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EXHIBIT 1.1
__________ SHARES
THE PHOENIX COMPANIES, INC.
COMMON STOCK, $0.01 PAR VALUE
FORM OF
UNDERWRITING AGREEMENT
_____________, 2001
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_____________, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Bear Xxxxxxx & Co., Inc.
Deutsche Banc Alex. Xxxxx Inc.
UBS Warburg LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The Phoenix Companies, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "UNDERWRITERS") [ ] shares of its common stock,
$0.01 par value (the "FIRM SHARES"). The Company also proposes to issue and sell
to the several Underwriters not more than an additional [ ] shares of its
common stock, $0.01 par value (the "ADDITIONAL SHARES"), if and to the extent
that you, as co-lead managers of the offering, shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter collectively referred to as the
"SHARES." The shares of common stock, $0.01 par value, of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK."
The Shares are being issued in connection with the
reorganization (the "DEMUTUALIZATION") of Phoenix Home Life Mutual Insurance
Company, a New York mutual life insurance company ("PHOENIX LIFE"), into a stock
life insurance company pursuant to Phoenix Life 's Plan of Reorganization, as
adopted by the Board of Directors of Phoenix Life on December 18, 2000 and
amended and restated on January 26, 2001 (the "PLAN"), in accordance with the
requirements of Section 7312 of the New York Insurance Law ("SECTION 7312").
Upon consummation of the Demutualization, Phoenix Life will become a direct
wholly owned subsidiary of the Company. (When referring to time periods from and
after the effectiveness of the Demutualization, "Phoenix Life" means Phoenix
Life Insurance Company.) Pursuant to the Plan, the Company plans to issue in the
Demutualization shares of stock (the "POLICYHOLDER SHARES," together with the
Shares, collectively, the "TRANSACTION SHARES") or, in lieu thereof, cash or
Policy Credits (as defined in the Plan) to Eligible Policyholders (as defined in
the Plan) in exchange for the respective Policyholders' Membership Interests (as
defined in the Plan).
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (File No. 333-55268),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including
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the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT"; the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "PROSPECTUS." If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT"
shall be deemed to include such Rule 462 Registration Statement.
1 Representations and Warranties. The Company and Phoenix
Life, jointly and severally, represent and warrant to and agree with each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's or Phoenix Life's knowledge, threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on Phoenix Life and its subsidiaries,
including the Company prior to the Demutualization, and the Company and
its subsidiaries, including Phoenix Life upon completion of the
Demutualization, in each case taken as a whole (collectively, the
"PHOENIX ENTERPRISE").
(d) Each of Phoenix Life and the subsidiaries listed on Annex
A hereto (the "SIGNIFICANT SUBSIDIARIES") has been duly incorporated or
organized, as the case may be, is validly existing as a corporation or
mutual life insurance company, as the case may be, in good standing
under the laws of the jurisdiction of its incorporation or
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organization, as the case may be, and upon the Plan Effective Date (as
defined in the Plan), Phoenix Life will be duly organized and validly
existing as a stock life insurance company in good standing under the
laws of the State of New York. Each Significant Subsidiary has the
power, corporate and other, and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Phoenix Enterprise; all of the
issued shares of capital stock of each Significant Subsidiary and of
Phoenix Life have been duly and validly authorized and issued, are
fully paid and non-assessable and, in the percentages set forth on
Annex A hereto, are owned directly or indirectly by Phoenix Life, free
and clear of all liens, encumbrances, equitable claims or other adverse
claims. Upon the effectiveness of the Plan, (i) Phoenix Life will have
an authorized capitalization of 10,000 shares, each of which will be
duly and validly authorized and issued to the Company on the Plan
Effective Date and fully paid and nonassessable and (ii) the issued
shares of capital stock of each other Significant Subsidiary will be
owned in the percentages set forth on Annex A, directly or indirectly,
by the Company, free and clear of all liens, encumbrances, equitable
claims or other adverse claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and by Phoenix Life.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares to be issued and sold by the Company to the
Underwriters hereunder and the Policyholder Shares have been duly and
validly authorized; when the Shares are issued and delivered against
payment therefor as provided herein, and the Policyholder Shares are
issued and delivered to Eligible Members in exchange for their
Membership Interests pursuant to the Plan, the Transaction Shares will
be duly and validly issued and fully paid and non-assessable; and the
issuance of the Transaction Shares is not subject to any preemptive or
other similar rights.
