EXHIBIT 1
EXECUTION COPY
THE ALLSTATE CORPORATION
$550,000,000 5.375% Senior Notes Due 2006
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UNDERWRITING AGREEMENT
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New York, New York
November 26, 2001
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $550,000,000 principal amount of its 5.375% Senior Notes Due
2006 registered under the Registration Statements referred to in Section 1(a)
below (the "Securities"), to be issued pursuant to the provisions of an
Indenture, dated as of December 16, 1997, as amended by the Third Supplemental
Indenture, dated as of July 23, 1999 and the Sixth Supplemental Indenture, dated
as of June 12, 2000 and as supplemented by the Seventh Supplemental Indenture,
to be dated as of December 3, 2001 (as so amended and supplemented, the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firms or firms. To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") registration statements on
Form S-3 (Nos. 333-61817 and
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333-39640) under the Act, which have become effective, for the registration
under the Act of the Securities (such registration statements, including the
exhibits thereto, as amended at the date of this Agreement, are hereinafter
called the "Registration Statements"). No stop order suspending the
effectiveness of either of the Registration Statements is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement or supplements to the
form of prospectus included in the registration statement on Form S-3 (No.
333-39640) relating to the Securities and the plan of distribution thereof; such
prospectus in the form in which it appears in such registration statement is
hereinafter called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statements, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statements, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed or
transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Time of Delivery (as hereinafter defined), any amendment to either of the
Registration Statements becomes effective (including the filing of any document
incorporated by reference in the Registration Statements), when any supplement
to the Final Prospectus is filed with the Commission and at the Time of
Delivery, (i) the Registration Statements, as amended as of any such time, and
the Final Prospectus, as amended or supplemented as of any such time, and the
Indenture complied and will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Exchange Act and the respective rules thereunder and
(ii) neither the Registration Statements, as amended as of any such time, nor
the Final Prospectus, as amended or supplemented as of such time, contained or
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the Company makes no
representations or warranties as to (i) the parts of the Registration Statements
which constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustees (the "Form T-1") or (ii) the information
contained in or omitted from the Registration Statements or the Final Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information relating to such Underwriter or the underwriting
arrangements furnished in writing to the Company by any Underwriter specifically
for use in the Registration Statements and the Final Prospectus.
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(c) Each document incorporated by reference in the Registration Statements
and the Final Prospectus, at the time they were, or hereafter are, filed with
the Commission, complied or will comply and, at any time when a prospectus
relating to the Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, will comply in all material
respects with the Exchange Act and the rules and regulations promulgated
thereunder.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each subsidiary of the Company listed in Schedule III hereto (each, a
"Principal Subsidiary") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The Principal Subsidiaries are currently the
only operating insurance companies that are "significant subsidiaries" of the
Company as that term is defined in Rule 1-02(x) of Regulation S-X of the rules
and regulations of the Commission under the Act.
(f) All of the issued shares of capital stock of each Principal Subsidiary
have been duly and validly authorized and issued, are fully paid and
nonassessable, and are owned of record directly or indirectly by the Company or
another Principal Subsidiary, as the case may be, free and clear of any security
interest, claim, lien or encumbrance.
(g) Each Principal Subsidiary is duly licensed or authorized as an insurer
or reinsurer in each jurisdiction where it is required to be so licensed, except
where the failure to be so licensed or authorized in any such jurisdiction does
not have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; the Company and
each Principal Subsidiary have made all required filings under applicable
insurance holding company statutes, and each is duly licensed or authorized as
an insurance holding company in each jurisdiction where it is required to be so
licensed, except where the failure to have made such filings or to be so
licensed or authorized in any such jurisdiction does not have a material adverse
effect on the financial condition, business or properties of the Company and its
subsidiaries taken as a whole; the Company and each Principal Subsidiary have
all necessary authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to conduct their
respective businesses as described in the Final Prospectus as amended or
supplemented, except where the failure to have such authorizations, approvals,
orders, consents, registrations or qualifications does not have a material
adverse effect on the financial condition, business or properties of the Company
and its subsidiaries taken as a whole; and none of the Company or any Principal
Subsidiary has received
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any notification from any insurance regulatory authority to the effect that any
additional authorization, approval, order, consent, registration or
qualification from such insurance regulatory authority is needed to be obtained
by any of the Company or any Principal Subsidiary in any case where it could be
reasonably expected that (x) the Company or any Principal Subsidiary would in
fact be required either to obtain any such additional authorization, approval,
order, consent, registration or qualification or cease or otherwise limit
writing certain business and (y) obtaining such authorization, approval, order,
consent, license, certificate, permit, registration or qualification or limiting
such business would have a material adverse effect on the business, financial
position or results of operations of the Company and its subsidiaries, taken as
a whole.
