EXHIBIT 10.1
REMARKETING AGREEMENT
November 7, 2005
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
SunTrust Bank
25 Park Place, 24th Floor
Atlanta, Georgia 30303
Attention:
Corporate Trust Division
Ladies and Gentlemen:
This Agreement is dated as of November 8, 2005 (the "
Agreement
") by and among The
Phoenix Companies, Inc., a Delaware corporation (the "
Company
"), Goldman, Sachs & Co., as the
remarketing agent (the "
Remarketing Agent
"), and SunTrust Bank, a Georgia banking corporation, not
individually but solely as Purchase Contract Agent (the "
Purchase Contract Agent
") and as
attorney-in-fact of the holders of Purchase Contracts (as defined
in the Purchase Contract Agreement
referred to below).
Section 1.
Definitions
.
(a) Capitalized terms used and not defined in this Agreement shall
have the
meanings set forth in the Purchase Contract Agreement, dated as of
December 20, 2002, between the
Company and SunTrust Bank, as Purchase Contract Agent, as amended
from time to time (the "
Purchase
Contract Agreement
").
(b) As used in this Agreement, the following terms have the
following meanings:
"
Notes
" means the 6.60% Notes due February 16, 2008 of the Company.
"
Preliminary Prospectus
" means any preliminary prospectus relating to the
Remarketed Notes included in the Registration Statement, including
the documents incorporated by
reference therein as of the date of such Preliminary Prospectus;
and any reference to any amendment
or supplement to such Preliminary Prospectus shall be deemed to
refer to and include any documents
filed after the date of such Preliminary Prospectus, under the
Exchange Act, and incorporated by
reference in such Preliminary Prospectus.
"
Prospectus
" means the prospectus relating to the Remarketed Notes, in the
form in
which first filed, or transmitted for filing, with the Securities
and Exchange Commission (the
"Commission") after the effective date of the Registration
Statement pursuant to Rule 424(b),
including the documents incorporated by reference therein as of the
date of such Prospectus; and any
reference to any amendment or supplement to such Prospectus shall
be deemed to refer to and include
any documents filed after the date of such Prospectus, under the
Exchange Act, and incorporated by
reference in such Prospectus.
"
Registration Statement
" means a registration statement under the Securities Act
prepared by the Company covering, inter alia, the Remarketing of
the Remarketed Notes pursuant to
Section 5(a) hereunder, including all exhibits thereto and the
documents incorporated by reference
in the prospectus contained in such registration statement, and any
post-effective amendments
thereto.
"
Remarketed Notes
" means the Pledged Notes and the Separate Notes, if any, subject
to Remarketing as identified to the Remarketing Agent by the
Purchase Contract Agent and the
Custodial Agent, respectively, after 11:00 a.m., New York City
time, on the Business Day immediately
preceding the applicable Remarketing Date, and shall include: (a)
(i) in the case of the Initial
Remarketing, the Second Remarketing and the Third Remarketing, the
Pledged Notes and (ii) in the
case of the Final Remarketing, the Notes of the Holders of
Corporate Units who have not notified the
Purchase Contract Agent prior to 5:00 p.m. on the fifth Business
Day immediately preceding the
Purchase Contract Settlement Date of their intention to effect a
Cash Settlement of the related
Purchase Contracts pursuant to the terms of the Purchase Contract
Agreement or who have so notified
the Purchase Contract Agent but failed to make the required cash
payment on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date
pursuant to the terms of the Purchase
Contract Agreement, and (b) the Separate Notes of the holders of
Separate Notes, if any, who have
elected to have their Separate Notes be remarketed in such
Remarketing pursuant to the terms of the
Purchase Contract Agreement.
"
Remarketing
" means the remarketing of the Remarketed Notes pursuant to this
Remarketing Agreement.
"
Remarketing Fee
" has the meaning set forth in Section 4.
"
Remarketing Materials
" means the Preliminary Prospectus, the Prospectus or any
other information furnished by the Company to the Remarketing Agent
for distribution to investors in
connection with the Remarketing.
"
Remarketing Settlement Date
" means November 16, 2005 in the case of a Successful
Initial Remarketing, December 16, 2005 in the case of a Failed
Initial Remarketing and a Successful
Secondary Remarketing, January 16, 2006 in the case of a Failed
Secondary Remarketing and a
Successful Third Remarketing and February 16, 2006 in the case of a
Failed Third Remarketing and a
Successful Final Remarketing.
