3,000,000 Shares
(plus 450,000 Shares to cover overallotments, if any)
SYMONS INTERNATIONAL GROUP, INC.
Common Stock
UNDERWRITING AGREEMENT
November 4, 1996
ADVEST, INC.
MESIROW FINANCIAL, INC.
As Representatives (the "Representatives")
of the Several Underwriters
Named in Schedule I Hereto
c/o Advest, Inc.
90 State House Square
Hartford, CT 06103
Dear Sirs:
Symons International Group, Inc., an Indiana corporation (the
"Company") and a wholly owned subsidiary of Goran Capital Inc., a Canadian
federally chartered corporation ("Parent"), proposes, subject to the terms and
conditions stated herein, to sell to the Underwriters (the "Underwriters") named
in Schedule I hereto an aggregate of Three Million (3,000,000) shares (the
"Company Shares") of the Company's Common Stock, no par value ("Common Stock").
In addition, in order to cover overallotments in the sale of the
Company Shares, the Underwriters may, at the Underwriters' election and subject
to the terms and conditions stated herein, purchase ratably in proportion to the
amounts set forth opposite their respective names in Schedule I hereto, up to
Four Hundred Fifty Thousand (450,000) additional shares of Common Stock from the
Company (such additional shares of Common Stock, the "Optional Shares"). The
Company Shares and the Optional Shares are referred to collectively herein as
the "Shares."
As part of the offering contemplated by this Agreement, Advest, Inc.
has agreed to reserve out of the Shares set forth opposite its name on Schedule
I to this Agreement, up to 150,000 Shares, for sale to certain officers,
directors and employees of the Company and its affiliates, certain family
members of the foregoing and other persons having business relationships with
1
the Company or its affiliates (collectively, "Participants"), as set forth in
the Prospectus under the heading "Underwriting" (the "Directed Share Program").
The Shares to be sold by Advest, Inc. pursuant to the Directed Share Program
(the "Directed Shares") will be sold by Advest, Inc. pursuant to this Agreement
at the public offering price. Any Directed Shares not orally confirmed for
purchase by any Participants by the end of the first business day after the date
on which this Agreement is executed will be offered to the public by Advest,
Inc. as set forth in the Prospectus.
The Company hereby confirms its engagement of each of Advest, Inc. and
Mesirow Financial, Inc. as, and each of Advest, Inc. and Mesirow Financial, Inc.
hereby confirms its agreement with the Company to render services as, a
"qualified independent underwriter" within the meaning of Rule 2720 of the
Conduct Rules of the National Association of Securities Dealers, Inc. with
respect to the offering and sale of the Shares. Each of Advest, Inc. and Mesirow
Financial, Inc., solely in its capacity as qualified independent underwriter and
not otherwise, is referred to herein as a "QIU" (and together with the other
QIU, as the "QIUs").
Each of the Company and Parent, intending to be legally bound, hereby
confirms its agreement with the Underwriters as follows:
1. Representations and Warranties of the Company and Parent.
(a) Each of the Company and Parent, and IGF Holdings, Inc., an Indiana
corporation and a wholly owned subsidiary of the Company ("IGFH") (to the extent
that the following representations and warranties relate directly to IGFH or its
subsidiaries), jointly and severally represent and warrant to, and agree with,
each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-09129)
with respect to the Shares, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (A) if such registration statement, as it may have been amended, has
become effective under the Act and information has been omitted therefrom in
accordance with Rule 430A under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement) with such
changes or insertions as
2
are required by Rule 430A or permitted by Rule 424(b) under the Act and as have
been provided to and approved by the Representatives, or (B) if such
registration statement, as it may have been amended, has not become effective
under the Act, an amendment to such registration statement, including a form of
prospectus, a copy of which amendment has been provided to and approved by the
Representatives prior to the execution of this Agreement. As used in this
Agreement, the term "Registration Statement" means such registration statement,
as amended at the time when it was or is declared effective, including (i) all
financial statements, schedules and exhibits thereto, (ii) all documents (or
portions thereof) incorporated by reference therein, and (iii) any information
omitted therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined); the term "Preliminary Prospectus" means
each prospectus subject to completion included in such registration statement or
any amendment or post-effective amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement at the
time it was or is declared effective), including all documents (or portions
thereof) incorporated by reference therein; and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under the Act
or, if no prospectus is required to be so filed, such term means the prospectus
included in the Registration Statement, in either case, including all documents
(or portions thereof) incorporated by reference therein. As used herein, any
reference to any statement or information as being "made," "included,"
"contained," "disclosed" or "set forth" in any Preliminary Prospectus, a
Prospectus or any amendment or supplement thereto, or the Registration Statement
or any amendment thereto (or other similar references) shall refer both to
information and statements actually appearing in such document as well as
information and statements incorporated by reference therein.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission or the securities authority of any
state or other jurisdiction. If the Registration Statement has become effective
under the Act, no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that purpose
has been instituted or threatened or, to the best knowledge of the Company,
contemplated by the Commission or the securities authority of any state or other
jurisdiction.
(iii) When any Preliminary Prospectus was filed with the
Commission it (A) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of,
the Act and the
3
rules and regulations of the Commission thereunder and (B) did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, and at each Time of Delivery (as
hereinafter defined), it (A) contained and will contain all statements required
to be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (B) did not and will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any amendment or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective) and at each Time of Delivery, the Prospectus, as amended or
supplemented at any such time, (A) contained and will contain all statements
required to be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (B) did not and will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (iii) do not apply to statements or omissions made
in any Preliminary Prospectus, the Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you specifically for use therein. It is understood that the
statements set forth in each Preliminary Prospectus, the Registration Statement
or any amendment thereto or the Prospectus or any amendment or supplement
thereto (W) in the last paragraph of the cover page, (X) on the inside cover
page with respect to stabilization and passive market making, (Y) under the
section entitled "Underwriting" regarding the Underwriters and the underwriting
arrangements, and (Z) under the section entitled "Legal Matters" regarding the
identity of the counsel for the Underwriters, constitute the only written
information furnished to the Company by or on behalf of any Underwriter through
you specifically for use in any Preliminary Prospectus, the Registration
Statement or any amendment thereto or the Prospectus and any amendment or
supplement thereto, as the case may be.
(iv) The descriptions in the Registration Statement and the
Prospectus of laws, statutes, regulations,
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legal and governmental proceedings, contracts and other documents are accurate
in all material respects; and there are no laws, statutes, regulations, or legal
or governmental proceedings required to be described in the Registration
Statement or the Prospectus that are not described as required and no contracts
or documents of a character 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 and filed as required.
(v) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Prospectus. Each of the Company and Parent has full power and
authority (corporate and other) to enter into this Agreement and to perform its
obligations hereunder. Each of the Company and its subsidiaries is duly
qualified to transact business as a foreign corporation and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except where the
failure to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole (a "Material Adverse Event").
(vi) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of capital
stock of the Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the descriptions of the Common Stock
contained in the Prospectus. None of the issued shares of capital stock of the
Company or any of its subsidiaries has been issued or is owned or held in
violation of any statutory (or to the knowledge of the Company, any other)
preemptive rights of shareholders, and no person or entity (including any holder
of outstanding shares of capital stock of the Company or its subsidiaries) has
any statutory (or to the knowledge of the Company, any other) preemptive or
other rights to subscribe for any of the Shares. None of the capital stock of
the Company has been issued in violation of applicable federal or state
securities laws.
(vii) All of the issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and are owned beneficially by the Company or a subsidiary
of the Company, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting agreements,
proxies, voting trusts, equities
5
or claims of any nature whatsoever except for (A) the pledge by GGS Management,
Inc., a Delaware corporation ("GGS Management") of all of the outstanding shares
of capital stock of Pafco General Insurance Company, an Indiana insurance
company, and Superior Insurance Company, a Florida insurance company, as
collateral to secure the GGS Senior Credit Facility (as such term is defined in
the Prospectus), (B) the pledge by GGS Management Holdings, Inc., a Delaware
corporation, of all of the outstanding shares of capital stock of GGS Management
as collateral to secure the GGS Senior Credit Facility, (C) the pledge by IGFH
of 29,614 shares of Common Stock of IGF Insurance Company ("IGF") and 2,494,000
shares of IGF Preferred Stock as collateral to secure both the IGFH Bank Debt
and the IGF Note (as such terms are defined in the Prospectus) and (D) the
pledge by the Company of shares of IGFH and GGS Management Holdings, Inc. as
security for the obligations of Parent under the Amended and Restated Trust
Indenture dated as of December 29, 1992, as amended by the First Supplemental
Indenture dated as of April 30, 1996 which will be released prior to the closing
of the sale and purchase of the Shares (the pledges described in clauses (A),
(B), (C) and (D) being hereinafter referred to as the "Pledges") and (E) the
Stockholder Agreement (as such term is defined in the Prospectus). Other than
the subsidiaries listed on Exhibit 21 to the Registration Statement and the
equity securities held in the investment portfolios of such subsidiaries (the
composition of which is not materially different than the disclosures in the
Prospectus as of specific dates), the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or other
association.
