S&C Draft of January 8, 1997
AMERUS LIFE HOLDINGS, INC.
CLASS A COMMON STOCK
(NO PAR VALUE)
UNDERWRITING AGREEMENT
__________, 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
ABN AMRO Chicago Corporation,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Salomon Brothers Inc
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
AmerUs Life Holdings, Inc., an Iowa corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
........ shares and, at the election of the Underwriters, up to ........
additional shares of Class A Common Stock, no par value ("Stock") of the Company
and AmerUs Group Co., an Iowa corporation and the sole shareholder of the
Company ("AmerUs Group") proposes, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of ........ shares and at the
election of the Underwriters, up to ........ additional shares of Stock. The
aggregate of ........ shares to be sold by the Company and AmerUs Group is
herein called the "Firm Shares" and the aggregate of ........ additional shares
to be sold by the Company and AmerUs Group is herein called the "Optional
Shares." The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the
"Shares". The Company was formed in connection with a Plan of Reorganization
(the "Plan"), pursuant to which American Mutual Life Insurance Company, an Iowa
mutual life insurance company ("American Mutual") was reorganized into a mutual
insurance holding company structure (the "Reorganization") on June 30, 1996.
Prior to the execution and delivery of this Agreement, AmerUs Life Insurance
Company, an Iowa stock life insurance company ("AmerUs Life"), which is the
successor company of American Mutual, has made a capital contribution of certain
assets (the "Capital Contribution") to certain of its non-life insurance
subsidiaries and a distribution of its non-life insurance subsidiaries (the
"Distribution") to AmerUs Group, which immediately afterwards contributed all of
its shares of common stock in AmerUs Life to the Company. When the context
requires, references herein to AmerUs Life shall be deemed to be references to
American Mutual prior to the date AmerUs Life was formed.
In connection with the issuance and the sale of the Shares, the Company and
AmerUs Group have made a subscription offering (the "Subscription Offering") to
certain eligible policyowners of
American Mutual in accordance with the Plan, and have received subscriptions for
____ shares of Stock (the "Subscription Shares"). The Company and AmerUs Group
have entered into a Subscription Agency Agreement (the "Subscription Agreement")
with ABN AMRO Chicago Corporation, whereby the Company and AmerUs Group have
appointed ABN AMRO Chicago Corporation as their subscription agent in connection
with the Subscription Offering. The Company, AmerUs Group and AmerUs Life each
acknowledge and agree with the Underwriters that as between the Company, AmerUs
Group and AmerUs Life on the one hand and the Underwriters on the other, the
Company, AmerUs Group and AmerUs Life are the sole beneficiaries of the
Subscription Offering and that none of the Underwriters (other than ABN AMRO
Chicago Corporation in its capacity as subscription agent) have provided any
services to the Company and AmerUs Group as to the structure or implementation
of the Subscription Offering other than rendering advice with respect to the
Subscription Price (as defined in the Prospectus).
1. Each of the Company, AmerUs Group and AmerUs Life, jointly and
severally, represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-1 (File No. 333-12239) (the
"Registration Statement") in respect of the offering of the Subscription
Shares and a post-effective amendment to the Registration Statement (the
"Post-Effective Amendment") in respect of the offering of the Shares have
been filed with the Securities and Exchange Commission (the "Commission");
the Registration Statement, the Post-Effective Amendment and any further
post-effective amendment to the Registration Statement, each in the form
heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Registration Statement has heretofore been
filed with the Commission; and no stop order suspending the effectiveness
of the Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (the form of final prospectus relating to the offering of the
Subscription Shares contained in the Registration Statement at the time it
was declared effective, is hereinafter called the "Subscription
Prospectus"; any preliminary prospectus relating to the offering of the
Shares included in the Post-Effective Amendment or any further post-
effective amendment to the Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Preliminary Prospectus"
and collectively called the "Preliminary Prospectuses"; the various parts
of the Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information
contained in the form of final prospectus relating to the offering of the
Shares filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under
the Act to be part of the Registration Statement at the time it was
declared effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, each as amended at the time
such part of such registration statement became effective, is hereinafter
called the "Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the "Prospectus");
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(b) No order preventing or suspending the use of the Subscription
Prospectus or any Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(c) Each of the Registration Statement and the Subscription
Prospectus conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement, the Subscription Prospectus or
the Prospectus will conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to such
Registration Statement and any amendment thereto, as of the date of such
Subscription Prospectus and any amendment or supplement thereto, and as of
the applicable filing date as to such Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
made in the Registration Statement or the Prospectus in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company or any of its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of the Company and its
subsidiaries, taken as a whole, and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
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(f) American Mutual Holding Company ("AMHC") has been duly organized
and is validly existing as a mutual insurance holding company in good
standing under the laws of the State of Iowa; each of the Company and
AmerUs Group has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Iowa; each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; and each of the Company and its subsidiaries