"
Transaction Documents
" means this Agreement, the Purchase Contract Agreement, the
Pledge Agreement and the Indenture, in each case as amended or
supplemented from time to time.
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Section 2.
Appointment and Obligations of the Remarketing Agent
.
(a) The Company hereby appoints Goldman, Sachs & Co. as the
exclusive Remarketing
Agent, and, subject to the terms and conditions set forth herein,
Goldman, Sachs & Co. hereby
accepts appointment as Remarketing Agent, for the purpose of (i)
remarketing the Remarketed Notes on
behalf of the holders thereof, (ii) determining, in consultation
with the Company, in the manner
provided for herein and in the Purchase Contract Agreement and the
Indenture, the Reset Rate for the
Notes, and (iii) performing such other duties as are assigned to
the Remarketing Agent in the
Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such
date, on the
third Business Day immediately preceding November 16, 2005 (the "
Initial Remarketing Date
"), the
Remarketing Agent shall use its commercially reasonable best
efforts to remarket ("
Initial
Remarketing
") the Remarketed Notes, at a price (the "
Remarketing Price
"), based on the Reset Rate,
equal to approximately 100.25% (or, if the Remarketing Agent is
unable to remarket the Remarketed
Notes at such rate, at a rate below 100.25% in the discretion of
the Remarketing Agent, but in no
event less than 100%, net of any Remarketing Fee and any other fees
and commissions) of the sum of
the Treasury Portfolio Purchase Price and the Separate Notes
Purchase Price.
(c) In the case of a Failed Initial Remarketing and unless a
Special Event
Redemption has occurred prior to such date, on the third Business
Day immediately preceding December
16, 2005 (the "
Second Remarketing Date
"), the Remarketing Agent shall use its commercially
reasonable best efforts to remarket (the "
Second Remarketing
") the Remarketed Notes at the
Remarketing Price. In the case of a Failed Second Remarketing and
unless a Special Event Redemption
has occurred prior to such date, on the third Business Day
immediately preceding January 16, 2006
(the "
Third Remarketing Date
"), the Remarketing Agent shall use its commercially reasonable
best
efforts to remarket (the "
Third Remarketing
") the Remarketed Notes at the Remarketing Price. In the
case of a Failed Third Remarketing and unless a Special Event
Redemption has occurred prior to such
date, on the third Business Day immediately preceding the Purchase
Contract Settlement Date (the
"
Final Remarketing Date
"), the Remarketing Agent shall use its commercially reasonable
best efforts
to remarket (the "
Final Remarketing
") the Remarketed Notes at a price (the "
Final Remarketing
Price
"), based on the Reset Rate, equal to approximately 100.25% (or, if
the Remarketing Agent is
unable to remarket the Remarketed Notes at such rate, at a rate
below 100.25% in the discretion of
the Remarketing Agent, but in no event less than 100%, net of any
Remarketing Fee and any other fees
and commissions) of the aggregate principal amount of the
Remarketed Notes being remarketed in such
Final Remarketing. It is understood and agreed that the Remarketing
on any Remarketing Date will be
considered successful and no further attempts will be made if the
resulting proceeds are at least
100% (net of any Remarketing Fee and any other fees and
commissions) of the sum of the Treasury
Portfolio Purchase Price and the Separate Notes Purchase Price, in
the case of a Remarketing other
than the Final Remarketing, or 100% (net of any Remarketing Fee and
any other fees and commissions)
of the aggregate principal amount of the Remarketed Notes in the
case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent
shall determine, in
consultation with the Company, the rate per annum, rounded to the
nearest one-
3
thousandth (0.001) of one percent per annum, that the Notes should
bear (the "
Reset Rate
") in order
for the Remarketed Notes to have an aggregate market value equal to
the Remarketing Price or the
Final Remarketing Price, as the case may be, and that in the sole
reasonable discretion of the
Remarketing Agent will enable it to remarket all of the Remarketed
Notes at the Remarketing Price or
Final Remarketing Price, as the case may be, in such Remarketing;
provided
that such rate shall not
(i) be less than the Coupon Rate set forth in the Indenture or (ii)
exceed the maximum interest rate
permitted by law.