(viii) Except as disclosed in the Prospectus, there are no
outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such subsidiary, (B) warrants, rights or options to subscribe for
or purchase from the Company or any such subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations or (C)
obligations of the Company or any such subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(ix) Since the date of the most recent audited financial
statements included in the Prospectus, neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as disclosed in or contemplated by the Prospectus and
other than pursuant to claims
6
made by insureds in the ordinary course of business under policies issued by the
Company's subsidiaries.
(x) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (A) neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course of
business, that are material to the Company and its subsidiaries, (B) the Company
has not purchased any of its outstanding capital stock or declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock,
(C) there has not been any change in the capital stock, long-term debt or
short-term debt of the Company or any of its subsidiaries, and (D) there has not
been any material adverse change, or any development involving a prospective
material adverse change, in or affecting the financial position, results of
operations or business of the Company and its subsidiaries, in each case other
than as disclosed in or contemplated by the Prospectus.
(xi) Except for the Goran Registration Rights Agreement (as such
term is defined in the Prospectus), there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities registered
pursuant to the Registration Statement (or any such right has been effectively
waived) or any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(xii) Neither the Company nor any of its subsidiaries is, or with
the giving of notice or passage of time or both would be, in violation of its
Articles of Incorporation or Bylaws or in default in any material respect under
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or to
which any of their respective properties or assets are subject.
(xiii) The Company and its subsidiaries have good and marketable
title in fee simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as do not constitute a Material Adverse
Event and do not interfere with the use made or proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held
7
under lease by the Company or any of its subsidiaries are held under valid,
subsisting and enforceable leases, with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or such
subsidiary.
(xiv) Neither the Company nor Parent requires any consent,
approval, authorization, order or declaration of or from, or registration,
qualification or filing with, any court or governmental agency or body in
connection with the sale of the Shares or the consummation of the transactions
contemplated by this Agreement in order for the Company to be permitted to
increase the capital and surplus of the Company's insurance company subsidiaries
as contemplated in the "Use of Proceeds" section of the Prospectus, the
registration of the Shares under the Act (which, if the Registration Statement
is not effective as of the time of execution hereof, shall be obtained as
provided in this Agreement) and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and such as may be required under state securities or blue
sky laws in connection with the offer, sale and distribution of the Shares by
the Underwriters.
(xv) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or investigation
(including without limitation, any insurance regulatory proceeding) pending or,
to the best of the Company's or Parent's knowledge, as the case may be,
threatened in which the Company or any of its subsidiaries or Parent is a party
or of which any of their respective properties or assets are the subject which,
if determined adversely to the Company or any such subsidiary or Parent, would
individually or in the aggregate constitute a Material Adverse Event. Neither
the Company nor any of its subsidiaries nor Parent is in violation of, or in
default with respect to, any law, statute, rule, regulation, order, judgment or
decree, except as described in the Prospectus or such as do not and will not
individually or in the aggregate constitute a Material Adverse Event, and
neither the Company nor any of its subsidiaries nor Parent is required to take
any action in order to avoid any such violation or default.
(xvi) To the best of the Company's knowledge, Coopers & Lybrand
L.L.P., who have certified certain financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement and the
Prospectus, are independent public accountants as required by the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder.
(xvii) The consolidated financial statements and schedules
(including the related notes) of the Company and
8
its consolidated subsidiaries included in the Registration Statement, the
Prospectus and/or any Preliminary Prospectus were prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved and fairly present the financial position and results of
operations of the Company and its subsidiaries, on a consolidated basis, at the
dates and for the periods presented. The selected financial data set forth under
the captions "Summary Company Consolidated Financial Data," "Summary Superior
Consolidated Financial Data," "Selected Consolidated Historical Financial Data
of Symons International Group, Inc.," "Management's Discussion and Analysis of
Financial Condition and Results of Operations of the Company," "Selected
Consolidated Historical Financial Data of Superior Insurance Company" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations of Superior" in the Prospectus fairly present, on the basis stated in
the Prospectus, the information included therein, and have been compiled on a
basis consistent with that of the audited financial statements included in the
Registration Statement. The supporting notes and schedules included in the
Registration Statement, the Prospectus and/or any Preliminary Prospectus fairly
state in all material respects the information required to be stated therein in
relation to the financial statements taken as a whole. The unaudited interim
consolidated financial statements included in the Registration Statement comply
as to form in all material respects with the applicable accounting requirements
of Rule 10-01 of Regulation S-X under the Act.
(xviii) This Agreement has been duly authorized, executed and
delivered by each of the Company and Parent, and, assuming due execution by the
Representatives of the Underwriters, constitutes the valid and binding agreement
of each of the Company and Parent, enforceable against the Company and Parent in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating to or
affecting the enforcement of creditors' rights generally and to general
equitable principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable securities
laws or the public policy underlying such laws.
(xix) The sale of the Shares and the performance of this
Agreement and the consummation of the transactions herein contemplated will not
(with or without the giving of notice or the passage of time or both) (A)
conflict with any term or provision of the articles of incorporation or bylaws,
or other organizational documents, of the Company or Parent, (B) result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement
9
or instrument to which the Company or Parent is a party or to which any of their
respective properties or assets are subject, (C) conflict with or violate any
provision of the governing instruments of the Company or Parent or any law,
statute, rule or regulation or any order, judgment or decree of any court or
governmental agency or body having jurisdiction over the Company or Parent or
any of the properties or assets of the Company or Parent or (D) result in a
breach, termination or lapse of the corporate power and authority of the Company
or Parent to own or lease and operate its assets and properties and conduct its
business as described in the Prospectus.
(xx) When the Shares have been duly delivered against payment
therefor as contemplated by this Agreement, the Shares will be validly issued,
fully paid and non-assessable, and the holders thereof will not be subject to
personal liability solely by reason of being such holders. The certificates
representing the Shares are in proper legal form under, and conform in all
respects to the requirements of, the Indiana Business Corporation Law, as
amended. Neither the filing of the Registration Statement nor the offering or
sale of Shares as contemplated by this Agreement gives any security holder of
the Company any rights for or relating to the registration of any shares of
Common Stock or any other capital stock of the Company, except such as have been
satisfied or waived.
(xxi) The Company has not distributed and will not distribute any
offering material in connection with the offering and sale of the Shares other
than the Registration Statement, a Preliminary Prospectus, the Prospectus and
other material, if any, permitted by the Act.
(xxii) Neither the Company nor any of its officers, directors or
affiliates nor Parent has (A) taken, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of
the Company or Parent to facilitate the sale or resale of the Shares or (B)
since the filing of the Registration Statement (1) sold, bid for, purchased or
paid anyone any compensation for soliciting purchases of, the Shares or (2) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company or Parent.
(xxiii) Neither the Company, any of its subsidiaries, nor any
director, officer, employee or other person associated with or acting on behalf
of the Company or any such subsidiary has, directly or indirectly, violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended.
10
(xxiv) The operations of the Company and its subsidiaries with
respect to any real property currently leased or owned or by any means
controlled by the Company or any subsidiary (the "Real Property") are in
compliance in all material respects with all federal, state, and local laws,
ordinances, rules, and regulations relating to occupational health and safety
and the environment (collectively, "Laws"), and the Company and its subsidiaries
have not violated any Laws in a way which would give rise to a Material Adverse
Event. Except as disclosed in the Prospectus, there is no pending or, to the
best of the Company's knowledge, threatened claim, litigation or any
administrative agency proceeding, nor has the Company or any subsidiary received
any written or oral notice from any governmental entity or third party, that:
(A) alleges a material violation of any Laws by the Company or any subsidiary or
(B) alleges the Company or any subsidiary is a liable party under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
ss. 9601 et seq. or any state superfund law.
(xxv) The Company and each of its subsidiaries owns or has the
right to use trademarks, trademark applications, trade names, service marks,
franchises, trade secrets, proprietary or other confidential information and
intangible properties and assets (collectively, "Intangibles"); and, to the best
knowledge of the Company, neither the Company nor any subsidiary has infringed
or is infringing, and neither the Company nor any subsidiary has received notice
of infringement with respect to, asserted Intangibles of others.
(xxvi) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a comparable cost, except as
disclosed in the Prospectus. The foregoing representation is not intended to and
does not relate to any reinsurance contracts, agreements or treaties to which
the Company or any of its subsidiaries is a party.