has power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business 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, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(g) Each of AMHC, AmerUs Group, the Company and the Company's
subsidiaries that are required to be organized and licensed as insurance
companies or insurance holding companies (the "Insurance Companies") is
duly organized and licensed as an insurance or insurance holding company in
its respective jurisdiction of organization or incorporation, as the case
may be, and is duly licensed or authorized in each other jurisdiction where
it is required to be so licensed or authorized to conduct its business as
described in the Prospectus, in each case with such exceptions,
individually or in the aggregate, as would not have a material adverse
effect on the general affairs, management, financial position,
shareholders' equity or results of operations of the Company (such
individual or aggregate effect being herein referred to as a "Material
Adverse Effect"); each of the Insurance Companies is in compliance with the
requirements of the insurance laws and regulations of its respective
jurisdiction of organization or incorporation, as the case may be, and the
insurance laws and regulations of other jurisdictions which are applicable
to it, and has filed all notices, reports, documents or other information
("Notices") required to be filed thereunder, in each case, with such
exceptions as would not have a Material Adverse Effect; and, except as
otherwise specifically described in the Prospectus, no Insurance Company
has received any notification from any insurance regulatory authority to
the effect that any additional authorization, approval, order, consent,
license, certificate, permit, registration or qualification ("Approvals")
from such insurance regulatory authority is needed to be obtained by any of
the Insurance Companies in any case where it could be reasonably expected
that obtaining such Approvals or the failure to obtain such Approvals would
have a Material Adverse Effect;
(h) Without limiting the foregoing, each of the Insurance Companies
has filed all Notices pursuant to, and has obtained all Approvals required
to be obtained under, and has otherwise complied with all requirements of,
all applicable insurance laws and regulations (excluding insurance
securities laws other than those of the State of Iowa), in connection with
the issuance and sale of the Subscription Shares and the Shares
(collectively, the "Transaction Shares"), in each case (other than the
insurance laws and regulations of the State of Iowa, as to which no
exception is taken) with such exceptions, individually or in the aggregate,
as would not affect the validity of the Transaction Shares, their issuance
or the transactions contemplated hereby or by the Subscription Agreement or
have a Material Adverse Effect; and no such Notices or Approvals are
required to be filed or obtained by any of the Insurance Companies in
connection with the issuance and sale of the Transaction Shares, in each
case (other than the insurance laws of the State of Iowa, as to which no
exception is taken) with such exceptions, individually or in the aggregate,
as would not affect the validity of the
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Transaction Shares, their issuance or the transactions contemplated hereby
or have a Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the
Subscription Prospectus and the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description of
the Stock and the Company's Class B Common Stock, no par value (the "Class
B Common Stock"), contained in the Subscription Prospectus and the
Prospectus; all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
and all of the issued shares of capital stock of AmerUs Group have been
duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by AMHC, free and clear of all liens,
encumbrances, equities or claims;
(j) The unissued Transaction Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly authorized
and, when the Shares are issued and delivered against payment therefor as
provided herein and the Subscription Shares are issued and delivered
against payment therefor pursuant to the terms of the Subscription
Offering, the Transaction Shares will be duly and validly issued and fully
paid and non-assessable and will conform to the description of the Stock
contained in the Subscription Prospectus and the Prospectus;
(k) The issue and sale of the Transaction Shares to be sold by the
Company, the sale of the Transaction Shares to be sold by AmerUs Group and
the compliance by the Company, AmerUs Group and AmerUs Life (as applicable)
with all of the provisions of this Agreement, the Subscription Agreement
and the Custody Agreement (as defined below), and the consummation of the
transactions herein and therein contemplated (including consummation of the
Plan, the Distribution and the Capital Contribution) did not and will not,
as the case may be, conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, AmerUs Group or any of their subsidiaries
is a party or by which the Company, AmerUs Group or any of their
subsidiaries is bound or to which any of the property or assets of the
Company, AmerUs Group or any of their subsidiaries is subject, nor did or
will such action result in any violation of the provisions of the charter
or other organizational documents or bylaws of the Company, AmerUs Group or
any of their subsidiaries, any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company, AmerUs Group or any of their subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the sale of the Transaction Shares or the consummation of the
transactions contemplated by this Agreement and the Subscription Agreement,
except (i) the registration under the Act of the Transaction Shares, (ii)
approvals required under the Iowa insurance laws and regulations, all of
which approvals have been obtained and (iii) such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws (including insurance securities laws
other than the insurance securities laws of the State of Iowa) in
connection with the purchase and distribution of the Shares by the
Underwriters and the distribution of the Subscription Shares;
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(l) Neither the Company nor any of its subsidiaries is in violation
of its charter or other organizational documents or bylaws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound which default would have
