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EXHIBIT 1.1
UNDERWRITING AGREEMENT
________ __, 199_
ARM FINANCIAL GROUP, INC.
515 West Market Street
Louisville, Kentucky 40202
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that ARM Financial
Group, Inc., a Delaware corporation (the "Company"), proposes to [issue and sell
_______ shares of its ___% Cumulative Preferred Stock, par value $___ per share,
stated value $___ per share (the "Firm Offered Securities")]* [sell _______
Depositary Shares (the "Firm Offered Securities"), each representing a
[fraction] interest in its ___% Cumulative Preferred Stock, par value $___ per
share, stated value $___ per share].** The Company also proposes to [issue and
sell not more than an additional _______ shares of its ___% Cumulative Preferred
Stock, par value $___ per share, stated value $___ per share (the "Additional
Offered Securities"),]* [sell not more than an additional _______ Depositary
Shares (the "Additional Offered Securities"), each representing a [fraction]
interest in its ___% Cumulative Preferred Stock, par value $___ per share,
stated value $___ per share,]** if and to the extent that we shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Additional Offered Securities referred to below. The Firm Offered
Securities and the Additional Offered Securities are hereinafter collectively
referred to as the "Offered Securities" or as the ["Preferred
Shares"/"Depositary Shares"].*** [The Depositary Shares will be issued by
_______ (the "Depositary") pursuant to the terms of a Deposit Agreement (the
"Deposit Agreement") to be entered into among the
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* Include only for issuances of Preferred Stock.
** Include only for issuances of Depositary Shares representing interests
in Preferred Stock.
*** Delete as appropriate.
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Company, the Depositary, and the holders from time to time of Depositary
Receipts (as defined herein) issued thereunder. The Depositary Shares will be
evidenced by Depositary Receipts issued pursuant to the Deposit Agreement (the
"Depositary Receipts"). The shares of the Company's ___% Cumulative Preferred
Stock, par value $___ per share, stated value $___ per share, relating to the
Depositary Shares are hereinafter referred to as the "Underlying Preferred
Shares."]*
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the number of Firm Offered
Securities set forth below opposite their names at $___ per share plus accrued
dividends, if any, from _______ __, 199_ to the date of payment and delivery:
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
Total ......
The Underwriters will pay for such Firm Offered Securities
upon delivery thereof at [office] at ____ a.m. (New York time) on _______ __,
199_, or at such other time, not later than 5:00 p.m. (New York time) on _______
__, 199_, as shall be designated by the Manager. The time and date of such
payment and delivery are hereinafter referred to as the "Closing Date."
Subject to the terms and conditions set forth herein and
incorporated by reference herein, the Company hereby agrees to sell to the
Underwriters the Additional Offered Securities, and the Underwriters shall have
a one-time right to purchase, severally and not jointly, up to_______ Additional
Offered Securities at the purchase price set forth above plus accrued dividends,
if any. Additional Offered Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Offered Securities. If any Additional Offered Securities are to be purchased,
each Underwriter agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments to eliminate
fractional shares as we may determine) that bears the same
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* Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
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proportion to the total number of Additional Offered Securities to be purchased
as the number of Firm Offered Securities set forth above opposite the name of
such Underwriter bears to the total number of Firm Offered Securities.
The Underwriters will pay for any Additional Offered
Securities upon delivery thereof at [office] at ____ a.m. (New York time) on
such date (which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor later than ten business days after the giving
of the notice hereinafter referred to) as shall be designated in a written
notice from us to the Company of our determination, on behalf of the
Underwriters, to purchase a number, specified in such notice, of Additional
Offered Securities. The time and date of such payment are hereinafter referred
to as the "Option Closing Date." The notice of the determination to exercise the
option to purchase Additional Offered Securities may be given at any time within
30 days after the date of this Agreement. The several obligations of the
Underwriters to purchase Additional Offered Securities are subject to the
delivery to us on the Option Closing Date of such documents as we may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Offered Securities [, the Underlying Preferred
Shares]* and other matters related to the issuance of the Additional Offered
Securities [and the Underlying Preferred Shares].*
The Offered Securities [and the Underlying Preferred Shares]*
shall have the terms set forth in the Prospectus dated _______ __, 199_ and the
Prospectus Supplement dated _______ __, 199_, including the following:
Terms of [Underlying]* Preferred Shares
Dividends:
Rate:
