<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 1998.
REGISTRATION NO. 333-50249
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C> <C>
AMERUS LIFE HOLDINGS, INC. IOWA 42-1459712
AMERUS CAPITAL II DELAWARE 42-6571888
AMERUS CAPITAL III DELAWARE 42-6571890
(Exact name of the (State or other jurisdiction (I.R.S. Employer
Registrants of incorporation or Identification No.)
as specified in their organization)
respective charters)
</TABLE>
699 WALNUT STREET
DES MOINES, IOWA 50309-3948
(515) 362-3600
(Address, including zip code, and telephone number, including
area code, of each Registrant's principal executive offices)
------------------------
JAMES A. SMALLENBERGER
SENIOR VICE PRESIDENT AND SECRETARY
699 WALNUT STREET
DES MOINES, IOWA 50309-3948
(515) 362-3600
(Name, address, including zip code, and telephone
number, including area code, of agent for service for each Registrant)
------------------------
COPY TO:
RICHARD G. CLEMENS, ESQ.
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
(312) 853-7000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective, as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE> 2
THIS POST-EFFECTIVE AMENDMENT NO. 2 (THE "AMENDMENT") TO THE REGISTRANT'S
REGISTRATION STATEMENT NO. 333-50249 IS BEING FILED PURSUANT TO RULE 462(D)
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, FOR THE SOLE PURPOSE OF FILING
EXHIBITS AND, ACCORDINGLY, SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING WITH
THE SECURITIES AND EXCHANGE COMMISSION.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
1.1* Form of Underwriting Agreement -- Debt Securities.
1.2** Form of Underwriting Agreement -- Equity Securities.
1.3*** Form of Concurrent Offering Purchase Agreement between the
Company and AmerUs Group Co.
3.1 Amended and Restated Articles of Incorporation of the
Company are incorporated herein by reference to Exhibit 3.5
to the Company's Registration Statement on Form S-1 (No.
333-12239).
3.2 By-laws of the Company are incorporated herein by reference
to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 (No. 333-12239).
4.1 Form of Certificate for shares of Class A Common Stock of
the Company is incorporated herein by reference to Exhibit
4.1 to the Registration Statement on Form S-1 of the Company
(No. 333-12239).
4.2* Form of Senior Indenture by and between the Company and
First Union National Bank, as Indenture Trustee, pursuant to
which the Senior Debt Securities are to be issued.
4.3* Form of Subordinated Indenture by and between the Company
and First Union National Bank, as Indenture Trustee,
pursuant to which the Junior Subordinated Debt is to be
issued.
4.4* Certificate of Trust of AmerUs Capital II.
4.5* Trust Agreement of AmerUs Capital II.
4.6* Form of Amended and Restated Declaration of Trust of AmerUs
Capital II.
4.7* Certificate of Trust of AmerUs Capital III.
4.8* Trust Agreement of AmerUs Capital III.
4.9* Form of Amended and Restated Declaration of Trust of AmerUs
Capital III.
4.10* Form of Common Trust Securities Guarantee Agreement by the
Company.
4.11* Form of QUIPS Guarantee Agreement by the Company.
4.12* Form of Master Unit Agreement between the Company and First
Union National Bank.
4.13* Form of Call Option Agreement between Goldman, Sachs & Co.
and First Union National Bank.
4.14* Form of Pledge Agreement among the Company, Goldman, Sachs &
Co. and First Union National Bank.
4.15*** Form of Debt Security. The form or forms of such Debt
Securities with respect to each particular offering will be
filed as an exhibit subsequently included or incorporated by
reference herein.
4.16*** Form of Preferred Stock. Any amendment to the Company's
Amended and Restated Articles of Incorporation authorizing
the creation of any series of Preferred Stock or Depositary
Shares representing such shares of Preferred Stock and
setting forth the rights, preferences and designations
thereof will be filed as an exhibit subsequently included or
incorporated by reference herein.
4.17*** Form of Warrant Agreement.
4.18*** Form of Preferred Security.
</TABLE>
II-1
<PAGE> 3
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <S>
4.19 Amended and Restated Intercompany Agreement dated as of
December 1, 1996 among American Mutual Holding Company,
AmerUs Group Co. and the Company is incorporated herein by
reference to Exhibit 10.81 to the Company's Registration
Statement on Form S-1 (No. 333-12239).
5.1* Opinion of Joseph K. Haggerty, Esq.
5.2* Opinion of Morris, James, Hitchens & Williams regarding
AmerUs Capital II.
5.3* Opinion of Morris, James, Hitchens & Williams regarding
AmerUs Capital III.
12.1 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends is incorporated herein by
reference to Exhibit 12.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997.
23.1* Consent of Joseph K. Haggerty, Esq. (included in Exhibit 5.1
hereto).
23.2* Consent of Morris, James, Hitchens & Williams (included in
Exhibit 5.2 and 5.3 hereto).
23.3* Consent of KPMG Peat Marwick LLP with respect to the
financial statements of AmerUs Life Holdings, Inc.
23.4* Consent of Coopers & Lybrand, L.L.P. with respect of the
financial statements of Delta Life Corporation.
23.5* Consent of Deloitte & Touche LLP with respect of the
financial statements of AmVestors Financial Corporation.
24.1** Powers of Attorney (included in the signature page hereto).
25.1* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Indenture Trustee under the Senior Indenture.
25.2* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Indenture Trustee under the Subordinated Indenture.
25.3** Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Trustee of the Guarantees for the benefit of the
holders of Capital Securities of AmerUs Capital II and
AmerUs Capital III.
25.4* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Trustee under the Amended and Restated Trust
Agreement.
25.5* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Trustee under the Amended and Restated Trust
Agreement.
</TABLE>
- -------------------------
* Previously filed.
** Filed herewith.
*** To be filed either by amendment or as an exhibit to an Exchange Act Report
and incorporated herein by reference.
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AmerUs Life
Holdings, Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 2 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Des Moines,
State of Iowa, on July 24, 1998.
AMERUS LIFE HOLDINGS, INC.
BY: /s/ ROGER K. BROOKS
-----------------------------------
Roger K. Brooks,
Chairman of the Board, President
and Chief Executive Officer
We, the undersigned officers and directors of AmerUs Life Holdings, Inc.,
hereby severally and individually constitute and appoint Michael E. Sproule,
Michael G. Fraizer and James A. Smallenberger, and each of them, the true and
lawful attorneys and agents of each of us to execute in the name, place and
stead of each of us (individually and in any capacity stated below) any and all
amendments to this Form S-3 and all instruments necessary or advisable in
connection therewith including, without limitation, a registration statement
under Rule 462, and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have the power to act with or
without the others and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done on the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by or said attorneys and agents or
each of them to any and all such amendments and instruments.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 2 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director, Chairman of the Board, July 24, 1998
- ------------------------------------------------ President and Chief Executive
Roger K. Brooks Officer
(Principal Executive Officer of
AmerUs Life Holdings, Inc.)
* Executive Vice President and Chief July 24, 1998
- ------------------------------------------------ Financial Officer
Michael E. Sproule (Principal Financial Officer of
AmerUs Life Holdings, Inc.)
* Senior Vice President Accounting July 24, 1998
- ------------------------------------------------ Officer and Controller/Treasurer
Michael G. Fraizer (Principal Accounting Officer of
AmerUs Life Holdings, Inc.)
* Director July 24, 1998
- ------------------------------------------------
John R. Albers
* Director July 24, 1998
- ------------------------------------------------
Malcolm Candlish
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director July 24, 1998
- ----------------------------------------------
Maureen M. Culhane
* Director July 24, 1998
- ----------------------------------------------
Thomas F. Gaffney
* Director July 24, 1998
- ----------------------------------------------
Ilene B. Jacobs
* Director July 24, 1998
- ----------------------------------------------
Sam C. Kalainov
* Director July 24, 1998
- ----------------------------------------------
Ralph W. Laster, Jr.
* Director July 24, 1998
- ----------------------------------------------
John W. Norris, Jr.
* Director July 24, 1998
- ----------------------------------------------
Jack C. Pester
* Director July 24, 1998
- ----------------------------------------------
John A. Wing
</TABLE>
- -------------------------
* James A. Smallenberger, attorney-in-fact
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AmerUs Capital
II certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Des Moines, State of
Iowa, on July 24, 1998.
AMERUS CAPITAL II
By: AMERUS LIFE HOLDINGS, INC.,
as Depositor
By: /s/ JAMES A. SMALLENBERGER
------------------------------------
James A. Smallenberger
Senior Vice President and
Secretary
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, AmerUs Capital
III certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Des Moines, State of
Iowa, on July 24, 1998.
AMERUS CAPITAL III
By: AMERUS LIFE HOLDINGS, INC.,
as Depositor
By: /s/ JAMES A. SMALLENBERGER
------------------------------------
James A. Smallenberger
Senior Vice President and
Secretary
II-6
<PAGE> 8
EXHIBIT INDEX
TO REGISTRATION STATEMENT
ON FORM S-3
AMERUS LIFE HOLDINGS, INC.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1* Form of Underwriting Agreement -- Debt Securities.