a Material Adverse Effect;
(m) The statements set forth in the (a) Subscription Prospectus and
Prospectus under the caption "Description of the Capital Stock", insofar as
they purport to constitute a summary of the terms of the Stock and the
Class B Common Stock, (b) Subscription Prospectus and Prospectus under the
captions "Risk Factors -- Regulatory and Related Matters"; "-- The Closed
Block"; "-- Class A Common Stock Eligible For Future Sale"; "The
Reorganization and Distribution of the Non-Life Insurance Subsidiaries";
"The Subscription Offering"; "Supervision and Regulation"; "Management
Compensation -- Compensation Pursuant to the Stock Plans of the Company";
"-- Compensation Pursuant to AmerUs Life Plans"; "-- Savings and Profit
Sharing Plans"; "-- Employment Agreement"; "Certain Transactions and
Relationships"; "Certain Provisions of the Articles of Incorporation and
Bylaws of the Company"; and "Shares Eligible for Future Sale", insofar as
they purport to describe the provisions of the laws and documents referred
to therein, (c) Subscription Prospectus under the caption "Plan of
Distribution", insofar as they purport to describe the provisions of the
laws and documents referred to therein, and (d) in the Prospectus under the
caption "Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are in each case accurate,
complete and fair;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's and AmerUs Life's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(o) Neither the Company nor any of its subsidiaries is and, after
giving effect to the offering and sale of the Transaction Shares, will be
an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(p) Neither the Company, AmerUs Life nor any of their affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(q) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(r) The Plan has been duly adopted by the required vote of the Board
of Directors of American Mutual, and submitted to the Iowa Commissioner of
Insurance (the "Iowa Commissioner") in the manner required by the Iowa
insurance law relating to mutual insurance holding companies and conforms
in all material respects to the requirements of the laws of the State of
Iowa applicable to the reorganization of a mutual life insurance company
into a mutual
6
insurance holding company system and any applicable rules, regulations or
guidelines published by the Iowa Commissioner in respect thereof; the Plan
was duly approved by the policyowners of American Mutual and such approval
has not been rescinded or otherwise withdrawn; the Plan was approved by the
Iowa Commissioner and such approval has not been rescinded or otherwise
withdrawn; the Reorganization became effective on June 30, 1996 pursuant to
the Plan;
(s) This Agreement and the Subscription Agreement have been duly
authorized, executed and delivered by the Company, AmerUs Group and AmerUs
Life;
(t) Each of the subscription order forms has been duly authorized by
the Company and, when accepted by the Company as contemplated by the
Subscription Prospectus, will constitute a valid and a legally binding
obligation of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(u) The Distribution and the Capital Contribution have been duly
authorized by the required vote of the Board of Directors of AmerUs Life
and all necessary approvals for the Distribution and the Capital
Contribution have been obtained, all such approvals are in full force and
effect and no other approvals are required to be obtained; the Distribution
and the Capital Contribution have been consummated;
(v) All consents, approvals, authorizations and orders necessary for
the execution and delivery by AmerUs Group of this Agreement, the
Subscription Agreement and the Custody Agreement, and for the sale and
delivery of the Transaction Shares to be sold by AmerUs Group hereunder and
under the Subscription Agreement, have been obtained; and AmerUs Group has
full right, power and authority to enter into this Agreement, the
Subscription Agreement and the Custody Agreement, and to sell, assign,
transfer and deliver the Transaction Shares to be sold by AmerUs Group
hereunder and under the Subscription Agreement;
(w) AmerUs Group has, and immediately prior to each Time of Delivery
(as defined in Section 4 hereof) AmerUs Group will have, good and valid
title to the Shares to be sold by AmerUs Group hereunder, free and clear of
all liens, encumbrances, equities or claims; and, upon delivery of such
Shares and payment therefor pursuant hereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(x) AmerUs Group has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Transaction Shares;
(y) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, AmerUs Group will deliver to you prior to or at the First
Time of Delivery (as hereinafter defined) a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof);
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(z) Certificates in negotiable form representing all of the Shares to
be sold by AmerUs Group hereunder have been placed in custody under a
Custody Agreement, in the form heretofore furnished to you (the "Custody
Agreement"), duly executed and delivered by AmerUs Group to
_______________, as custodian (the "Custodian"); and
(aa) The Shares represented by the certificates held in custody for
AmerUs Group under the Custody Agreement are subject to the interests of
the Underwriters hereunder; the arrangements made by AmerUs Group for such
custody are to that extent irrevocable; the obligations of AmerUs Group
hereunder shall not be terminated by operation of law, whether by
dissolution or occurrence of any other event; if AmerUs Group should be
dissolved, or if any other such event should occur, before the delivery of
the Shares hereunder, certificates representing the Shares shall be
delivered by or on behalf of AmerUs Group in accordance with the terms and
conditions of this Agreement and of the Custody Agreement.
2. Subject to the terms and conditions herein set forth, the Company and
AmerUs Group agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and AmerUs Group, at a purchase price per share of
$.............., the number of Firm Shares ( ........ shares of which are to be
purchased from the Company and ........ shares of which are to be purchased from
AmerUs Group) and in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided below, the Company
and AmerUs Group agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase ........ shares from the Company and ........ shares from AmerUs Group,
at the purchase price per share set forth in clause (a) of this Section 2.