Dividend
Payment Dates: _______ __, _______ __, _______ __ and
_______ __, commencing _______ __, 199_.
Dividends cumulate from _______ __, 199_
Liquidation Preference: $___ per share
Redemption:
[Other Terms:]
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* Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
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[Terms of Depositary Shares
Dividends:
Rate:
Dividend
Payment Dates: _______ __, _______ __, _______ __ and
_______ __, commencing _______ __, 199_.
Dividends cumulate from _______ __, 199_
Liquidation Preference: $___ per share (equivalent to $___ per
Underlying Preferred Share)
Redemption:
[Other Terms:]]*
All the provisions contained in the document entitled ARM
Financial Group, Inc. Underwriting Agreement Standard Provisions (Preferred
Stock and Depositary Shares) dated _______ __, 199_ (the "Standard Provisions"),
a copy of which is attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that
[(i)]** if any term defined in such document is otherwise defined herein, the
definition set forth herein shall control [and (ii) all references in such
document to Depositary Shares, Depositary Receipts, Underlying Preferred Shares
and the Deposit Agreement shall not be deemed to be part of this Agreement].**
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* Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
** Include only for issuances of Preferred Stock.
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below.
Very truly yours,
[Names of Lead Managers]
On behalf of themselves and the
other Underwriters named herein
By [Lead Manager]
By:
---------------------------------------
Name:
Title:
Accepted:
ARM FINANCIAL GROUP, INC.
By:
---------------------------------------
Name:
Title:
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ARM FINANCIAL GROUP, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
_______ __, 199_
From time to time, ARM Financial Group, Inc., a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Offered Securities and the Underlying Preferred Shares and has
filed with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Offered Securities and the
Underlying Preferred Shares pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"). The term Registration Statement means
the registration statement as amended to the date of this Agreement. The term
Basic Prospectus means the prospectus included in the Registration Statement.
The term Prospectus means the Basic Prospectus together with the Prospectus
Supplement. The term preliminary prospectus means a preliminary prospectus
supplement specifically relating to the Offered Securities and the Underlying
Preferred Shares together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents
and warrants to 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
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proceedings for such purpose are pending before or, to the knowledge of
the Company, threatened by the Commission.
(b) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder.
(c)(i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain and each such part, 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, (iii) 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 (iv) 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 (c)
do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information concerning the Underwriters
furnished to the Company in writing by any Underwriter through the
Manager expressly for use therein.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own 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 Company and
its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own 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
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the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(f) The authorized capital stock of the Company, the Offered
Securities, any Underlying Preferred Shares, any Depositary Shares and
any Deposit Agreement conform as to legal matters to the descriptions
thereof contained in the Prospectus.
(g) The Preferred Shares or the Underlying Preferred Shares,
as the case may be, have been duly authorized and, when such shares are
issued and delivered as contemplated by the terms of this Agreement,
such shares will be validly issued, fully paid and non-assessable, and
the issuance of such shares is not subject to any preemptive or similar
rights.
(h) The deposit of the Underlying Preferred Shares by the
Company in accordance with any Deposit Agreement has been duly
authorized and, when the Depositary Shares are issued and delivered in
accordance with the terms of this Agreement, the Depositary Shares will
represent legal and valid interests in the Underlying Preferred Shares.
(i) Assuming due authorization, execution and delivery of any
Deposit Agreement by the Depositary, each Depositary Share, if any,
will represent the interest described in the Prospectus in a validly
issued, outstanding, fully paid and non-assessable Underlying Preferred
Share; assuming due execution and delivery of the Depositary Receipts,
if any, by the Depositary pursuant to such Deposit Agreement, the
Depositary Receipts will entitle the holders thereof to the benefits
provided therein and in the Deposit Agreement.
