EXHIBIT 1
$150,000,000
GREAT-WEST LIFE & ANNUITY INSURANCE CAPITAL I
____% Subordinated Capital Income Securities (SKISSM)
UNDERWRITING AGREEMENT
----------------------
April __, 1999
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
As Representatives of the several
Underwriters named in Schedule 1
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Great-West Life & Annuity Insurance Capital I, a Delaware statutory
business trust (the "Trust"), and GWL&A Financial Inc., a Delaware corporation
(the "Company"), propose to issue and sell an aggregate of $150 million
liquidation amount of ___% Subordinated Capital Income Securities (the "Capital
Securities"), liquidation amount $25 per Capital Security, of the Trust,
guaranteed (the "Guarantee" and, together with the Capital Securities and the
Junior Subordinated Debentures referred to below, the "Securities") by the
Company pursuant to the Guarantee Agreement (the "Guarantee Agreement") to be
entered into between the Company and The Bank of New York (the "Guarantee
Trustee"), the form of which has been filed as an exhibit to the Registration
Statements (as defined below). The Company will be the owner of all of the
beneficial ownership interests represented by the common securities (the "Common
Securities") of the Trust. Concurrently with the issuance of the Capital
Securities and the Company's purchase of all of the Common Securities, the Trust
will invest the proceeds of each thereof in ___% Junior Subordinated Debentures
(the "Junior Subordinated Debentures") issued by the Company. The Junior
Subordinated Debentures are to be issued pursuant to an Indenture (the
"Indenture") to be entered into between the Company and The Bank of New York
(the "Indenture Trustee"), the form of which has been filed as an exhibit to the
Registration Statements. This is to confirm the agreement concerning the
purchase of the Capital Securities from the Trust by the Underwriters named in
Schedule 1 hereto (the "Underwriters").
2
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) A registration statement on Form S-3, and amendments thereto,
with respect to the Securities have (i) been prepared by the Company and
the Trust in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act; and a second registration statement on
Form S-3 with respect to the Securities (i) may also be prepared by the
Company and the Trust in conformity with the requirements of the Securities
Act and the Rules and Regulations and (ii) if so prepared, will be filed
with the Commission under the Securities Act pursuant to Rule 462(b) of the
Rules and Regulations on the date hereof; and the Indenture, the
Declaration (as hereinafter defined) and the Guarantee have been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). Copies of the first such registration statement and the amendments
to such registration statement, together with the form of any such second
registration statement, have been delivered by the Company and the Trust to
you as the representatives (the "Representatives") of the Underwriters. As
used in this Agreement, "Effective Time" means (i) with respect to the
first such registration statement, the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and (ii) with
respect to any second registration statement, the date and time as of which
such second registration statement is filed with the Commission, and
"Effective Times" is the collective reference to both Effective Times;
"Effective Date" means (i) with respect to the first such registration
statement, the date of the Effective Time of such registration statement
and (ii) with respect to any second registration statement, the date of the
Effective Time of such second registration statement, and "Effective Dates"
is the collective reference to both Effective Dates; "Preliminary
Prospectus" means each prospectus included in such registration statement,
or amendments thereof, before it became effective under the Securities Act
and any prospectus filed with the Commission by the Company and the Trust
with the consent of the Representatives pursuant to Rule 424(a) of the
Rules and Regulations; "Primary Registration Statement" means the first
registration statement referred to in this Section 1(a), as amended at its
Effective Time, "Rule 462(b) Registration Statement" means the second
registration statement, if any, referred to in this Section 1(a), as filed
with the Commission, and "Registration Statements" means both the Primary
Registration Statement and any Rule 462(b) Registration Statement,
including in each case any documents incorporated by reference therein at
such time and all information contained in the final prospectus filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 5(a) hereof and deemed to be a part of the
Registration Statements as of the Effective Time of the Primary
Registration Statement pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations; and "Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b)
of the Rules and Regulations. Reference made herein to any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to and include any
3
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary Prospectus or
the Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any document filed under the United States
Securities Exchange Act of 1934 (the "Exchange Act") after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the Prospectus,
as the case may be; and any reference to any amendment to either of the
Registration Statements shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statements. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Primary Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any further amendments
or supplements to the Registration Statements or the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will
conform) in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statements and any amendment
thereto) and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) 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 light of the circumstances
under which they were made, not misleading; provided that no representation
or warranty is made as to (i) information contained in or omitted from the
Registration Statements or the Prospectus in reliance upon and in
conformity with written information furnished to the Company and the Trust
through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein, or (ii) that part of the Primary Registration
Statement which constitutes the Statement of Eligibility and Qualifications
(Form T-1) under the Trust Indenture Act of the Trustee; and the Indenture,
the Declaration and the Guarantee conform in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Act and the rules and regulations of the
Commission thereunder; and any further documents so filed and incorporated
by reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements of
the Securities Act and the rules and regulations of the Commission
thereunder.
