruptcy Exceptions and (2) that no opinion
is given as to the enforceability of the indemnity and contribution
provisions under this Agreement and the Pricing Agreement.
(xvii) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Preferred
Securities Guarantee Agreement, assuming it is duly authorized,
executed, and delivered by the Guarantee Trustee, constitutes a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by Bankruptcy Exceptions; and the Preferred
Securities Guarantee Agreement has been duly qualified under the 1939
Act.
(xviii) The Indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution,
and delivery thereof by the Debt Trustee, is a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the Indenture
has been duly qualified under the 1939 Act.
(xix) The Subordinated Debentures are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Debt Trustee in
the manner provided for in the Indenture and delivered against payment
therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent
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that enforcement thereof may be limited by the Bankruptcy Exceptions.
(xx) The issuance and delivery of the Securities, the
execution and delivery of this Agreement, the Pricing Agreement, the
Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Debentures, the Guarantee Agreements and
the Guarantees and the consummation of the transactions contemplated
herein and therein, and the compliance by each of the Offerors with
their respective obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust, the Company or any of its subsidiaries
pursuant to, any material contract, indenture, mortgage, loan agreement
(except as described in the Prospectus, as to which a waiver has been
obtained), note, lease or other instrument to which the Trust, the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Trust, the Company or any of its subsidiaries is subject, except for a
conflict, breach, default, lien, charge or encumbrance which would not
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs
of the Trust, the Company and its subsidiaries considered as one
enterprise nor will such action result in any violation of the
provisions of the Certificate of Trust of the Trust, the charter or
by-laws of the Company, or any material applicable law, administrative
regulation or administrative or court decree.
(xxi) To the knowledge and information of such
counsel after due and diligent inquiry, there are no statutes or
regulations required to be described or incorporated by reference in
the Registration Statement which are not described or incorporated by
reference as required and there are no legal or governmental
proceedings pending or threatened which are required to be disclosed or
incorporated by reference in the Registration Statement, other than
those disclosed or incorporated by reference therein.
(xxii) To the knowledge and information of such
counsel after due and diligent inquiry, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to or incorporated by
reference in the Registration Statement or to be filed as exhibits
thereto other than those described or referred to or incorporated by
reference therein or filed as exhibits thereto; the descriptions
thereof or references thereto are true and correct in all material
respects and no default exists in the due performance or observance of
any material obligation,
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agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so described,
referred to or incorporated by reference or filed, which default would
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries considered as one enterprise.
(xxiii) No authorization, approval or consent of any
court or governmental authority or agency is necessary in connection
with the issuance and sale of the Preferred Securities by the Trust to
the Underwriters or the performance by the Trust and the Company of
their respective obligations in this Agreement, the Pricing Agreement,
the Indenture, the Subordinated Debentures, the Guarantee Agreements,
the Declaration and the Preferred Securities, except such as have been
obtained and made under the federal securities laws or state insurance
laws and such as may be required under the state or foreign securities
laws.
(xxiv) No authorization, approval, consent, order,
registration or qualification of or with any court or federal or New
York or Delaware state governmental authority or agency is required for
the issuance and sale of the Preferred Securities by the Trust to the
Underwriters or the performance by the Trust and the Company of their
respective obligations in this Agreement, the Pricing Agreement, the
Indenture, the Subordinated Debentures, the Preferred Securities
Guarantee Agreement, the Preferred Securities Guarantee, the
Declaration and the Preferred Securities except such as has been
obtained and made under the federal securities laws or such as may be
required under state or foreign securities or Blue Sky laws.
(xxv) The Company and each of its subsidiaries hold
all material licenses, certificates and permits from all governmental
authorities (including, without limitation, the Insurance Licenses)
which are necessary to the conduct of their businesses; the Company and
its subsidiaries have fulfilled and performed all material obligations
necessary to maintain their respective Insurance Licenses, and no event
or events have occurred which could reasonably be expected to result in
the material impairment, modification, termination or revocation of
such Insurance Licenses.