The Company and AmerUs Group hereby grant, severally and not jointly, to
the Underwriters the right to purchase at their election up to
................... Optional Shares, at the purchase price per share set forth
in the paragraph above, for the sole purpose of covering overallotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares shall be
made in proportion to the maximum number of Optional Shares to be sold by the
Company and AmerUs Group. Any such election to purchase Optional Shares may be
exercised only by written notice from you to the Company and AmerUs Group, given
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 defined in Section 4 hereof)
or, unless you and the Company and AmerUs Group otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Company and AmerUs Group shall be delivered by or on behalf of the
Company to ▇▇▇▇▇▇▇, Sachs & Co. for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
certified or official bank check or checks, payable to the order of the Company
and the Custodian in New York Clearing House (next day) funds. The Company will
cause the certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of
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Delivery (as defined below) with respect thereto at the office of ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Designated Office").
The time and date of such delivery and payment shall be, with respect to the
Firm Shares, 9:30 a.m., New York City time, on ............., 1997, or such
other time and date as ▇▇▇▇▇▇▇, Sachs & Co., the Company and AmerUs Group may
agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New
York time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice
given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the Underwriters' election to purchase such
Optional Shares, or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co., the
Company and AmerUs Group may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(j) hereof, will be delivered at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other place as
▇▇▇▇▇▇▇, Sachs & Co., the Company and AmerUs Group may agree upon (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 2:00
p.m., New York City time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company, AmerUs Group and AmerUs Life, jointly and severally,
agree with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or either
the Subscription Prospectus or the Prospectus which shall be disapproved by
you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Subscription Prospectus or the Prospectus or any amended
Subscription Prospectus or Prospectus has been filed and to furnish you
with copies thereof; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Transaction
Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or either the Subscription Prospectus or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
9
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be reasonably 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;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus in order
to comply with the Act, to notify you and upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date six months after the date of the Prospectus, not
to offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder and under the Subscription Agreement any securities of
the Company that are substantially similar to the Stock, including but not
limited to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement),
without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.;
(f) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter
ending after the date of this Agreement),
10
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the date of this Agreement, to
furnish to you copies of all reports or other communications (financial or
other) furnished to shareholders, and to deliver to you (i) as soon as they
are available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which
any class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company
as you may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Transaction
Shares on the National Association of Securities Dealers Automated
Quotations National Market System ("NASDAQ");
(j) To file with the Commission such reports on Form SR as may be
required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and at the time of filing, either to pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
6. The Company, AmerUs Group and AmerUs Life, jointly and severally,
covenant and agree with the several Underwriters that (a) the Company and AmerUs
Group will pay or cause to be paid a pro rata share (based on the number of
Shares to be sold by the Company and AmerUs Group hereunder) the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Transaction Shares under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Transaction Shares; (iii) all
expenses in connection with the qualification of the Transaction Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification (which counsel's fees and disbursements shall
not be more than $[15,000]); (iv) all fees and expenses in connection with
listing the Transaction Shares on NASDAQ; (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Transaction Shares; and (vi) all other
costs of the Subscription Offering; [(b) the Company will pay or cause to be
paid (i) the cost of preparing stock certificates; (ii) the cost and charges of
any transfer agent or registrar; (iii) all other costs of the Distribution and
the Capital Contribution; and (iv) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section; and (c) AmerUs Group
11
will pay or cause to be paid all costs and expenses incident to the performance
of AmerUs Group's obligations hereunder which are not otherwise specifically
provided for in this Section, including (i) any fees and expenses of counsel for
AmerUs Group, (ii) the fees and expenses of the Custodian, and (iii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
AmerUs Group to the Underwriters hereunder. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company, AmerUs Group and AmerUs Life herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company, AmerUs Group and
AmerUs Life shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened 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) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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, this Agreement, the
validity of the Shares being delivered at such time of delivery, the Post-
Effective Amendment, the Prospectus and such other related matters as you
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Sidley & Austin, counsel for the Company, AmerUs Group and AmerUs
Life, shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Iowa, and AmerUs Life has been duly incorporated and is validly
existing as a stock life insurance company in good standing under the
laws of the State of Iowa, each with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at such Time of
Delivery and the Subscription Shares) have been duly and validly
authorized and issued and are fully paid and non-assessable; and the
Transaction Shares conform to the description of the Stock contained
in the Prospectus;
12
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company, AmerUs Group
and AmerUs Life;
(v) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
having jurisdiction over Amerus Group, the Company or any of their
subsidiaries or any of their properties is required for the issue and
sale of the Transaction Shares or the consummation by the Company or
AmerUs Group of the transactions contemplated by this Agreement and