(d) The Company and Great-West Life & Annuity Insurance Company
("GWL&A") have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct of their
respective businesses
4
requires such qualification other than where such failures would not,
either individually or in the aggregate, have a material adverse effect on
the business, financial condition, stockholders' equity or operating
results of the Company and its subsidiaries (as defined in Section 15)
taken as a whole, and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged; and none of the subsidiaries of the Company other than GWL&A is a
"significant subsidiary", as such term is defined in Rule 405 of the Rules
and Regulations.
(e) Each of the Company and GWL&A is in compliance with the
requirements of the insurance statutes of its jurisdiction of incorporation
and domicile, including the statutes relating to companies which control
insurance companies, and the rules, regulations and interpretations of the
insurance regulatory authorities thereunder (the "Applicable Insurance
Laws"), has filed all reports, information statements and other documents
with the insurance regulatory authorities of its jurisdiction of
incorporation and domicile as are required to be filed pursuant to the
Applicable Insurance Laws, and has duly paid all taxes (including franchise
taxes and similar fees) it is required to have paid under the Applicable
Insurance Laws, except where the failure to comply with such requirements,
file such statements or reports or pay such taxes would not, either
individually or in the aggregate, have a material adverse effect on the
business, financial condition, stockholders' equity or operating results of
the Company and its subsidiaries taken as a whole, and each of the Company
and GWL&A maintains its books and records in accordance with the Applicable
Insurance Laws, except where the failure to so maintain its books and
records would not, either individually or in the aggregate, have a material
adverse effect on the business, financial condition, stockholders' equity
or operating results of the Company and its subsidiaries taken as a whole.
Except as disclosed in the Prospectus, no insurance regulatory agency or
body has issued, or commenced any proceeding for the issuance of, any order
or decree impairing, restricting or prohibiting the payment of dividends by
any such insurance company subsidiary to its parent or materially limiting
the conduct of its business.
(f) All ceded reinsurance and retrocessional agreements to which the
Company's insurance company subsidiaries are a party are in full force and
effect and neither the Company nor any of such subsidiaries is in violation
of, or in default in the performance, observance or fulfillment of, any
obligation, agreement, covenant or condition contained therein, except for
such violations or defaults which could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
business, financial condition, stockholders' equity or operating results of
the Company and its subsidiaries taken as a whole. Neither the Company nor
any of such subsidiaries has received any notice from any of the other
parties to such agreements that such other party intends not to perform in
any material respect such agreement and none of the Company and such
subsidiaries has any reason to believe that any of the other parties to
such agreements will be unable to perform such agreements, except to the
extent that (i) the Company has established appropriate reserves on its
consolidated financial statements included or incorporated by reference
into the Registration Statements and the Prospectus, or (ii) such
nonperformance could not reasonably be expected, individually or in the
aggregate, to have a material adverse effect
5
on the business, financial condition, stockholders' equity or operating
results of the Company and its subsidiaries taken as a whole; and each of
the Company and its insurance company subsidiaries is entitled to give
effect in its underwriting results in its most recently filed statutory
financial statements for reinsurance ceded pursuant to such agreements.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of GWL&A have
been duly and validly authorized and issued and are fully paid and non-
assessable and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(h) The Capital Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid
and non-assessable; and the Capital Securities and the Common Securities,
when issued and delivered, will conform in all material respects to the
description thereof contained in the Prospectus.
(i) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company (assuming due execution and delivery by
the Indenture Trustee) and delivered by the Company, will constitute a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the Junior
Subordinated Debentures have been duly authorized, and, when duly executed,
authenticated, issued and delivered as contemplated in the Indenture, will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Junior Subordinated Debentures, when
issued and delivered, will conform in all material respects to the
description thereof contained in the Prospectus.