(xxvi) None of the Trust or the Company or any of its
subsidiaries is an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the 1940 Act.
(xxvii) All consents and waivers required in
connection with the issuance and delivery of the Securities, the
execution and delivery of the Purchase Agreement, the Pricing
Agreement, the Declaration, the Preferred Securities, the Common
Securities, the Indenture, the
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Subordinated Debt Securities, the Guarantee Agreement and the
Guarantees and the consummation of the transactions contemplated
therein have been obtained.
Moreover, such counsel shall confirm that nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement, including any information provided pursuant to Rule 430A and related
schedules and Rule 434 (except for financial statements or other financial
information or statistical data included or incorporated by reference therein,
as to which counsel need express no belief), at the time it became effective or
at the Representation 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 not misleading or that the Prospectus (except for
financial statements and other financial data included or incorporated by
reference therein, as to which counsel need express no belief), at the
Representation Date (unless the term "Prospectus" refers to a prospectus which
has been provided to the Underwriters by the Company for use in connection with
the offering of the Preferred Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement became effective,
in which case at the time it is first provided to the Underwriters for such use)
or at Closing Time, included (or includes) an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(2) The favorable opinion, dated as of the Closing Time, of
Xxxxx Xxxxxxxx Xxxx & Xxxxxxx, special counsel to the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect that the
statements in the Prospectus under the caption "United States Federal Income
Taxation" have been reviewed by such counsel and, insofar as they constitute
legal conclusions or matters of law, fairly summarize the matters referred to
therein.
Moreover, such counsel shall confirm that nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement, including any information provided pursuant to Rule 430A or Rule 434
(except for financial statements or other financial information or statistical
data included or incorporated by reference therein, as to which such counsel
need express no belief), at the time it became effective or at the
Representation 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 not misleading or that the Prospectus (except for financial
statements and other financial data included or incorporated by reference
therein, as to which such counsel need express no belief), at the Representation
Date (unless the term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in connection with the
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offering of the Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement becomes effective, in which
case at the time it is first provided to the Underwriters for such use) or at
the Closing Time, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(3) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to the Offerors, in
form and substance satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act,
and all filings required under the laws of the State of Delaware with
respect to the creation and valid existence of the Trust as a business
trust have been made.
(ii) Under the Delaware Act and the Declaration, the
Trust has the business trust power and authority to own property and
conduct its business, all as described in the Prospectus.
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against
the Company and the Trustees in accordance with its terms, subject, as
to enforcement, to (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and
other similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating
to indemnification or contribution.
(iv) Under the Delaware Act and the Declaration, the
Trust has the business trust power and authority to (i) execute and
deliver, and to perform its obligations under, this Agreement and the
Pricing Agreement and (ii) issue, and perform its obligations under,
the Trust Securities.
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement and the Pricing
Agreement, and the performance by the Trust of its obligations
hereunder and under the Pricing Agreement, have been duly authorized by
all necessary action on the part of the Trust.
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(vi) Under the Delaware Act, the certificate attached
to the Declaration as Exhibit A-1 is an appropriate form of certificate
to evidence ownership of the Preferred Securities; the Preferred
Securities have been duly authorized by the Declaration and are duly
and validly issued and, subject to qualifications hereinafter expressed
in this paragraph (vi), fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; the holders of the
Preferred Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; said counsel may note
that the holders of the Preferred Securities may be obligated to make
payments as set forth in the Declaration.
(vii) The Common Securities have been duly authorized
by the Declaration and are duly and validly issued and represent
undivided beneficial interests in the assets of the Trust.
(viii) Under the Delaware Act and the Declaration,
the issuance of the Trust Securities is not subject to preemptive
rights.
(ix) The issuance and sale by the Trust of the Trust
Securities, the purchase by the Trust of the Subordinated Debentures,
the execution, delivery and performance by the Trust of this Agreement
and the Pricing Agreement, the consummation by the Trust of the
transactions contemplated hereby and by the Pricing Agreement and
compliance by the Trust with its obligations hereunder and thereunder
will not violate (i) any of the provisions of the Certificate of Trust
or the Declaration or (ii) any applicable Delaware law or
administrative regulation.