1.2** Form of Underwriting Agreement -- Equity Securities.
1.3*** Form of Concurrent Offering Purchase Agreement between the
Company and AmerUs Group Co.
3.1 Amended and Restated Articles of Incorporation of the
Company are incorporated herein by reference to Exhibit 3.5
to the Company's Registration Statement on Form S-1 (No.
333-12239).
3.2 By-laws of the Company are incorporated herein by reference
to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 (No. 333-12239).
4.1 Form of Certificate for shares of Class A Common Stock of
the Company is incorporated herein by reference to Exhibit
4.1 to the Registration Statement on Form S-1 of the Company
(No. 333-12239).
4.2* Form of Senior Indenture by and between the Company and
First Union National Bank, as Indenture Trustee, pursuant to
which the Senior Debt Securities are to be issued.
4.3* Form of Subordinated Indenture by and between the Company
and First Union National Bank, as Indenture Trustee,
pursuant to which the Junior Subordinated Debt is to be
issued.
4.4* Certificate of Trust of AmerUs Capital II.
4.5* Trust Agreement of AmerUs Capital II.
4.6* Form of Amended and Restated Declaration of Trust of AmerUs
Capital II.
4.7* Certificate of Trust of AmerUs Capital III.
4.8* Trust Agreement of AmerUs Capital III.
4.9* Form of Amended and Restated Declaration of Trust of AmerUs
Capital III.
4.10* Form of Common Trust Securities Guarantee Agreement by the
Company.
4.11* Form of QUIPS Guarantee Agreement by the Company.
4.12* Form of Master Unit Agreement between the Company and First
Union National Bank.
4.13* Form of Call Option Agreement between Goldman, Sachs & Co.
and First Union National Bank.
4.14* Form of Pledge Agreement among the Company, Goldman, Sachs &
Co. and First Union National Bank.
4.15*** Form of Debt Security. The form or forms of such Debt
Securities with respect to each particular offering will be
filed as an exhibit subsequently included or incorporated by
reference herein.
4.16*** Form of Preferred Stock. Any amendment to the Company's
Amended and Restated Articles of Incorporation authorizing
the creation of any series of Preferred Stock or Depositary
Shares representing such shares of Preferred Stock and
setting forth the rights, preferences and designations
thereof will be filed as an exhibit subsequently included or
incorporated by reference herein.
4.17*** Form of Warrant Agreement.
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.18*** Form of Preferred Security.
4.19 Amended and Restated Intercompany Agreement dated as of
December 1, 1996 among American Mutual Holding Company,
AmerUs Group Co. and the Company is incorporated herein by
reference to Exhibit 10.81 to the Company's Registration
Statement on Form S-1 (No. 333-12239).
5.1* Opinion of Joseph K. Haggerty, Esq.
5.2* Opinion of Morris, James, Hitchens & Williams regarding
AmerUs Capital II.
5.3* Opinion of Morris, James, Hitchens & Williams regarding
AmerUs Capital III.
12.1 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends is incorporated herein by
reference to Exhibit 12.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997.
23.1* Consent of Joseph K. Haggerty, Esq. (included in Exhibit 5.1
hereto).
23.2* Consent of Morris, James, Hitchens & Williams (included in
Exhibit 5.2 and 5.3 hereto).
23.3* Consent of KPMG Peat Marwick LLP with respect to the
financial statements of AmerUs Life Holdings, Inc.
23.4* Consent of Coopers & Lybrand, L.L.P. with respect of the
financial statements of Delta Life Corporation.
23.5* Consent of Deloitte & Touche LLP with respect of the
financial statements of AmVestors Financial Corporation.
24.1** Powers of Attorney (included in the signature page hereto).
25.1* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Indenture Trustee under the Senior Indenture.
25.2* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Indenture Trustee under the Subordinated Indenture.
25.3** Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Trustee of the Guarantees for the benefit of the
holders of Capital Securities of AmerUs Capital II and
AmerUs Capital III.
25.4* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Trustee under the Amended and Restated Trust
Agreement.
25.5* Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Union National
Bank, as Trustee under the Amended and Restated Trust
Agreement.
</TABLE>
- -------------------------
* Previously filed.
** Filed herewith.
*** To be filed either by amendment or as an exhibit to an Exchange Act Report
and incorporated herein by reference.
<PAGE> 1
Exhibit 1.2
AMERUS LIFE HOLDINGS, INC.
AMERUS CAPITAL II
7.00% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $31.5625 PER UNIT)
UNDERWRITING AGREEMENT
July 21, 1998
Goldman, Sachs & Co.,
Salomon Brothers Inc
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
AmerUs Life Holdings, Inc., an Iowa corporation (the "Company"), and
the several Underwriters named in Schedule I hereto (the "Underwriters")
propose, subject to the terms and conditions stated herein, to enter into the
Purchase Contracts (the "Purchase Contracts") referred to in the Master Unit
Agreement to be dated as of July 27, 1998 (the "Master Unit Agreement"), between
the Company and First Union National Bank, as Master Unit Agent (the "Unit
Agent"), underlying an aggregate of 4,150,000 7.00% Adjustable
Conversion-rate Equity Security Units (the "Firm Securities"). In connection
therewith, AmerUs Capital II (the "Trust"), a statutory business trust created
under the Business Trust Act of the State of Delaware (the "Delaware Business
Trust Act"), and the Company propose, subject to the terms and conditions stated
herein, that the Trust issue and sell to the Underwriters 4,150,000 6.86%
Quarterly Income Preferred Securities (liquidation amount $31.5625 per QUIPS)
(the "QUIP(SM)") representing undivided preferred beneficial interests in
the assets of the Trust, which will be guaranteed by the Company (the
"Guarantee") as to the payment of distributions, and as to payments on
liquidation or redemption, to the extent that the Trust has funds on hand
legally available therefor, as set forth in a guarantee agreement (the
"Guarantee Agreement") between the Company and First Union National Bank, as
trustee (the "Guarantee Trustee"). Further, in connection therewith, the
Underwriters will, on behalf of the initial holders of the Units (as defined
herein), sell Call Options (the "Call Options") to Goldman, Sachs & Co. (in its
capacity as the holder of the Call Options, the "Call Option Holder") which will
entitle the Call Option Holder to acquire such QUIPS (or Junior Subordinated
Debentures substituted therefor), on or before the Call Option Expiration Date
(as defined in the Call Option Agreement, dated as of July 27, 1998, between the
Call Option Holder and the Unit Agent (the "Call Option Agreement")), in
exchange for the Aggregate Call Option Exercise Consideration (as defined in the
Call Option Agreement). In connection with the Master Unit Agreement and the
Call Options, pursuant to the Pledge Agreement, to be dated as of July 27, 1998
(the "Pledge Agreement"), among the Company, the Unit Agent, the Call Option
Holder and The Chase Manhattan Bank, as collateral agent (the "Collateral
Agent"), the QUIPS underlying the Units will be pledged by the Unit Agent on
behalf of the holders of the Units to secure the holders' obligations to the
Company and the Call Option Holder under the Purchase Contract and Call Option,
respectively, underlying such Unit. The rights to purchase newly issued Class A
common stock,
<PAGE> 2
no par value per share, of the Company (the "Common Stock") under a Purchase
Contract, together with the QUIPS or other Pledged Securities securing such
Purchase Contract, subject to (a) the obligations owed to the Company under such
Purchase Contract, (b) the obligations owed to the Call Option Holder under the
Call Option relating to such QUIPS or other Pledged Securities and (c) the
pledge arrangements under the Pledge Agreement securing the foregoing
obligations, collectively constitute an Adjustable Conversion-rate Equity
Security Unit (a "Unit"). In addition, subject to the terms and conditions
herein, the Company proposes to grant the Underwriters an option to enter into
Purchase Contracts underlying up to 585,400 additional Units and the Trust
and the Company propose to grant the Underwriters an option to purchase up to
585,400 additional QUIPS, and, in the event the Underwriters enter into any
such additional Purchase Contracts, the Underwriters propose to purchase a
number of additional QUIPS equal to such number of additional Purchase
Contracts, pledge such QUIPS to the Collateral Agent and sell Call Options
relating to such QUIPS to the Call Option Holder (the Units resulting therefrom
being the "Optional Securities"). The Firm Securities and any Optional
Securities purchased by the Underwriters are herein called the "Securities".