(e) In the event of a Failed Remarketing, or if no Notes are
included in Corporate
Units and none of the holders of the Separate Notes elect to have
Notes remarketed in such
Remarketing, the applicable interest rate on the Notes will not be
reset and will continue to be the
Coupon Rate set forth in the Indenture.
(f) If, by 4:00 p.m., New York City time, on the applicable
Remarketing Date, the
Remarketing Agent is unable to remarket all of the Remarketed Notes
at the Remarketing Price or the
Final Remarketing Price, as the case may be, pursuant to the terms
and conditions hereof, a Failed
Remarketing shall be deemed to have occurred, and the Remarketing
Agent shall advise by telephone
the Depositary, the Purchase Contract Agent and the Company, and
return the Remarketed Notes to the
Collateral Agent or the Custodial Agent, as the case may be.
Whether or not there has been a Failed
Remarketing will be determined in the sole reasonable discretion of
the Remarketing Agent.
(g) In the event of a Successful Remarketing, by approximately 4:30
p.m., New York
City time, on the applicable Remarketing Date, the Remarketing
Agent shall advise, by telephone:
(1) the Depositary, the Purchase Contract Agent and the Company of
the Reset
Rate determined by the Remarketing Agent in such Remarketing and
the number of
Remarketed Notes sold in such Remarketing;
(2) each purchaser (or the Depositary Participant thereof) of
Remarketed Notes
of the Reset Rate and the number of Remarketed Notes such purchaser
is to
purchase; and
(3) each such purchaser to give instructions to its Depositary
Participant to
pay the purchase price on the third business day immediately
following the date of
such Successful Remarketing in same day funds against delivery of
the Remarketed
Notes purchased through the facilities of the Depositary.
The Remarketing Agent shall also, if required by the Securities Act
or the rules
and regulations promulgated thereunder, deliver to each purchaser a
Prospectus in connection with
the Remarketing.
(h) After deducting any fees specified in Section 4 below, the
proceeds from a
Successful Remarketing (i) with respect to the Notes that are
components of the Corporate Units,
shall be paid to the Collateral Agent in accordance with Sections
5.07 and 7.06 of the Pledge
4
Agreement, as the case may be, and Section 5.02 of the Purchase
Contract Agreement and (ii) with
respect to the Separate Notes, shall be paid to the Custodial Agent
for payment to the holders of
such Separate Notes in accordance with Section 5.02 of the Purchase
Contract Agreement and Section
7.06 of the Pledge Agreement.
(i) The right of each holder of Separate Notes or Corporate Units
to have
Remarketed Notes remarketed and sold on any Remarketing Date shall
be subject to the conditions that
(i) the Remarketing Agent conducts (A) an Initial Remarketing, (B)
a Second Remarketing in the event
of a Failed Initial Remarketing, (C) a Third Remarketing in the
event of a Failed Second Remarketing
and (D) a Final Remarketing in the event of a Failed Third
Remarketing, each pursuant to the terms
of this Agreement, (ii) a Special Event Redemption has not occurred
prior to such Remarketing Date,
(iii) the Remarketing Agent is able to find a purchaser or
purchasers for Remarketed Notes at the
Remarketing Price or the Final Remarketing Price, as the case may
be, based on the Reset Rate, and
(iv) such purchaser or purchasers deliver the purchase price
therefor to the Remarketing Agent as
and when required.
(j) It is understood and agreed that the Remarketing Agent shall
not have any
obligation whatsoever to purchase any Remarketed Notes, whether in
the Remarketing or otherwise, and
shall in no way be obligated to provide funds to make payment upon
tender of Remarketed Notes for
Remarketing or to otherwise expend or risk its own funds or incur
or to be exposed to financial
liability in the performance of its duties under this Agreement,
and without limitation of the
foregoing, the Remarketing Agent shall not be deemed an underwriter
of the Remarketed Notes. Neither
the Company nor the Remarketing Agent shall be obligated in any
case to provide funds to make
payment upon tender of the Remarketed Notes for Remarketing.
Section 3.
Representations and Warranties of the Company
.