(i) The adoption by Phoenix Life of, and the performance by
the Company and Phoenix Life of their respective obligations under, the
Plan will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company and Phoenix Life
or any agreement or other instrument binding upon the Company, Phoenix
Life or any of the Significant Subsidiaries, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company, Phoenix Life or any of the Significant Subsidiaries,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by the Company or by Phoenix Life of their respective obligations under
the Plan, except such as have been obtained under state insurance laws
and except where the
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failure to obtain such consents, approvals, authorizations, orders or
qualifications would not, singly or in the aggregate, have a material
adverse effect on the Phoenix Enterprise.
(j) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) the
Company, Phoenix Life and the Significant Subsidiaries have not
incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction not in the ordinary course of
business; (ii) each of the Company, Phoenix Life and the Significant
Subsidiaries has not purchased any of its outstanding capital stock,
nor declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock other than ordinary and customary
dividends; and (iii) there has not been any material change in (A) the
short-term debt or long-term debt of the Company, Phoenix Life and the
Significant Subsidiaries considered as a whole or (B) the capital stock
of the Company, Phoenix Life and the Significant Subsidiaries, except
in each of cases (i), (ii) and (iii) as described in the Prospectus.
(k) The Company, Phoenix Life and their respective
subsidiaries have good and valid title in fee simple to all real
property and good and valid title to all personal property owned by
them which is material to, and used in the conduct of, the business of
the Phoenix Enterprise, in each case free and clear of all liens,
encumbrances and defects except (i) such as are described in the
Prospectus, (ii) leases entered into in the ordinary course of business
or (iii) such as do not materially affect the value of such property
and do not materially interfere with the use made and currently
proposed to be made of such property by the Company, Phoenix Life and
their respective subsidiaries; and any real property and buildings that
are material to the business of the Phoenix Enterprise held under lease
by the Company, Phoenix Life and their respective subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company,
Phoenix Life and their respective subsidiaries, in each case except as
described in the Prospectus.
(l) The Company, Phoenix Life and their respective
subsidiaries own or possess, or have the ability to acquire, all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed by them in
connection with the business now operated by them, except where the
failure to own, possess or have the ability to acquire such patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names would not, singly or in the aggregate, have a
material adverse effect on the Phoenix Enterprise, and none of the
Company, Phoenix nor any of their respective subsidiaries has received
any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse affect on the Phoenix
Enterprise.
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(m) No material labor dispute with the employees of the
Company, Phoenix Life or any of their respective subsidiaries exists,
except as described in the Prospectus, or, to the knowledge of the
Company, is imminent.