the Subscription Agreement, except (i) the registration under the Act
of the Transaction Shares, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and the
distribution of the Subscription Shares and (iii) approvals required
under the Iowa insurance laws and regulations, all of which approvals
have been obtained;
(vi) The statements set forth in the (a) Subscription
Prospectus and Prospectus under the caption "Description of the
Capital Stock", insofar as they purport to constitute a summary of the
terms of the Stock and the Class B Common Stock, (b) Subscription
Prospectus and Prospectus under the captions "Risk Factors --
Regulatory and Related Matters"; "-- The Closed Block"; "-- Class A
Common Stock Eligible For Future Sale"; "The Reorganization and
Distribution of the Non-Life Insurance Subsidiaries"; "The
Subscription Offering"; "Supervision and Regulation"; "Management
Compensation -- Compensation Pursuant to the Stock Plans of the
Company"; "-- Compensation Pursuant to AmerUs Life Plans"; "-- Savings
and Profit Sharing Plans"; "-- Employment Agreement"; "Certain
Transactions and Relationships"; "Certain Provisions of the Articles
of Incorporation and Bylaws of the Company"; and "Shares Eligible for
Future Sale", insofar as they purport to describe the provisions of
the documents referred to therein, (c) Subscription Prospectus under
the caption "Plan of Distribution", insofar as they purport to
describe the provisions of the documents referred to therein, and
(d) in the Prospectus under the caption "Underwriting", insofar as
they purport to describe the provisions of the documents referred to
therein, are in each case accurate, complete and fair in all material
respects;
(vii) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act;
13
(viii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements,
financial data and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations
thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (vi) of this section 7(c), nothing has
come to their attention which would cause them to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of their respective dates, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements, financial data and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading or that, as of such Time of Delivery,
the Registration Statement or the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements, financial data and
related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required; and
(ix) The Custody Agreement has been duly executed and delivered
by AmerUs Group and constitutes a valid and binding agreement of
AmerUs Group in accordance with its terms;
In rendering such opinion, such counsel may state that insofar as
their opinion under clause (viii) above relates to the accuracy and
completeness of the Prospectus and Registration Statement and amendments or
supplements thereto, it is based upon a general review with representatives
of the Company, AmerUs Life and AmerUs Group, and their independent
accountants, of the information contained therein, without independent
verification by such counsel of the accuracy or completeness of such
information. Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates of officers
of the Company, AmerUs Life or AmerUs Group and of state officials, in
which case their opinion is to state that they are so doing and copies of
such opinions or certificates are to be attached to the opinion unless such
opinions or certificates (or, in the case of certificates, the information
therein) have been furnished to the Representatives otherwise.
14
In rendering such opinion, such counsel may also state that they have
relied as to facts necessary to the determination of materiality, to a
certain extent, upon the judgment of officers and representatives of the
Company, AmerUs Group or AmerUs Life.
(d) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, Esq., Senior Vice President and Secretary
of the Company, shall have furnished to you his written opinion, dated such
Time of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) AMHC has been duly organized and is validly existing as a
mutual insurance holding company in good standing under the laws of
the State of Iowa, each of the Company and AmerUs Group has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Iowa, and AmerUs Life has been duly
incorporated and is validly existing as a stock life insurance company
in good standing under the laws of the State of Iowa, each with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at such Time of
Delivery and the Subscription Shares) have been duly and validly
authorized and issued and are fully paid and non-assessable; and the
Transaction Shares conform to the description of the Stock contained
in the Prospectus;
(iii) Each of the Company and its subsidiaries has been duly
qualified as a foreign corporation for the transaction of business 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 or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company or any
of its subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates);
(iv) Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect to matters of fact upon certificates of
officers of the Company or any of its subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates); and all of
the issued shares of capital stock of AmerUs Group have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by AMHC, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of
the opinion in this clause as to matters of
15
fact upon certificates of officers of AMHC or AmerUs Group, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such certificates);
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect
the value of the Company and its subsidiaries, taken as a whole, and
do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company
and its subsidiaries (in giving the opinion in this clause, such
counsel may state that no examination of record titles for the purpose
of such opinion has been made, and that they are relying upon a
general review of the titles of the Company and its subsidiaries, upon
opinions of local counsel and abstracts, reports and policies of title
companies rendered or issued at or subsequent to the time of
acquisition of such property by the Company or its subsidiaries, upon
opinions of counsel to the lessors of such property and, in respect to
matters of fact, upon certificates of officers of the Company or any
of its subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions, abstracts, reports, policies and certificates);
(vi) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company, any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vii) This Agreement and the Subscription Agreement have been
duly authorized, executed and delivered by the Company, AmerUs Group
and AmerUs Life;
(viii) The Plan has been duly adopted by the Board of Directors
of American Mutual and all necessary approvals for the Plan to become
effective have been obtained, all such approvals are in full force and
effect and no other approvals are required to be obtained; the
Reorganization became effective June 30, 1996 pursuant to the Plan;
(ix) Each of the subscription order forms has been duly
authorized by the Company and, when accepted by the Company as
contemplated by the Subscription Prospectus, will constitute a valid
and a legally binding obligation of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
16
(x) The Distribution and the Capital Contribution have been
duly authorized by the required vote of the Board of Directors of
AmerUs Life and all necessary approvals for the Distribution and the
Capital Contribution have been obtained, all such approvals are in