(h) Each Principal Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the insurance
laws and regulations of other jurisdictions which are applicable to such
Principal Subsidiary, and has filed all notices, reports, documents or other
information required to be filed thereunder, except where the failure to so
comply or file would not have a material adverse effect on the business,
financial position or results of operations of the Company and its subsidiaries,
taken as a whole.
(i) Other than as set forth in the Final Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could reasonably be expected to
have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; and, to the
best of the Company's knowledge, no such proceedings are threatened.
(j) This Agreement has been duly authorized, executed and delivered by the
Company.
(k) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(l) The Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement, such Securities will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture.
(m) The issuance and sale of the Securities and compliance by the Company
with all of the provisions of the Securities, the Indenture and this Agreement
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 for borrowed money to
which the Company or any Principal Subsidiary is a party or by which the Company
or any of its Principal Subsidiaries is bound or to which any of the property or
assets
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of the Company or any of its Principal Subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any of its Principal Subsidiaries or
any statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having jurisdiction
over the Company or any of its Principal Subsidiaries or any of their
properties, in each case other than such breaches, conflicts, violations or
defaults which, individually or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries taken as a whole, and no
authorization, approval, order, consent, registration or qualification of or
with any such court or insurance regulatory authority or other governmental
agency or body is required for the issue or sale of the Securities, except such
authorizations, approvals, orders, consents, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters, in
each case other than such authorizations, approvals, orders, consents,
registrations or qualifications which (individually or in the aggregate) the
failure to make, obtain or comply with would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(n) Except as described in or contemplated by the Registration Statements
and the Final Prospectus, there has not been any material adverse change in, or
any adverse development which materially affects, the business, properties,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole from the dates as of which information is given in the
Registration Statements and the Final Prospectus; and, since the respective
dates as of which information is given in the Registration Statements and the
Final Prospectus, there has not been any material increase in the consolidated
capital stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding on
the date of the latest balance sheet incorporated by reference in the Final
Prospectus) or any material increase in the consolidated long-term debt of the
Company and 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, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Final Prospectus.
(o) There are no material contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any notes or debt
of the Company owned or to be owned by such person or to require the Company to
include such securities for registration pursuant to either of the Registration
Statements or pursuant to any other registration statement filed by the Company
under the Act.
(p) The Company is not, and after giving effect to the offering and sale of
the Securities and the application of the net proceeds therefrom as described in
the Final Prospectus, will not 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.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities
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shall be deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
2. Purchase and Sale. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agree, severally and not jointly, to purchase from the Company the respective
principal amounts of the Securities set forth in Schedule II hereto opposite
their names at 99.072% of the principal amount -- the purchase price -- plus
accrued interest, if any, from December 3, 2001 to the date of payment and
delivery.
3. Payment and Delivery of the Securities. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on December 3, 2001,
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Securities being herein called the "Time of Delivery"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
the Depositary Trust Company unless the Representatives otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
5. Company Covenants. The Company agrees with each of the Underwriters of
the Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives and to
timely file such Final Prospectus pursuant to Rule 424(b) under the Act; (ii) to
make no further amendment or any supplement to the Registration Statements or
Final Prospectus as amended or supplemented after the date hereof and prior to
the Time of Delivery for the Securities unless the Representatives shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; (iii) to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; (iv) 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 the Representatives, promptly after it receives notice thereof,
of (I) the time when any amendment to the Registration Statements has been filed
or becomes effective or any supplement to the Final Prospectus or any amended
Final Prospectus has been filed with the Commission, (II) the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Final Prospectus, (III) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (IV) any
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request by the Commission for the amending or supplementing of the Registration
Statements or the Final 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 the Final Prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify the Securities for offering and sale under the
securities and insurance securities laws of such jurisdictions as the
Representatives 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) To furnish the Underwriters with copies of the Final Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time 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 Final
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 light of the circumstances under which they were made
when such Final Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon their
request to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended Final Prospectus or a supplement to the Final
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
respective effective dates of each of the Registration Statements, an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations
thereunder; and
(e) During the period beginning from the date hereof and continuing to and
including the latter of (i) the termination of trading restrictions for the
Securities, as notified to the Company by the Representatives or their counsel
and (ii) the Time of Delivery for the Securities, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company which are
substantially similar to the Securities, without the prior written consent of
the Representatives, which consent shall not be unreasonably withheld.