(4) The favorable opinion, dated as of Closing Time, of Xxxx &
Xxxxx, P.C., counsel to Fleet National Bank, as Property Trustee under the
Declaration, and Guarantee Trustee under the Preferred Securities Guarantee
Agreements, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) Fleet National Bank is a national banking
association with trust powers, formed and authorized to transact the
business of banking under the laws of the United States with all
necessary power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of the Declaration and the
Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the
Property Trustee of the Declaration and the execution, delivery and
performance by the Guarantee Trustee of the
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Preferred Securities Guarantee Agreement have been duly authorized by
all necessary corporate action on the part of the Property Trustee and
the Guarantee Trustee, respectively. The Declaration and the Preferred
Securities Guarantee Agreement have been duly executed and delivered by
the Property Trustee and the Guarantee Trustee, respectively, and
constitute the legal, valid and binding obligations of the Property
Trustee and the Guarantee Trustee, respectively, enforceable against
the Property Trustee and the Guarantee Trustee, respectively, in
accordance with their terms, except to the extent the enforcement
thereof may be limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration and the Preferred Securities Guarantee Agreement by the
Property Trustee and the Guarantee Trustee, respectively, do not
conflict with or constitute a breach of the Articles of Organization or
Bylaws of the Property Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any federal banking authority is
required for the execution, delivery or performance by the Property
Trustee and the Guarantee Trustee of the Declaration and the Preferred
Securities Guarantee Agreement.
(5) With respect to each Acquired Company, the favorable
opinions, dated as of the Closing Time, of Xxxxxxxx X. Xxxxx, Executive Vice
President, Secretary and General Counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) Such Acquired Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of its incorporation; and such Acquired Company has
the corporate power and authority under the laws of the State of its
incorporation and under its charter to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus or in such Acquired Company's Annual
Report filed on Form 10-K for the year ended December 31, 1995.
(ii) To the knowledge and information of such counsel
after due and diligent inquiry, such Acquired Company is duly qualified
as a foreign Corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not reasonably be expected to have a material adverse effect on
the condition,
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financial or otherwise, or the earnings or business affairs of such
Acquired Company and its subsidiaries, considered as one enterprise.
(iii) The authorized, issued and outstanding capital
stock of such Acquired Company is as set forth in the Prospectus
(except for subsequent issuances, if any, pursuant to stock option
agreements or employee benefit plans), and the shares of issued and
outstanding capital stock of such Acquired Company have been duly
authorized and validly issued and are fully paid and non-assessable.
(iv) Each subsidiary of such Acquired Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Registration Statement and the Prospectus or in such
Acquired Company's Annual Report filed on Form 10-K for the year ended
December 31, 1995. Nothing has come to the attention of such counsel to
lead such counsel to believe that any subsidiary is not duly qualified
as a foreign corporation to transact business or is not in good
standing in each jurisdiction in which such qualification is required,
except where the failure to so qualify or be in good standing would not
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs
of such Acquired Company and its subsidiaries considered as one
enterprise. All of the shares of issued and outstanding capital stock
of each subsidiary of such Acquired Company has been duly authorized
and validly issued, is fully paid and nonassessable, and all such
shares are owned by such Acquired Company or by a subsidiary of such
Acquired Company.
(v) Each of the documents of such Acquired Company
incorporated by reference in the Registration Statement or the
Prospectus at the time they were filed or last amended (other than the
financial statements or other financial or statistical data included
therein, as to which such counsel need express no belief) complied as
to form in all material respects with the requirements of the 1934 Act,
and the 1934 Act Regulations, as applicable.
(vi) The statements made in the Joint Proxy
Statement-Prospectus of the Company and such Acquired Company, as
applicable, and under the relevant captions in the Registration
Statement and the Prospectus with respect to such Acquired Company and
any corresponding statements in any similar documents of later date
which are incorporated by reference in the Registration Statement and
Prospectus, to the extent that they involve matters of law, summaries
of
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legal matters, such Acquired Company's charter and bylaws or legal
proceedings, or legal conclusions, have been reviewed by such counsel
and are correct in all material respects.