(j) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Prospectus, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement and, as and when executed, the Amended
and Restated Declaration of Trust (the "Declaration") among the Company,
The Bank of New York, as property trustee (the "Property Trustee"), The
Bank of New York (Delaware), as Delaware trustee (the "Delaware
6
Trustee") and the individuals named therein as the Regular Trustees (the
"Regular Trustees," and together with the Property Trustee and the Delaware
Trustees, the "Trustees"), and the agreements and instruments contemplated
by the Declaration and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the agreements and instruments
contemplated by the Declaration and described in the Prospectus; and the
Trust is not a party to or subject to any action, suit or proceeding of any
nature.
(k) The Declaration has been duly authorized by the Company and, when
duly executed and delivered by the Company and the Trustees, will be a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the rights of creditors generally,
general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing, and will
conform in all material respects to the description thereof contained in
the Prospectus. Each of the Regular Trustees is an employee of the Company
and/or GWL&A and has been duly authorized by the Company and/or GWL&A to
serve in such capacity and to execute and deliver the Declaration.
(l) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company and the
Guarantee Trustee, will constitute a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Guarantee Agreement, when executed and
delivered, will conform in all material respects to the description thereof
contained in the Prospectus.
(m) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Trust.
(n) The execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture and the Junior
Subordinated Debentures by the Company and the Trust, as applicable, and
the consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or GWL&A is a party or by which the Company or GWL&A is bound or to
which any of the property or assets of the Company or GWL&A is subject and
will not violate or conflict with any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets, except for such conflict, breach, violations or defaults as would
not, either individually or in the aggregate, have a material adverse
effect on the business, financial condition,
7
stockholders' equity or operating results of the Company and its
subsidiaries taken as a whole, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or
GWL&A; and except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution of
the Capital Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Declaration, the Guarantee Agreement,
the Indenture or the Junior Subordinated Securities or the consummation of
the transactions contemplated herein and therein, including the issuance of
the Common Securities and the Capital Securities by the Trust and the
purchase of the Junior Subordinated Debentures by the Trust from the
Company.
(o) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to include such
securities in the securities registered pursuant to the Registration
Statements.
(p) Neither the Company nor GWL&A has sustained, since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material change in
the capital stock or long-term debt of the Company or GWL&A or any material
adverse change in or affecting the general affairs, management, financial
position or results of operations of the Company and its subsidiaries taken
as a whole, otherwise than as set forth or contemplated in the Prospectus.
(q) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements or
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved; the pro forma financial information included in the
Prospectus has been prepared in accordance with the requirements of
Regulation S-X promulgated by the Commission and contains all adjustments
necessary for a fair presentation of the information set forth therein; and
the information contained in the Prospectus that constitutes "forward-
looking statements" within the meaning of Section 21E(i)(1) of the Exchange
Act has been prepared on the basis of the Company's best current judgments
and estimations as to future operating plans and results.
(r) Deloitte & Touche, LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and
8
who have delivered the initial letter referred to in Section 7(g) hereof,
are independent public accountants as required by the Securities Act and
the Rules and Regulations.
(s) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries, are
reasonably likely to have a material adverse effect on the business,
financial position or results of operations of the Company and its
subsidiaries taken as a whole; and to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(t) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to either of the
Registration Statements by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to either of the Registration Statements or incorporated therein
by reference as permitted by the Rules and Regulations.
(u) Neither the Company nor GWL&A (i) is in violation of its charter
or by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject
or (iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its properties or assets or to the
conduct of its business.
(v) Neither the Trust nor the Company is or, after giving effect to
the offering and sale of Securities and the consummation of the other
transactions contemplated by the Prospectus, will be, required to register
as an "investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "Investment Company Act") and the rules
and regulations of the Commission thereunder.
2. Purchase of the Capital Securities by the Underwriters. The Trust
and the Company hereby agree to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations, warranties and agreements
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Trust, the respective
liquidation amount of Capital Securities set forth in Schedule 1 hereto opposite
their names at a purchase price of 100% of the liquidation amount thereof.
As compensation to the Underwriters for their commitments hereunder,
the Company agrees to pay the Underwriters a commission of __% of the
liquidation amount of the Capital Securities set forth in Schedule 1 opposite
each Underwriter's name.