The Company represents and warrants (i) on and as of the date
hereof, (ii) on and
as of the date any Remarketing Materials are first distributed in
connection with the Remarketing
(the "
Commencement Date
"), (iii) on and as of the applicable Remarketing Date and (iv) on
and as of
the applicable Remarketing Settlement Date, that:
(a) Each of the representations and warranties of the Company as
set forth in
Sections 2(c), 2(d), 2(f), 2(g), 2(l), 2(n), 2(o) through 2(u),
2(w), 2(aa) and 2(cc) of the
Underwriting Agreement dated as of December 16, 2002 (the "
Underwriting Agreement
") among the
Company and the Underwriters identified in Schedule I to the
related Pricing Agreement dated as of
December 16, 2002 among the Company, Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Morgan
Stanley & Co. Incorporated, is true and correct as if made on
the dates specified in clauses (i),
(ii), (iii) and (iv) in the first paragraph of this Section 3;
provided
that for purposes of this
Section 3(a), (A) any reference in such sections of the
Underwriting Agreement to (i) the
"Registration Statement", the "Prospectus" or the "Preliminary
Prospectus" shall be deemed to refer
to such terms as defined herein and (ii) the "Time of Delivery"
shall be deemed to refer to the
applicable Remarketing Date and (B) the term "Significant
Subsidiary" as used in Section 2(e) of the
Underwriting Agreement shall be deemed to include any subsidiaries
of the Company that are, on the
dates specified in clauses (i), (ii), (iii) and (iv) in the first
paragraph of this Section 3,
"significant subsidiaries" of the Company within the meaning of
Regulation S-X, promulgated pursuant
to the Securities Act ("
Regulation S-X
").
5
(b) The Registration Statement, if any, in the form heretofore
delivered or to be
delivered to the Remarketing Agent, has been declared effective by
the Commission in such form; and
no stop order suspending the effectiveness of the Registration
Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission.
(c) The documents incorporated by reference in the Prospectus, when
they were
filed with the Commission, conformed in all material respects to
the requirements of the Exchange
Act 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, in light of
the circumstances under which they
were made, 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 are filed with the
Commission, will conform in all material respects to the
requirements of the Exchange Act 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, in light of the circumstances under which
they were made, not misleading;
provided, however,
that this representation and warranty shall not apply to any
statements or
omissions made in reliance upon and in conformity with information
relating to the Remarketing Agent
furnished in writing to the Company by the Remarketing Agent or its
counsel expressly for use in the
Prospectus.
(d) The Registration Statement, if any, conforms (and the
Prospectus, if any, and
any further amendments or supplements to the Registration Statement
or the Prospectus, when they
become effective or are filed with the Commission, as the case may
be, will conform) in all material
respects to the requirements of the Securities Act and the rules
and regulations promulgated
thereunder, and the Registration Statement and the Remarketing
Materials (and any amendment or
supplement thereto) as of their respective effective or filing
dates and as of the Commencement
Date, applicable Remarketing Date and the applicable Remarketing
Settlement Date do not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be
stated therein or necessary to make the statements therein not
misleading;
provided
that no
representation and warranty is made as to any statement of
eligibility on Form T-1 filed or
incorporated by reference as part of the Registration Statement,
the Prospectus or the Remarketing
Materials, or as to information relating to the Remarketing Agent
contained in or omitted from the
Registration Statement, the Prospectus or the Remarketing Materials
in reliance upon and in
conformity with written information furnished to the Company by the
Remarketing Agent.
(e) This Agreement has been duly authorized, executed and delivered
by the Company
and conforms in all material respects to the description thereof
contained in the Prospectus.
(f) The Company maintains a system of internal control over
financial reporting
(as such term is defined in Rule 13a-15(f) of the Exchange Act)
that complies with the requirements
of the Exchange Act and has been designed by the Company's
principal executive officer and principal
financial officer, or under their supervision, to provide
reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes
in accordance with generally accepted accounting principles; and
the
6
Company's internal control over financial reporting is effective in
all material respects and the
Company is not aware of any material weaknesses in its internal
control over financial reporting.
(g) Since the date of the latest audited financial statements
included or
incorporated by reference in the Registration Statement or the
Prospectus there has been no change
in the Company's internal control over financial reporting that has
materially affected, or is
reasonably likely to materially affect, the Company's internal
control over financial reporting.