(vii) The Merger Agreement between such Acquired
Company and the Company (and any of its affiliates) has been duly
authorized, executed and delivered by such Acquired Company and
constitutes a valid and binding obligation of such Acquired Company,
enforceable against such Acquired Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
Bankruptcy Exceptions, and to the knowledge and information of such
counsel after due and diligent inquiry such Acquired Company is not in
default in the observance of the terms and conditions thereof.
(viii) To the knowledge and information of such
counsel after due and diligent inquiry, with respect to such Acquired
Company, there are no statutes or regulations required to be described
or incorporated by reference in the Registration Statement which are
not described or incorporated by reference as required and there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed or incorporated by reference in the
Registration Statement, other than those disclosed or incorporated by
reference therein.
(ix) Such Acquired Company and its subsidiaries hold
all material licenses, certificates and permits from all governmental
authorities (including, without limitation, the Insurance Licenses)
which are necessary to the conduct of their businesses; such Acquired
Company and its subsidiaries have fulfilled and performed all material
obligations necessary to maintain their respective Insurance Licenses,
and no event or events have occurred which could reasonably be expected
to result in the material impairment, modification, termination or
revocation of such Insurance Licenses.
Moreover, such counsel shall confirm that nothing has come to such counsel's
attention with respect to such Acquired Company that would lead such counsel to
believe that the Registration Statement, including any information provided
pursuant to Rule 430A and related schedules and Rule 434 (except for financial
statements or other financial information or statistical data included or
incorporated by reference therein, as to which counsel need express no belief),
at the time it became effective or at the Representation 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 not misleading
or that the Prospectus (except for financial statements and other financial data
included or incorporated by reference therein, as to which counsel need express
no belief), at the Representation Date
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(unless the term "Prospectus" refers to a prospectus which has been provided to
the Underwriters by the Company for use in connection with the offering of the
Preferred Securities which differs from the Prospectus on file at the Commission
at the time the Registration Statement became effective, in which case at the
time it is first provided to the Underwriters for such use) or at Closing Time,
included (or includes) an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(6) The favorable opinion, dated as of Closing Time, of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the Underwriters, with
respect to the Preferred Securities, the Indenture, the Preferred Securities
Guarantee Agreement, this Agreement, the Pricing Agreement, the Registration
Statement, the Prospectus and other related matters as you may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. In rendering such
opinion, XxXxxxx, Xxxx, Xxxxxx & XxxXxx, L.L.P. may rely as to matters governed
by the laws of Indiana and Delaware upon the opinions referred to in Sections
5(b)(1) and 5(b)(3) hereto.
(c) Between the date of this Agreement and prior to the Closing Time,
no material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiaries considered as one enterprise, or any
of the Acquired Companies and their respective subsidiaries, in each case,
considered as one enterprise, whether or not in the ordinary course of business.
(d) At Closing Time, the Representatives shall have received a
certificate of an executive officer of the Company and a certificate of a
Regular Trustee of the Trust, and dated as of Closing Time, to the effect that:
(i) There has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not in the ordinary course of
business.
(ii) The representations and warranties in Section 1
hereof are true and correct as though expressly made at and as of
Closing Time.
(iii) The Trust and the Company have complied with
all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to Closing Time.
