Exhibit 1.2
$180,000,000
INFINITY PROPERTY AND CASUALTY CORPORATION
__% SENIOR NOTES DUE 2013
UNDERWRITING AGREEMENT
[Insert date]
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 10010-3629
Dear Sirs:
1. Introductory. Infinity Property and Casualty Corporation, a Ohio
corporation ("COMPANY"), proposes to issue and sell $180,000,000 principal
amount of its __% Senior Notes due 2013 ("OFFERED SECURITIES") to be issued
under an indenture, dated as of ("INDENTURE"), between the
Company and U.S. Bank National Association, as Trustee.
At or prior to the Effective Time (as defined below), the Company shall
(i) acquire all of the issued and outstanding capital stock of each of Atlanta
Casualty Company, Infinity Insurance Company, Leader Insurance Company and
Windsor Insurance Company, (ii) execute and deliver (or cause one or more of the
appropriate Company subsidiaries to execute and deliver) the agreements set
forth on Exhibit A hereto (the "INCEPTION AGREEMENTS") including without
limitation the Reinsurance Agreement between Windsor Insurance Company and Great
American Insurance Company and certain affiliates pursuant to which, among other
things, the Company's subsidiaries will reinsure certain personal lines property
and casualty insurance business written by Great American Insurance Company and
(iii) consummate or cause the consummation of the transactions contemplated by
the Inception Agreements. All of the foregoing are referred to collectively
herein as the "FORMATION." For all purposes of this Agreement, the subsidiaries
of the Company include Atlanta Casualty Company, Infinity Insurance Company,
Leader Insurance Company and Windsor Insurance Company.
American Premier Underwriters, Inc. (the "APU"), American Financial
Group, Inc. ("AFG") and the Company hereby agree with the Company and with the
several Underwriters named in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company, AFG and APU. The
Company, APU and AFG jointly and severally represent and warrant to, and agree
with, the several Underwriters that:
(i) A registration statement (No. 333-101516) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("Act") and is
not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(B)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the
Act or, in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "REGISTRATION STATEMENTS" and individually
as a "REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and in
accordance with
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Rule 424(b) ("RULE 424(B)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter referred
to as the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act, the Trust Indenture Act of 1939 ("TRUST INDENTURE ACT") and the
rules and regulations of the Commission ("RULES AND REGULATIONS") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
and (C) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and none of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(c) hereof. It is
further understood and agreed that a Registration Statement and Prospectus
may contain special purpose financial statements that present the assets
to be acquired, the liabilities to be assumed and the related underwriting
results of the personal lines agency business of Great American Insurance
Company as agreed to by the representatives of the Commission.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Ohio, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(iv) The Formation will not result in any tax liability to the
Company or any of its subsidiaries.
(v) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
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of its business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act that
have been validly waived or satisfied prior to the date hereof.
(ix) The Indenture has been duly authorized and, if the Effective
Time of a Registration Statement is prior to the execution and delivery of
this Agreement, has been or otherwise upon such Effective Time will be
duly qualified under the Trust Indenture Act with respect to the Offered
Securities registered thereby; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid for
pursuant to this Agreement on each Closing Date (as defined below), the
Indenture will have been duly executed and delivered, such Offered
Securities will have been duly executed, authenticated, issued and
delivered and will conform to the description thereof contained in the
Prospectus and the Indenture and such Offered Securities will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(x) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company, AFG or APU or any subsidiary of the
Company, AFG or APU for the consummation of the Formation or of the
transactions contemplated by this Agreement in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act and the Trust Indenture Act and
such as may be required under state insurance laws (all of which have been
obtained prior to the date hereof) and such as may be required under state
securities laws.
(xi) The execution, delivery and performance of the Indenture, the
Offered Securities, this Agreement and each of the Inception Agreements,
compliance with the terms and provisions hereof and thereof, and the
consummation of the transactions herein and therein contemplated and of
the Formation will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company, AFG or APU or
any subsidiary of the Company, AFG or APU or any of their respective
properties, or any agreement or instrument to which the Company, AFG or
APU or any such subsidiary is a party or by which the Company, AFG or
APUor any such subsidiary is bound or to which any of the respective
properties of the Company, AFG or APU or any such subsidiary is subject,
or the charter or by-laws (or similar corporate documents) of the Company,
AFG or APU or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
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(xii) Each Inception Agreement has been duly authorized, executed
and delivered by each of the parties thereto, is in full force and effect
and constitutes valid and legally binding obligations of the parties
thereto enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company, APU and AFG.