The proceeds of the sale of the QUIPS and of the common securities of
the Trust (the "Common Trust Securities" and, together with the QUIPS, the
"Trust Securities") to be sold by the Trust to the Company are to be invested in
6.86% Junior Subordinated Deferrable Interest Debentures (the "Junior
Subordinated Debentures") of the Company to be issued pursuant to an Indenture
(the "Indenture") between the Company and First Union National Bank, as trustee
(the "Debenture Trustee"). The Trust Securities will be issued pursuant to, and
be governed by the Amended and Restated Declaration of Trust, dated as of July
27, 1998 (the "Declaration") among the Company, First Union National Bank, as
property trustee (the "Property Trustee"), First Union Trust Company National
Association, as the Delaware Trustee (the "Delaware Trustee"), the
Administrators named therein and the holders from time to time of the beneficial
interests in the assets of the Trust. The Declaration, the Indenture and the
Guarantee Agreement will be qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
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 on June 30, 1996. The Company is the sole
shareholder of AmerUs Life Insurance Company, an Iowa stock life insurance
company ("AmerUs Life"), which is the successor company of American Mutual. 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. On
October 23, 1997, the Company acquired Delta Life Corporation ("Delta"), and on
December 19, 1997, the Company acquired AmVestors Financial Corporation
("AmVestors"). The acquisition of Delta and the acquisition of AmVestors are
hereinafter referred to as the "Acquisition".
Capitalized terms used herein without definition shall be used as
defined in the Prospectus (as defined herein).
1. The Company and the Trust, jointly and severally represent
and warrant to, and agree with, each of the Underwriters that:
a) A registration statement on Form S-3 (File No.
333-50249) (the "Initial Registration Statement") in respect of
the Securities, including the Purchase Contracts underlying the
Securities, the shares of Common Stock (the "Shares") to be issued
upon settlement of the Purchase Contracts underlying such
Securities, the QUIPS, the Junior
2
<PAGE> 3
Subordinated Debentures, the Guarantee and the Call Options, has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated
by reference in the prospectus contained therein, delivered 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 or hereafter becomes effective upon filing, no other
document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form
heretofore delivered to you); and no stop order suspending the
effectiveness of the Initial 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 (any
preliminary prospectus included in the Initial Registration
Statement, or filed with the Commission pursuant to Rule 424(a)
under the Act, is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the
Initial Registration Statement became effective but excluding any
Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed or transmitted for
filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all
3
<PAGE> 4
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so
filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will 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 not misleading, excluding any statements in
such documents which do not constitute part of the Registration
Statement or Prospectus pursuant to Rule 412 under the Act;
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 Goldman, Sachs & Co. expressly for use in
the Prospectus as amended or supplemented relating to the
Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act, and
the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the 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 reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through Goldman, Sachs & Co. expressly for use in
the Prospectus as amended or supplemented relating to the
Securities;
d) Neither the Trust, the Company nor any of its
subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference 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 Trust, 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 Trust, 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
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<PAGE> 5
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;
(f) The Trust has been duly formed and is validly existing
as a statutory business trust in good standing under the Delaware
Business Trust Act with the power and authority (trust and other)
to enter into this Agreement, to own property and to conduct its
business as described in the Prospectus, and has conducted and
will conduct no business other than the transactions contemplated
by this Agreement and the Declaration and as described in the
Prospectus, as amended or supplemented; the Trust is not a party
to or bound by any agreement or instrument other than this
Agreement, the Declaration, and the agreements and instruments
contemplated by the Declaration and described in the Prospectus as
amended or supplemented; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and described
in the Prospectus as amended or supplemented; based on expected
operations and current law, the Trust is not and will not be
classified as an association taxable as a corporation for United
States federal income tax purposes; the Trust is not a party to or
subject to any action, suit or proceeding of any nature;
(g) The Company, 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 the 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;
(h) Each of 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, if required, 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, individually or in the aggregate, 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,
5
<PAGE> 6
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;
(i) 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 Securities, the QUIPS underlying the Securities, the
Junior Subordinated Debentures, the Shares to be issued pursuant
to the Purchase Contracts, and the Common Trust Securities, 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 Securities, the QUIPS underlying the Firm
Securities and the Optional Securities, the Junior Subordinated
Debentures, the Shares to be issued pursuant to the Purchase
Contracts, and the Common Trust Securities, their issuance or the
transactions contemplated hereby 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 Securities, the QUIPS underlying the
Firm Securities and the Optional Securities, the Junior
Subordinated Debentures, the Shares to be issued pursuant to the
Purchase Contracts, and the Common Trust Securities, 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 Securities,
the QUIPS underlying the Securities, the Junior Subordinated
Debentures, the Shares to be issued pursuant to the Purchase
Contracts or the Common Trust Securities, their issuance or the
transactions contemplated hereby or have a Material Adverse
Effect;
(j) The Company and its subsidiaries previously filed all
Notices required to be filed pursuant to, and previously obtained
all Approvals required to be obtained under, and have otherwise
complied with all requirements of, all applicable insurance laws
and regulations in connection with the Acquisition, in each case
(other than the insurance laws and regulations of the State of
Tennessee, in the case of the acquisition of Delta, and other than
the laws and regulations of the State of Kansas and the State of
Iowa, in the case of the acquisition of AmVestors, as to which no
exception is taken in either case) with such exceptions as (i)
would not have a Material Adverse Effect and (ii) would not affect
the validity, performance or consummation of the Acquisition;
(k) The Company has an authorized capitalization as set
forth in 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 Common Stock in the Prospectus; all of the
outstanding beneficial interests in the assets of the Trust have
been duly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the
Prospectus; 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 as
disclosed in the Prospectus are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities
or claims;
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<PAGE> 7
(l) The QUIPS underlying the Securities have been duly and
validly authorized by the Company and the Trust, as applicable,
and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid
and non-assessable undivided beneficial interests in the assets of
the Trust and will conform to the description thereof contained in
the Prospectus; the issuance of the QUIPS is not subject to
preemptive or other similar rights; the QUIPS will have the rights
set forth in the Declaration; the holders of the QUIPS will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware;
(m) The Common Trust Securities have been duly and validly
authorized by the Company and the Trust, as applicable and upon
delivery at each Time of Delivery (as defined herein) by the Trust
to the Company against payment therefor as described in the
Prospectus as amended or supplemented, will be duly and validly
issued and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of
the Common Trust Securities is not subject to preemptive or other
similar rights; at each Time of Delivery, all of the issued and
outstanding Common Trust Securities of the Trust will be directly
owned by the Company free and clear of all liens, encumbrances,
security interests, equities or claims; the Common Trust
Securities will have the rights set forth in the Declaration; and
the Common Trust Securities and the QUIPS are the only interests
authorized to be issued by the Trust;
(n) The unissued Shares to be issued and sold by the Company
pursuant to the Purchase Contracts and the Master Unit Agreement
have been duly authorized and reserved for issuance and, when
issued and delivered against payment therefor as provided in the
Purchase Contracts and the Master Unit Agreement, will be validly
issued and fully paid and non-assessable and currently conform to
the description of the Common Stock incorporated by reference in
the Prospectus;
(o) The statements set forth in the Prospectus under the
caption "Description of Units", insofar as they purport to
constitute a summary of the terms of the Securities, and under the
caption "Risk Factors -- Regulatory and Related Risks"; "-- Risks
Relating to the Closed Block"; "Reorganization and Recent
Acquisitions"; "Certain Federal Income Tax Consequences"; "Plan of
Distribution" and "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(p) The entry into the Purchase Contracts underlying the
Securities by the Company, the issue and sale of the QUIPS
underlying the Securities and the Common Securities by the Trust,
the issue and sale of the Junior Subordinated Debentures
underlying such Trust Securities by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase
Contracts, the compliance by the Company and the Trust, as
applicable, with the provisions of this Agreement, such Purchase
Contracts, the Master Unit Agreement, the Pledge Agreement, the
Guarantee Agreement, the Declaration and the Indenture and the
consummation of the transactions herein and therein contemplated
(i) will not 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 or any of its
7
<PAGE> 8
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) will not
result in any violation of the provisions of the charter or other
organizational documents, by-laws of the Company or any of its
subsidiaries and (iii) will not result in any violation of the
provisions of any statute or any order, rule or regulation of any
court, insurance regulatory authority or other governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification (each, a
"Consent") of or with any such court, insurance regulatory
authority or other governmental agency or body is required for the
entry into the Purchase Contracts underlying the Securities by the
Company, the issue and sale of the QUIPS underlying the Securities
and the Common Securities by the Trust, the issue and sale of the
Junior Subordinated Debentures underlying such Trust Securities by
the Company, the issue and sale of the Shares by the Company
pursuant to the Purchase Contracts, the compliance by the Company
and the Trust, as applicable, with all of the provisions of this
Agreement, such Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, the Guarantee Agreement, the Declaration or the
Indenture or the consummation of the transactions herein or
therein contemplated, except (i) the registration under the Act of
the Securities, the QUIPS, the Junior Subordinated Debentures and
the Shares to be issued upon settlement of the Purchase Contracts,
(ii) the approval and registration of the Securities with the New
York Stock Exchange; (iii) such Consents required under the Iowa
insurance laws and regulations, all of which have been obtained;
(iv) such Consents as have been obtained under the Trust Indenture
Act; and (v) such Consents as may be required under state or
foreign 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 Securities by the Underwriters;
(q) The issue and sale of the QUIPS underlying the
Securities and the Common Trust Securities by the Trust, the
purchase of the Junior Subordinated Debentures underlying such
Trust Securities by the Trust, and the compliance by the Trust
with all of the provisions of the Declaration and this Agreement,
and the consummation of the transactions herein and therein
contemplated will not 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 Trust is a
party or by which the Trust is bound or to which any of the
property or assets of the Trust is subject, nor will such action
result in any violation of the provisions of the Declaration or
any statute or any order, rule or regulation of any court,