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(iv) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) At the time of the execution of this Agreement, the Representatives
shall have received:
(1) from Coopers & Xxxxxxx, LLP, with respect to each of the
Company (including Life Partners Group, Inc. ("LPG") and its subsidiaries on a
consolidated basis with respect to the period ending September 30, 1996) and
LPG, and from KPMG Peat Marwick LLP, with respect to each of Capitol American
and Transport Holdings, a letter, in each case, dated such date, in form and
substance satisfactory to the Representatives, to the effect that (i) they are
independent public accountants with respect to the Company, LPG, Capitol
American and Transport Holdings and their respective subsidiaries, as
applicable, within the meaning of the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus and covered by their
opinions therein comply with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations;
(iii) based upon limited procedures set forth in detail in such letter, nothing
has come to their attention which causes them to believe that (A) the unaudited
financial information of the Company, LPG, Capitol American and Transport
Holdings and their respective subsidiaries, as applicable, included or
incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations or are not presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited financial statements included in the Registration Statement, or (B)
any unaudited pro forma consolidated financial statements or any unaudited pro
forma consolidating financial statements included or incorporated by reference
in the Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations or
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements, or (C) as of a specified date
not more than five days prior to the date of this Agreement, there was any
increase in consolidated long-term debt (consolidated notes payable with respect
to Capitol American) or, at the date of the latest available balance sheet read
by such accountants, there was any decrease in consolidated total assets or
shareholders' equity, as compared with amounts shown on the latest balance sheet
included in the Registration Statement and the Prospectus, or (D) for the period
from the closing date of
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the latest income statement included in the Registration Statement and the
Prospectus to the closing date of the latest available income statement read by
such accountants, there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding length ended
the date of the latest income statement included in the Registration Statement
and the Prospectus, in consolidated premiums (including annuity deposits, if
applicable) collected (earned with respect to Capitol American), net investment
income, total revenues, earnings applicable to common stock or net income per
fully diluted common share except, in all cases set forth in this clause (iii),
for changes, increases or decreases which the Registration Statement and the
Prospectus discloses have occurred or may occur or which are described in such
letter; (iv) they have examined the statutory financial statements of each of
the Company's, LPG's, Capitol American's and Transport Holdings' insurance
subsidiaries required to have such an audit, as applicable, and in their opinion
such statements, with respect to each insurance subsidiary, have for each
relevant period been prepared in accordance with accounting practices prescribed
or permitted by the appropriate Insurance Department of the state of domicile of
such subsidiary, and such accounting practices have been applied on a consistent
basis throughout the periods involved, except as disclosed therein; and (v) in
addition to the examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages, ratios and financial information that has been derived
from the accounting and financial records of the Company, LPG, Capitol American
and Transport Holdings that are subject to internal accounting controls which
are included or incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Underwriters, and have found such
amounts, percentages, ratios and financial information to be in agreement with
the relevant accounting and financial records of the Company, LPG, Capitol
American and Transport Holdings and their subsidiaries identified in such
letter, as applicable.
(2) from Xxxxxx Xxxxxxxx LLP a letter, with respect to
American Travellers, dated such date, in form and substance satisfactory to the
Representatives, to the effect that (i) they are independent public accountants
with respect to American Travellers and its respective subsidiaries, as
applicable, within the meaning of the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus and covered by their
opinions therein comply with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations;
(iii) based upon limited procedures set forth in detail in such letter, nothing
has come to their attention which causes them to believe that (A) the unaudited
financial information of American
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Travellers and its subsidiaries, included or incorporated by reference in the
Registration Statement and the Prospectus (not including the unaudited
consolidated balance sheet as of September 30, 1996, and the consolidated
statements of income, cash flows, and shareholders' equity for the nine-month
period ended September 30, 1996 included in American Travellers quarterly report
on Form 10-Q for the quarter ended September 30, 1996, incorporated by reference
in the Registration Statement and the Prospectus (the "American Travellers Third
Quarter Financial Information")) do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations or are not presented
in conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement, or (B) any unaudited pro forma consolidated
financial statements or any unaudited pro forma consolidating financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements, or (C) as of a specified date not more than five days prior to the