(xiv) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(xv) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated (or contemplated by
the Prospectus to be operated) by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(xvi) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xvii) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated (or contemplated by the
Prospectus to be operated) by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xix) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, AFG or APU
any of their respective subsidiaries or any of their respective properties
that, if determined adversely to the Company, AFG or APU or any of their
respective subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or
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would materially and adversely affect the ability of the Company, AFG and
APU to perform their respective obligations under the Indenture, the
Offered Securities, this Agreement or the ability of any party to any
Inception Agreement to perform its obligations thereunder, or which are
otherwise material in the context of the sale of the Offered Securities or
the Formation; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(xx) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus, such financial statements have been
prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis and the schedules included
in each Registration Statement present fairly the information required to
be stated therein; and the assumptions used in preparing the pro forma
financial statements included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(xxi) Except as disclosed in the Prospectus, since December 31, 2001
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(xxii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxiii) Each subsidiary of the Company which is engaged in the
business of insurance or reinsurance (collectively, the "INSURANCE
SUBSIDIARIES") holds such insurance licenses, certificates and permits
from governmental authorities (including, without limitation, from the
insurance regulatory agencies of the various jurisdictions where it
conducts business (the "INSURANCE LICENSES")) as are necessary to the
conduct of its business as described in the Prospectus; the Company and
each Insurance Subsidiary have fulfilled and performed all obligations
necessary to maintain the Insurance Licenses; except as disclosed in the
Prospectus, there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or investigation that could reasonably
be expected to result in the revocation, termination or suspension of any
Insurance License which would, individually or in the aggregate, have a
Material Adverse Effect; 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 Subsidiary to its
parent.
(xxiv) Except as disclosed in the Prospectus, the Company and its
Insurance Subsidiaries have made no material change in their insurance
reserving practices since December 31, 2001.
(xxv) All reinsurance treaties and arrangements to which any
Insurance Subsidiary is a party are in full force and effect and no
Insurance Subsidiary is in violation of, or in default in the performance,
observance or fulfillment of, any obligation, agreement, covenant or
condition contained therein; no Insurance Subsidiary has received any
notice from any of the other parties to such treaties, contracts or
agreements that such other party intends not to perform such treaty and,
to the best knowledge of the Company, AFG and the Insurance Subsidiaries,
the Company and the
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Insurance Subsidiaries have no reason to believe that any of the other
parties to such treaties or arrangements will be unable to perform such
treaty or arrangement except to the extent adequately and properly
reserved for in the audited historical financial statements of the Company
included in the Prospectus, except where such default or inability to
perform would not, individually or in the aggregate, have a Material
Adverse Effect.
(xxvi) The statutory financial statements of the Insurance
Subsidiaries, from which certain ratios and other statistical data
included in the Registration Statement and the Prospectus have been
derived, have been prepared for each relevant period in conformity with
statutory accounting principles or practices required or permitted by the
National Association of Insurance Commissioners and by the appropriate
Insurance Department of the jurisdiction of domicile of each Insurance
Subsidiary, and such statutory accounting practices have been applied on a
consistent basis throughout the periods involved, except as may otherwise
be indicated therein or in the notes thereto, and present fairly in all
material respects the statutory financial position of the Insurance
Subsidiaries as of the dates thereof, and the statutory basis results of
operations of the Insurance Subsidiaries for the periods covered thereby.
(xxvii) AFG's reporting of financial information about its operating
segments in its audited financial statements for the year ended December
31, 2001 and its unaudited financial statements for the nine months ended
September 30, 2002 complies with the Financial Accounting Standards
Board's Statement of Financial Accounting Standards No. 131.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of % of the principal amount thereof plus
accrued interest from to the First Closing Date (as hereinafter
defined), the respective principal amounts of Offered Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "FIRM GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Offered Securities
shall be made by the Underwriters in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to Credit
Suisse First Boston LLC ("CSFB") drawn to the order of the Company at the office
of Xxxxx Xxxxxxxxxx LLP, New York, New York at 10:00 A.M., New York time, on
, or at such other time not later than seven full business days
thereafter as CSFB and the Company determine, such time being herein referred to
as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery to the Trustee as custodian for DTC of the Firm Global Securities
representing all the Offered Securities sold pursuant to the offering. The Firm
Global Securities will be made available for checking at the office of Xxxxx
Xxxxxxxxxx LLP at least 24 hours prior to the First Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFB,
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subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred
as of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFB.
(b) The Company will advise CSFB promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFB's consent; and the
Company will also advise CSFB promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs 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
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFB of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFB's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (three of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFB requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the
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later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents shall
be so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as CSFB designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFB designates and the printing of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Offered Securities, for the filing fee
incident to the review by the National Association of Securities Dealers,
Inc. of the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in connection
with attending or hosting meetings with prospective purchasers of the
Offered Securities, for any transfer taxes on the sale of the Offered
Securities to the Underwriters and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters. Notwithstanding the foregoing,
the Company and the Underwriters agree to split, on a 50/50 basis, the
cost of any private aviation used in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities.