(j) Upon the closing of the offering of the Shares, the
authorized, issued and outstanding capital stock of the Company will be
as set forth in the Prospectus under the caption "Capitalization" in
the column entitled "As Adjusted," and the authorized capital stock of
the Company will conform as to legal matters to the description thereof
contained in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Deposit Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company.
(m) (i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Certificate of Designation relating to the Preferred Shares or the
Underlying Preferred Shares, as the case may be (the "Preferred Shares
Certificate of Designation"), and the Deposit Agreement, if any,
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will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries except for such judgments,
orders or decrees, the violation of which would neither (x) have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, nor (y) materially and adversely affect the ability of the
Company to consummate the transactions contemplated by this Agreement
and (ii) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Preferred Shares Certificate of Designation and the Deposit Agreement,
if any, except such as have been obtained under the Securities Act and
any insurance laws and regulations, such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Offered Securities and such consents,
approvals, authorizations, orders or qualifications, the failure to
have which would neither (x) have a material adverse effect on the
Company and its subsidiaries, taken as a whole nor (y) materially and
adversely affect the ability of the Company to consummate the
transactions contemplated by this Agreement, the Preferred Shares
Certificate of Designation and the Deposit Agreement, if any.
(n) 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 Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the date of the Underwriting
Agreement).
(o) There are no legal or governmental proceedings pending or,
to the best knowledge of the Company, threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties
of the Company 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 any statutes, regulations, contracts or other
documents known to the Company that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement or incorporated therein by reference that
are not described, filed or incorporated therein by reference as
required.
(p) The Company and each of its subsidiaries holds all such
licenses, authorizations, certificates and permits as are necessary to
conduct its business under the laws of each jurisdiction in which it
conducts its business, except where the failure to have such licenses,
authorizations, certificates or permits would not, individually or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all such licenses, authorizations,
certificates and permits are in full force and effect; and neither the
Company nor any of its subsidiaries has received any
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notice of any event, inquiry, investigation or proceeding that would
reasonably be expected to result in the suspension, revocation or
limitation of any such license, authorization, certificate or permit,
or otherwise impose any limitation on the conduct of the business of
such subsidiaries, except for such events, inquiries, investigations or
proceedings which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(q) Each document, if any, filed or to be filed pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder.
(r) Neither the Company nor any of its subsidiaries (other
than SBM Certificate Company) is, 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, neither the Company
nor any of its subsidiaries (other than SBM Certificate Company) will
be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(s) The 1996 and 1997 statutory annual statements of Integrity
Life Insurance Company ("Integrity") and National Integrity Life
Insurance Company ("National Integrity") and the statutory balance
sheets and income statements included in such statutory annual
statements have been prepared in conformity with statutory accounting
principles or practices required or permitted by the Insurance
Department of the states of Ohio and New York, respectively, and such
statutory accounting practices have been applied on a consistent basis
throughout the periods involved, except as may otherwise be indicated
in the notes thereto, and present fairly the statutory financial
position of Integrity and National Integrity as of the dates thereof,
and the statutory basis results of operations of Integrity and National
Integrity for the periods covered thereby.
(t) The Company is not aware of any threatened or pending
downgrading in the ratings assigned by A.M. Best Company, Inc.,
Standard & Poor's Corporation, Duff & Phelps or Moody's Investors
Service to Integrity or National Integrity.
(u) 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.
2. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement has been entered
into as in the Manager's judgment is
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advisable. The terms of the public offering of the Offered Securities are set
forth in the Prospectus.
3. Purchase and Delivery. Payment for the Firm Offered
Securities and any Additional Offered Securities shall be made in Federal or
other funds immediately available in New York City at the time and place set
forth in the Underwriting Agreement.
Payment for any Firm Offered Securities and Additional Offered
Securities which are in the form of Depositary Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing such Firm Offered Securities or Additional Offered
Securities, as the case may be, registered in such names and in such
denominations as the underwriters shall request in writing not later than two
full business days prior to the Closing Date or the Option Closing Date, as the
case may be, with any transfer taxes payable in connection with the transfer of
such Offered Securities to the Underwriters duly paid.