(xxvii) Each of the Company and its subsidiaries makes and keeps
accurate books and records reflecting its assets and maintains internal
accounting controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of the Company's consolidated
financial statements in accordance with generally
11
accepted accounting principles and to maintain accountability for the assets of
the Company, (C) access to the assets of the Company and each of its
subsidiaries is permitted only in accordance with management's authorization and
(D) the recorded accountability for assets of the Company and each of its
subsidiaries is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxviii)The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed by them and
have paid all taxes shown as due on such returns as well as all other taxes,
assessments and governmental charges that are due and payable; and no material
deficiency with respect to any such return has been assessed or proposed.
(xxix) Except for such plans that are expressly disclosed in the
Prospectus, the Company and its subsidiaries do not maintain, contribute to or
have any material liability with respect to any employee benefit plan, profit
sharing plan, employee pension benefit plan, employee welfare benefit plan,
equity-based plan or deferred compensation plan or arrangements (collectively,
"Plans") that are subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations thereunder
("ERISA"). All Plans are in compliance in all material respects with all
applicable laws, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the "Code"), and have been operated and administered
in all material respects in accordance with their terms. No Plan is a defined
benefit plan or multiemployer plan. The Company does not provide retiree life
and/or retiree health benefits or coverage for any employee or any beneficiary
of any employee after such employee's termination of employment, except as
required by Section 4980B of the Code or under a Plan which is intended to be
"qualified" under Section 401(a) of the Code. No Plan has been involved in any
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
Full payment has been made of all amounts which the Company or any of its
subsidiaries were required under the terms of the Plans to have paid as
contributions to such Plans on or prior to the date hereof (excluding any
amounts not yet due). No material liability, claim, action or litigation, has
been incurred, made, commenced or, to the knowledge of the Company, threatened,
by or against the Company or any of its subsidiaries with respect to any Plan
(other than for benefits payable in the ordinary course). No material liability
has been, or could reasonably be expected to be, incurred under Title IV of
ERISA or Section 412 of the Code by any entity required to be aggregated with
the Company or any of its subsidiaries pursuant to Section 4001(b) of ERISA
and/or Section 414(b) or (c) of the Code (and the
12
regulations promulgated thereunder) with respect to any "employee pension
benefit plan" which is not a Plan. As used in this subsection, the terms
"defined benefit plan," "employee benefit plan," "employee pension benefit
plan," "employee welfare benefit plan" and "multiemployer plan" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
(xxx) No material labor dispute exists with the Company's or any
of its subsidiary's employees, and no such labor dispute is threatened. The
Company has no knowledge of any existing or threatened labor disturbance by the
employees of any of its principal agents, suppliers, contractors or customers
that would give rise to a Material Adverse Event.
(xxxi) Each contract or other instrument (however characterized
or described) to which the Company or any subsidiary is a party or by which any
of its properties or business is bound or affected and which is material to the
conduct of the Company's business as described in the Prospectus has been duly
and validly executed by the Company or such subsidiary, and, to the knowledge of
the Company, by the other parties thereto. Each such contract or other
instrument is in full force and effect and is enforceable against the parties
thereto in accordance with its terms, and the Company and each of its
subsidiaries are not, and to the knowledge of the Company, no other party is, in
default thereunder, nor has any event occurred that, with the lapse of time or
the giving of notice, or both, would constitute a default under any such
contract or other instrument. All necessary consents under such contracts or
other instruments to disclosure in the Prospectus with respect thereto have been
obtained.
(xxxii) The Company and its subsidiaries have received all
permits, licenses, franchises, authorizations, registrations, qualifications and
approvals (collectively, "Permits") of governmental or regulatory authorities
(including, without limitation, state and/or other insurance regulatory
authorities) as may be required of them to own their properties and conduct
their businesses in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus; and the Company and its
subsidiaries have fulfilled and performed all of their material obligations with
respect to such Permits, and no event has occurred which allows or, after notice
or lapse of time or both, would allow revocation or termination thereof or
result in any other material impairment of the rights of the holder of any such
Permit, subject in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, such Permits contain no
restrictions that materially affect the ability of the Company and its
subsidiaries to conduct their businesses.
13
(xxxiii)The Company and each of its subsidiaries have filed, or
has had filed on its behalf, on a timely basis, all materials, reports,
documents and information, including but not limited to annual reports and
reports of examination with each applicable insurance regulatory authority,
board or agency, which are required to be filed by it, except where the failure
to have timely filed such materials, reports, documents and information would
not constitute a Material Adverse Event.
(xxxiv) Neither Parent nor the Company nor any of the Company's
subsidiaries is an "investment company" or a company "controlled" by an
investment company as such terms are defined in Sections 3(a) and 2(a)(9),
respectively, of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and, if the Company conducts its business as set forth in the
Registration Statement and the Prospectus, will not become an "investment
company" and will not be required to register under the Investment Company Act.
(xxxv) To the best knowledge of the Company, none of the
officers, directors (except as previously disclosed to you by the Company in
writing) or shareholders holding 5% or more of any class of the Company's
capital stock are affiliated with any member of the National Association of
Securities Dealers, Inc. (the "NASD").
(xxxvi) The common stock of Parent is registered under the
Exchange Act and Parent is in substantial compliance with the requirements of
the United States federal securities laws (including, without limitation, the
requirements of the Exchange Act), the Nasdaq National Market and the Toronto
Stock Exchange. No document that has been filed by Parent with the Commission
pursuant to the Exchange Act including, without limitation, any Form 10-K, 10-Q
or 8-K, annual report to stockholders or proxy statement, (a) contained at the
time of such filing or, except to the extent corrected or modified by a
subsequent filing under the Exchange Act, contains an untrue statement of
material fact or (b) omitted at the time of filing or, except to the extent
corrected or modified by a subsequent filing under the Exchange Act, omits to
state a material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
(xxxvii)The Company and each of its subsidiaries is in compliance
with all provisions of Section 1 of the Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba.
(xxxviii The Company has not offered, or caused the Underwriters
to offer, Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully
14
influence (i) a customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company, or (ii) a trade
journalist or publication to write or publish favorable information about the
Company or its products or services.
Any certificate signed by any officer of the Company or any subsidiary
in such capacity and delivered to the Representatives or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company or such subsidiary to the several Underwriters as to the
matters covered thereby.
2. Purchase and Sale of Shares.
(a) Subject to the terms and conditions herein set forth, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of Eleven Dollars and Fifty Cents ($11.50) per share (reflecting a seven
percent underwriting discount and a one percent non-accountable expense
allowance payable to the Representatives on behalf of the Underwriters pursuant
to Section 6) (the "Per Share Price"), the number of Company Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
the aggregate number of Shares to be sold by the Company as set forth in the
first paragraph of this Agreement by a fraction, the numerator of which is the
aggregate number of Company Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto, and the
denominator of which is the aggregate number of Company Shares to be purchased
by the several Underwriters hereunder.
(b) The Company hereby grants to the Underwriters the right to
purchase at their election in whole or in part from time to time up to Four
Hundred Fifty Thousand (450,000) Optional Shares, at the Per Share Price, for
the sole purpose of covering overallotments in the sale of the Company Shares.
Any such election to purchase Optional Shares may be exercised by written notice
from the Representatives to the Company, given from time to time within a period
of 30 calendar days after the date of this Agreement and setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as hereinafter defined) or, unless you
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice. In the event you elect to purchase all or a
portion of the Optional Shares, the Company agrees to furnish or cause to be
furnished to you the certificates, letters and opinions, and to satisfy all
15
conditions, set forth in Section 7 hereof at each Subsequent Time of Delivery
(as hereinafter defined).
(c) In making this Agreement, each Underwriter is contracting
severally, and not jointly, and except as provided in Sections 2(b) and 9
hereof, the agreement of each Underwriter is to purchase only that number of
shares specified with respect to that Underwriter in Schedule I hereto. No
Underwriter shall be under any obligation to purchase any Optional Shares prior
to an exercise of the option with respect to such Shares granted pursuant to
Section 2(b) hereof.
3. Offering by the Underwriters. Upon the authorization by you of the
release of the Shares, the several Underwriters propose to offer the Shares for
sale upon the terms and conditions disclosed in the Prospectus.