insurance regulatory authority, if applicable, or other
governmental agency or body having jurisdiction over the Trust or
any of its properties; and no Consent of or with any such court,
insurance regulatory authority or other governmental agency or
body is required for the issue and sale of the QUIPS underlying
the Firm Securities and the Optional Securities and the Common
Securities by the Trust, the purchase of the Junior Subordinated
Debentures underlying such Trust Securities by the Trust or the
consummation by the Trust of the transactions contemplated by this
Agreement or the Declaration, except (i) the registration under
the Act of the QUIPS and the Junior Subordinated Debentures; (ii)
such Consents required under the Iowa insurance laws and
regulations, all of which have been obtained; (iii) such Consents
as have been obtained under the Trust Indenture Act; and (iv) such
Consents as may be required under state or foreign securities or
Blue Sky laws (including insurance
8
<PAGE> 9
securities laws other than the insurance securities laws of the
State of Iowa) in connection with the purchase and distribution of
the Securities by the Underwriters;
(r) The Purchase Contracts underlying the Firm Securities
and the Optional Securities have been duly and validly authorized
and, when issued and delivered pursuant to this Agreement and the
Master Unit Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding instruments, enforceable in accordance with their
terms, subject, as the enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
and the Purchase Contracts will conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(s) The Master Unit Agreement and the Pledge Agreement, have
been duly and validly authorized by the Company and, when executed
and delivered by the other parties thereto, will constitute valid
and binding instruments, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
the Master Unit Agreement and the Pledge Agreement conform or will
conform to the descriptions thereof in the Prospectus as amended
or supplemented; and the Pledge Agreement creates, as collateral
security for the performance when due by the holders from time to
time of the Securities of their respective obligations under the
Purchase Contracts and Call Options constituting part of such
Securities, a legal, valid and perfected security interest (as
that term is defined in the Uniform Commercial Code, as adopted
and in effect in the State of New York), in favor of the
Collateral Agent, in the right, title and interest of such holders
in the Pledged Securities (as defined in the Pledge Agreement)
constituting a part of such Securities;
(t) The Guarantee Agreement, the Declaration, the Indenture
and the Junior Subordinated Debentures, have each been duly
authorized and, when validly executed and delivered by the Company
and, (i) in the case of the Guarantee Agreement, by the Guarantee
Trustee, (ii) in the case of the Declaration, by the Property
Trustee and the Delaware Trustee, (iii) in the case of the
Indenture, by the Debenture Trustee, and (iv) in the case of the
Junior Subordinated Debentures, when validly authenticated and
delivered by the Debenture Trustee, at each Time of Delivery, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, subject, as
to enforcement, to bankruptcy, insolvency, moratorium
reorganization and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles
(whether considered at a proceeding in equity or at law); the
Declaration, the Indenture and the Guarantee Agreement have been
duly qualified under the Trust Indenture Act; the Junior
Subordinated Debentures are entitled to the benefits of the
Indenture; and the Guarantee Agreement, the Declaration, the
Indenture and the Junior Subordinated Debentures will conform to
the descriptions thereof in the Prospectus;
(u) The Trust is not in violation of its Declaration, and as
of each Time of Delivery, will not be in violation of its
Declaration; neither the Company nor any of its subsidiaries is in
violation of its charter or other organizational documents or
bylaws; and neither the Trust nor the Company or any of its
subsidiaries is 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
9
<PAGE> 10
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;
(v) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Trust, 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 Trust, the Company or any of
its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect on the Trust or the Company and its
subsidiaries taken as a whole; and to the best of the Trust's and
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(w) None of the Company, any of its subsidiaries or the
Trust is and, after giving effect to the offering and sale of the
Securities, 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");
(x) None of the Company , any of its affiliates or the Trust
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;
(y) KPMG Peat Marwick L.L.P., who have certified certain
financial statements of the Company and its subsidiaries, Coopers
& Lybrand, L.L.P., who have certified certain financial statements
of Delta and its subsidiaries, and Deloitte & Touche, L.L.P., who
have certified certain financial statements of AmVestors and its
subsidiaries, are each independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder; and
(z) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Trust.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Underwriters, severally and not jointly, agree to enter
into the Purchase Contracts underlying the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto, (b) the Company and
the Trust agree that the Trust will sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Trust, at a purchase price of $30.7261 per QUIPS, the number of QUIPS underlying
the number of Firm Securities set forth opposite the name of such Underwriter in
Schedule 1 hereto, and (c) in the event and to the extent that the Underwriters
shall exercise the election to enter into additional Purchase Contracts
underlying Optional Securities as provided below, (i) the Company and each of
the Underwriters, severally and not jointly, agree to enter into that number of
additional Purchase Contracts as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional Purchase
Contracts) determined by multiplying such number of additional Purchase
Contracts by a fraction, the numerator of which is the maximum number of
Optional Securities set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the maximum number of Optional
Securities set forth in total opposite the names of all such Underwriters in
Schedule I hereto and (ii) the Company and the Trust agree that the Trust will
sell to each of the Underwriters and each of the Underwriters agrees, severally
and not jointly, to purchase from the Trust at the purchase price set forth in
clause (a) of this Section 2, a number of QUIPS equal to such number of
additional Purchase Contracts.
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<PAGE> 11
The Company hereby grants to the Underwriters the right to enter into
at their election up to 585,400 Purchase Contracts underlying Optional
Securities and the Company and the Trust hereby grant the Underwriters the
right to purchase from the Trust at their election up to 585,400 QUIPS,
for the sole purpose of covering overallotments in the sale of the Firm
Securities. Any such election to enter into such additional Purchase Contracts
and purchase such QUIPS may be exercised only by written notice from you to the
Company and the Trust, given within a period of 30 calendar days after the date
of this Agreement and setting forth the aggregate number of such additional
Purchase Contracts to be entered into and QUIPS to be purchased (which shall be
an identical number) and the date on which the related Optional Securities 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
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
The Underwriters agree to pledge to the Collateral Agent, on behalf of
the initial purchasers of the Units, the QUIPS underlying the Firm Securities
and the Optional Securities with respect to which the Company and the
Underwriters have entered into Purchase Contracts. Such pledge shall be effected
by the delivery to the Collateral Agent in New York by the Underwriters of the
QUIPS to be pledged at the appropriate Time of Delivery (as defined below) in
accordance with the Pledge Agreement.
The Underwriters further agree to sell, on behalf of the initial
purchasers of the Units, to the Call Option Holder a Call Option with respect to
each QUIPS purchased at a purchase price of $0.1136 per Call Option at the
appropriate Time of Delivery.
Unless the context otherwise requires, for purposes of this Agreement,
the act of entering into a Purchase Contract underlying a Security, purchasing a
QUIPS underlying a Security and selling a Call Option with respect to such QUIPS
shall be referred to as a "purchase" of such Security.
3. Upon the authorization by you of the release of the Firm
Securities, the several Underwriters propose to offer the Firm Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global Units in
book-entry form which will be deposited by or on behalf of the Company
with The Depository Trust Company ("DTC") or its designated custodian
and delivered to Goldman, Sachs & Co., for the account of each
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, or by wire transfer to the account designated
by, the Trust, in immediately available (same day) funds and delivery
to the Collateral Agent of the QUIPS relating to such Securities. The
Company will cause the certificates representing the Securities to be
made available to Goldman, Sachs & Co. for checking at least
twenty-four hours prior to the Time of Delivery (as defined below) with
respect thereto at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment
shall be, with respect to the Firm Securities, 9:30 a.m., New York City
time, on July 27, 1998 or such other time and date as Goldman, Sachs &
Co. and the Company may agree upon in writing, and, with respect to the
Optional Securities, 9:30 a.m., New York City time, on the date
specified by Goldman, Sachs & Co. in the written notice given by
Goldman, Sachs & Co. of the Underwriters' election to purchase such
Optional Securities, or such other time
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<PAGE> 12
and date as Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Securities is
herein called the "First Time of Delivery", such time and date for
delivery of the Optional Securities, 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 Securities and any additional
documents requested by the Underwriters pursuant to Section 7(l)
hereof, will be delivered at the offices of Sullivan & Cromwell, 125
Broad Street, New York, New York 10004 (the "Closing Location"), and
the Securities will be delivered at the Designated Office, all at each
Time of Delivery. A meeting will be held at the Closing Location at
2:30 p.m., New York City time, on the New York Business Day next
preceding each 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 and the Trust jointly and severally agree with each of
the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in
relation to the Securities 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 424(b) under the Act; to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of this Agreement
and prior to the last Time of Delivery which shall be disapproved by
you promptly after reasonable notice thereof; to advise you, promptly
of any such amendment or supplement after such Time of Delivery and
furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Securities
and during such same period 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
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of the
Securities 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 Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to
the Securities or suspending any such qualification, to promptly use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such
12
<PAGE> 13
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 necessary to complete the
distribution of the Securities, 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, as
amended or supplemented, in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities 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 same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify you and upon your
request to file such document and 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;
(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 of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) If the Company and the Trust elect to rely upon Rule
462(b), the Company and the Trust shall 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 the
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(f) During the period beginning from the date of this
Agreement 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, any Units, QUIPS or
Common Stock or securities of the Company that are substantially
similar to the Units, QUIPS or Common Stock, including but not limited
to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Common 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 your prior written consent;
(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
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<PAGE> 14
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 Securities pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(i) To use their best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange (the
"Exchange"); and
(j) Not to invest, reinvest or otherwise use the proceeds
received by the Company in such a manner, or take any action, or omit
to take any action, that would cause the Company to become an
"investment company" as that term is defined in the Investment Company
Act.