(n) The Company, Phoenix Life and each of their respective
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(o) The execution and delivery by the Company and Phoenix Life
of, and the performance by the Company and Phoenix Life of their
respective obligations under, this Agreement will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company and Phoenix Life or any agreement or other
instrument binding upon the Company, Phoenix Life or any of the
Significant Subsidiaries that is material to the Phoenix Enterprise or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company, Phoenix Life or any of the
Significant Subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company or by Phoenix Life of their
respective obligations under this Agreement, except such as have been
obtained under the Federal securities laws or state insurance laws or
may be required by the securities or Blue Sky laws of the various
States or any foreign jurisdictions in connection with the offer and
sale of the Shares.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Phoenix Enterprise from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(q) There are no legal or governmental proceedings pending or,
to the knowledge of the Company or Phoenix Life, threatened to which
the Company, Phoenix Life or any of their respective subsidiaries is a
party or to which any of the properties of the Company, Phoenix Life or
any of their respective subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(r) Each of the preliminary prospectuses filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
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(s) None of the Company, Phoenix Life or any of their
subsidiaries is and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(t) Each subsidiary of the Company and Phoenix Life which is
engaged in the business of acting as a broker-dealer or an investment
advisor (respectively, a "BROKER-DEALER SUBSIDIARY" and "INVESTMENT
ADVISOR SUBSIDIARY") is duly licensed or registered as a broker-dealer
or investment advisor, as the case may be, in each jurisdiction where
it is required to be so licensed or registered to conduct its business,
in each case, with such exceptions as would not have, individually or
in the aggregate, a material adverse effect on the Phoenix Enterprise;
each Broker-Dealer Subsidiary and each Investment Advisor Subsidiary
has all other necessary approvals of and from all applicable regulatory
authorities, including any self-regulatory organization, to conduct its
businesses, in each case with such exceptions, as would not have,
individually or in the aggregate, a material adverse effect on the
Phoenix Enterprise; except as otherwise provided in the Prospectus,
none of the Broker-Dealer Subsidiaries or Investment Advisor
Subsidiaries has received any notification from any applicable
regulatory authority to the effect that any additional approvals from
such regulatory authority are needed to be obtained by such subsidiary
in any case where it could be reasonably expected that (i) any of the
Broker-Dealer Subsidiaries or Investment Advisor Subsidiaries would in
fact be required either to obtain any such additional approvals or
cease or otherwise limit engaging in certain business and (ii) the
failure to have such approvals or limiting such business would have a
material adverse effect on the Phoenix Enterprise; and each
Broker-Dealer Subsidiary and each Investment Advisor Subsidiary is in
compliance with the requirements of the broker-dealer and investment
advisor laws and regulations of each jurisdiction which are applicable
to such Subsidiary, and has filed all notices, reports, documents or
other information required to be filed thereunder, in each case with
such exceptions as would not have, individually or in the aggregate, a
material aggregate effect on the Phoenix Enterprise.
(u) The Company, Phoenix Life and their respective
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Phoenix Enterprise.
(v) Other than with respect to the Company's Directors Stock
Plan, the Company's Stock Incentive Plan and any tax-qualified defined
contribution pension or savings plans, there are no contracts,
agreements or understandings between the
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Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(w) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(x) The offering, issuance and delivery of the Policyholder
Shares to Eligible Members in exchange for their Membership Interests
pursuant to the Plan are exempt from the registration requirements of
the Act.
(y) In connection with the Demutualization, the Company has
made all required filings under applicable insurance holding company
statutes, and has received approvals of, or exemptions in respect of,
acquisition of control and/or affiliate transactions in each
jurisdiction in which such filings, approvals or exemptions are
required, except where the failure to have made such filings or receive
such approvals or exemptions in any such jurisdiction would not, singly
or in the aggregate, have a material adverse effect on the Phoenix
Enterprise; each of the Company, Phoenix Life and their respective
subsidiaries has all necessary consents, licenses, authorizations,
approvals, exemptions, orders, certificates and permits (collectively,
the "CONSENTS") of and from, and has made all filings and declarations
(collectively, the "FILINGS") with, all insurance regulatory
authorities, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, necessary to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except where the failure to have such Consents or to make
such Filings would not, individually or in the aggregate, have a
material adverse effect on the Phoenix Enterprise; all such Consents
and Filings are in full force and effect, the Company, Phoenix Life and
their respective subsidiaries are in compliance with such Consents and
neither the Company nor Phoenix Life nor any of their respective
subsidiaries has received any notice of any inquiry, investigation or
proceeding that would reasonably be expected to result in the
suspension, revocation or limitation of any such Consent or otherwise
impose any limitation on the conduct of the business of the Company,
Phoenix Life or any of their respective subsidiaries, except as set
forth in the Prospectus or any such failure to be in full force and
effect, failure to be in compliance with, suspension, revocation or
limitation which would not, singly or in the aggregate, have a material
adverse effect on the Phoenix Enterprise; and Phoenix Life is in
compliance with, and conducts its businesses in conformity with, all
applicable insurance laws and regulations, except where the failure to
so comply or conform would not have a material adverse effect on the
Phoenix Enterprise.