4. Delivery of Shares; Closing.
(a) Certificates in definitive form for the Shares to be purchased
by each Underwriter hereunder, and in such denominations and registered in such
names as you may request upon at least 48 hours' prior notice to the Company,
shall be delivered by or on behalf of the Company, to you for the account of
such Underwriter, against payment by such Underwriter on its behalf of the
purchase price therefor by (at the Representatives' election) wire transfer of
immediately available funds to such accounts as the Company (as the case may be)
shall designate in writing, or by official bank check or checks (payable in next
day funds), payable to the order of the Company in next-day available funds. The
closing of the sale and purchase of the Shares shall be held at the offices of
LeBoeuf, Lamb, Greene & MacRae, L.L.P., 125 West 55th Street, New York, New York
10019, except that physical delivery of such certificates shall be made at the
office of The Depository Trust Company, 55 North Water Street, New York, New
York 10041. The time and date of such delivery and payment shall be, with
respect to the Company Shares, at 10:00 a.m., New York, New York time, on the
third (3rd) full business day after this Agreement is executed or at such other
time and date as you and the Company may agree upon in writing, and, with
respect to the Optional Shares, at 10:00 a.m., New York, New York time, on the
date specified by you in the written notice given by you of the Underwriters'
election to purchase all or part of such Optional Shares, or at such other time
and date as you and the Company may agree upon in writing. Such time and date
for delivery of the Company Shares is herein called the "First Time of
Delivery," such time and date for delivery of any Optional Shares, if not the
First Time of Delivery, is herein called a "Subsequent Time of Delivery," and
each such time and date for delivery is herein called a "Time of Delivery." The
Company will make such certificates available for checking and
16
packaging at least 24 hours prior to each Time of Delivery at the office of The
Depository Trust Company, 55 North Water Street, New York, New York 10041 or at
such other location specified by you in writing at least 48 hours prior to such
Time of Delivery.
5. Covenants of the Company.
(a) The Company and the Parent covenant and agree with each of the
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective prior to the execution and delivery of
this Agreement, to become effective. If the Registration Statement has been
declared effective prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to by you,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the second
business day following the execution and delivery of this Agreement or (B) the
fifth business day after the date on which the Registration Statement is
declared effective. The Company will advise you promptly of any such filing
pursuant to Rule 424(b). The Company will file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering, sale and
distribution of the Shares.
(ii) The Company will not file with the Commission the
prospectus or the amendment referred to in the second sentence of Section
1(a)(i) hereof, any amendment or supplement to the Prospectus or any amendment
to the Registration Statement unless you have received a reasonable period of
time to review any such proposed amendment or supplement and consented to the
filing thereof and will use its best efforts to cause any such amendment to the
Registration Statement to be declared effective as promptly as possible. Upon
the request of the Representatives or counsel for the Underwriters, the Company
will promptly prepare and file with the Commission, in accordance with the rules
and regulations of the Commission, any amendments to the Registration Statement
or amendments or supplements to the Prospectus that may be necessary or
advisable in connection with the distribution of the Shares by the several
Underwriters and will use its best efforts to cause any such amendment to the
Registration Statement to be declared effective as promptly as possible. If
required, the Company will file any amendment or supplement to the Prospectus
with the Commission in the manner and within the time period required by Rule
424(b) under the Act. The Company will advise the Representatives, promptly
after
17
receiving notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or declared effective or the Prospectus or any
amendment or supplement thereto has been filed and will provide evidence to the
Representatives of each such filing or effectiveness.
(iii) The Company will advise you promptly after receiving
notice or obtaining knowledge of (A) when any post-effective amendment to the
Registration Statement is filed with the Commission, (B) the receipt of any
comments from the Commission concerning the Registration Statement, (C) when any
post-effective amendment to the Registration Statement becomes effective, or
when any supplement to the Prospectus or any amended Prospectus has been filed,
(D) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (E) the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, (F) any request made by the
Commission or any securities authority of any other jurisdiction for amending
the Registration Statement, for amending or supplementing the Prospectus or for
additional information. The Company will use its best efforts to prevent the
issuance of any such stop order or suspension and, if any such stop order or
suspension is issued, to obtain the withdrawal thereof as promptly as possible.
(iv) If the delivery of a prospectus relating to the Shares is
required under the Act at any time prior to the expiration of nine months after
the date of the Prospectus and if at such time any events have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any reason it is necessary
during such same period to amend or supplement the Prospectus, the Company will
promptly notify you and upon your request (but at the Company's expense) prepare
and file with the Commission an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance and will furnish
without charge to each Underwriter and to any dealer in securities as many
copies of such amended or supplemented Prospectus as you may from time to time
reasonably request. If the delivery of a prospectus relating to the Shares is
required under the Act at any time nine months or more after the date of the
Prospectus, upon your request but at the expense of such Underwriter, the
Company will prepare and deliver to such Underwriter as many
18
copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act.
(v) The Company promptly from time to time will take such action
as you may reasonably request to qualify the Shares for offering and sale under
the securities or blue sky laws of such jurisdictions as you may request and
will continue such qualifications in effect for as long as may be necessary to
complete the distribution of the Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction.
(vi) The Company will promptly provide you, without charge, (A)
three manually executed copies of the Registration Statement as originally filed
with the Commission and of each amendment thereto, including all exhibits and
all documents or information incorporated by reference therein, (B) for each
other Underwriter a conformed copy of the Registration Statement as originally
filed and of each amendment thereto, without exhibits but including all
documents or information incorporated by reference therein and (C) so long as a
prospectus relating to the Shares is required to be delivered under the Act, as
many copies of each Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto as you may reasonably request.
(vii) As soon as practicable, but in any event not later than
the last day of the thirteenth month after the effective date of the
Registration Statement, the Company will make generally available to its
security holders an earnings statement of the Company and its subsidiaries, if
any, covering a period of at least 12 months beginning after the effective date
of the Registration Statement (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder.
(viii) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
the Company and Parent will not, without your prior written consent, offer,
issue, sell, contract to sell, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, any shares of Common Stock or securities
convertible into or exercisable or exchangeable for shares of Common Stock,
except as provided in Section 2.
(ix) During the period of three years after the effective date
of the Registration Statement, the Company will furnish to you and, upon
request, to each of the other Underwriters, without charge, (A) copies of all
reports or other communications (financial or other) furnished to shareholders
and
19
(B) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission, the National Association
of Securities Dealers, Inc. or any national securities exchange.
(x) Prior to the termination of the underwriting syndicate
contemplated by this Agreement, neither the Company nor any of its officers,
directors or affiliates nor Parent will (A) take, directly or indirectly, any
action designed to cause or to result in, or that might reasonably be expected
to constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of any of the Shares or (B) sell,
bid for, purchase or pay anyone any compensation for soliciting purchases of,
the Shares other than as contemplated under the Directed Share Program.
(xi) If at any time during the period beginning on the date the
Registration Statement becomes effective and ending on the later of (A) the date
30 days after such effective date and (B) the date that is the earlier of (1)
the date on which the Company first files with the Commission a Quarterly Report
on Form 10-Q after such effective date and (2) the date on which the Company
first issues a quarterly financial report to shareholders after such effective
date, (x) any publication or event relating to or affecting the Company shall
occur as a result of which in your reasonable opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such publication or event necessitates an amendment of or supplement to
the Prospectus), or (y) any rumor relating to or affecting the Company shall
occur as a result of which in your reasonable opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor necessitates an amendment of or supplement to the
Prospectus), the Company will consult with you concerning the necessity of a
press release or other public statement, and, if the Company determines that a
press release or other public statement is necessary, the Company will forthwith
prepare and consult with you concerning the substance of, and disseminate a
press release or other public statement, reasonably satisfactory to you,
responding to or commenting on such publication, event or rumor.
(xii) The Company will comply with the Act, the Exchange Act and
the rules and regulations thereunder so as to permit the continuance of sales of
and dealings in the Shares for as long as may be necessary to complete the
distribution of the Shares as contemplated hereby.
(xiii) In case of any event, at any time within the period
during which a prospectus is required to be delivered
20
under the Act, as a result of which any Preliminary Prospectus or the
Prospectus, as then amended or supplemented, would contain an untrue statement
of a material fact, or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or, if it is necessary at any time to amend any
Preliminary Prospectus or the Prospectus to comply with the Act or any
applicable securities or blue sky laws, the Company promptly will prepare and
file with the Commission, and any applicable state securities commission, an
amendment, supplement or document that will correct such statement or omission
or effect such compliance and will furnish to the several Underwriters such
number of copies of such amendment(s), supplement(s) or document(s) as the
Representatives may reasonably request. For purposes of this subsection, the
Company will provide such information to the Representatives, the Underwriters'
counsel and counsel to the Company as shall be necessary to enable such persons
to consult with the Company with respect to the need to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or file any
document, and shall furnish to the Representatives and the Underwriters' counsel
such further information as each may from time to time reasonably request.
(xiv) The Company will use its best efforts to maintain the
qualification or listing of the shares of Common Stock (including, without
limitation, the Shares) on the Nasdaq National Market.
(xv) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent required
by the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Advest, Inc. will notify the
Company as to which Participants will need to be so restricted. At the request
of Advest, Inc., the Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(xvi) The Company will pay all fees and disbursements incurred
by the Underwriters in connection with the offer of any Directed Shares outside
of the United States under the Directed Share Program and stamp duties, similar
taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program.