full force and effect and no other approvals are required to be
obtained;
(xi) Each of the Insurance Companies is duly organized and
licensed, or qualifies, as an insurance or insurance holding company
in its respective jurisdiction of organization or incorporation, as
the case may be, and is duly licensed or authorized in each other
jurisdiction where it is required to be so licensed or authorized to
conduct its business as described in the Prospectus, in each case with
such exceptions, individually or in the aggregate, as would not have a
Material Adverse Effect; each of the Insurance Companies is in
compliance with the requirements of the insurance laws and regulations
of its respective jurisdiction of organization or incorporation, as
the case may be, and the insurance laws and regulations of other
jurisdictions which are applicable to it, and has filed all Notices
required to be filed thereunder, in each case, with such exceptions as
would not have a Material Adverse Effect; and, except as otherwise
specifically described in the Prospectus, no Insurance Company has
received any notification from any insurance regulatory authority to
the effect that any additional Approvals from such insurance
regulatory authority is needed to be obtained by any of the Insurance
Companies in any case where it could be reasonably expected that
obtaining such Approvals or the failure to obtain such Approvals would
have a Material Adverse Effect;
(xii) Without limiting the foregoing, each of the Insurance
Companies has filed all Notices pursuant to, and has obtained all
Approvals required to be obtained under, and has otherwise complied
with all requirements of, all applicable insurance laws and
regulations (excluding insurance securities laws other than those of
the State of Iowa), in connection with the issuance and sale of the
Transaction Shares, in each case (other than the insurance laws of the
State of Iowa, as to which no exception is taken) with such
exceptions, individually or in the aggregate, as would not affect the
validity of the Transaction Shares, their issuance or the transactions
contemplated hereby or by the Subscription Agreement or have a
Material Adverse Effect; and no such Notices or Approvals are required
to be filed or obtained by any of the Insurance Companies in
connection with the issuance and sale of the Transaction Shares, in
each case (other than the insurance laws and regulations of the State
of Iowa, as to which no exception is taken) with such exceptions,
individually or in the aggregate, as would not affect the validity of
the Transaction Shares, their issuance or the transactions
contemplated hereby or have a Material Adverse Effect;
(xiii) The issue and sale of the Subscription Shares by the
Company and of the Shares being delivered at such Time of Delivery by
the Company, the sale of the Subscription Shares and of the Shares
being delivered at such Time of Delivery by AmerUs Group, the
compliance by the Company, AmerUs Group and AmerUs Life (as
applicable) with all of the provisions of this Agreement, the
Subscription Agreement and the Custody Agreement, and the consummation
of the transactions herein and therein contemplated (including
consummation of the Plan, the Distribution and the
17
Capital Contribution) did not or will not, as the case may be,
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which AmerUs Group, the Company or
any of their subsidiaries is a party or by which AmerUs Group, the
Company or any of their subsidiaries is bound or to which any of the
property or assets of AmerUs Group, the Company or any of their
subsidiaries is subject, nor did or will such action result in any
violation of the provisions of the charter or other organizational
documents or bylaws of AmerUs Group, the Company or any of their
subsidiaries or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over AmerUs Group, the Company or any of their
subsidiaries or any of their properties;
(xiv) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Transaction Shares or
the consummation by the Company or AmerUs Group of the transactions
contemplated by this Agreement and the Subscription Agreement, except
(i) the registration under the Act of the Transaction Shares,
(ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities, insurance
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the distribution of
the Subscription Shares and (iii) approvals required under the Iowa
insurance laws and regulations, all of which approvals have been
obtained;
(xv) Neither the Company nor any of its subsidiaries is in
violation of its charter or other organizational documents or bylaws
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
(xvi) The statements set forth in the (a) Subscription
Prospectus and Prospectus under the caption "Description of the
Capital Stock", insofar as they purport to constitute a summary of the
terms of the Stock and the Class B Common Stock, (b) Subscription
Prospectus and Prospectus under the captions "Risk Factors --
Regulatory and Related Matters"; "-- The Closed Block"; "-- Class A
Common Stock Eligible For Future Sale"; "The Reorganization and
Distribution of the Non-Life Insurance Subsidiaries"; "The
Subscription Offering"; "Supervision and Regulation"; "Management
Compensation -- Compensation Pursuant to the Stock Plans of the
Company"; "-- Compensation Pursuant to AmerUs Life Plans"; "-- Savings
and Profit Sharing Plans"; "-- Employment Agreement"; "Certain
Transactions and Relationships"; "Certain Provisions of the Articles
of Incorporation and Bylaws of the Company"; and "Shares Eligible for
Future Sale", insofar as they purport to describe the provisions of
the laws and documents referred to therein, (c) Subscription
Prospectus under the caption "Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, and (d) in the Prospectus under the
caption "Underwriting", insofar as they purport to describe the
18
provisions of the laws and documents referred to therein, are in each
case accurate, complete and fair in all material respects;
(xvii) Although he does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (xvii) of this section 7(d), he has no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior
to such Time of Delivery (other than the financial statements,
financial data and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as
of their respective dates, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements, financial data and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, any of the Registration Statement
and the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements, financial data and related schedules therein, as
to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and he does
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are
not filed or described as required;
(xviii) The Custody Agreement has been duly executed and
delivered by AmerUs Group and constitutes a valid and binding
agreement of AmerUs Group in accordance with its terms;
(xix) Immediately prior to such Time of Delivery, AmerUs Group
had good and valid title to the Shares to be sold at such Time of
Delivery by AmerUs Group under this Agreement, free and clear of all
liens, encumbrances, equities or claims, and full right, power and
authority to sell, assign, transfer and deliver the Shares to be sold
by AmerUs Group hereunder; and
(xx) Good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, has been transferred to
each of the several Underwriters who have purchased such Shares in
good faith and without notice of any such lien, encumbrance, equity or
claim or any other adverse claim within the meaning of the Uniform
Commercial Code.