(z) The Plan has been duly adopted by the required vote of the
Board of Directors of Phoenix Life (which adoption complied with the
applicable requirements of Section 7312), has been submitted to the
Superintendent of Insurance of the State of New York (the
"SUPERINTENDENT") in the manner and accompanied by all information
required by Section 7312 and conforms in all material respects to the
requirements of the
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laws of the State of New York applicable to the reorganization of a
mutual life insurance company into a stock life insurance company and
any applicable published rules or regulations of the Superintendent in
respect thereof (collectively, the "NEW YORK REORGANIZATION LAWS"); on
March 19, 2001, the Superintendent held a public hearing in accordance
with the requirements of Section 7312, with regard to which Phoenix
Life published such notice as was required to be published by a
reorganizing insurer by the New York Reorganization Laws, for the
purpose of receiving comment on whether the Superintendent should
approve the Plan; the Plan was duly approved by a vote concluding April
2, 2001 of more than two-thirds of the votes validly cast by Eligible
Policyholders in accordance with Section 7312 and such approval has not
been rescinded or otherwise withdrawn; on [____ ___], 2001 the
Superintendent issued an order (subject to appeal) approving the Plan
in accordance with the requirements of Section 7312 (the
"SUPERINTENDENT'S ORDER"); on the Effective Date, the Plan will become
effective in accordance with its terms pursuant to Section 7312, and
all aspects of the Demutualization to have been completed on or prior
to the Effective Date will have been completed in accordance with the
Plan and the New York Reorganization Laws; and prior to or
contemporaneously with the Closing Date (as defined in Section 4) each
of the actions required to occur and conditions required to be
satisfied on or prior to the Effective Date pursuant to the
Superintendent's Order or the Plan will have occurred or have been
satisfied;
(aa) Other than as described or contemplated in the
Prospectus, no legal or governmental proceeding is pending or, to the
knowledge of the Company or Phoenix Life, is currently being threatened
challenging the Plan or the consummation of the transactions
contemplated thereby or the offering of the Shares by the Underwriters.
(bb) The policyholder information booklet mailed to
policyholders (the "POLICYHOLDER INFORMATION BOOKLET"), as of its date
and as of the date of the vote of the Eligible Policyholders did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(cc) The Transaction Shares have been approved for listing on
the New York Stock Exchange, Inc. (the "EXCHANGE"), subject to notice
of issuance, and, at the Closing Date and the Option Closing Date (as
defined in Section 4) hereunder, the Transaction Shares issued at or
prior to the time of delivery on such closing date will be listed
thereon.
2 Agreements to Sell and Purchase. The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $________ a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Shares, and the Underwriters shall
have a one-time right to purchase, severally and
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not jointly, up to [______________] Additional Shares at the Purchase Price. If
you, on behalf of the Underwriters, elect to exercise such option, you shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
Each of the Company and Phoenix Life hereby agrees that,
without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf
of the Underwriters, it will not, during the period ending 180 days after the
date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B)
the issuance by the Company of shares of Common Stock upon the exercise of an
option or a warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing, (C) the
distribution of Policyholder Shares to or for the benefit of Eligible Members,
(D) shares of Common Stock issued, purchased or sold pursuant to (i) the
Company's Directors Stock Plan, (ii) the Company's Stock Incentive Plan or (iii)
any tax-qualified defined contribution pension or savings plans implemented by
the Company and (E) shares of Common Stock issued by the Company as
consideration in a merger, acquisition or other business combination
transaction; provided, however, with respect to clause (E), that any recipient
of such shares that is (1) an officer, (2) a director or (3) a holder (other
than a holder described in Section (b)(1)(ii) of Exchange Act Rule 13d-1) of ten
percent or more of any class of equity securities of the counterpart company in
any such acquisition, merger or business combination agrees in writing to be
bound by the restrictions set forth in this paragraph.