9
3. Offering of Capital Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Capital Securities,
the several Underwriters propose to offer the Capital Securities for sale upon
the terms and conditions set forth in the Prospectus; provided, however, that no
Capital Securities registered pursuant to the Rule 462(b) Registration
Statement, if any, shall be offered prior to the Effective Time thereof.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Capital Securities shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M., New York
City time, on the third full business day following the date of this Agreement
or at such other date or place as shall be determined by agreement between the
Representatives, the Trust and the Company. This date and time are sometimes
referred to as the "Closing Date". On the Closing Date, the Trust shall deliver
or cause to be delivered to the Representatives for the account of each
Underwriter, against payment to or upon the order of the Trust of the purchase
price by wire transfer in immediately available funds, the Capital Securities in
the form of one or more permanent global securities in definitive form (the
"Global Securities") deposited with the Property Trustee as custodian for the
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each Underwriter hereunder. On the Closing Date, the Company will
pay, or cause to be paid, the commission payable on the Closing Date to the
Underwriters under the last paragraph of Section 2 in immediately available
funds in New York City.
5. Further Agreements of the Company and the Trust. The Company
agrees, and the Trust, jointly and severally, each represents and warrants to,
and agrees with, each of the Underwriters that:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives (which approval
shall not be unreasonably withheld) and to file such Rule 462(b)
Registration Statement with the Commission on the date hereof; to
prepare the Prospectus in a form approved by the Representatives
(which approval shall not be unreasonably withheld) and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statements or
to the Prospectus prior to the Closing Date except as permitted
herein; to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to either Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; to advise the
Representatives, promptly after it receives notice thereof, of the
10
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statements or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to counsel
for the Underwriters a signed copy of each of the Registration
Statements as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statements as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the Indenture,
the Declaration, the Guarantee Agreement and the computation of the
ratio of earnings to fixed charges), (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus and (iii)
any document incorporated by reference in the Prospectus (excluding
exhibits thereto); and, if the delivery of a prospectus is required at
any time after the Effective Time of the Primary Registration
Statement in connection with the offering or sale of the Capital
Securities or any other securities relating thereto and if at such
time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus (including by filing
under the Exchange Act any document incorporated by reference in the
Prospectus) in order to comply with the Securities Act or the Exchange
Act, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge for the nine-
month period after the effective date of the Registration Statement to
each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company, the Trust or the
Representatives, be required by the Securities Act or requested by the
Commission;
11
(e) Prior to filing with the Commission any amendment to either
of the Registration Statements or supplement to the Prospectus, any
document incorporated by reference in the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing (which consent
shall not be unreasonably withheld) , provided, that, with respect to
any such document incorporated by reference, the Company and the Trust
shall be obligated to furnish such copy and obtain such consent unless
such actions would materially impair the Company's ability to comply
with its obligations under the federal securities laws on a timely
basis;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
Company's security holders and to deliver to the Representatives an
earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158);
(g) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions in
the United States as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in
connection therewith, none of the Trust, the Company or GWL&A shall be
obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so subject;
(h) For a period ending on the later of the Closing Date and the
date on which selling restrictions have terminated, not to, directly
or indirectly, (1) offer for sale, sell, pledge or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) (i) any trust certificate or other securities
of the Trust other than the sale of the Common Securities to the
Company and the sale of the Capital Securities to the Underwriters, as
contemplated by the Prospectus, (ii) any securities that are
substantially similar to the Securities, or (iii) any securities that
are convertible into, or exchangeable or exercisable for, any of the
foregoing, or (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of the Securities, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of the Securities or other securities, in cash or otherwise,
in each case without the prior written consent of ▇▇▇▇▇▇ Brothers
Inc., on behalf of the Representatives;
12
(i) Prior to the Effective Date of the Primary Registration
Statement, to apply for the listing of the Capital Securities on the
New York Stock Exchange, Inc. and to use its best efforts to complete
that listing, subject only to official notice of issuance and evidence
of satisfactory distribution, prior to the Closing Date.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (bi the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statements and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statements as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided in
this Agreement; (d) the costs of producing and distributing this Agreement and
any other related documents in connection with the offering, purchase, sale and
delivery of the Securities; (e) any applicable listing or other fees; (f) the
fees and expenses of qualifying the Securities under the securities laws of the
several jurisdictions as provided in Section 5(g); (g) any fees charged by
securities rating services for rating the Securities; and (h) all other costs
and expenses incident to the performance of the obligations of the Company and
the Trust under this Agreement; provided that, except as provided in this
Section 6 and in Section 11, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities which they may sell and the expenses of advertising any
offering of the Capital Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the Closing Date, of the representations and warranties of the Company
and the Trust contained herein, to the performance by the Company and the Trust
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the
effectiveness of either of the Registration Statements or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
either of the Registration Statements or the Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Closing Date that either of the
Registration Statements or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in
the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, is material or omits to state a fact which, in the
opinion of such
13
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture, the Declaration, the Guarantee Agreement, the Securities,
the Registration Statements and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company and the Trust shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) (1) Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have furnished
to the Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus;
(iii) The Company has corporate power to own its properties
and conduct its business as described in the Prospectus, and the
Company has corporate power to issue the Junior Subordinated
Debentures, and to enter into this Agreement, the Indenture and
the Guarantee Agreement and to perform its obligations hereunder
and thereunder;
(iv) The execution and delivery of the Indenture have been
duly authorized by all necessary corporate action of the Company,
and the Indenture has been duly executed and delivered by the
Company and qualified under the Trust Indenture Act, and is a
valid, binding and enforceable agreement of the Company.