date of this Agreement, there was any increase in consolidated long-term debt
or, at the date of the latest available balance sheet read by such accountants,
there was any decrease in consolidated total assets or shareholders' equity, as
compared with amounts shown on the latest balance sheet included in the
Registration Statement and the Prospectus, or (D) for the period from the
closing date of the latest income statement included in the Registration
Statement and the Prospectus to the closing date of the latest available income
statement read by such accountants, there were any decreases, as compared with
the corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income statement included in
the Registration Statement and the Prospectus, in consolidated premiums
(including annuity deposits, if applicable) collected, net investment income,
total revenues, earnings applicable to common stock or net income per fully
diluted common share except, in all cases set forth in this clause (iii), for
changes, increases or decreases which the Registration Statement and the
Prospectus discloses have occurred or may occur or which are described in such
letter; (iv) they have examined the statutory financial statements of American
Travellers' insurance subsidiaries required to have such an audit, and in their
opinion such statements, with respect to each insurance subsidiary, have for
each relevant period been prepared in accordance with accounting practices
prescribed or permitted by the appropriate Insurance Department of the state of
domicile of such subsidiary, and such accounting practices have been applied on
a consistent basis throughout the periods involved, except as disclosed therein;
and (v) in addition to the examination referred to in
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their opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages, ratios and financial information
that has been derived from the accounting and financial records of American
Travellers that are subject to internal accounting controls which are included
or incorporated by reference in the Registration Statement and Prospectus (not
including the American Travellers Third Quarter Financial Information) and which
are specified by the Underwriters, and have found such amounts, percentages,
ratios and financial information to be in agreement with the relevant accounting
and financial records of American Travellers and its subsidiaries identified in
such letter.
(f) At the Closing Time, the Underwriters shall have received:
(1) from Coopers & Xxxxxxx, LLP, with respect to the Company
(including LPG and its subsidiaries on a consolidated basis), and from KPMG Peat
Marwick LLP, with respect to each of Capitol American and Transport Holdings, a
letter, in each case, dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection
(e)(1) of this Section, except that (i) such statements shall include any
financial statements and pro forma financial information incorporated by
reference in the Registration Statement and the Prospectus which are filed
subsequent to the date of this Agreement and prior to the Closing Date and (ii)
the specified date referred to shall be a date not more than five days prior to
the Closing Time and, if the Company has elected to rely on Rule 430A under the
1933 Act Regulations, to the further effect that they have carried out
procedures as specified in clause (iv) of subsection (e)(1) of this Section with
respect to certain amounts, percentages and financial information specified by
the Underwriters and deemed to be a part of the Registration Statement pursuant
to Rule 430(A)(b) and have found such amounts, percentages and financial
information to be in agreement with the records specified in such clause (iv).
(2) from Xxxxxx Xxxxxxxx LLP, with respect to American
Travellers, dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e)(2) of this
Section, except that (i) the statements made in the letter pursuant to clause
(iii)(A) of subsection (e)(2) of this Section shall include the American
Travellers Third Quarter Financial Information and (ii) the specified date
referred to shall be a date not more than five days prior to the Closing Time
and, if the Company has elected to rely on Rule 430A under the 1933 Act
Regulations, to the further effect that they have carried out procedures as
specified in clause (iv) of subsection (e)(2) of this Section with respect to
certain amounts, percentages and financial information specified by the
Underwriters and deemed to be a part of the Registration Statement pursuant to
Rule 430(A)(b) and have found such amounts,
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percentages and financial information to be in agreement with the records
specified in such clause (iv).
(g) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
(h) At Closing Time, the Preferred Securities shall be rated in one of
the four highest rating categories for long term debt ("Investment Grade") by
any nationally recognized statistical rating agency, and the Trust shall have
delivered to the Representatives a letter, dated the Closing Time, from such
nationally recognized statistical rating agency, or other evidence satisfactory
to the Representatives, confirming that the Preferred Securities have Investment
Grade ratings; and there shall not have occurred any decrease in the ratings of
any of the debt securities of the Company or any of the Acquired Companies or of
the Preferred Securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act
Regulations) and such organization shall not have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the debt securities of the Company or of the Preferred Securities.
(i) At Closing Time, the Preferred Securities shall have been approved
for listing on the New York Stock Exchange upon notice of issuance.
(j) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agree ment may be
terminated by the Underwriters by notice to the Company at any time at or prior
to Closing Time, and such termi nation shall be without liability of any party
to any other party except as provided in Section 4.