6. The Company and the Trust, jointly and severally, covenant and
agree with the several Underwriters that the Company or the Trust will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Securities 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, the Indenture, the Master Unit Agreement, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities 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; (iv) all fees and expenses
in connection with listing the Securities on the Exchange; (v) any fees charged
by securities rating services for rating the Securities, the QUIPS and the
Junior Subordinated Debentures; (vi) the filing fees incident to, and the fees
and disbursements of counsel for the Underwriters in connection with, any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vii) the cost of preparing the Securities,
the QUIPS, the Junior Subordinated Debentures, the Common Trust Securities and
any Shares; (viii) the fees and expenses of the Trust and the trustees
thereunder incident to the performance by the Trust of its obligations
hereunder; (ix) the fees and expenses of the Unit Agent, Collateral Agent and
Debenture Trustee and any agent of the Unit Agent, Collateral Agent and
Debenture Trustee and the fees and disbursements of any counsel for the Unit
Agent, Collateral Agent or Trustee in connection with the Master Unit Agreement,
the Pledge Agreement, the Call Option Agreement, the Indenture and the Junior
Subordinated Debentures, as the case may be; and (ix) all other costs and
expenses incident to the performance of the Company's or the Trust's obligations
hereunder which are not otherwise specifically provided for in this Section. 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
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<PAGE> 15
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the
Securities 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 and the Trust herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Trust shall
have performed all of its and their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the Securities 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) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated as of
such Time of Delivery, with respect to the incorporation of the
Company, this Agreement, the validity of the Securities being delivered
at such Time of Delivery, the Registration Statement, 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 Trust and the Company,
shall have furnished to you their written opinion, dated as of 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, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(iii) The unissued Shares to be issued and sold by the
Company pursuant to the Purchase Contracts and the Master Unit
Agreement have been duly authorized and reserved for issuance and,
when issued and delivered against payment therefor as provided in
the Purchase Contracts and the Master Unit Agreement, will be duly
and validly issued, fully paid and non-assessable and currently
conform to the description of the Common Stock in the Prospectus;
(iv) The statements set forth in the Prospectus as
amended or supplemented under the captions "Description of Units"
insofar as they purport to
15
<PAGE> 16
constitute a summary of the terms of the Securities, and under the
captions "Risk Factors -- Regulatory and Related Risks"; "-- Risks
Relating to the Closed Block"; "Reorganization and Recent
Acquisitions"; "Plan of Distribution" and "Underwriting", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in
all material respects;
(v) To such counsel's knowledge and other than as set
forth in the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Trust, the
Company or any of its subsidiaries is a party or of which any
property of the Trust, the Company or any of its subsidiaries is
the subject which, if determined adversely to the Trust, the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed
and delivered by the Company and the Trust;
(vii) Each of the Master Unit Agreement, the Purchase
Contracts underlying the Securities being delivered at such Time
of Delivery and the Pledge Agreement each have been duly
authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the other parties
thereto, constitutes a valid and legally binding agreement of the
Company (and together they create, to the extent provided therein,
a valid interest of the holders of the Securities in the QUIPS)
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general principles (whether such principles are considered
in a proceeding in equity or in law), provided, however, that the
rights and remedies of the Unit Agent and the Collateral Agent
provided in Sections 402 and 510 of the Master Unit Agreement and
Section 5(a) of the Pledge Agreement upon the occurrence of a
Termination Event will not be limited under the Bankruptcy Code
(11 U.S.C. 101 et seq.) because Section 365(e)(2) thereof should
permit such termination provisions to be enforced; the Pledge
Agreement creates, as collateral security for the performance when
due by the holders from time to time of the Securities of their
respective obligations under the Purchase Contracts and Call
Options constituting part of such Securities, a valid security
interest (as that term is defined in the Uniform Commercial Code,
as adopted and in effect in the State of New York (the "New York
UCC")), in favor of the Collateral Agent, in the right, title and
interest of such holders in the Pledged Securities (as defined in
the Pledge Agreement) constituting a part of such Securities; and,
in the case of Pledged Securities that are certificated or in the
form of instruments (as defined in the New York UCC), such
security interest shall be perfected upon the delivery of such
certificates or instruments to the Collateral Agent, with
accompanying stock or note powers duly executed in blank or in
favor of the Collateral Agent, and, in the case of Pledged
Securities that are credited by a securities intermediary (as
defined in the New York UCC) to a securities account (as defined
in the New York UCC) in the name of the Collateral Agent, the
Collateral Agent shall have a perfected security interest in all
securities entitlements (as defined in the New York UCC)
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<PAGE> 17
relating to such Pledged Securities; the Master Unit Agreement,
the Pledge Agreement and the Purchase Contracts conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented;
(viii) To such counsel's knowledge, the Trust is not a
party to or bound by any agreement or instrument other than this
Agreement, the Declaration, and the agreements and instruments
contemplated by the Declaration and described in the Prospectus as
amended or supplemented; to such counsel's knowledge, the Trust
has no liabilities or obligations other than those arising out of
the transactions contemplated by this Agreement and the
Declaration and described in the Prospectus as amended or
supplemented; to the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which the Trust is
a party or of which any property of the Trust is the subject and
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; based on expected operations
and current law, the Trust is not and will not be classified as an
association taxable as a corporation for United States federal
income tax purposes;
(ix) The QUIPS underlying the Securities conform in all
material respects to the description thereof contained in the
Prospectus as amended or supplemented;
(x) The Common Trust Securities conform to the
description thereof contained in the Prospectus as amended or
supplemented; and to such counsel's knowledge, all of the issued
and outstanding Common Trust Securities of the Trust are directly
owned by the Company free and clear of all liens, encumbrances,
security interests, equities or claims;
(xi) Each of the Guarantee Agreement, the Indenture and
the Junior Subordinated Debentures has been duly authorized and
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles (whether such principles are
considered in a proceeding in equity or in law); the Declaration,
the Indenture and the Guarantee Agreement have been duly qualified
under the Trust Indenture Act; the Junior Subordinated Debentures
are entitled to the benefits of the Indenture; and the Guarantee
Agreement, the Declaration, the Indenture and the Junior
Subordinated Debentures conform to the descriptions thereof in the
Prospectus, as amended or supplemented;
(xii) The entry into the Purchase Contracts underlying
Securities by the Company, the issue and sale of the QUIPS
underlying the Securities and the Common Securities by the Trust,
the issue and sale of the Junior Subordinated Debentures
underlying such Trust Securities by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase
Contracts, the compliance by the Company and the Trust, as
applicable, with the provisions of this Agreement, such Purchase
Contracts, the Master Unit Agreement, the Pledge Agreement, the
Guarantee Agreement, the Declaration and the Indenture and the
consummation of the transactions contemplated herein and therein
will not result in a breach or
17
<PAGE> 18
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 the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or other organizational
documents or by-laws of the Company or any of its subsidiaries, or
any statute or any order, rule or regulation known to such counsel
of any court, insurance regulatory authority or other governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; no Consent of or with any
such court, insurance regulatory authority or other governmental
agency or body is required for the entry into the Purchase
Contracts underlying the Securities by the Company, the issue and
sale of the QUIPS underlying the Securities and the Common
Securities by the Trust, the issue and sale of the Junior
Subordinated Debentures underlying such Trust Securities by the
Company, the issue and sale of the Shares by the Company pursuant
to the Purchase Contracts, the compliance by the Company and the
Trust, as applicable, with all of the provisions of this
Agreement, such Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, the Guarantee Agreement, the Declaration or the
Indenture or the consummation of the transactions herein or
therein contemplated, except for (A) the registration under the
Act of the Securities, the QUIPS, the Junior Subordinated
Debentures and the Shares to be issued upon settlement of the
Purchase Contracts, (B) the approval and registration of the
Securities with the Exchange, which has been obtained, (C) such as
have been obtained under the Trust Indenture Act, (D) such
Consents as may be required under state securities, insurance
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, and (E)
Consents required under the Iowa insurance laws and regulations,
all of which Consents have been obtained;
(xiii) The issue and sale of the QUIPS underlying the
Securities and the Common Trust Securities by the Trust, the
purchase of the Junior Subordinated Debentures underlying such
Trust Securities by the Trust, the compliance by the Trust with
all of the provisions of the Declaration and this Agreement, and
the consummation of the transactions contemplated herein and
therein will not 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 the Trust
is a party or by which the Trust is bound or to which any property
or assets of the Trust is subject, nor will such action violate
the provisions of the Declaration of the Trust or any statute or
any order, rule or regulation known to such counsel of any court,
insurance regulatory authority, if applicable, or other
governmental agency or body having jurisdiction over the Trust or
any of its properties; and no Consent of or with any such court,
insurance regulatory authority or other governmental agency or
body is required for the issue and sale of the QUIPS underlying
the Securities and the Common Securities by the Trust, the
purchase of the Junior Subordinated Debentures underlying such
Trust Securities by the Trust or the consummation by the Trust of
the transactions contemplated by this Agreement or the
Declaration,
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<PAGE> 19
except (A) the registration under the Act of the QUIPS and
the Junior Subordinated Debentures, (B) the approval and
registration of the Securities with the Exchange, which has been
obtained, (C) such as have been obtained under the Trust Indenture
Act, (D) such Consents as may be required under state securities,
insurance securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters,
and (E) such Consents required under the Iowa insurance laws and
regulations, all of which Consents have been obtained;
(xiv) None of the Company, any of its subsidiaries or the
Trust is an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the Investment
Company Act;
(xv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and they have no reason to believe that any
of such documents, when they became effective or were so filed, as
the case may be, contained, in the case of a registration
statement which became effective under the Act, 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, in the case of other documents which
were filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when
such documents were so filed, not misleading, excluding any
statements in such documents which do not constitute part of the
Registration Statement or Prospectus pursuant to Rule 412 under
the Act; and
(xvi) The Registration Statement, the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company and the Trust prior to
such Time of Delivery (other than the financial statements,
financial data and related schedules therein and Form T-1, 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
Trust Indenture 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 (iv) 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 and
the Trust prior to such Time of Delivery (other than the financial
statements, financial data and related schedules therein and Form
T-1, 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 its date, the
Prospectus as amended or
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<PAGE> 20
supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements, financial data and related schedules therein
and Form T-1, 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, the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial
statements, financial data and related schedules therein and Form
T-1, 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 any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In rendering such opinion, such counsel may state that insofar as their opinion
under clause (xvi) 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,
Delta, and AmVestors, 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, Delta or AmVestors 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 you otherwise.