(h) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission
a registration statement under the Act relating to debt securities issued
or guaranteed by the Company and having a maturity of more than one year
from the date of issue, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior written
consent of CSFB for a period beginning at the date of this Agreement and
ending at the later of the Closing Date or the lifting of trading
restrictions by the Representatives.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities on
the First Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company, AFG and APU herein, to the accuracy
of the statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company, AFG and APU of their obligations hereunder and
to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Xxxxx & Young LLP in
the form set out as Exhibit B to this Agreement:
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFB. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time the
Prospectus is
9
printed and distributed to any Underwriter, or shall have occurred at such
later date as shall have been consented to by CSFB. If the Effective Time
of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a)
of this Agreement. Prior to such Closing Date, no stop order suspending
the effectiveness of a Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of AFG, APU, the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including the Representatives, would be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of
dealings in the secondary market of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities or preferred stock of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or downgrading in the insurance claims paying
ability rating of any Insurance Subsidiary by A.M. Best Company or any
public announcement that any such organization has under surveillance or
review such rating (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Underwriters including the Representatives, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or clearance services in the
United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States or any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, such attack, outbreak,
escalation, act, declaration, calamity or emergency would be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities whether in the primary market or in
respect of dealings in the secondary market.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L., counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Ohio,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification;
(ii) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and each subsidiary of the Company
is duly qualified to do
10
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the
issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned
free from liens, encumbrances and defects;
(iii) The Formation will not result in any tax liability to
the Company or any of its subsidiaries;
(iv) The Indenture has been duly authorized, executed and
delivered and has been duly qualified under the Trust Indenture Act;
the Offered Securities delivered on such Closing Date have been duly
authorized, executed, authenticated, issued and delivered and
conform to the description thereof contained in the Prospectus; and
the Indenture and the Offered Securities delivered on such Closing
Date constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(v) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act that have
not been validly waived or satisfied prior to the date hereof;
(vi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(vii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company, AFG or APU or any
subsidiary of the Company, AFG or APU for the consummation of the
Formation or of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under
state insurance laws (all of which have been obtained prior to the
date hereof) and under state securities laws;
(viii) The execution, delivery and performance of the
Indenture, the Offered Securities, this Agreement and each of the
Inception Agreements, compliance with the terms and provisions
hereof and thereof, and the consummation of the transactions herein
and therein contemplated and of the Formation will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company, AFG or APU or any subsidiary of the
Company, AFG or APU or any of their respective properties, or any
agreement or instrument to which the Company, AFG or APU or any such
subsidiary is a party or by which the Company, AFG or APU or any
such subsidiary is bound or to which any of the respective
properties of the Company, AFG or
11
APU or any such subsidiary is subject, or the charter or by-laws (or
similar corporate documents) of the Company, AFG or APU or any such
subsidiary;
(ix) Except as disclosed in the Prospectus, to the knowledge
of such counsel, there are no pending actions, suits or proceedings
against or affecting the Company, AFG or APU any of their respective
subsidiaries or any of their respective properties that, if
determined adversely to the Company, AFG or APU or any of their
respective subsidiaries, would individually or in the aggregate have
a Material Adverse Effect, or would materially and adversely affect
the ability of the Company, AFG and APU to perform their respective
obligations under the Indenture, the Offered Securities or this
Agreement or the ability of any party to any Inception Agreement to
perform its obligations thereunder, or which are otherwise material
in the context of the sale of the Offered Securities or the
Formation; and to the knowledge of such counsel, no such actions,
suits or proceedings are threatened or contemplated;
(x) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such Closing
Date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its issue
date or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statements and Prospectus of
statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required
to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in a Registration
Statement or the Prospectus which are not described as required or
of any contracts or documents of a character required to be
described in a Registration Statement or the Prospectus or to be
filed as exhibits to a Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statements or the
Prospectus; and
(xi) Each Inception Agreement has been duly authorized,
executed and delivered by each of the parties thereto, is in full
force and effect and constitutes valid and legally binding
obligations of the parties thereto enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
12
(xii) This Agreement has been duly authorized, executed and
delivered by the Company, APU and AFG.