(v) The execution and delivery of the Junior Subordinated
Debentures have been duly authorized by all necessary corporate
action of the Company, and the Junior Subordinated Debentures
have been duly executed and delivered by the Company and
qualified under the Trust Indenture Act, and are valid, binding
and enforceable obligations of the Company, entitled to the
benefits of the Indenture.
14
(vi) The execution and delivery of the Declaration have
been duly authorized by all necessary corporate action of the
Company and qualified under the Trust Indenture Act.
(vii) The execution and delivery of the Guarantee
Agreement have been duly authorized by all necessary corporate
action of the Company, and the Guarantee Agreement has been duly
executed and delivered by the Company, and qualified under the
Trust Indenture Act, and is a valid, binding and enforceable
agreement of the Company.
(viii) The statements set forth under the headings
"Description of Capital Securities," "Description of Junior
Subordinated Debentures," "The Trust," "Description of Guarantee"
and "Relationship among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee" in the Prospectus,
insofar as such statements purport to summarize certain
provisions of the Debentures and the Guarantee Agreement, provide
a fair summary of such provisions; the statements made in the
Prospectus under the heading "U.S. Federal Income Tax
Consequences," insofar as such statements purport to summarize
certain federal income tax laws of the United States, constitute
a fair summary of the principal U.S. federal income tax
consequences of an investment in the Capital Securities, and the
opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ filed as Exhibit
8.1 to the Registration Statement is confirmed and the
Underwriters may rely on such opinion as if it were addressed to
them.
(ix) The execution and delivery of this Agreement have
been duly authorized by all necessary corporate action of the
Company, and this Agreement has been duly executed and delivered
by the Company.
(x) The issuance and sale of the Junior Subordinated
Debentures to the Trust and the issuance of the Guarantee
Agreement pursuant to this Agreement and the performance by
either the Company or the Trust, as applicable, of its
obligations in this Agreement, the Indenture, the Junior
Subordinated Debentures, the Declaration and the Guarantee
Agreement (a) will not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the United States or the State of New
York, except such as have been obtained or effected under the
Securities Act, the Exchange Act and the Trust Indenture Act (but
we express no opinion as to any consent, approval, authorization,
registration or qualification that may be required under state
securities or Blue Sky laws) and (b) will not result in a breach
or violation of any of the terms and provisions of the Articles
of Incorporation or By-Laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company
or GWL&A or any of their properties or assets.
15
(xi) The Company and the Trust are not and, after giving
effect to the offering and sale of the Capital Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may state that (i) their
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of New York and the
General Corporation Law of the State of Delaware, (ii) insofar as the
foregoing opinions relate to the valid existence and good standing of
the Company, they are based solely on a certificate of good standing
received from the Secretary of State of the State of Delaware, (iii)
insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement or obligation of the
Company, (a) such counsel has assumed that each other party to such
agreement or obligation has satisfied those legal requirements that
are applicable to it to the extent necessary to make such agreement or
obligation enforceable against it, and (b) such opinions are subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
(2) Such counsel shall also have furnished to the Representatives
a written statement, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representatives, to the effect that such counsel has acted as counsel
to the Company in connection with the preparation of the Registration
Statement, and based on the foregoing:
(i) The Primary Registration Statement (except the
financial statements and schedules and other financial and
statistical data included therein, as to which they need express
no view), at the Effective Time, and the Prospectus (except as
aforesaid), as of the date thereof, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the Trust Indenture Act,
and the rules and regulations thereunder, other than Regulation
S-T under the Securities Act. In addition, such counsel does not
know of any contracts or other documents of a character required
to be filed as exhibits to the Registration Statement or required
to be described in the Registration Statement or the Prospectus
that are not filed or described as so required;
(ii) The documents incorporated by reference in the
Registration Statements and the Prospectus (except the financial
statements and schedules and other financial and statistical data
included therein, as to which they need express no view), of as
the respective dates of their filing, appeared on their face to
be appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules and regulations
thereunder;
(iii) No information has come to such counsel's attention
that causes such counsel to believe that the Registration
Statement, including the
16
documents incorporated by reference therein (except the financial
statements and schedules and other financial and statistical data
included therein, as to which no view need be expressed), at the
time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(iv) No information has come to such counsel's attention
that causes such counsel to believe that the Prospectus,
including the documents incorporated by reference therein (except
the financial statements and schedules and other financial and
statistical data included therein, as to which no view need be
expressed), as of the date hereof or the Closing 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.