Certificates for any Firm Offered Securities and Additional
Offered Securities shall be in definitive forms and registered in such names and
in such denominations as the underwriters shall request in writing not later
than two full business days prior to the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing such Firm Offered
Securities and Additional Offered Securities 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 such Offered Securities to the Underwriters duly
paid, against payment of the purchase price therefor.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting 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 Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments
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or supplements thereto effected subsequent to the execution
and delivery of the Underwriting Agreement), that, in the
judgment of the Manager, is material and adverse and that
makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Manager 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 clause (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 has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before
the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of Shearman & Sterling (which opinion shall not be required to
cover any insurance laws, rules, regulations or statutes), outside
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly incorporated
and validly existing in good standing under the laws of the
State of Delaware, with corporate power and authority under
such laws to own, lease and operate its property and conduct
its business as described in the Prospectus, 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
Company and its subsidiaries, taken as a whole;
(ii) National Integrity is a corporation duly
incorporated and validly existing in good standing under the
laws of the State of New York, with the corporate power and
authority under such laws to own, lease and operate its
property and conduct its business as described in the
Prospectus, 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 Company and its subsidiaries, taken as a
whole;
(iii) the authorized capital stock of the Company,
the Offered Securities, any Underlying Preferred Shares, any
Depositary Shares and any Deposit Agreement conform as to
legal matters to the descriptions thereof contained in the
Prospectus;
(iv) the Preferred Shares or the Underlying Preferred
Shares, as the case may be, have been duly authorized and,
when such shares are issued and delivered as contemplated by
the terms of this Agreement, such shares will be
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validly issued, fully paid and non-assessable, and the
issuance of such shares is not subject to any preemptive or
similar rights;
(v) the deposit of the Underlying Preferred Shares by
the Company in accordance with any Deposit Agreement has been
duly authorized by the Company and, when the Depositary Shares
are issued and delivered in accordance with the terms of this
Agreement, the Depositary Shares will represent legal and
valid interests in the Underlying Preferred Shares;
(vi) assuming due authorization, execution and
delivery of any Deposit Agreement by the Depositary, each
Depositary Share, if any, will represent the interest
described in the Prospectus in a validly issued, outstanding,
fully paid and non-assessable Underlying Preferred Share;
assuming due execution and delivery of the Depositary
Receipts, if any, by the Depositary pursuant to such Deposit
Agreement, the Depositary Receipts will entitle the holders
thereof to the benefits provided therein and in the Deposit
Agreement;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the
Depositary, is a valid and binding agreement of the Company;
(ix) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Preferred Shares Certificate of
Designation and the Deposit Agreement, if any, will not
contravene any provision of the laws of the State of New York,
the General Corporation Law of the State of Delaware or the
Federal laws of the United States or the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or
qualification with, any governmental body, agency or court of
the State of New York, the State of Delaware or the United
States is required for the performance by the Company of its
obligations under this Agreement, the Preferred Shares
Certificate of Designation and the Deposit Agreement, if any,
except such as may be required by the securities or
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Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities;
(x) the statements (1) in the Basic Prospectus under
"Description of Capital Stock" and "Plan of Distribution," (2)
in the Prospectus Supplement under "Description of Cumulative
Preferred Stock," "Description of Depositary Shares" and
"Underwriters" and (3) in the Registration Statement under
Item 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;
(xi) neither the Company nor any of its subsidiaries
(other than SBM Certificate Company) is, 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, neither the Company nor any of its subsidiaries
(other than SBM Certificate Company) will be, required to
register as an "investment company" under the Investment
Company Act; and
(xii) 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 or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus or incorporated
by reference therein and are not so described or incorporated
by reference therein;
(xiii) in such counsel's opinion (1) each document
filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus (other than financial statements
and schedules and other financial and statistical data
contained therein or omitted therefrom, as to which such
counsel need not express any opinion) complied when so filed
as to form in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission
thereunder, (2) the Registration Statement and Prospectus
(other than financial statements and schedules and other
financial and statistical data contained 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, (3) no facts came to such counsel's
attention which gave such counsel reason to believe that (a)
the Registration Statement (other than financial statements
and schedules and other financial and statistical data
contained therein or omitted therefrom, as to which such
counsel need not express any opinion), 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
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necessary to make the statements therein not misleading, or
(b) the Prospectus (other than financial statements and
schedules and other financial and statistical data contained
therein or omitted therefrom, as to which such counsel need
not express any opinion), as of its date or the Closing Date,
contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under
which they were made, not misleading and (4) such counsel does
not know of any contract or other document of a character
required to be filed as an exhibit to the Registration
Statement or incorporated by reference therein that is not so
filed or incorporated by reference therein.