SECTION 6. Indemnification.
(a) The Offerors agree to jointly and severally indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
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(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amend ment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Offerors by any Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430(A)
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). The foregoing indemnity with respect to any untrue
statement contained in or omission from a preliminary prospectus shall not inure
to the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, liability, claim, damage or
expense purchased any of the Securities that are the subject thereof if such
person was
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not sent or given a copy of the Prospectus (or the Prospectus as amended or
supplemented) (in each case exclusive of the documents from which information is
incorporated by reference) at or prior to the written confirmation of the sale
of such Securities to such person and the untrue statement contained in or
omission from such preliminary prospectus was corrected in the Prospectus (or
the Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, the Trust and each of its Trustees who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430(A) Information and the Rule
434 Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Offerors by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Offerors. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any
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governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by Offerors on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Offerors and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet, bear to the aggregate
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initial public offering price of such Securities as set forth on such cover.
The relative fault of the Offerors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which 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 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company and each Trustee of
the Trust who signed the Registration Statement, and each person, if any, who
controls the Company or the Trust within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Offerors. The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number or aggregate principal
amount, as the case may be, of Preferred
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Securities set forth opposite their respective names in Schedule A to this
Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or con tained in certificates of officers
of the Company, the Trust and the Acquired Companies submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by notice to the
Company at any time at or prior to Closing Time, if (i) there has been, since
the date of this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change or any
development which could reasonably be expected to result in a prospective
material adverse change, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, or any of the Acquired Companies and their respective
subsidiaries, in each case, considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) there has occurred (A) any material
adverse change in the financial markets in the United States or, if the
Preferred Securities or any related underlying Securities include Debt
Securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets or (B) any outbreak
of hostilities or escalation of hostilities or other calamity or crisis, or (C)
any change or development involving a prospective change in national or
international political, financial or economic conditions the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable to market
the Preferred Securities or to enforce contracts for the sale of the Preferred
Securities, or (iii) trading in securities of the Company or any of the Acquired
Companies has been suspended or limited by the Commission, NASD, the American
Stock Exchange or the New York Stock Exchange, or if trading generally on either
the American Stock Exchange, the New York Stock Exchange or in the
over-the-counter market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by such system or by order of
the Commission, NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal, New York or Indiana authorities
or, if the Preferred Securities or any related Underlying Securities include
Debt Securities denominated or payable in, or indexed to, one or
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more foreign or composite currencies, by the relevant authorities in the related
foreign country or countries.
(b) If this Agreement and the Pricing Agreement are terminated pursuant
to this Section 9, such termination shall be without liability of any party to
any other party except as provided in Section 4, and provided, further, that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement and the Pricing
Agreement (the "Defaulted Securities"), then Xxxxxxx Xxxxx shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, Xxxxxxx Xxxxx shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the total number or aggregate
principal amount, as the case may be, of Preferred Securities, the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the total number or aggregate principal
amount, as the case may be, of Preferred Securities to be purchased on such date
pursuant to this Agreement, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either Xxxxxxx Xxxxx or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx at Xxxxxxx Xxxxx World
Headquarters, World
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Financial Center, North Tower, New York, New York 10281, Attention of Xxxxx X.
Xxxxxxxx, Managing Director, with a copy to LeBoeuf, Lamb, Xxxxxx & XxxXxx,
L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxxx
Xxxxx, Esq.; notices to the Company shall be directed to it at 00000 Xxxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxx, Esq.,
with a copy to Xxxxx Xxxxxxxx Xxxx & Xxxxxxx, 1000 Capital Center South, 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Esq.
SECTION 12. Parties. This Agreement and the Pricing Agree ment shall
each inure to the benefit of and be binding upon the Offerors and the
Underwriters and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors and
legal representatives, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORD ANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREE MENTS MADE AND TO BE PERFORMED IN SAID
STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME UNLESS OTHERWISE
INDICATED.
SECTION 14. Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts, shall become a binding agreement
among the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
CONSECO, INC.