(b) The Company and Parent covenant with Advest, Inc. that the
Company will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign
21
jurisdiction in which the Directed Shares are offered in connection with the
Directed Share Program.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of the obligations of the Company under this Agreement, whether
or not the transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including, without limitation, all
costs and expenses incident to (i) the printing of and mailing expenses
associated with the Registration Statement, the Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto, this Agreement, the
Agreement among Underwriters, the underwriters' questionnaire submitted to each
of the Underwriters by the Representatives in connection herewith, the power of
attorney executed by each of the Underwriters in favor of Advest, Inc. in
connection herewith, the Dealer Agreement and related documents (collectively,
the "Underwriting Documents") and the preliminary Blue Sky memorandum relating
to the offering prepared by LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel to
the Underwriters (collectively with any supplement thereto, the "Preliminary
Blue Sky Memorandum"); (ii) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation
and, if applicable, filing of the Registration Statement (including all
amendments thereto), any Preliminary Prospectus, the Prospectus and any
amendments and supplements thereto, the Underwriting Documents and the
Preliminary Blue Sky Memorandum; (iii) the delivery of copies of the foregoing
documents to the Underwriters; (iv) the filing fees of the Commission and the
NASD relating to the Shares; (v) the preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees; (vi) the qualification of the Shares for offering
and sale under state securities and blue sky laws, including filing fees and
fees and disbursements of counsel for the Underwriters (and local counsel
therefor) relating thereto; (vii) any listing of the Shares on the Nasdaq
National Market; (viii) any expenses for travel, lodging and meals incurred by
the Company and any of its officers, directors and employees in connection with
any meetings with prospective investors in the Shares; (ix) the costs of
advertising the offering, including, without limitation, with respect to the
placement of "tombstone" advertisements in publications selected by the
Representatives; and (x) all other costs and expenses reasonably incident to the
performance of the Company's obligations hereunder that are not otherwise
specifically provided for in this Section 6. In addition, the Company has agreed
to pay to Advest, Inc., on behalf of the Underwriters, at each Time of Delivery,
a non-accountable expense allowance in the amount of 1% of the gross
22
proceeds from the sale of the Shares to be applied to the reimbursement of
underwriting syndicate expenses.
7. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of each of the Company and Parent contained
herein as of the date hereof and as of such Time of Delivery, to the accuracy of
the statements of Company officers made pursuant to the provisions hereof, to
the performance by each of the Company and Parent of its covenants and
agreements hereunder, and to the following additional conditions precedent:
(a) If the registration statement as amended to date has not become
effective prior to the execution of this Agreement, such registration statement
shall have been declared effective not later than 11:00 a.m., Hartford,
Connecticut time, on the date of this Agreement or such later date and/or time
as shall have been consented to by you in writing. The Prospectus and any
amendment or supplement thereto shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 5(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceedings for that purpose shall have been
instituted, threatened or, to the knowledge of the Company, Parent or the
Representatives, contemplated by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction.
(b) All corporate proceedings and other matters incident to the
authorization, form and validity of this Agreement, the Shares and the form of
the Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby, shall be
satisfactory in all material respects to counsel to the Underwriters.
(c) The Representatives shall have received copies of executed
lock-up agreements from each of Parent, the Company and the Company's officers
and directors who own shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or who may be issued shares of
Common Stock under an option plan or other arrangement to the effect that such
individuals and entities will not offer, sell, contract to sell, or otherwise
dispose of, any such shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock for a period of 180 days after the
23
date of the Prospectus without the written consent of Advest, Inc.
(d) The Representatives shall have received at or prior to the
First Time of Delivery from the Underwriters' counsel the Preliminary Blue Sky
Memorandum, such memorandum to be in form and substance satisfactory to the
Representatives.
(e) LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Time of Delivery, with respect to the incorporation of the Company, the validity
of the Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus, and other related matters as you may reasonably
request, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(f) The NASD shall have indicated that it has no objection to the
underwriting arrangements pertaining to the sale of any of the Shares.
(g) You shall have received an opinion, dated such Time of
Delivery, of Barnes & Thornburg, counsel for the Company, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation under the laws of the State of Indiana and has the corporate
power and authority to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus and to enter into
this Agreement and perform its obligations hereunder.
(ii) Each of the subsidiaries listed on Exhibit 21 to the
Registration Statement (the "Subsidiaries") of the Company is validly existing
as a corporation in good standing (where applicable) under the laws of its
jurisdiction of incorporation and has the corporate power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement and the Prospectus.
(iii) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of Common
Stock of the Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description of the Common Stock
contained in the Prospectus. None of the outstanding shares of Common Stock have
been issued in violation of the preemptive or other similar rights of any
shareholder or warrantholder of the Company arising by operation of law, under
the Articles of
24
Incorporation or Bylaws of the Company or, to our knowledge, under any agreement
to which the Company or any of its Subsidiaries is a party. The issuance of the
shares of Common Stock is not subject to preemptive or other similar rights
under the Articles of Incorporation or Bylaws of the Company or, to our
knowledge, under any agreement to which the Company or any of its Subsidiaries
is a party.
(iv) All of the issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and, to such counsel's knowledge, are owned beneficially
by the Company or its subsidiaries, free and clear of all liens, security
interests, pledges, charges, encumbrances, shareholders' agreements, voting
agreements, proxies, voting trusts, defects, equities or claims of any nature
whatsoever (collectively, "Encumbrances"), including, without limitation,
Encumbrances arising or resulting from any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement of or entered into by Parent, except
for the Pledges and the Stockholder Agreement (as such term is defined in the
Prospectus).
(v) When the Shares have been duly delivered against payment
therefor as contemplated by this Agreement, the Shares will be duly authorized,
validly issued and fully paid and nonassessable, the holders thereof will not be
subject to personal liability solely by reason of being such holders and the
Shares will conform to the description of the Common Stock contained in the
Prospectus; the certificates evidencing the Shares will comply with all
applicable requirements of Indiana law; and the Shares will have been listed on
the Nasdaq National Market.
(vi) To such counsel's knowledge, neither the Company nor any of
its subsidiaries is, or with the giving of notice or passage of time or both,
would be, in violation of its Articles of Incorporation or Bylaws, in each case
as amended to date.
(vii) The sale of the Shares being sold at such Time of Delivery
and the performance of this Agreement and the consummation of the transactions
herein contemplated will not violate any provision of the Articles of
Incorporation or Bylaws of the Company or any of its Subsidiaries, in each case
as amended to date, or to such counsel's knowledge, any existing law, statute,
rule or regulation, or conflict with, or (with or without the giving of notice
or the passage of time or both) result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument known to
such counsel to which the Company or any such Subsidiary
25
is a party or to which any of their respective properties or assets is subject
(except for any conflicts with, breaches of or violations of any such
indentures, mortgages, deeds of trust, loan agreements, leases or other
agreements or instruments which would not, individually or in the aggregate,
have a material adverse effect on the financial position, results of operations
or business of the Company and its subsidiaries taken as a whole), or, conflict
with or violate any order, judgment or decree known to such counsel, of any
court or governmental agency or body having jurisdiction over the Company or any
of its Subsidiaries or any of their respective properties or assets, except with
respect to any statute, rule or regulation of any regulatory authority imposing
any obligation on the part of the Underwriters by way of their purchase of the
Shares, as to which no opinion need be rendered.
(viii) To such counsel's knowledge, no consent, approval,
authorization, order or declaration of or from, or registration, qualification
or filing with, any court or governmental agency or body is required for the
sale of the Shares or the consummation of the transactions contemplated by this
Agreement, except such as have been or will have been obtained and are or will
be in effect, and except the registration of the Shares under the Act, the
Exchange Act and such as may be required under state securities or blue sky laws
in connection with the offer, sale and distribution of the Shares by the
Underwriters, as to which such counsel expresses no opinion.
(ix) To such counsel's knowledge and other than as disclosed in
or contemplated by the Prospectus, there is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation pending or threatened, in which
the Company or any of its Subsidiaries is a party or of which any of their
respective properties or assets is the subject which, if determined adversely to
the Company or any such Subsidiary, would individually or in the aggregate have
a material adverse effect on the financial position, results of operations or
business of the Company and its subsidiaries taken as a whole.
(x) The statements in the Prospectus under "Business --
Regulation," "Business -- Legal Proceedings," "Description of Capital Stock" and
"Shares Eligible for Future Sale" have been reviewed by such counsel, and
insofar as they refer to statements of law, descriptions of statutes, licenses,
rules or regulations, or legal conclusions, are correct in all material
respects.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
26
(xii) Neither the Company nor any of its subsidiaries nor Parent
is an "investment company" or a company "controlled" by an investment company as
such terms are defined in Sections 3(a) and 2(a)(9), respectively, of the
Investment Company Act of 1940, as amended.
(xiii) The Registration Statement and the Prospectus and each
amendment or supplement thereto (other than the financial statements, the notes
and schedules thereto and other financial data included therein, to which such
counsel need express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the requirements of the
Act and the respective rules and regulations thereunder. The descriptions in the
Registration Statement and the Prospectus of contracts and other documents are
accurate in all material respects and fairly present the information required to
be shown; and such counsel do not know of any contracts or documents of a
character required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement which are not described
and filed as required.