With respect to paragraph (xiii) above, such counsel may state
that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (other than the documents
incorporated by reference therein), and review and discussion of the
contents thereof (including the documents incorporated by reference
therein), but are without independent check or verification, except as
specified.
In addition, such counsel may state that their opinion does
not cover any insurance laws, rules, regulations or statutes.
(d) The Manager shall have received on the Closing Date an
opinion of Robert H. Scott, Esq., General Counsel of the Company, dated
the Closing Date, to the effect that:
(i) the Company and each of Integrity Capital
Advisors, Inc., Integrity Holdings, Inc., ARM Face-Amount
Certificate Group, Inc., 312 Certificate Company and ARM
Securities Corporation (collectively, the "Subsidiaries") is a
corporation duly incorporated and validly existing in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to carry
on its business and to own or hold under lease its properties
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
Company and its Subsidiaries, taken as a whole;
(ii) all of the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable; all of
the outstanding shares of capital stock of each of the
Subsidiaries, SBM Certificate Company, National Integrity and
20% of the outstanding membership interests of ARM Capital
Advisors, LLC are owned
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directly or indirectly by the Company, in each case free of
all liens, encumbrances, security interests and claims, except
as set forth (or incorporated by reference) in the Prospectus;
(iii) the Company and each of its subsidiaries (but
not including ARM Capital Advisors, LLC) holds all licenses,
authorizations, certificates and permits as are required to
conduct its business under the laws of each jurisdiction in
which it conducts business, except where the failure to have
such licenses, authorizations, certificates or permits would
not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
all such licenses, authorizations, certificates and permits
are in full force and effect; and, except as disclosed in the
Prospectus, to the best of such counsel's knowledge, neither
the Company nor any of its subsidiaries (but not including ARM
Capital Advisors, LLC) has received any notice of any event,
inquiry, investigation or proceeding that would reasonably be
expected to result in the suspension, revocation or limitation
of any such license, authorization, certificate or permit or
otherwise impose any limitation on the conduct of the business
of the Company or any of its subsidiaries, except for such
events, inquiries, investigations or proceedings which would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iv) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Preferred Shares Certificate of
Designation and the Deposit Agreement, if any, will not
contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any of its
subsidiaries (but not including ARM Capital Advisors, LLC) or,
to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, considered as one enterprise, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any of its subsidiaries, and no consent,
approval or authorization or order of or qualification with
any governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Preferred Shares Certificate of Designation and
the Deposit Agreement, except such as may be required by the
securities or blue sky laws of the various states in
connection with the offer and sale of the Offered Securities;
(v) the statements (1) in the Registration Statement
in Item 15, (2) in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (3) in "Item 1 Legal
Proceedings," of Part II of the Company's quarterly reports on
Form
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10-Q, if any, filed since such annual report, 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;
(vi) such counsel does not know of any legal or
governmental proceeding pending or threatened in writing to
which the Company or any of its subsidiaries (but not
including ARM Capital Advisors, LLC) is a party or to which
any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus or incorporated
by reference therein and are not so described or of any
statutes, regulations, contracts or other documents applicable
to the Company or any of its subsidiaries that are required to
be described in the Registration Statement or the Prospectus
or incorporated by reference therein or to be filed as
exhibits to the Registration Statement or incorporated by
reference therein that are not described, filed or
incorporated by reference therein as required; and
(vii) no facts came to such counsel's attention which
gave such counsel reason to believe that (a) the Registration
Statement (other than the financial statements and schedules
and other financial and statistical data contained therein or
omitted therefrom, as to which such counsel need not comment),
at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or (b) the Prospectus
(other than the financial statements and schedules and other
financial and statistical data contained therein or omitted
therefrom, as to which such counsel need not comment), as of
its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
With respect to paragraph (vii) above, such counsel may state
that his opinion and belief are based upon his participation, or the
participation of someone under his supervision, in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
(e) The Manager shall have received on the Closing Date an
opinion of ________, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (iii), (iv),
(v), (vi), (vii), (viii), clauses (1) and (2) of (x) and clauses (2),
(3) and (4) of (xiii) of paragraph (c) above.