3 Terms of Public Offering. The Company and Phoenix Life are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable. The
Company and Phoenix Life are further advised by you that the Shares are to be
offered to the public initially at $_________ a share (the "PUBLIC OFFERING
PRICE") and to certain dealers selected by you at a price that represents a
concession not in excess of $___________ a share under the Public Offering
Price, and that any Underwriter may allow, and such dealers may reallow, a
concession, not in excess of $______ a share, to any Underwriter or to certain
other dealers.
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4 Payment and Delivery. Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available in New York
City, at the following account: Chase Manhattan Bank, New York, NY, ABA
201000021, Account: The Phoenix Companies, Inc., Account No.: 323897266; against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on __________, 2001, or at such
other time on the same or such other date, not later than _________, 2001, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Company
in Federal or other funds immediately available in New York City at the account
set forth in the preceding paragraph against delivery of such Additional Shares
for the respective accounts of the several Underwriters at 10:00 a.m., New York
City time, on the date specified in the notice described in Section 2 or at such
other time on the same or on such other date, in any event not later than
________, 2001, as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5 Conditions to the Underwriters' Obligations. The obligations
of the Company to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than [________] (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Phoenix Enterprise from that set forth in
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the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse to the Phoenix
Enterprise and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company and Phoenix Life have complied with all of the
agreements and satisfied all of the conditions on their part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Debevoise & Xxxxxxxx, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus;
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iii) the shares of Common Stock outstanding prior to
the issuance of the Shares have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) the Shares to be issued and sold by the Company
to the Underwriters hereunder and the Policyholder Shares have
been duly authorized; when the Shares are issued and delivered
against payment therefor as provided herein, and the
Policyholder Shares are issued and delivered to Eligible
Members in exchange for their Membership Interests pursuant to
the Plan, the Transaction Shares will be validly issued and
fully paid and non-assessable; and the issuance of the
Transaction Shares is not subject to any preemptive or, to
such counsel's knowledge, other similar rights;
(v) this Agreement has been duly authorized, executed
and delivered by the Company and by Phoenix Life;
(vi) the execution and delivery by the Company and
Phoenix Life of, and the performance by the Company and
Phoenix Life of their respective obligations under, this
Agreement will not contravene any provision of New York or
Federal law or of the General Corporation Law of the State of
Delaware or the
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Restated Certificate of Incorporation or by-laws of the
Company or, to such counsel's knowledge, (A) any agreement or
other instrument filed as an exhibit to the Registration
Statement or (B) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company, Phoenix Life or any of their respective
subsidiaries, and no consent, approval, authorization or order
of, or qualification with, any United States, Delaware (but
only to the extent such would be required by the General
Corporation Law of the State of Delaware) or New York
governmental body or agency is required for the performance by
the Company or by Phoenix Life of their respective obligations
under this Agreement, except such as have been obtained under
the Federal securities laws and such as may be required by the
securities, insurance or Blue Sky laws of the various States
or any foreign jurisdiction in connection with the offer and
sale of the Shares by the Underwriters;
(vii) the statements (A) in the Prospectus under the
captions "The Demutualization," "Regulation," "Description of
Capital Stock," and "Underwriters" (with respect solely to the
description of this Agreement contained therein) and (B) in
the Registration Statement in Items 14 and 15, in each case
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(viii) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be,
required to register as an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
(ix) the offering, issuance and delivery of the
Policyholder Shares to Eligible Policyholders in Exchange for
their Policyholders' Membership Interests pursuant to the Plan
are exempt from the registration requirements of the
Securities Act;
(x) in connection with the Demutualization, the
Company and Phoenix Life have made all required filings under
applicable insurance holding company statutes, and have
received approvals of, or exemptions in respect of,
acquisition of control and/or affiliate transactions in each
jurisdiction in which such filings or approvals are required,
except where the failure to have made such filings or receive
such approvals in any such jurisdiction would not, singly or
in the aggregate, have a material adverse effect on the
Phoenix Enterprise;
(xi) other than as described or contemplated in the
Prospectus, to the knowledge of such counsel, no legal or
governmental proceeding is pending or is currently being
threatened challenging the Plan or the consummation of the
transactions contemplated thereby or the offering of the
Shares by the Underwriters;
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(xii) the Transaction Shares have been approved for
listing on the Exchange, subject to notice of issuance, and,
at the Closing Date and the Optional Closing Date, the
Transaction Shares issued at or prior to the time of delivery
on such closing date will be listed thereon;
(xiii) in accordance with New York law, the Plan has
been duly adopted by the required vote of the Board of
Directors of Phoenix Life and all necessary approvals for the
Plan to become effective have been duly obtained from Eligible
Policyholders and the Superintendent of Insurance of the State
of New York, all such approvals are in full force and effect
and no other approvals are required to be obtained under New
York law for the effectiveness of the Plan; and
(xiv) the Registration Statement and Prospectus
(except for financial statements and notes thereto and
schedules and other financial and statistical data and
supporting schedules included therein or omitted therefrom, as
to which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder.