(xiv) Such counsel has been advised by the Division of
Corporation Finance of the Commission that the Registration Statement has become
effective under the Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); and, to such counsel's knowledge, (A) no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued
and (B) no proceedings for that purpose have been instituted or threatened or
are contemplated by the Commission.
Such counsel shall also state that they have participated in the
preparation of the Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of and
counsel to the Underwriters at which the contents of the Registration Statement,
the Prospectus and related matters were discussed and, although such counsel has
not passed upon or assumed any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, and although such counsel has not undertaken to verify independently
the accuracy or completeness of the statements in the Registration Statement or
the Prospectus and, therefore, would not necessarily have become aware of any
material misstatement of fact or omission to state a material fact, on the basis
of and subject to the foregoing, nothing has come to such counsel's attention to
lead them to believe that the Registration Statement, or any further
27
amendment thereto made prior to such Time of Delivery, on its effective date and
as of such Time of Delivery, contained or contains any untrue statement of a
material fact or omitted or omits to state any 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, or that the
Prospectus, or any amendment or supplement thereto made prior to such Time of
Delivery, as of its issue date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements, the notes and
schedules thereto and other financial and statistical data contained in the
Registration Statement, any amendment thereto, or the Prospectus, or any
amendment or supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of officers of the
Company and public officials and letters from officials of the NASD and on the
opinions of other counsel reasonably satisfactory to you and your counsel as to
matters which are governed by laws other than the laws of the State of Indiana
and the Federal laws of the United States; provided that such counsel shall
state in their opinion that they are so relying, and they are justified in
relying on such other opinions. Copies of such certificates of officers of the
Company and other opinions shall be addressed and furnished to the Underwriters
and furnished to counsel for the Underwriters.
(h) You shall have received an opinion, dated such Time of
Delivery, of David L. Bates, Esquire, General Counsel of the Company and Parent,
in form and substance satisfactory to you and your counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing as
a corporation under the laws of the State of Indiana and has the corporate power
and authority to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus and to enter into
this Agreement and perform its obligations hereunder. The Company is duly
qualified to transact business as a foreign corporation and is in good standing
under the laws of each other jurisdiction in which it owns or leases property,
or conducts any business, so as to require such qualification, except where the
failure to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company and its subsidiaries
taken as a whole. Parent has been duly incorporated, is validly existing as a
federally chartered corporation in good standing under the laws of Canada and
has the
28
corporate power and authority to enter into this Agreement and perform its
obligations hereunder.
(ii) Each of the subsidiaries of the Company is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to own or lease its
properties and conduct its business as described in the Registration Statement
and the Prospectus. Each such subsidiary is duly qualified to transact business
as a foreign corporation and is in good standing under the laws of each other
jurisdiction in which it owns or leases property, or conducts any business, so
as to require such qualification, except where the failure to so qualify would
not have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries taken as a whole.
(iii) Except as disclosed in the Prospectus, there are, to such
counsel's knowledge, no outstanding (A) securities or obligations of Parent, the
Company or any of the Company's subsidiaries convertible into or exchangeable
for any capital stock of the Company or any such subsidiary, (B) warrants,
rights or options to subscribe for or purchase from Parent, the Company or any
such subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations or (C) obligations of Parent, the Company or any such
subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
(iv) Except for the Goran Registration Rights Agreement (as such
term is defined in the Prospectus), to such counsel's knowledge, there are no
contracts, agreements or understandings known to such counsel between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(v) To such counsel's knowledge, neither the Company nor any of
its subsidiaries nor Parent is, or with the giving of notice or passage of time
or both, would be, in violation of its Articles of Incorporation or Bylaws, in
each case as amended to date, or, in default in any material respect under any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to
29
which the Company, any such subsidiary or Parent is a party or to which any of
their respective properties or assets is subject.
(vi) To such counsel's knowledge and other than as disclosed in
or contemplated by the Prospectus, there is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation pending or threatened, in which
the Company, any of its subsidiaries or Parent is a party or of which any of
their respective properties or assets is the subject which, if determined
adversely to the Company, any such subsidiary or Parent, would individually or
in the aggregate have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiaries taken as a
whole; and, to the best of such counsel's knowledge, neither the Company nor any
of its subsidiaries nor Parent is in violation of, or in default with respect
to, any law, statute, rule, regulation, order, judgment or decree, except as
described in the Prospectus or such as do not and will not individually or in
the aggregate have a material adverse effect on the financial position, results
of operations or business of the Company and its subsidiaries taken as a whole,
nor is the Company, any such subsidiary or Parent required to take any action in
order to avoid any such violation or default.
(vii) This Agreement has been duly authorized, executed and
delivered by each of the Company and Parent.
(viii) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times duly registered or exempt from the
registration requirements of the Act, and were duly registered or the subject of
an available exemption from the registration requirements of the applicable
state securities or blue sky laws, or any actions in respect thereof are barred
by the applicable statutes of limitations.
(ix) To such counsel's knowledge, the Company and each of its
subsidiaries have received all permits, licenses, franchises, authorizations,
registrations, qualifications and approvals (collectively, "permits") of
governmental or regulatory authorities (including, without limitation, state
and/or other insurance regulatory authorities) as may be required of them to own
their properties and to conduct their businesses in the manner described in the
Prospectus, subject to such qualification as may be set forth in the Prospectus;
to the best of such counsel's knowledge, the Company and each of its
subsidiaries have fulfilled and performed all of their material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time or both would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of any such
permits, subject in each case to such qualifications as may be set forth
30
in the Prospectus; and other than as described in the Prospectus, such permits
contain no restrictions that materially affect the ability of the Company and
its subsidiaries to conduct their businesses.
Such counsel shall also state that he has participated in the
preparation of the Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of and
counsel to the Underwriters at which the contents of the Registration Statement,
the Prospectus and related matters were discussed and, although such counsel has
not passed upon or assumed any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, and although such counsel has not undertaken to verify independently
the accuracy or completeness of the statements in the Registration Statement or
the Prospectus and, therefore, would not necessarily have become aware of any
material misstatement of fact or omission to state a material fact, on the basis
of and subject to the foregoing, nothing has come to such counsel's attention to
lead him to believe that the Registration Statement, or any further amendment
thereto made prior to such Time of Delivery, on its effective date and as of
such Time of Delivery, contained or contains any untrue statement of a material
fact or omitted or omits to state any 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, or that the
Prospectus, or any amendment or supplement thereto made prior to such Time of
Delivery, as of its issue date and as of such Time of Delivery, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements, the notes and
schedules thereto and other financial and statistical data contained in the
Registration Statement, any amendment thereto, or the Prospectus, or any
amendment or supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of officers of the
Company and Parent, and public officials and letters from officials of the NASD
and on the opinions of other counsel reasonably satisfactory to you and your
counsel as to matters which are governed by laws other than the laws of the
State of Indiana and the Federal laws of the United States; provided that such
counsel shall state in his opinion that he is so relying, and he is justified in
relying on such other opinions. Copies of such certificates of officers of the
31
Company and Parent and other opinions shall be addressed and furnished to the
Underwriters and furnished to counsel for the Underwriters.
(i) You shall have received an opinion, dated such Time of
Delivery, of Smith Lyons, counsel for the Parent, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) Parent has been duly incorporated and is validly existing
under the laws of Canada and has the corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
(ii) The execution, delivery and performance by Parent of this
Agreement does not result in, and with the giving of notice or passage of time
or both, would not result in, a violation of its Articles of Amalgamation or
Bylaws, in each case as amended to date.
(iii) To such counsel's knowledge and other than as disclosed in
or contemplated by the Prospectus, there is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation pending or threatened, in which
Parent is a party or of which any of its properties or assets is the subject
which, if determined adversely to Parent, would individually or in the aggregate
have a material adverse effect on the financial position, results of operations
or business of the Company and its subsidiaries taken as a whole; and, to such
counsel's knowledge, Parent is not in violation of, or in default with respect
to, any law, statute, rule, regulation, order, judgment or decree, except as
described in the Prospectus or such as do not and will not individually or in
the aggregate have a material adverse effect on the financial position, results
of operations or business of the Company and its subsidiaries taken as a whole,
nor is Parent required to take any action in order to avoid any such violation
or default.
(iv) This Agreement has been duly authorized, executed and
delivered by Parent.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel may deem proper, on certificates of officers of
Parent and public officials. Copies of such certificates of officers of Parent
and other opinions shall be addressed and furnished to the Underwriters and
furnished to counsel for the Underwriters.