Such statement shall also confirm that (based solely upon a
telephonic confirmation from a representative of the Commission) the
Registration Statement is effective under the Securities Act, the Rule
462(b) Registration Statement, if any, was filed with the Commission
on the date specified therein, and the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the Rules
and Regulations specified in such opinion on the date specified
therein, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been instituted or
threatened, by the Commission.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Counsel and Assistant
Secretary of the Company, shall have furnished to the Representatives
her written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(i) GWL&A has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Colorado and it is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
its respective ownership or lease of property or the conduct of
its business requires such qualification other than those
jurisdictions in which the failure to so qualify would not,
either individually or in the aggregate, have a material adverse
effect on the business, financial condition, stockholders' equity
or operating results of the Company and its subsidiaries taken as
a whole;
(ii) GWL&A has corporate power to own or hold its
properties and conduct its business as described in the
Prospectus;
(iii) to the best knowledge of such counsel, each of the
Company and GWL&A is in compliance with the requirements of the
Applicable
17
Insurance Laws and has filed all reports, information statements
and other documents with the insurance regulatory authorities of
its jurisdiction of incorporation and domicile as are required to
be filed pursuant to the Applicable Insurance Laws, except where
the failure to comply with such requirements or file such
statements or reports would not, either individually or in the
aggregate, have a material adverse effect on the business,
financial condition, stockholders' equity or operating results of
the Company and its subsidiaries taken as a whole; and except as
disclosed in the Prospectus, no insurance regulatory agency or
body has issued, or commenced any proceeding for the issuance of,
any order or decree impairing, restricting or prohibiting the
payment of dividends by any insurance company subsidiary to its
parent or materially limiting the conduct of its business.
(iv) the Company is duly qualified to do business and is
in good standing as a foreign corporation in each jurisdiction in
which its respective ownership or lease of property or the
conduct of its business requires such qualification other than
where such failures would not, either individually or in the
aggregate, have a material adverse effect on the business,
financial condition, stockholders' equity or operating results of
the Company and its subsidiaries taken as a whole;
(v) all of the issued shares of capital stock of GWL&A
have been duly and validly authorized and issued and are fully
paid and non-assessable and are owned of record and, to the best
of such counsel's knowledge, are owned beneficially by the
Company, either directly or indirectly, free and clear of all
liens, encumbrances, equities or claims;
(vi) to the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company
to include such Securities in the securities registered pursuant
to the Registration Statements;
(vii) to the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any
of its subsidiaries, are reasonably likely to have a material
adverse effect on the business, financial condition,
stockholders' equity or, results of operations of the Company and
its subsidiaries taken as a whole; and
(viii) the issuance and sale of the Junior Subordinated
Debentures to the Trust and the issuance of the Guarantee
Agreement pursuant to this Agreement and the performance by
either the Company or the Trust, as applicable, of its
obligations in this Agreement, the Indenture, the Debentures, the
Declaration and the Guarantee Agreement (a) will not
18
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries
is subject, and (b) will not result in any violations of any
statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
the Company or GWL&A or any of their properties or assets.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States
of America and the laws of the State of Colorado. Insofar as the
foregoing opinions relate to the valid existence and good standing of
GWL&A, they are based solely on a certificate of good standing
received from the Secretary of State of the State of Colorado.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Registration Statements, the Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a
letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(h) With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Representatives a
letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as
19
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter
and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(i) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger shall have furnished to the
Representatives its written opinion, as special Delaware counsel to
the Company and the Trust, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representatives, 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
Business Trust 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 Business Trust Act and the
Declaration, the Trust has the trust power and authority to own
its property and conduct its business as set forth in the
Declaration;
(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;
(iv) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver, and to perform its obligations under, this
Agreement and (ii) to issue and perform its obligations under the
Capital Securities and the Common Securities;
(v) Under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of this
Agreement, and the performance by the Trust of its obligations
hereunder, have been duly authorized by all necessary trust
action on the part of the Trust;
(vi) The Common Securities have been duly authorized for
issuance by the Declaration, and, when issued and delivered by
the Trust to the Company as described in the Prospectus and the
Declaration, will be validly issued undivided beneficial
interests in the assets of the Trust; under the Declaration and
the Delaware Business Trust Act, the issuance of the Common
Securities is not subject to preemptive rights;
(vii) The Capital Securities have been duly authorized by
the Declaration and are duly and validly issued and, subject to
the qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and are
entitled to the benefits of the Declaration.