With respect to the opinion in paragraph (vii) in regard to the
applicability of Section 365(e)(2) of the Bankruptcy Code, such counsel may note
that there is little case law interpreting the applicability of Section
365(e)(2)(B) of the Bankruptcy Code with respect to contracts to issue a
security of the debtor and there is no court decision which directly addresses
the issue. Such counsel may note that legal opinions on bankruptcy law matters
have inherent limitations that generally do not apply in respect of other legal
opinions. Such limitations exist primarily because of the pervasive equity
powers of a bankruptcy court, the nature of the bankruptcy process, the
overriding goal of bankruptcy reorganizations to which other legal rights and
policies may be subordinated and the potential relevance to the exercise of
judicial discretion of facts and circumstances arising in the future.
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, Delta,
AmVestors or AmerUs Life.
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<PAGE> 21
Any opinion or statement expressed or made pursuant to this Section
7(c) which is expressed or made to be "to our knowledge" or is otherwise
qualified by words of like import means that the lawyers in the firm of such
counsel who have served as counsel to the Company, AmerUs Group, AMHC, AmerUs
Life (or, at any time prior to the date AmerUs Life was formed, American Mutual)
or any other subsidiary of the Company have no current conscious awareness of
any facts or information contrary to such opinion or statement.
(d) Joseph K. Haggerty, Esq., Senior Vice President and General
Counsel 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) Each of the Company, Delta and AmVestors has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the States of Iowa, Delaware and
Kansas respectively; each of AmerUs Life and Delta Life and
Annuity Company ("Delta 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 of American
Investors Life Insurance Company ("American") and Financial
Benefit Life Insurance Company ("FBL") has been duly incorporated
and is validly existing as a stock life insurance company in good
standing under the laws of the State of Kansas; each of the
Company, Delta, AmVestors; AmerUs Life, Delta Life, American and
FBL has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized, are issued and are fully paid and
non-assessable and conform in all material respects to the
description of the capital stock in the Prospectus; all of the
outstanding beneficial interests in the assets of the Trust have
been duly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the
Prospectus;
(iii) Each of the Company and its subsidiaries not listed
in paragraph 7(d)(i) 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, except in the case of the subsidiaries
not listed in paragraph 7(d)(1), to the extent that the failure to
be so qualified in any such jurisdiction does not subject the
Company and its subsidiaries taken as a whole to any material
liability or disability (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 he believes that both you and he are
justified in relying upon such opinions and certificates);
(iv) Each of the Company's subsidiaries not listed in
paragraph 7(d)(i) 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 as disclosed
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<PAGE> 22
in the Prospectus, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except, in the case of the subsidiaries not listed in
paragraph 7(d)(i), such liens, encumbrances, equities or claims as
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole (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 he believes that both you and he are
justified in relying upon such opinions and 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 as amended or
supplemented 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 he is 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 its
subsidiaries, provided that such counsel shall state that he
believes that both you and he 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 as amended or supplemented,
there are no legal or governmental proceedings pending to which
the Trust, the Company or any of its subsidiaries is a party
or of which any property of the Trust, the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Trust, the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vii) The Company and its subsidiaries previously filed
all Notices required to be filed pursuant to, and previously
obtained all Approvals required to be obtained under, and have
otherwise complied with all requirements of, all applicable
insurance laws and regulations in connection with the Acquisition,
in each case (other than the insurance laws and regulations of the
State of Tennessee, in the case of the acquisition of Delta, and
other than the laws and regulations of the State of Kansas, in the
case of the acquisition of AmVestors, as to which no exception is
taken in either case) with such exceptions as (i) would not have a
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<PAGE> 23
Material Adverse Effect and (ii) would not affect the validity,
performance or consummation of the Acquisition;
(viii) Each of the Insurance Companies is duly organized
and, if required, 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 as amended or supplemented, 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 as amended or supplemented, no
Insurance Company has received any notification from any insurance
regulatory authority to the effect that any additional Approvals
from such insurance regulatory authority are 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;
(ix) 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 Securities, the QUIPS underlying the
Securities, the Junior Subordinated Debentures, the Shares to be
issued pursuant to the Purchase Contracts, and the Common Trust
Securities, 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 Securities, the QUIPS underlying the
Securities, the Junior Subordinated Debentures, the Shares to be
issued pursuant to the Purchase Contracts, and the Common Trust
Securities, their issuance or the transactions contemplated hereby
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 Securities, the QUIPS underlying the Securities, the Junior
Subordinated Debentures, the Shares to be issued pursuant to the
Purchase Contracts, and the Common Trust Securities, 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 Securities, the QUIPS underlying the Securities, the Junior
Subordinated Debentures, the Shares to be issued pursuant to the
Purchase Contracts, and the Common Trust Securities, their
issuance or the transactions contemplated hereby or have a
Material Adverse Effect;
(x) No Consent of or with any court or governmental
agency or body having jurisdiction over the Company, any of
its subsidiaries or any of their
23
<PAGE> 24
properties is required for the issue and sale of the Securities,
the QUIPS underlying the Securities, the Junior Subordinated
Debentures, the Shares to be issued pursuant to the Purchase
Contracts, and the Common Trust Securities, or the consummation by
the Company of the transactions contemplated by this Agreement or
the transactions contemplated by the Indenture, except (i) the
registration under the Act of the Securities, the QUIPS, the
Junior Subordinated Debentures and the Shares, (ii) such as have
been obtained under the Trust Indenture Act, (iii) such Consents
as may be required under state securities, insurance securities or
Blue Sky laws in connection with the purchase and distribution of
the Securities, the QUIPS underlying the Firm Securities and the
Optional Securities, the Junior Subordinated Debentures, the
Shares issued pursuant to the Purchase Contracts, and the Common
Trust Securities, by the Underwriters and (iv) approvals required
under the Iowa insurance laws and regulations, all of which
approvals have been obtained;
(xi) The Trust is not in violation of its Declaration,
and as of each Time of Delivery, will not be in violation of its
Declaration; neither the Company nor any of its subsidiaries is in
violation of its charter or other organizational documents or
bylaws; and neither the Trust, the Company nor any of its
subsidiaries is 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;
(xii) The statements set forth in the Prospectus as
amended or supplemented under the captions "Description of the
Units"; "Risk Factors -- Regulatory and Related Risks"; "-- Risks
Relating to the Closed Block"; "Reorganization and Recent
Acquisitions"; "Plan of Distribution" and "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 in all material respects;
(xiii) The entry into the Purchase Contracts underlying
the Securities by the Company, the issue and sale of the QUIPS
underlying the Securities and the Common Securities by the Trust,
the issue and sale of the Junior Subordinated Debentures
underlying such Trust Securities by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase
Contracts, the compliance by the Company and the Trust, as
applicable, with all of the provisions of this Agreement, such
Purchase Contracts, the Master Unit Agreement, the Pledge
Agreement, the Guarantee Agreement, the Declaration and the
Indenture and the consummation of the transactions herein and
therein contemplated will not 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 the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound, or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or other organizational
documents or by-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation known to such
24
<PAGE> 25
counsel of any court, insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties; no Consent
of or with any such court or governmental agency or body is
required for the entry into the Purchase Contracts underlying the
Securities by the Company, the issue and sale of the QUIPS
underlying the Securities and the Common Securities by the Trust,
the issue and sale of the Junior Subordinated Debentures
underlying such Trust Securities by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase
Contracts, the compliance by the Company and the Trust, as
applicable, with all of the provisions of this Agreement, such
Purchase Contracts, the Master Unit Agreement, the Pledge
Agreement, the Guarantee Agreement, the Declaration or the
Indenture or the consummation of the transactions herein or