In rendering such opinion, such counsel may state that insofar as his
opinion under clause (xvii) above relates to the accuracy and completeness
of the Prospectus and Registration Statement and amendments or supplements
thereto, it is based upon a general
19
review with representatives of the Company, AmerUs Life and AmerUs Group,
and their independent accountants, of the information contained therein,
without independent verification by such counsel of the accuracy or
completeness of such information. Such counsel may also rely upon the
opinions of other competent counsel and, as to factual matters, on
certificates of officers of the Company, AmerUs Life or AmerUs Group and of
state officials, in which case their opinion is to state that they are so
doing and copies of such opinions or certificates are to be attached to the
opinion unless such opinions or certificates (or, in the case of
certificates, the information therein) have been furnished to the
Representatives otherwise.
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, KPMG Peat
Marwick LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company or any of its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded AmerUs Life's financial strength or claims
paying ability by A.M. Best or by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of AmerUs Life's financial
strength or claims paying ability;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on
NASDAQ; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
20
(i) The Shares to be sold at such Time of Delivery and the
Subscription Shares shall have been duly listed for quotation on NASDAQ;
(j) None of the Plan, the Distribution or the Capital Contribution
shall have been revoked, rescinded, modified or withdrawn;
(k) The Company, AmerUs Group and AmerUs Life shall have each
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company, AmerUs Group and AmerUs Life, as
the case may be, satisfactory to you as to the accuracy of the respective
representations and warranties of the Company, AmerUs Group and AmerUs Life
herein at and as of such Time of Delivery, as to the performance by the
Company, AmerUs Group and AmerUs Life, as the case may be, of all of its
obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (f) of this Section and
as to such other matters as you may reasonably request; and
(l) The Company and AmerUs Group shall have satisfied all of the
conditions to the sale of the Subscription Shares contained in the
Subscription Agreements, and shall have complied with all of its
obligations under the Subscription Agreements, and the escrow agent shall
have released the proceeds from the sale of the Subscription Shares to the
Company or AmerUs Group, as applicable.
8. (a) The Company, AmerUs Group and AmerUs Life will, 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) an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (ii) any claim, action, suit or proceeding relating to or arising out of the
Subscription Offering, and, in each case, will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that neither the Company, AmerUs Group
nor AmerUs Life shall be liable in the case of clause (i) above to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company or AmerUs Life by any
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company, AmerUs
Group and AmerUs Life against any losses, claims, damages or liabilities to
which the Company, AmerUs Group or AmerUs Life 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 an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, 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
21
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or AmerUs Life by such Underwriter through ▇▇▇▇▇▇▇, Sachs & Co.