Such counsel shall also state that, although it has not itself
checked the accuracy and completeness of, or otherwise verified, and is
not passing upon and assumes no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement
or the Prospectus, except to the limited extent stated in paragraph
(vii) above, in the course of its review and discussion of the contents
of the Registration Statement and the Prospectus with certain officers
and employees of the Company, Phoenix Life and their independent
accountants, but without independent check or verification, no facts
have come to its attention which cause such counsel to believe that the
Registration Statement (other than the financial statements and notes
thereto, other financial and statistical data and supporting schedules
contained therein or omitted therefrom, as to which such counsel need
express no belief), 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
contained therein not misleading, or that the Prospectus (other than
the financial statements and notes thereto, other financial and
statistical data and supporting schedules contained therein or omitted
therefrom, as to which such counsel need express no belief), as of its
date and as of the date of such counsel's opinion, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx X. Xxxx, Senior Vice President and General Counsel
of the Company, dated the Closing Date, to the effect that:
(i) each Significant Subsidiary has been duly
incorporated or organized, as the case may be, and is validly
existing as a corporation or mutual life insurance company, as
the case may be, under the laws of the jurisdiction of its
incorporation, or organization, as the case may be; and each
other subsidiary of
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the Company and, until immediately prior to the Plan Effective
Date, Phoenix Life, has been duly incorporated or organized,
as the case may be, and is validly existing as a corporation
or mutual life insurance company, as the case may be, under
the laws of the jurisdiction of its incorporation or
organization, as the case may be, except to the extent that
the failure to be so incorporated, organized or existing or in
good standing would not, singly or in the aggregate, have a
material adverse effect on the Phoenix Enterprise;
(ii) each of the Company and its subsidiaries
(including Phoenix Life) has the power, corporate and other,
and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not, singly or in the aggregate, have a
material adverse effect on the Phoenix Enterprise;
(iii) all of the issued shares of capital stock of
each Significant Subsidiary and of Phoenix Life, in the
percentages set forth on Annex A hereto have been duly and
validly authorized and issued, are fully paid and
non-assessable and, in the percentages set forth on Annex A
hereto, are owned directly or indirectly by Phoenix Life, free
and clear of all liens, encumbrances, equitable claims or
other adverse claims;
(iv) the Company, Phoenix Life and their respective
subsidiaries (A) are in compliance with any and all applicable
Environmental Laws, (B) have received all permits, licenses or
other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(C) are in compliance with all terms and conditions of any
such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
material adverse effect on the Phoenix Enterprise;
(v) upon the Effective Date, Phoenix Life will be
duly organized and validly existing as a stock life insurance
company, in good standing under the laws of the State of New
York;
(vi) each of the Company, Phoenix Life and their
respective subsidiaries has all necessary consents of and
from, and has made all filings with, all insurance regulatory
authorities, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts
and other tribunals, necessary to own, lease, license and use
its properties and assets and to conduct its business in the
manner described in the Prospectus, except where the failure
to have such consents or to make such filings would not,
singly or in the aggregate, have a material adverse effect on
the Phoenix Enterprise; all such consents and filings are in
full force and effect, the Company, Phoenix Life and
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their respective subsidiaries are in compliance with such
consents and neither the Company nor Phoenix Life nor any of
their respective subsidiaries has received any notice of any
inquiry, investigation or proceeding that would reasonable be
expected to result in the suspension, revocation or limitation
of any such consent or otherwise impose any limitation on the
conduct of the business of the Company, Phoenix Life or any
such subsidiary, except as set forth in the Prospectus or any
such failure to be in compliance with, suspension, revocation
or limitation which would not, singly or in the aggregate,
have a material adverse effect on the Phoenix Enterprise;
Phoenix Life is in compliance with, and conducts its
businesses in conformity with, all applicable insurance laws
and regulations, except where the failure to so comply or