20
The holders of the Capital 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. Such counsel may note that the holders of Capital
Securities may be obligated, pursuant to the Declaration, (A) to
provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or exchanges
of certificates for Capital Securities and the issuance of
replacement certificates for Capital Securities, and (B) to
provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and
powers under the Declaration;
(viii) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Capital Securities is not
subject to preemptive rights;
(ix) The issuance and sale by the Trust of the Capital
Securities, the execution, delivery and performance by the Trust
of this Agreement, the consummation by the Trust of the
transactions contemplated hereby and compliance by the Trust with
its obligations hereunder, and the performance by the Company, as
sponsor, of its obligations under the Declaration (A) do not
violate (i) any of the provisions of the certificate of trust of
the Trust or the Declaration or (ii) any applicable Delaware law
or administrative regulation (except that such counsel need
express no opinion with respect to the securities laws of the
State of Delaware) and (B) do not require any consent, approval,
license, authorization or validation of, or filing or
registration with, any Delaware legislative, administrative or
regulatory body under the laws or administrative regulations of
the State of Delaware (except that such counsel need express no
opinion with respect to the securities laws of the state of
Delaware); and
(x) Assuming that the Trust derives no income from or in
connection with sources within the State of Delaware and has no
assets, activities (other than maintaining the Delaware Trustee
and the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, the
holders of the Capital Securities (other than those holders of
Capital Securities who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the
State of Delaware solely as a result of their participation in
the Trust, and the Trust will not be liable for any income tax
imposed by the State of Delaware.
(j) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its Chief Financial Officer or
Controller stating that:
(i) The representations, warranties and agreements of the
Company and the Trust in Section 1 are true and correct as of the
Closing
21
Date; the Company and the Trust have complied with all their
agreements contained herein; and the conditions set forth in
paragraph (a) of this Section 7 have been fulfilled; and
(ii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective Dates,
and the Prospectus, as of each of the Effective Dates, did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and (B)
since the Effective Date of the Primary Registration Statement,
no event has occurred which should have been set forth in a
supplement or amendment to either of the Registration Statements
or the Prospectus.