(h) The Company maintains disclosure controls and procedures (as
such term is
defined in Rule 13a-15(e) of the Exchange Act) that comply in all
material respects with the
requirements of the Exchange Act; such disclosure controls and
procedures have been designed to
ensure that material information relating to the Company and its
subsidiaries is made known to the
Company's principal executive officer and principal financial
officer by others within those
entities; and such disclosure controls and procedures are effective
to provide reasonable assurance
that information required to be disclosed by the Company in reports
filed or submitted by the
Company under the Exchange Act, is recorded, processed, summarized
and reported, within the time
periods specified in the Commission's rules and forms.
(i) Neither the Company nor any of its Significant Subsidiaries (as
such term is
defined under Rule 1-02 of Regulation S-X) has sustained since the
date of the latest audited
financial statements included or incorporated by reference in the
Registration Statement and the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action,
order or decree, which is material to the Company and its
Significant Subsidiaries taken as a whole,
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 (other than issuances of common stock
upon the exercise of previously
issued stock options, pursuant to currently existing employee
compensation plans or upon exercise of
the Purchase Contracts forming a part of the Corporate Units) or
long-term debt of the Company and
its Significant Subsidiaries taken as a whole (other than in
connection with changes in the value of
derivative financial instruments currently held by the Company), or
any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the condition,
financial or otherwise, earnings, business, management or
operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(j) The Notes have been duly authorized by the Company and have
been duly issued,
executed and delivered by the Company against payment therefor as
provided in the Indenture and
constitute the valid and binding obligations of the Company,
entitled to the benefits provided by
the Indenture, and enforceable against the Company in accordance
with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium
and other laws of general
applicability relating to or affecting creditors' rights and to
general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity). The Notes
conform in all material respects to the description thereof
contained in the Prospectus.
7
Section 4.
Fees
.
(a) In the event of a Successful Remarketing of the Remarketed
Notes prior to the
Final Remarketing Date, the Remarketing Agent may retain as a
remarketing fee (the "
Initial
Remarketing Fee
") an amount equal to the lesser of (i) 25 basis points (0.25%) of
the sum of the
Treasury Portfolio Purchase Price and the Separate Note Purchase
Price and (ii) the amount of the
proceeds of such Remarketing in excess of the sum of the Treasury
Portfolio Purchase Price and the
Separate Notes Purchase Price.
(b) In the event of a Successful Final Remarketing, the Remarketing
Agent may
retain as the remarketing fee, an amount equal to the lesser of (i)
25 basis points (0.25%), of the
principal amount of the Remarketed Notes and (ii) the amount of the
proceeds of such Remarketing on
the Final Remarketing Date in excess of the aggregate principal
amount of such Remarketed Notes (the
"
Final Remarketing Fee
" and together with the Initial Remarketing Fee, the "
Remarketing Fee
").
Section 5.
Covenants of the Company
.
The Company covenants and agrees as follows:
(a) If and to the extent the Remarketed Notes are required (in the
view of
counsel, which need not be in the form of a written opinion, for
either the Remarketing Agent or the
Company) to be registered under the Securities Act as in effect at
the time of the Remarketing,
(1) to prepare the Registration Statement and the Prospectus, in a
form
approved by the Remarketing Agent, to file any such Prospectus
pursuant to the
Securities Act within the period required by the Securities Act and
the rules and
regulations thereunder and to use commercially reasonable efforts
to cause the
Registration Statement to be declared effective by the Commission
prior to the
second Business Day immediately preceding the applicable
Remarketing Date;
(2) to file promptly with the Commission any amendment to the
Registration
Statement or the Prospectus or any supplement to the Prospectus
that may, in the
reasonable judgment of the Company or the Remarketing Agent, be
required by the
Securities Act or requested by the Commission;
(3) to advise the Remarketing Agent, 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 and to furnish the Remarketing Agent with
copies
thereof;
(4) 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 subsequent to
the date of
the Prospectus and for so long as the delivery of a Prospectus is
required in
connection with the offering or sale of the Remarketed Notes;
8
(5) to advise the Remarketing Agent, promptly after it receives
notice
thereof, of the issuance by the Commission of any stop order or of
any order
preventing or suspending the use of the Prospectus, of the
suspension of the
qualification of any of the Remarketed Notes 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 the Prospectus or for additional
information, and,
in the event of the issuance of any stop order or of any order
preventing or
suspending the use of any Prospectus or suspending any such
qualification, to use
promptly its best efforts to obtain its withdrawal;
(6) to furnish promptly to the Remarketing Agent such copies of the