therein contemplated, except for (i) the registration under the
Act of the Securities, the QUIPS, the Junior Subordinated
Debentures and the Shares to be issued upon settlement of the
Purchase Contracts, (ii) the approval and registration of the
Securities with the Exchange, which has been obtained, (iii) such
as have been obtained under the Trust Indenture Act, (iv) such
Consents as may be required under state securities, insurance
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, and (v)
approvals required under the Iowa insurance laws and regulations,
all of which approvals have been obtained;
(xiv) The issue and sale of the QUIPS underlying the
Securities and the Common Trust Securities by the Trust, the
purchase of the Junior Subordinated Debentures underlying such
Trust Securities by the Trust, the compliance by the Trust with
all of the provisions of the Declaration and this Agreement, and
the consummation of the transactions herein and therein
contemplated will not 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 the Trust is a party or by which the Trust is bound or to
which any of the property or assets of the Trust is subject, nor
will such action result in any violation of the provisions of the
Declaration of Trust or any statute or any order, rule or
regulation known to such counsel of any court, insurance
regulatory authority, if applicable, or other governmental agency
or body having jurisdiction over the Trust or any of its
properties; and no Consent of or with any such court, insurance
regulatory authority or other governmental agency or body is
required for the issue and sale of the QUIPS underlying the
Securities and the Common Securities by the Trust, the purchase of
the Junior Subordinated Debentures underlying such Trust
Securities by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement or the Declaration,
except the registration under the Act of the QUIPS and the Junior
Subordinated Debentures, (ii) the approval and registration of the
Securities with the Exchange, which has been obtained, (iii) such
as have been obtained under the Trust Indenture Act, (iv) such
Consents as may be required under state securities, insurance
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, and (v) such
Consents required under the Iowa insurance laws and regulations,
all of which approvals have been obtained;
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<PAGE> 26
(xv) This Agreement has been duly authorized, executed
and delivered by the Company and the Trust; and
(xvi) The Registration Statement, the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company and the Trust prior to such Time of
Delivery (other than the financial statements, financial data and
related schedules therein and Form T-1, 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 Trust Indenture
Act and the rules and regulations thereunder; although he does not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement
or the Prospectus as amended or supplemented, except for those
referred to in the opinion in subsection (xii) 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
and Form T-1, 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 its
date, the Prospectus as amended or supplemented 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 and Form T-1, 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, 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
and Form T-1, 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 as amended or
supplemented which are not filed or described as required.
In rendering such opinion, such counsel may state that insofar as
his opinion under clause (xvi) 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 and AmerUs
Life, 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 or AmerUs Life and of state officials, in which case his opinion is to
state that he is so doing and copies of such opinions or
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<PAGE> 27
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 you otherwise.
(e) Morris, James, Hitchens & Williams, special Delaware counsel
to the Trust, 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 Trust has been duly formed and is validly
existing in good standing as a business trust under the Act.
(ii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, enforceable against
the Company and the Trustees in accordance with its terms, and the
terms of the Capital Securities and the Common Securities, to the
extent they are obligations of the Trust, are valid and binding
obligations of the Trust in accordance with the terms of the
Declaration, subject to the effect of (A) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (B)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in
a proceeding in equity or at a law), and (C) applicable public
policy with respect to provisions relating to indemnification or
contribution.
(iii) Under the Act and the Declaration, (A) the Trust
has the requisite trust power and authority (x) to own its
properties and conduct its business, all as described under the
captions "THE AMERUS TRUSTS" in the Prospectus and "THE TRUST" in
the Prospectus Supplement, (y) to issue and perform its
obligations under the Securities, and (z) to execute and deliver,
and perform its obligations under, the Underwriting Agreement, and
(B) the execution and delivery by the Trust of the Underwriting
Agreement, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all requisite trust
action on the part of the Trust. The Underwriting Agreement has
been duly executed and delivered by the Trust.
(iv) The Capital Securities have been duly authorized by
the Declaration and are duly and validly issued and, subject to
the qualifications set forth in this paragraph (iv), fully paid
and nonassessable undivided beneficial interests in the assets of
the Trust. The Capital Security Holders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware. Such counsel may note that the Capital Security Holders
may be obligated, pursuant to the Declaration, to make payments
and provide indemnity and security as set forth in the
Declaration.
(v) The Common Securities have been duly authorized by
the Declaration and are validly issued and represent undivided
beneficial interests in the assets of the Trust.
(vi) Under the Declaration and the Act, (A) the issuance
of the Securities is not subject to preemptive rights to subscribe
for additional Securities, and (B) the Securities are the only
interests in the assets of the Trust authorized to be issued by
the Trust.
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(vii) The issuance and sale by the Trust of the
Securities in accordance with the Declaration, the execution,
delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions
contemplated by the Declaration, the Capital Securities and the
Underwriting Agreement, and the compliance by the Trust with its
obligations thereunder are not prohibited by (A) the Certificate
or the Declaration, or (B) any applicable Delaware statute or
administrative regulation.
(viii) No authorization, approval, consent or order of any
Delaware governmental authority or Delaware agency is required to
be obtained, and no filing or registration with any Delaware
governmental authority or Delaware agency is required to be made,
by the Trust solely in connection with the issuance and sale by
the Trust of the Securities.
(f) Sidley & Austin, special tax counsel for the Company and the
Underwriters, shall have furnished to you their written opinion, dated
the Time of Delivery, in form and substance satisfactory to you, to the
effect that the discussion set forth in the Prospectus under the
heading "Certain Federal Income Tax Consequences", insofar as it
relates to matters of United States federal income tax law, is accurate
in all material respects;
(g) 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 L.L.P. 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 (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a)
hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date hereof 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 as amended as of the date hereof, and
(ii) since the respective dates as of which information is given in the
Prospectus as amended prior to the date hereof 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 and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus prior to the date hereof, the effect of
which, in any such case described in Clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus as amended or supplemented
relating to the Securities;
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(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded AmerUs Life's, Delta Life's, American's
or FBL'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 (a "Rating Organization"); and (ii) no such Rating Organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of AmerUs Life's, Delta
Life's, American's or FBL's financial strength or claims paying
ability; and (iii) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock or the
Company's financial strength or claims paying ability by any Rating
Organization; and (iv) no Rating Organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock or the Company's financial strength or
claims paying ability;
(j) 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
the National Association of Securities Dealers Automated Quotations
National Market ("NASDAQ"); (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange;
(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 Securities being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(k) The Securities shall have been duly listed, subject to
notice of issuance, on the Exchange;
(l) The Company and the Trust shall have complied with the
provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of
this Agreement; and
(m) The Company and the Trust shall have each furnished or
caused to be furnished to you at such Time of Delivery a certificate or
certificates of officers of the Company and the Trust, as the case may
be, satisfactory to you as to the accuracy of the respective
representations and warranties of the Company and the Trust herein at
and as of such Time of Delivery, as to the performance by the Company
and the Trust, 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 (h) of this Section and as to such
other matters as you may reasonably request.