(k) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus and (ii) since
such date there shall not have been any change in the capital stock or
long-term debt of the Company or GWL&A or any change, in or affecting
the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock or the claims paying or
financial strength rating accorded to GWL&A by any "nationally
recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock or the claims paying or financial
strength rating of GWL&A.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange Inc. or in the
over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on the New
York Stock Exchange or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction, (ii) a
22
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
(n) The New York Stock Exchange Inc. shall have approved the
Capital Securities for listing, subject only to official notice of
issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
23
8. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Securities),
to which that Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, either of the Registration Statements or the Prospectus,
or in any amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each Underwriter and each such
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Trust shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statements or the Prospectus, or in any such
amendment or supplement, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of such Underwriter specifically for inclusion
therein, which information consists solely of the information specified in
Section 8(e). The foregoing indemnity agreement is in addition to any liability
which the Company or the Trust may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Trust, their officers and employees, each of
their directors and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or the Trust or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, either of the Registration Statements or the Prospectus,
or in any amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company and the Trust through the Representatives
by or on behalf of that Underwriter specifically for inclusion therein ,and
shall reimburse the Company and the Trust and any such director, officer or
controlling
24
person for any legal or other expenses reasonably incurred by the Company or the
Trust or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company and the Trust or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and the
expense of such counsel shall be at the expense of such indemnified party unless
(i) the employment thereof has been specifically authorized by the indemnifying
party in writing, (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party and in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel, or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties, which firms shall be designated in writing by ▇▇▇▇▇▇ Brothers if the
indemnified parties under this Section consist of any Underwriter or any of
their respective officers, employees or controlling persons, or by the Company,
if the indemnified parties under this Section 8 consist of the Company or the
Trust or any of the Company's or the Trust's directors, officers, employees or
controlling persons. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or
25
action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Trust on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Trust on the one hand
and the Underwriters on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Trust on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by the Company and the Trust, on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares of the Securities purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the shares of the Securities
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Trust or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. For purposes of the preceding two sentences, the
net proceeds deemed to be received by the Company shall be deemed to be also for
the benefit of the Trust and information supplied by the Company shall also be
deemed to have been supplied by the Trust. The Company and the Trust and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), 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 was offered to the public exceeds the amount of any
damages which
26
such Underwriter has otherwise paid or become liable to pay by reason of any
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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Securities by the
Underwriters set forth on the cover page of, the legend on the inside front
cover page of and the concession and reallowance figures and the information in
the third and fifth through eighth textual paragraphs appearing under the
caption "Underwriting" in, the Prospectus constitute the only information
concerning such Underwriters furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the Registration Statements
and the Prospectus, and the Underwriters severally confirm that such statements
are correct.
9. Defaulting Underwriters.
If, on the Closing Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Capital Securities which the
defaulting Underwriter agreed but failed to purchase on the Closing Date in the
respective proportions which the Capital Securities set opposite the name of
each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total Capital Securities set opposite the names of all the remaining non-
defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Capital Securities on the Closing Date if the total Capital Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total Capital Securities to be purchased on the
Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the Capital Securities which it agreed
to purchase on the Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives and to the Company
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Capital Securities to
be purchased on the Closing Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives and to the Company do not elect
to purchase the Capital Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Closing Date, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company and the Trust. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases the Capital Securities which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Capital
Securities of a defaulting or withdrawing Underwriter, either the
Representatives, the Company or the Trust may postpone the Closing Date for up
to seven
27
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statements, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company and the Trust prior to delivery of and payment for the Capital
Securities if, prior to that time, any of the events described in Sections 7(k),
7(l) or 7(m) shall have occurred or if the Underwriters shall decline to
purchase the Capital Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (i) the Company or
the Trust shall fail to tender the Capital Securities for delivery to the
Underwriters for any reason permitted under this Agreement other than by reason
of a default by any of the Underwriters pursuant to Section 9 of this Agreement,
or if (iii) the Underwriters shall decline to purchase the Capital Securities
because any other condition pursuant to Section 7 of this Agreement of the
Underwriters' obligations hereunder required to be fulfilled by the Company and
the Trust is not fulfilled, the Company and the Trust shall reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Capital Securities, and upon demand the Company and the
Trust shall pay the full amount thereof to the Representatives.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇) with a copy, in the case of any notice
pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, ▇▇▇▇▇▇ Brothers Inc., Three World Financial ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
(b) if to the Company or to the Trust, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company
set forth in the Primary Registration Statement, Attention: ▇▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Trust shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the
28
Company and the Trust contained in this Agreement shall also be deemed to be for
the benefit of the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Securities Act and (B) the indemnity agreement
of the Underwriters contained in Section 8(b) of this Agreement shall be deemed
to be for the benefit of directors of the Company, officers of the Company who
have signed either of the Registration Statements and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Trust and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
29
If the foregoing correctly sets forth the agreement among the Company
and the Trust and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
GWL&A Financial Inc.
By ________________________________________
Name:
Title:
By ________________________________________
Name:
Title:
Great-West Life & Annuity Insurance Capital I
By ________________________________________
Name:
Title:
Accepted:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇▇▇ Brothers Inc.
By __________________________________
Attorney-In-Fact
30
SCHEDULE 1
Liquidation
Amount of
Capital
Underwriters Securities
------------ ----------
▇▇▇▇▇▇ Brothers Inc.................................$
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated..
PaineWebber Incorporated............................
Prudential Securities Incorporated..................
▇▇▇▇▇▇▇, Sachs & Co.................................
▇.▇. ▇▇▇▇▇▇ Securities Inc..........................
Total............................................$150,000,000
============