conform would not, singly or in the aggregate, have a material
adverse effect on the Phoenix Enterprise;
(vii) the statements in the Prospectus under the
caption "Business- Legal Proceedings" fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(viii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company, Phoenix Life or
any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and
are not so described or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required;
(ix) the adoption by Phoenix Life of, and the
performance by the Company and Phoenix Life of their
respective obligations under, the Plan will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Company and Phoenix Life, any
agreement or other instrument filed as an exhibit to the
Registration Statement, or, to such counsel's knowledge, any
other agreement or instrument binding upon the Company,
Phoenix Life or any of the Significant Subsidiaries the
contravention of which would, singly or in the aggregate, have
a material adverse effect on the Phoenix Enterprise, or any
judgment, order or decree known to such counsel of any
governmental body, agency or court having jurisdiction over
the Company, Phoenix Life or any of the Significant
Subsidiaries and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is
required for the performance by the Company or by Phoenix Life
of their respective obligations under the Plan, except such as
have been obtained under state insurance laws, and except
where the failure to obtain such consents, approvals,
authorizations, orders or qualifications would not, singly or
in the aggregate, have a material adverse effect on the
Phoenix Enterprise; and
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(x) the execution and delivery by Phoenix Life of,
and the performance by Phoenix Life of its obligations under,
this Agreement will not violate any provision of New York law
or the charter or by-laws of Phoenix Life.
Such counsel shall also state that, although it has not itself
checked the accuracy and completeness of, or otherwise verified, and is
not passing upon and assumes no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement
or the Prospectus, except to the limited extent stated in paragraph
(vii) above, in the course of its review and discussion of the contents
of the Registration Statement and the Prospectus with certain officers
and employees of the Company, Phoenix Life and their independent
accountants, but without independent check or verification, no facts
have come to its attention which cause such counsel to believe that the
Registration Statement (other than the financial statements and notes
thereto, other financial and statistical data and supporting schedules
contained therein or omitted therefrom, as to which such counsel need
express no belief), 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
contained therein not misleading, or that the Prospectus (other than
the financial statements and notes thereto, other financial and
statistical data and supporting schedules contained therein or omitted
therefrom, as to which such counsel need express no belief), as of its
date and as of the date of such counsel's opinion, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
(e) The Underwriters shall have received on the Closing Date
an opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 5(c)(iv) (but only as to the Shares to be issued and sold
by the Company to the Underwriters), 5(c)(vii) (but only as to the
statements in the Prospectus under "Description of Capital Stock" and
"Underwriters"), 5(c)(xiii) above and the final paragraph of Section
5(c).
With respect to (i) the final paragraph of Section 5(c), Debevoise & Xxxxxxxx
and LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P. and (ii) the final paragraph of
Section 5(d), Xxxxx X. Xxxx, each may state that its or his belief is based upon
its or his participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but without independent check or verification, except
as specified.
The opinions described in Section 5(c) and (d) above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from PricewaterhouseCoopers LLP, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
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provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof. The letter shall also
state that the information set forth under the captions "Prospectus
Summary," "Risk Factors," "Use of Proceeds," "Capitalization,"
"Selected Historical Financial Data," "Unaudited Pro Forma Condensed
Consolidated Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "The Demutualization,"
and "Business" which is expressed in dollars (or percentages derived
from such dollar amounts) and has been obtained from accounting records
which are subject to controls over financial reporting or which has
been derived directly from such accounting records by analysis or
computation, is in agreement with such records or computations made
therefrom.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the Additional
Shares.