(j) You shall have received from Coopers & Lybrand L.L.P., letters
dated, respectively, the date hereof (or, if the Registration Statement has been
declared effective prior
32
to the execution and delivery of this Agreement, dated such effective date and
the date of this Agreement) and each Time of Delivery, in form and substance
satisfactory to you, which letters shall cover such matters as you shall request
as well as:
(i) confirming that they are independent certified public
accountants (within the meaning of the Act) with respect to the Company and its
subsidiaries;
(ii) stating that, in their opinion, the financial statements,
certain summary and selected consolidated financial and operating data, and any
supplementary financial information and schedules audited by them and included
in the Prospectus or the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act; and
they have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated interim
financial statements, and any supplementary financial information and schedules,
selected financial data, and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in such
letter, and, as indicated in their report thereon, copies of which have been
furnished to the Representatives;
(iii) stating that, on the basis of specified procedures, which
included the procedures specified by the American Institute of Certified Public
Accountants ("AICPA") for a review of interim financial information, as
described in SFAS No. 71, Interim Financial Information (with respect to the
latest unaudited consolidated financial statements of the Company included in
the Registration Statement), a reading of the latest available unaudited interim
consolidated financial statements of the Company (with an indication of the date
of the latest available unaudited interim financial statements), a reading of
the latest available minutes of the meetings of the shareholders and the Board
of Directors of the Company and its subsidiaries, and audit and compensation
committees of such Boards, if any, and inquiries to certain officers and other
employees of the Company and its subsidiaries responsible for operational,
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention that would cause them to believe that (A)
the unaudited consolidated financial statements included in the Registration
Statement (1) do not comply in form in all material respects with the applicable
accounting requirements of the Act or (2) any material modifications should be
made to such unaudited financial statements for them to be in conformity with
generally accepted accounting principles; (B) at the date of the latest
available unaudited interim consolidated financial statements of the Company and
a specified date not more than five business days prior to the date of such
letter, there
33
was any change in the capital stock and other items specified by the
Representatives, increase in long-term debt, decrease in net current assets,
total assets, investments or shareholders' equity of the Company and its
subsidiaries, as compared with the amounts shown in the June 30, 1996 unaudited
consolidated balance sheet of the Company included in the Registration
Statement, or that for the periods from June 30, 1996 to the date of the latest
available unaudited financial statements of the Company and to a specified date
not more than five days prior to the date of the letter, there were any
decreases, as compared to the corresponding periods in the prior year, in gross
premiums written, net investment income, net realized capital gains, or total or
per share amounts of net income, or other items specified by the
Representatives, except in all instances for changes, decreases or increases
which the Registration Statement discloses have occurred or may occur and except
for such other changes, decreases or increases which the Representatives shall
in their sole discretion accept; or (C) any other unaudited income statement
data and balance sheet items included in the Registration Statement do not agree
with the corresponding items in the unaudited financial statements from which
such data and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements included
or incorporated by reference in the Registration Statement;
(iv) stating that, on the basis of a reading of the unaudited
pro forma financial statements included in the Registration Statement and the
Prospectus (the "pro forma financial statements"), carrying out certain
specified procedures, inquiries of certain officials of the Company and its
subsidiary, Superior Insurance Company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the pro forma financial
statements, nothing has come to their attention that would cause them to believe
that the pro forma financial statements do not comply in all material respects
with the applicable accounting requirements of Rule 11- 02 of Regulation S-X or
that the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements;
(v) stating that they have compared specific dollar amounts,
numbers of shares, percentage of revenues and earnings statements and other
numerical data and financial information pertaining to the Company and its
subsidiaries set forth in the Registration Statement and all of the dollar
amounts and percentages in the Registration Statement, in each case to the
extent that such information is derived from the accounting records subject to
the internal control structure, policies and
34
procedures of the Company's and its subsidiaries' accounting system, or has been
otherwise derived in a manner permitted by AICPA Statement on Auditing Standards
No. 72 with the results obtained from the application of specific readings,
inquiries and other appropriate procedures (which procedures do not constitute
an audit in accordance with generally accepted auditing standards) set forth in
the letter and with the accounting records of the Company and its subsidiaries,
and found them to be in agreement.
In the event that the letters referred to in this Section 7(h) set forth any
changes, decreases or increases in the items identified by you, it shall be a
further condition to the obligations of the Underwriters that (i) such letters
shall be accompanied by a written explanation by the Company as to the
significance thereof, unless the Representatives deem such explanation
unnecessary and (ii) such changes, decreases or increases do not, in your sole
judgment, make it impracticable or inadvisable to proceed with the purchase,
sale and delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date of such
letter.
(k) Since the date of the latest audited financial statements
included in the Prospectus and except pursuant to claims made by insureds in the
ordinary course of business under policies of insurance issued by the Company's
subsidiaries which claims are reasonably consistent with the Company's
historical claims experience, neither the Company nor any of its subsidiaries
shall have sustained (i) any loss or interference with their respective
businesses from fire, explosion, flood, hurricane or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in or contemplated by the
Prospectus, or (ii) any change, or any development involving a prospective
change (including, without limitation, a change in management or control of the
Company), in or affecting the position (financial or otherwise), results of
operations, net worth or business prospects of the Company and its subsidiaries,
otherwise than as disclosed in or contemplated by the Prospectus, the effect of
which, in either such case, is in your sole judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at such Time of Delivery as contemplated
by the Registration Statement, as amended as of the date hereof.
(l) Subsequent to the date hereof, there shall not have occurred
any of the following: (i) any suspension or limitation in trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on
35
such exchange, or in the Common Stock of the Company by the Commission or the
National Association of Securities Dealers Automated Quotation National Market
System (except for suspensions or limitations that last only a portion of one
business day); (ii) a moratorium on commercial banking activities in New York,
Indiana or Connecticut declared by either federal or state authorities; or (iii)
any outbreak or escalation of hostilities involving the United States,
declaration by the United States of a national emergency or war or any other
national or international calamity or emergency if the effect of any such event
specified in this clause (iii) in your sole judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares being
delivered at such Time of Delivery as contemplated by the Registration
Statement, as amended as of the date hereof.
(m) The Company shall have furnished to you at such Time of
Delivery certificates of the chief executive and chief financial officers of the
Company satisfactory to you, as to the accuracy in all material respects of the
respective representations and warranties of the Company herein at and as of
such Time of Delivery with the same effect as if made at such Time of Delivery,
as to the performance by the Company of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to such
other matters as you may reasonably request, and the Company shall have
furnished or caused to be furnished certificates of such officers as to such
matters as you may reasonably request.
(n) The representations and warranties of each of the Company
and Parent in this Agreement and in the certificates delivered by each of the
Company and Parent pursuant to this Agreement shall be true and correct in all
material respects when made and on and as of each Time of Delivery as if made at
such time, and each of the Company and Parent shall have performed all covenants
and agreements and satisfied all conditions contained in this Agreement required
to be performed or satisfied by each of the Company and Parent at or before such
Time of Delivery.
(o) The Shares shall continue to be listed on the National
Association of Securities Dealers Automated Quotation National Market System.
(p) The Representatives shall have received copies of executed
lock-up agreements from each of Parent, Parent's principal shareholders and
Parent's officers and directors who own shares of common stock of Parent or
securities convertible into or exchangeable or exercisable for common stock of
Parent to the effect that such individuals and entities will not offer, sell,
contract to sell, or otherwise dispose of, any such shares of common stock of
Parent or securities convertible
36
into or exchangeable or exercisable for common stock of Parent for a period of
180 days after the date of the Prospectus without the prior written consent of
Advest, Inc.
8. Indemnification and Contribution.
(a) Each of the Company and Parent agrees to jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement made by the Company or Parent
in Section 1(a) of this Agreement; (ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or (B) any application or other document, or
amendment or supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Shares under the securities or blue sky laws thereof or
filed with the Commission or any securities association or securities exchange
(each an "Application"); or (iii) the omission of or alleged omission to state
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or any
Application, a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that neither the Company nor Parent shall be liable in any
such case to the extent that any such loss, claim, damage, liability or action
(i) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through you expressly for use therein (which information is solely as set forth
in Section 1(a)(iii) hereof) or (ii) is asserted by a person who purchased any
of the Shares which are the subject thereof from an Underwriter and if a copy of
the Prospectus (as amended or supplemented) which corrected the untrue statement
or alleged untrue statement or omission or alleged omission which is the basis
of the loss, claim, damage, liability or action for which indemnification is
sought was not delivered or given to such person at or prior to the written
37
confirmation of the sale to such person. Neither the Company nor Parent will,
without the prior written consent of the Representatives of the Underwriters,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification may be sought hereunder
(whether or not any Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of each Underwriter from all liability arising out of such
claim, action, suit or proceeding (or related cause of action or portion
thereof).