By:/s/ XXXXXX X. XXXX
-------------------------------
Name:Xxxxxx X. Xxxx
Title:Executive Vice President
CONSECO FINANCING TRUST I
By:/s/ XXXXXXX X. XXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Regular Trustee
By:/s/ XXXXXX X. XXXX
----------------------
Name: Xxxxxx X. Xxxx
Title: Regular Trustee
By:/s/ XXXXXXXX X. XXXXX
-----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXX XXXXXX XXXXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SANDS BROTHERS & CO., LTD.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:/s/ XXXX X. XXXXXXX, XX.
-------------------------
Authorized Signatory:
For themselves and as the Representatives of the several Underwriters named in
Schedule A hereto.
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SCHEDULE A
Name of Underwriter Number of Shares
------------------- ----------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated..................................................... 2,277,500
Xxxx Xxxxxx Xxxxxxxx Inc.................................................. 2,277,500
PaineWebber Incorporated.................................................. 2,277,500
Prudential Securities Incorporated........................................ 2,277,500
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation........................................... 350,000
Sands Brothers & Co., Ltd................................................. 350,000
Bear, Xxxxxxx & Co. Inc................................................... 85,000
Xxxx. Xxxxx & Sons Incorporated........................................... 85,000
Xxxxx & Company........................................................... 85,000
Xxxx Xxxxxxxx Incorporated................................................ 85,000
Xxxxxx, Read & Co. Inc.................................................... 85,000
X.X. Xxxxxxx & Sons, Inc.................................................. 85,000
EVEREN Securities, Inc.................................................... 85,000
XxXxxxxx & Company Securities, Inc........................................ 85,000
The Ohio Company.......................................................... 85,000
Xxxxxxxxxxx & Co., Inc.................................................... 85,000
Xxxxx Xxxxxxx Inc......................................................... 85,000
Xxxxxxx Xxxxx & Associates, Inc........................................... 85,000
Xxxxxx Xxxxxxx Incorporated............................................... 85,000
Wheat, First Securities, Inc.............................................. 85,000
Total............................................................ 11,000,000
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EXHIBIT A
11,000,000 Preferred Securities
CONSECO FINANCING TRUST I
(a Delaware business trust)
9.16% Trust Originated Preferred Securitiessm ("TOPrSSM")
(Liquidation Amount of $25 Per Security)
PRICING AGREEMENT
XXXXXXX XXXXX & CO. November 14, 1996
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated as
Representative of the several
Underwriters named in the within-
mentioned Underwriting Agreement
Xxxxxxx Xxxxx World Headquarters
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated November 14,
1996 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto, for whom Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Xxxx Xxxxxx Xxxxxxxx Inc.,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, PaineWebber Incorporated,
Prudential Securities Incorporated and Sands Brothers & Co., Ltd. are acting as
representatives (the "Representatives"), of the above 9.16% Trust Originated
Preferred Securities (the "Preferred Securities"), of Conseco Financing Trust I,
a Delaware business trust (the "Trust").
Pursuant to Section 2 of the Underwriting Agreement, the Trust and
Conseco, Inc. (the "Company"), an Indiana corporation, agree with each
Underwriter as follows:
1. The initial public offering price per security for the Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to be
paid by the several Underwriters shall be $25.00, being an amount equal to the
initial public offering price set forth above.
3. The compensation to be paid by the Company to the several
Underwriters in respect of their commitments hereunder shall be an amount in
same day funds of $.7875 per Preferred Security.
_____________________________
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Xxxxxxx Xxxxx & Co. Inc.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
CONSECO, INC.
By:
-----------------------------
Name:
Title:
CONSECO FINANCING TRUST I
By:
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Regular Trustee
By:
------------------------------
Name: Xxxxxx X. Xxxx
Title: Regular Trustee
By:
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Regular Trustee
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXX XXXXXX XXXXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SANDS BROTHERS & CO., LTD.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:_________________________
Authorized Signatory:
For themselves and as the Representatives of the several Underwriters named in
the Underwriting Agreement.
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