6 Covenants of the Company and of Phoenix Life. In further
consideration of the agreements of the Underwriters herein contained, the
Company and Phoenix Life covenant jointly and severally with each Underwriter as
follows:
(a) To furnish to you, without charge, seven (7) signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary during such period to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either amendments
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or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement
covering the twelve-month period ending June 30, 2002 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's and Phoenix Life's counsel
and the Company's and Phoenix Life's accountants in connection with the
registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any preliminary prospectus, the
Prospectus and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related
to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities
laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in
Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the
National Association of Securities Dealers, Inc., (v) all fees and
expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to listing the Shares on the Exchange, (vi)
the cost of printing certificates representing the Shares, (vii) the
costs and charges of any transfer agent, registrar or depositary,
(viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 7
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entitled "Indemnity and Contribution", and the last paragraph of
Section 9 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
7 Indemnity and Contribution. (a) The Company and Phoenix
Life, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company or Phoenix Life shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company or Phoenix Life
in writing by such Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company or Phoenix Life, as applicable,
and in the case of the Company, its directors and officers who sign the
Registration Statement and each person, if any, who controls the
Company or Phoenix Life within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for
use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing (it being understood that failure to promptly notify the
indemnifying party shall relieve such indemnifying party from liability
hereunder to the extent that, in the reasonable judgment of such
indemnified party, it is materially prejudiced by not having
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received such prompt notice) and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in
the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and Phoenix Life on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation provided by
clause 7(d)(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 7(d)(i) above but also the relative fault of the
Company and Phoenix Life on the one hand and of the
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Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Company and Phoenix Life on the one hand and
the Underwriters on the other hand in connection with the offering of
the Shares shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate
Public Offering Price of the Shares. The relative fault of the Company
and Phoenix Life on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company and Phoenix Life or by the Underwriters and the
parties, relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective number of Shares
they have purchased hereunder, and not joint.
(e) The Company, Phoenix Life and the Underwriters agree that
it would not be just or equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, 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 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
7 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 7 and the representations, warranties and other statements
of the Company and Phoenix Life contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Shares.
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8 Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, the Exchange,
or the National Association of Securities Dealers, Inc., (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 8(a)(i) through 8(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
9 Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
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If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10 Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11 Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
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12 Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
The Phoenix Companies, Inc.
By:________________________
Name:
Title:
Phoenix Home Life Mutual Insurance Company
By:________________________
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxxx & Sons, Inc.
Bear Xxxxxxx & Co., Inc.
Deutsche Banc Alex. Xxxxx Inc.
UBS Warburg LLC
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:________________________
Name:
Title:
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SCHEDULE I
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated ..........................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx ......................
Incorporated
X X Xxxxxxx & Sons, Inc. ..................................
Bear Xxxxxxx & Co., Inc. ...................................
Deutsche Banc Alex. Xxxxx Inc. .............................
UBS Warburg LLC ............................................
---------------
Total ...................
===============
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ANNEX A
SIGNIFICANT SUBSIDIARY OWNERSHIP INTEREST
Phoenix Investment Partners, Ltd. 100%
Phoenix Equity Planning Corporation 100%
PXP Securities Corp. 100%
X.X. Xxxxxxxx, Inc. 100%
PM Holdings, Inc. 100%
PHL Associates, Inc. 100%
Duff & Xxxxxx Investment Management Co. 100%
Seneca Capital Management Co. 68.4%
Xxxxx Xxxxxxxx & Associates, Inc. 100%
Xxxxx Fund Group 100%
Walnut Asset Management LLC 75.0%
PFG Holdings, Inc. 66.7%
PFG Distribution Company 66.7% (100% subsidiary of
PFG Holdings, Inc.)
Main Street Management Company 80.0%