expressly for use therein; and will reimburse the Company, AmerUs Group or
AmerUs Life for any legal or other expenses reasonably incurred by the Company,
AmerUs Group or AmerUs Life in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) 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 it 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), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (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
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) (i) in the case of subsection 8(a)(i) or (b),
in such proportion as is appropriate to reflect the relative benefits
received by the Company, AmerUs Group and AmerUs Life on the one hand and the
Underwriters on the other from the offering of the Shares, and (ii) in the
case of subsection 8(a)(ii), the Company, AmerUs Group and AmerUs Life shall
contribute the entire amount by which such indemnification is unavailable or
insufficient, it being understood and agreed that as between the Company,
AmerUs Group and AmerUs Life on the one hand and the Underwriters on the
other, the Company, AmerUs Group and AmerUs Life are the sole beneficiaries
of the Subscription Offering. If, however, the allocation provided by clause
(i) of the immediately preceding sentence is not permitted by applicable law
or if in the case of such clause (i) the indemnified party failed to give the
notice required under subsection (c) 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, AmerUs Group and AmerUs Life on
the one
22
hand and the Underwriters on the other in connection with the statements or
omissions which 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, AmerUs Group
and AmerUs Life 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 AmerUs Group
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, 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, AmerUs Group and AmerUs Life 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, AmerUs Group, AmerUs Life and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to clause (i) of this subsection 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 (d). 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 (d) 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 (d), 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 (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company, AmerUs Group and AmerUs Life under
this Section 8 shall be in addition to any liability which the Company, AmerUs
Group and AmerUs Life may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company, AmerUs Group or AmerUs Life and to each
person, if any, who controls the Company or AmerUs Group within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder 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 hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and AmerUs Group shall be entitled to a further
period of thirty-six 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 and
AmerUs Group that you have so arranged for the purchase of such Shares, or the
Company and AmerUs Group notify you that they have so arranged for the purchase
of such Shares, you or the Company and AmerUs Group shall have the right to
postpone such Time of Delivery for a period
23
of not more than seven 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 and AmerUs Group agree to file
promptly any amendments to the Registration Statement or the Prospectus which in
your opinion may thereby be made necessary. 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 and the Company and
AmerUs Group as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Company and AmerUs Group 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; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
AmerUs Group as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the Company and
AmerUs Group shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Company and AmerUs Group to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
and AmerUs Group, except for the expenses to be borne by the Company, AmerUs
Group and AmerUs Life 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.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, AmerUs Group, AmerUs Life 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 of any
Underwriter, the Company, AmerUs Group or AmerUs Life, or any officer or
director or controlling person of the Company, AmerUs Group or AmerUs Life, and
shall survive delivery of and payment for the Shares.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company, AmerUs Group and AmerUs Life in subsection (a) of Section 8 hereof,
the representations and warranties in subsections (b) and (c) of Section 1
hereof and any representation or warranty as to the accuracy of the Registration
Statements or the Prospectus contained in any certificate furnished by the
Company, AmerUs Group or AmerUs Life pursuant to Section 7 hereof, insofar as
they may constitute a basis for indemnification for liabilities (other than
payment by the Company, AmerUs Group or AmerUs Life of expenses incurred or paid
in the successful defense of any action, suit or
24
proceeding) arising under the Act, shall not extend to the extent of any
interest therein of a controlling person or partner of an Underwriter who is a
director, officer or controlling person of the Company, AmerUs Group or AmerUs
Life when the Registration Statement has become effective, except in each case
to the extent that an interest of such character shall have been determined by a
court of appropriate jurisdiction as not against public policy as expressed in
the Act. Unless in the opinion of counsel for the Company, AmerUs Group and
AmerUs Life the matter has been settled by controlling precedent, the Company,
AmerUs Group or AmerUs Life, as the case may be, will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company, AmerUs Group nor AmerUs Life shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the
Company and AmerUs Group as provided herein, the Company, AmerUs Group and
AmerUs Life, jointly and severally, will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company, AmerUs Group and AmerUs Life shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; and if to the Company, AmerUs Group or AmerUs Life shall be
delivered or sent by mail to the address of the Company set forth in the
Registration Statement, Attention: Secretary; PROVIDED, HOWEVER, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company, AmerUs Group or
AmerUs Life by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, AmerUs Group and AmerUs Life and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, AmerUs Group and AmerUs Life and each person who controls the Company,
AmerUs Group, AmerUs Life or any Underwriter, 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.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
25
16. 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.
26
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Company and
AmerUs Life. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company and AmerUs Life for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
AmerUs Life Holdings, Inc.
By: . . . . . . . . . . . . . . . .
Name:
Title:
AmerUs Group Co.
By: . . . . . . . . . . . . . . . .
Name:
Title:
AmerUs Life Insurance Company
By: . . . . . . . . . . . . . . . .
Name:
Title:
27
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
ABN AMRO Chicago Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Brothers Inc
By: . . . . . . . . . . . . . . . .
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
28
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
ABN AMRO Chicago Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Salomon Brothers Inc
[NAMES OF OTHER UNDERWRITERS]
Total
29
ANNEX I
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined 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 the related published rules and regulations
thereunder; and, if applicable, 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,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
separately furnished to the representatives of the Underwriters (the
"Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives and are attached hereto and on
the basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations, nothing came to their attention
that cause them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related published
rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatements where applicable)
in the audited consolidated financial statements with respect to the three
most recent fiscal years and the unaudited consolidated financial
statements for the two prior fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all
1
material respects with the disclosure requirements of Items 301, 302, 402
and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated 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 in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest financial
statements included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or
any decreases in consolidated net current assets or stockholders'
equity or other items specified
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by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or other items specified by the Representatives, or any
increases in surrenders and withdrawals or any other items specified
by the Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
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