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With respect to subparagraph (xiii) of paragraph (c) above,
such counsel may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto (other than
the documents incorporated by reference) and review and discussion of
the contents thereof (including documents incorporated by reference),
but are without independent check or verification except as specified.
(f) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent auditors, 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 or
incorporated by reference into the Prospectus.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a conformed copy
of the Registration Statement (including exhibits and all amendments
thereto) and for delivery to each other Underwriter a conformed copy of
the Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish the Manager a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities 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 existing when the Prospectus is
delivered to a purchaser, not misleading, or if in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
its own expense, to the Underwriters and to the dealers (whose names
and addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus, satisfactory in all respects to the
Manager, so that the statements in the Prospectus as so amended or
supplemented will
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not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
so amended or supplemented, will comply with law and to cause such
amendments or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of the Underwriting Agreement, which
earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) To use its best efforts to accomplish the listing of the
Offered Securities on the New York Stock Exchange, if requested by the
Manager.
(g) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
preferred stock of the Company substantially similar to the Offered
Securities (other than the Offered Securities), without the prior
written consent of the Manager.
(h) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Offered Securities, (iii) the fees and disbursements of
the Company's counsel and accountants and of the Depositary and its
counsel, (iv) the qualification of the Offered Securities under
securities or Blue Sky laws in accordance with the provisions of
Section 5(d), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda, (v)
the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters
of copies of any Blue Sky or Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the rating
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of the Offered Securities, (viii) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors
and (ix) any filing fees in connection with any review of the offering
of the Offered Securities by the National Association of Securities
Dealers, Inc.
6. Indemnification and Contribution. (a) The Company agrees 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 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 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 in writing by such Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity agreement 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 Offered Securities, 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 Offered Securities 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.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of 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 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, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager
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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 paragraph (a) or (b) of this Section 6, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing 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 reasonable 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 (i) all Underwriters and
all persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and such
control persons of the Underwriters, such firm shall be designated in writing by
the Manager. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. 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
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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
paragraph (a) or (b) of this Section 6 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 indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Offered 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 indemnifying party or parties on the one hand and of the
indemnified party or parties 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 on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the
Offered Securities (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 Offered Securities. The relative fault of
the Company 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 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 6
are several in proportion to the respective number of Offered Securities they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 6 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 paragraph (d) of this Section 6. 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 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities 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
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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 6 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 6 and the representations and warranties of the Company 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 the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination
by notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting 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, any of the New York Stock Exchange, the American Stock 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 the judgment of the Manager, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event,
singly or together with any other such event, makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
8. Defaulting Underwriters. 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 Offered Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Offered
Securities 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
Offered Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate number of Firm Offered Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Offered Securities 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 Offered
Securities that any Underwriter has agreed to purchase pursuant to the
Underwriting Agreement be increased pursuant to this Section 8 by an amount in
excess of one-ninth of such number of Offered Securities without
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the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Offered
Securities and the aggregate number of Firm Offered Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Company for the purchase of such Firm Offered Securities
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 the Manager 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 Offered Securities and the aggregate number of Additional
Offered Securities with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Offered Securities to be
purchased on such date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase Additional Offered
Securities or (ii) purchase not less than the number of Additional Offered
Securities 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.
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 the Offered
Securities.
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
this Agreement will remain 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 Offered Securities.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
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11. Counterparts. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. 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.