(b) Each of the Company and Parent agrees to jointly and severally
indemnify and hold harmless each QIU, in its capacity as QIU, against any
losses, claims, damages or liabilities, joint or several, to which such QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement made by the Company
or Parent in Section 1(a) of this Agreement; (ii) any untrue statement or
alleged untrue statement of any material fact contained in (A) the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or (B) any Application; (iii) the
omission of or alleged omission to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application, a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (iv)
other than as referred to in the preceding clauses (i) through (iii), such QIU's
actions as a QIU, except insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arising under this clause (iv) result from such
QIU's willful misconduct or gross negligence, and will reimburse each QIU for
any legal or other expenses reasonably incurred by such QIU in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that neither the Company nor Parent shall be liable in any such case to
the extent that any such loss, claim, damage, liability or action (i) arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application in reliance upon and in conformity with written
information relating to such QIU furnished to the Company by or on behalf of
such QIU in such capacity through you expressly for use therein (it being
understood and acknowledged by the Company that such written information shall
consist solely
38
of the three sentences that are set forth in the second to last paragraph of the
section entitled "Underwriting" in the Prospectus) or (ii) is asserted by a
person who purchased any of the Shares which are the subject thereof from an
Underwriter and if a copy of the Prospectus (as amended or supplemented) which
corrected the untrue statement or alleged untrue statement or omission or
alleged omission which is the basis of the loss, claim, damage, liability or
action for which indemnification is sought was not delivered or given to such
person at or prior to the written confirmation of the sale to such person.
(c) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company and Parent against any losses, claims,
damages or liabilities to which the Company and Parent may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto, or any Application or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use therein; and will
reimburse the Company and Parent for any legal or other expenses reasonably
incurred by the Company and Parent in connection with investigating or defending
any such loss, claim, damage, liability or action.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under such subsection.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified
39
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. After such notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence or (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. Nothing in this Section 8(d) shall preclude an
indemnified party from participating at its own expense in the defense of any
such action so assumed by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Parent on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Parent on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and Parent on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and Parent bear to
the total underwriting discounts and commissions received by the
40
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and Parent on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, Parent and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless a QIU under subsection (b) above
in respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such QIU as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and Parent
on the one hand and the QIUs on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such QIU in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Parent on the one hand and the QIUs on the other in
connection with the statements or
41
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Parent on the
one hand and the QIUs on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and Parent bear to the underwriting discounts and commissions
received by the QIUs. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and Parent on the one hand or the QIUs on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
Parent and the QIUs agree that it would not be just and equitable if
contributions pursuant to this subsection (f) were determined by pro rata
allocation (even if the QIUs were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (f). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(f) shall be deemed to include 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 subsection (f), no QIUs
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it as shown on Schedule I and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The QIUs' obligations in this
subsection (f) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(g) The obligations of the Company and Parent under this Section 8
shall be in addition to any liability which the Company and Parent may otherwise
have and shall extend, upon the same terms and conditions, and to each officer,
director and employee of the Underwriters (including the QIUs) and to each
person, if any, who controls any Underwriter (including the QIUs) within the
meaning of the Act or the Exchange Act; and the obligations of the Underwriters
(including the QIUs) under this Section 8 shall be in addition to any liability
which the respective Underwriters (including the QIUs) may otherwise have
42
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and Parent and to each person, if any, who controls the
Company or Parent within the meaning of the Act or the Exchange Act.
9. Default of Underwriters.
(a) If any Underwriter defaults in its obligation to purchase
Shares at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six (36) hours after such default by any Underwriter
you do not arrange for the purchase of such Shares, the Company shall be
entitled to a further period of thirty-six (36) hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such Shares, or
the Company notifies you that it has so arranged for the purchase of such
Shares, you or the Company shall have the right to postpone a Time of Delivery
for a period of not more than seven (7) days in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus that in
your opinion may thereby be made necessary. The cost of preparing, printing and
filing any such amendments shall be paid for by the Underwriters. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you or the Company as
provided in subsection (a) above, if any, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh (1/11) of the aggregate
number of Shares to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
number of Shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
10. Termination.
(a) This Agreement may be terminated with respect to the Company
Shares or any Optional Shares in the sole
43
discretion of the Representatives by notice to the Company given prior to the
First Time of Delivery or any Subsequent Time of Delivery, respectively, in the
event that (i) any condition to the obligations of the Underwriters set forth in
Section 7 hereof has not been satisfied, or (ii) the Company shall have failed,
refused or been unable to deliver such party's respective Shares or the Company
or Parent shall have failed, refused or been unable to perform all obligations
and satisfy all conditions on their respective parts to be performed or
satisfied hereunder at or prior to such Time of Delivery, in either case other
than by reason of a default by any of the Underwriters. If this Agreement is
terminated pursuant to this Section 10(a), the Company and/or Parent will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including counsel fees and disbursements) that shall have been incurred by them
in connection with the proposed purchase and sale of the Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in Section 9(a), the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh (1/11) of the aggregate number of Shares to be
purchased at such Time of Delivery, or if the Company shall not exercise the
right described in Section 9(b) to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to a Subsequent Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company, Parent and their officers and
the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person
referred to in Section 8(e) or the Company, Parent or any officer or director or
controlling person of the Company or Parent referred to in Section 8(e), and
shall survive delivery of and payment for the Shares. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6 and 8 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
44
12. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed, delivered or telegraphed and
confirmed in writing to you in care of Advest, Inc., 90 State House Square,
Hartford, CT 06103, Attention: David Minot (with a copy to LeBoeuf, Lamb, Greene
& MacRae, L.L.P., 125 West 55th Street, New York, NY 10019, Attention: Lars
Bang-Jensen, Esquire); and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to Symons International Group, Inc., 4720
Kingsway Drive, Indianapolis, IN 46205, Attention: Alan G. Symons (with a copy
to Barnes & Thornburg, 11 South Meridian Street, Indianapolis, IN 46205,
Attention: Catherine Bridge, Esquire).
13. Representatives. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you jointly or by Advest, Inc. will be binding
upon all the Underwriters.
14. Binding Effect. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company, Parent and to the
extent provided in Sections 8 and 10 hereof, the officers, directors and
employees and controlling persons referred to therein and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to any
provisions regarding conflicts of laws.
16. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
45
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by Advest, Inc., on behalf of each of the Underwriters,
this letter will constitute a binding agreement among the Underwriters, Parent
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is pursuant to the authority set forth in the
Agreement among Underwriters, a copy of which shall be submitted to the Company
for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
SYMONS INTERNATIONAL GROUP, INC.
By:/s/ Alan G. Symons
-----------------------------------
Name: Alan G. Symons
Title:Chief Executive Officer
GORAN CAPITAL INC.
By:/s/ Alan G. Symons
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above at Hartford, Connecticut.
ADVEST, INC.
MESIROW FINANCIAL, INC.
By: ADVEST, INC.
By:/s/ Phil M. Skidmore
-----------------------------------
Name: Phil M. Skidmore
Title: Group Vice President
Director Investment Banking
On behalf of each of the Underwriters
46
JOINDER
The following subsidiary of the Company, intending to be legally bound,
hereby joins this Agreement for purposes of Sections 1 and 8 hereof.
IGF HOLDINGS, INC.
By:/s/ David L. Bates
------------------------
Title VP & Sec
47
SCHEDULE I
Number of
Optional
Total Number Shares to be
of Company Purchased if
Shares Maximum
to be Option
Underwriter Purchased Exercised
Advest, Inc. 920,000 138,000
Mesirow Financial, Inc. 920,000 138,000
Dean Witter Reynolds Inc. 60,000 9,000
Deutsche Morgan Grenfell Inc. 60,000 9,000
Donaldson, Lufkin & Jenrette Securities
Corporation 60,000 9,000
Dresdner Kleinwort Benson North America LLC 60,000 9,000
A.G. Edwards & Sons, Inc. 60,000 9,000
Goldman, Sachs & Co. 60,000 9,000
Lehman Brothers Inc. 60,000 9,000
Morgan Stanley & Co. Incorporated 60,000 9,000
Oppenheimer & Co., Inc. 60,000 9,000
NatCity Investments, Inc. 60,000 9,000
J.C. Bradford & Co. 35,000 5,250
Brean Murray & Co., Inc. 35,000 5,250
City Securities Corporation 35,000 5,250
Dominick & Dominick, Inc. 35,000 5,250
EVEREN Securities, Inc. 35,000 5,250
First of Michigan Corporation 35,000 5,250
Friedman, Billings, Ramsey & Co., Inc. 35,000 5,250
Janney Montgomery Scott Inc. 35,000 5,250
Ladenburg, Thalmann & Co. Inc. 35,000 5,250
Legg Mason Wood Walker, Incorporated 35,000 5,250
McDonald & Company Securities, Inc. 35,000 5,250
Morgan Keegan & Company, Inc. 35,000 5,250
The Robinson-Humphrey Company, Inc. 35,000 5,250
Sands Brothers & Co., Ltd. 35,000 5,250
Stephens Inc. 35,000 5,250
Wheat, First Securities, Inc. 35,000 5,250
--------- -------
Total 3,000,000 450,000
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