(xiii) To the knowledge of such counsel (after reasonable
investigation), each Insurance Subsidiary holds such insurance
licenses, certificates and permits from governmental authorities
(including, without limitation, Insurance Licenses) as are necessary
to the conduct of its business as described in the Prospectus; to
the knowledge of such counsel, there is no pending or threatened
action, suit, proceeding or investigation that could reasonably be
expected to result in the revocation, termination or suspension of
any Insurance License which would have a Material Adverse Effect;
and except as disclosed in the Prospectus, to the knowledge of such
counsel, no insurance regulatory agency or body has issued, or
commenced any proceeding for the issuance of, any order or decree
impairing, restricting or prohibiting the payment of dividends by
any Insurance Subsidiary to its parent;
(xiv) To the knowledge of such counsel, all reinsurance
treaties and arrangements to which any Insurance Subsidiary is a
party are in full force and effect and such counsel is not aware of
any violation of, or default in the performance, observance or
fulfillment of, any obligation, agreement, covenant or condition
contained therein by any Insurance Subsidiary; and
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 Ohio and has relied on certificates
of Xxxxx X. Xxxxxxx, Esq., Vice President, Deputy General Counsel and
Secretary of AFG and Xxx Xxxxx, Esq. of Great American Insurance Company,
as to certain factual matters attached to such opinion. Such opinion shall
state that Xxxxx Xxxxxxxxxx LLP may rely upon such opinion as to matters
of Ohio law in rendering its opinion pursuant to Section 6(e) hereof.
(e) The Representatives shall have received from Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and APU, AFG 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,
Xxxxx Xxxxxxxxxx LLP may rely as to the incorporation of the Company and
all other matters governed by Ohio law upon the opinion of Xxxxxxx,
Xxxxxxxx & Xxxxxxx, P.L.L. referred to above.
(f) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any underwriter; and, subsequent
to December 31, 2001, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
13
(g) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of APU in which such officers, to the best
of their knowledge after reasonable investigation, shall state that: the
representations and warranties of APU in this Agreement are true and
correct and APU has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date;
(h) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of AFG in which such officers, to the best
of their knowledge after reasonable investigation, shall state that: the
representations and warranties of AFG in this Agreement are true and
correct and AFG has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date;
(i) The Representatives shall have received a letter, dated such
Closing Date, from Xxxxx & Young LLP bringing down the letter from Xxxxx &
Young LLP provided to the Representatives pursuant to Section 6(a) to a
date not more than 3 days prior to such Closing Date, in a form reasonably
acceptable to the Representatives and their counsel.
(j) The Formation (including without limitation the execution and
delivery of all Inception Agreements by all parties thereto) shall have
been consummated as provided in the Prospectus in a manner acceptable to
CSFB.
(k) The offering and sale of the common stock of the Company by the
Selling Shareholder shall have been consummated in a manner acceptable to
CSFB.
APU, AFG and the Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
(b) APU and AFG will jointly and severally indemnify and hold harmless
each Underwriter, its partners, directors and officers and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
14
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that APU
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by an Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, AFG and APU
against any losses, claims, damages or liabilities to which the Company, AFG or
APU may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company, [AFG] and APU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in
the third paragraph under the caption "Underwriting" and the information
contained in the sixth paragraph and the first sentence of the ninth paragraph
and the tenth paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities
15
referred to in subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, AFG and
APU 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, AFG and APU on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company, AFG and APU on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, AFG, APU or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company, AFG and APU under this Section
shall be in addition to any liability which the Company, AFG and APU may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date, CSFB may make arrangements reasonably
satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFB and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
16
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
APU, AFG, the Company and their officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of APU, AFG, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company, AFG, APU and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), (v), (vi) or (vii) of Section 6(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representatives c/o Credit Suisse First Boston LLC, Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000, Attention: Transactions Advisory Group (fax: (212)
000-0000), or, if sent to the Company, will be mailed, delivered or faxed and
confirmed to it at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 Attention:
Xxxxx X. Xxxxx, Chief Executive Officer and President (fax: (000) 000-0000), or,
if sent to APU, will be mailed, delivered or faxed and confirmed to at, or, if
sent to AFG, will be mailed, delivered or faxed and confirmed to Xxxxx X.
Xxxxxx, Senior Vice President at, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000
(fax: (000) 000-0000); provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or faxed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFB will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
17
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among APU, AFG
the Company and the several Underwriters in accordance with its terms.
Very truly yours,
------------------------------------------
INFINITY PROPERTY AND CASUALTY CORPORATION
By
--------------------------
Name:
Title:
AMERICAN PREMIER UNDERWRITERS, INC.
By
--------------------------
Name:
Title:
AMERICAN FINANCIAL GROUP, INC.
By
--------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
Acting on behalf of themselves and as the
Representatives of the several
Under-writers.
By CREDIT SUISSE FIRST BOSTON LLC
By
----------------------
Name:
Title:
18
SCHEDULE A
PRINCIPAL
AMOUNT OF
UNDERWRITER OFFERED SECURITIES
----------- ------------------
Credit Suisse First Boston LLC......................... [$]
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Banc of America Securities LLC
Bear, Xxxxxxx & Co. Inc.
------------
Total.................................. $180,000,000
============
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