8. (a) Each of the Company and the Trust, jointly and severally,
will 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 an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any
29
<PAGE> 30
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 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 nor the Trust shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to such Securities or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Goldman, Sachs & Co. expressly for use
therein.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or liabilities to
which the Company and the Trust 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 as amended
or supplemented and any other prospectus relating to such Securities, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to such Securities, 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 omission or
alleged omission was made in any Preliminary Prospectus as amended or
supplemented and any other prospectus relating to such Securities, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to such Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Goldman, Sachs & Co. expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company 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
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<PAGE> 31
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) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Trust on the one hand and the
Underwriters on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (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 and the Trust on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Trust 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
purchase of the Securities purchased under this Agreement (before deducting
expenses) received by the Company and the Trust bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, 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 or the Trust 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, the Trust and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
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 Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
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(e) The obligations of the Company and the Trust under this
Section 8 shall be in addition to any liability which the Company or the Trust
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 and to each person, if any, who controls the Company or the Trust within
the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities 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 Securities 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 Securities, then the Company 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 Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Securities, or the Company
notifies you that it has so arranged for the purchase of such Securities, you or
the Company shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements 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 Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate number of all of the Securities to be purchased at such Time of
Delivery, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Securities 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 Securities which such Underwriter agreed to purchase hereunder) 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 Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased exceeds one-eleventh of the aggregate
number of all of the Securities to be purchased at such Time of Delivery, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities 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 to sell the Optional Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
32
<PAGE> 33
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, 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, or the Company,
the Trust or any officer or director or controlling person of the Company or the
Trust, and shall survive delivery of and payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company and the Trust in subsection (a) of Section 8 hereof,
the representations and warranties in subsections (b) and (c) of Section 2
hereof and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Company or the Trust pursuant to Section 7 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Company or the Trust of expenses incurred or paid in the successful defense
of any action, suit or 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 or
the Trust 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.
11. Unless in the opinion of counsel for the Company the matter has
been settled by controlling precedent, the Company 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. If this
Agreement shall be terminated pursuant to Section 9 hereof, the Company and the
Trust shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company and the Trust as
provided herein, the Company 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 Securities (not so
delivered), but the Company and the Trust shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
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 Goldman, Sachs & 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 Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Company or the Trust shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company or the Trust
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
33
<PAGE> 34
such questionnaire, which address will be supplied to the Company 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 and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company, the Trust 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 Securities 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.
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 respective counterparts shall together constitute one and
the same instrument.
34
<PAGE> 35
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 among each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
AmerUs Life Holdings, Inc.
By:/s/ Roger K. Brooks
------------------------------------
Name: Roger K. Brooks
Title: Chief Executive Officer
AmerUs Capital II
By:/s/ Michael S. Fraizer
------------------------------------
Name: Michael S. Fraizer
Title: Administrator
Accepted as of the date hereof:
Goldman, Sachs & Co.
Smith Barney Inc.
By:/s/ Goldman, Sachs & Co.
--------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
35
<PAGE> 36
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
TOTAL NUMBER OF SECURITIES TO BE
UNDERWRITER FIRM SECURITIES TO DELIVERED IF MAXIMUM
----------- BE DELIVERED OPTION EXERCISED
------------------ ---------------------
<S> <C> <C>
Goldman, Sachs & Co. .................................. 2,075,000 292,700
Salomon Brothers Inc. .................................. 2,075,000 292,700
------------------ ---------------------
Total .................................. 4,150,000 585,400
================== =====================
</TABLE>
36
<PAGE> 37
ANNEX I
Pursuant to Section 7 (e) 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 audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, 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 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") such
term to include an Underwriter or Underwriters who act without any
firm being designated as its or their 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 and/or
included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which 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 the related in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused 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 Exchange
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 and included or incorporated by
reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which
were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such 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
<PAGE> 38
in all 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 or incorporated by reference
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 condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange 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 or
included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference 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 or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived
the 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 financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference 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;
2
<PAGE> 1
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
Same as above
(Name, address and telephone number, including
area code, of trustee's agent for service)
AMERUS CAPITAL II
(Exact name of obligor as specified in its charter)
IOWA
(State or other jurisdiction of incorporation or organization)
42-6571890
(I.R.S. employer identification no.)
James A. Smallenberger
Senior Vice President and Secretary
699 Walnut Street
Des Moines, Iowa 50309-3948
(515) 362-3600
(Address, including zip code, of principal executive offices)
____________________
Capital Securities
(Title of the indenture securities)
________________________________________________
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any
underwriter for the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union National Bank
as now in effect, which contain the authority to commence business
and a grant of powers to exercise corporate trust powers is filed with
the T-1 for Financial Security Assurance Holdings LTD, as filed with
the Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
2
<PAGE> 3
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the Articles of Association is
filed with the T-1 for Financial Security Assurance Holdings LTD, as
filed with the Securities and Exchange Commission on September 8, 1997
as Registration No. 333-34181.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents
specified in exhibits (1) or (2) above is filed with the T-1 for
Financial Security Assurance Holdings LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or instruments
corresponding thereto is filed with the T-1 for Financial
Security Assurance Holdings LTD, as filed the Securities and Exchange
Commission on September 8, 1997 as Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939 is included at Page 4 of this Form T-1 Statement.
7. A copy of the latest report of condition of the trustee published
pursuant to law or to the requirements of its supervising or examining
authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
3
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 24th day of July, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ Shawn K. Bednasek
---------------------------------
Its: Vice President
-----------------------------
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended, and
in connection with the proposed issuance by AmerUs Capital III of its Capital
Securities, First Union National Bank as the trustee herein named, hereby
consents that reports of examinations of said Trustee by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ Daniel J. Ober
---------------------------------
Name: Daniel J. Ober
----------------------------
Its: Vice President
----------------------------
Dated: July 24, 1998
4
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS /////////////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): /////////////////////////
a. Noninterest-bearing balances and currency and coin (1) .............................. 0081 5,350,509 1.a.
b. Interest-bearing balances (2) ....................................................... 0071 527,082 1.b.
2. Securities: /////////////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) .......................... 1754 1,679,050 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ........................ 1773 16,948,015 2.b.
3. Federal funds sold and securities purchased under agreements to resell .................. 1350 2,626,508 3.
4. Loans and lease financing receivables /////////////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C)...RCFD 2122 83,315,758 ///////////////////////// 4.a.
b. LESS: Allowance for loan and lease losses ......................RCFD 3123 1,005,217 ///////////////////////// 4.b.
c. LESS: Allocated transfer risk reserve ..........................RCFD 3128 0 ///////////////////////// 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c) ............................................ 2126 82,310,541 4.d.
5. Trading assets (from Schedule RC-D) ..................................................... 3545 3,322,404 5.
6. Premises and fixed assets (including capitalized leases) ................................ 2145 2,167,626 6.
7. Other real estate owned (from Schedule RC-M) ............................................ 2150 70,835 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ...................................................... 2180 181,970 8.
9. Customers' liability to this bank on acceptances outstanding ............................ 2155 761,776 9.
10. Intangible assets (from Schedule RC-M) .................................................. 2143 2,539,719 10.
11. Other assets (from Schedule RC-F) ....................................................... 2160 6,508,589 11.
12. Total assets (sum of items 1 through 11) ................................................ 2170 124,994,624 12.
</TABLE>
__________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES ////////////////////////////////
13. Deposits: ////////////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, ////////////////////////////////
part I) ......................................................................... RCON 2200 79,161,386 13.a.
(1) Noninterest-bearing (1)............................. RCON 6631 15,696,570 /////////////////////////////// 13.a.(1)
(2) Interest-bearing ................................... RCON 6636 63,464,816 /////////////////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, ///////////////////////////////
part II) ........................................................................ RCFN 2200 11,656,207 13.b.
(1) Noninterest-bearing ................................ RCFN 6631 0 /////////////////////////////// 13.b.(1)
(2) Interest-bearing ................................... RCFN 6636 11,656,207 /////////////////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase ......... RCFD 2800 13,333,348 14.
15. a. Demand notes issued to the U.S. Treasury ........................................ RCON 2840 258,807 15.a.
b. Trading liabilities (from Schedule RC-D) ........................................ RCFD 3548 3,030,911 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under ///////////////////////////////
capitalized leases): ............................................................... ///////////////////////////////
a. With a remaining maturity of one year or less ................................... RCFD 2332 2,092,679 16.a.
b. With a remaining maturity of more than one year through three years ............. RCFD A547 325,781 16.b.
c. With a remaining maturity of more than three years .............................. RCFD A548 58,347 16.c.
17. Not applicable ..................................................................... ///////////////////////////////
18. Bank's liability on acceptances executed and outstanding ........................... RCFD 2920 761,776 18.
19. Subordinated notes and debentures (2) .............................................. RCFD 3200 2,347,834 19.
20. Other liabilities (from Schedule RC-G) ............................................. RCFD 2930 2,480,990 20.
21. Total liabilities (sum of items 13 through 20) ..................................... RCFD 2948 115,508,066 21.
22. Not applicable...................................................................... ///////////////////////////////
EQUITY CAPITAL ///////////////////////////////
23. Perpetual preferred stock and related surplus ...................................... RCFD 3838 0 23.
24. Common stock ....................................................................... RCFD 3230 82,795 24.
25. Surplus (exclude all surplus related to preferred stock) ........................... RCFD 3839 6,695,493 25.
26. a. Undivided profits and capital reserves .......................................... RCFD 3632 2,498,515 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .......... RCFD 8434 209,755 26.b.
27. Cumulative foreign currency translation adjustments ................................ RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) .................................. RCFD 3210 9,486,558 28.
29. Total liabilities and equity capital (sum of items 21 and 28) ...................... RCFD 3300 124,994,624 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1996 ............... RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
__________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