(f) The Company will not take, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
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6. Fees and Expenses. The Company covenants and agrees with the several
Underwriters that the Company 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 incurred in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any Preliminary Final Prospectus and
the Final 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 this Agreement, any Blue Sky Survey and any Legal
Investment Memoranda in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all reasonable expenses in connection with the
qualification of the Securities for offering and sale under state securities and
insurance securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and Legal Investment
surveys; (iv) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (v) any fees charged by securities rating services for rating the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee, Paying Agent or Transfer Agent and the fees and
disbursements of counsel for any such Trustee, Paying Agent or Transfer Agent in
connection with the Indenture and the Securities; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided in this Section. It is understood, however,
that, except as provided in this Section, Section 8 and Section 9 hereof, the
Underwriters will pay all of their own 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. Conditions to Underwriters' Obligations. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the execution of this Agreement and as of the Time of Delivery, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final 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; no stop
order suspending the effectiveness of the Registration Statements 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 the
Representatives' reasonable satisfaction;
(b) LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel for the Company, shall
have furnished to you their written opinion, dated the Time of Delivery for the
Securities, in form and substance reasonably 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 Delaware,
with corporate
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power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Final Prospectus as
amended and supplemented;
(ii) This Agreement has been duly authorized, executed and delivered
by the Company;
(iii) The Securities have been duly authorized, and (assuming their
due authentication by the Trustee) have been duly executed, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, and the
Securities and the Indenture conform in all material respects to the
descriptions thereof in the Final Prospectus as amended or supplemented;
(iv) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company,
and constitutes a valid and legally binding instrument, enforceable in
accordance with its 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;
(v) The Registration Statements and the Final Prospectus as amended or
supplemented and any further amendments thereto made by the Company prior
to such Time of Delivery for the Securities (in each case other than with
respect to the financial statements, financial and accounting data and
related schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statements including the
Form T-1s, as to which such counsel need express no opinion or belief),
appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; provided
that, such counsel shall not be deemed to be passing upon and shall not be
required to assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statements and
Final Prospectus;
(vi) As such counsel, such counsel reviewed the Registration
Statements and Final Prospectus as amended or supplemented, participated in
discussions with representatives of the Underwriters and of the Company and
its accountants at which contents of the Registration Statements and Final
Prospectus as amended or supplemented and related matters were discussed;
on the basis of the information that such counsel gained in the course of
the performance of their services referred to above, although such counsel
shall not be deemed to be passing upon and shall not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statements or the Final
Prospectuses and not be required to have made an independent check or
verification thereof (except as described in paragraph (iii) hereof), on
the basis of the foregoing, no facts have come to the attention of such
counsel in the course of such review which have led such counsel to believe
that, as of their respective effective dates, the Registration Statements
or any further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and the financial and
accounting data and related schedules incorporated by reference or included
therein or excluded therefrom, or the exhibits to the Registration
Statements including the Form T-1s, 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 or the Time
of Delivery, the Final 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 and financial and accounting
data and related schedules incorporated by reference or included therein or
excluded therefrom, or the exhibits to the Registration Statements
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including the Form T-1s, 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 light of the
circumstances under which they were made not misleading; and
(vii) The Company is not 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.
(c) Michael J. McCabe, Vice President and General Counsel of the Company,
shall have furnished to you his written opinion, dated the Time of Delivery for
the Securities, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Each of Allstate Insurance Company ("AIC") and Allstate Life
Insurance Company ("ALIC") has been duly incorporated and is validly
existing as an insurance corporation under the laws of the State of
Illinois, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus as amended or
supplemented (such counsel being entitled to rely in respect of the opinion
in this clause (i) upon the opinions of members of the Company's in-house
legal staff);
(ii) All of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are fully paid
and nonassessable, and are owned of record directly or indirectly by the
Company, AIC or ALIC, as the case may be, free and clear of any perfected
security interest and, to the knowledge of such counsel, after due inquiry,
any other security interest, claim, lien or encumbrance (such counsel being
entitled to rely in respect of the opinion in this clause (ii) upon
opinions of local or in-house counsel and in respect of 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 or certificates);
(iii) Each Principal Subsidiary is duly licensed or authorized as an
insurer or reinsurer in each other jurisdiction where it is required to be
so licensed, except where the failure to be so licensed or authorized in
any such jurisdiction does not have a material adverse effect on the
financial condition, business or properties of the Company and its
subsidiaries taken as a whole; the Company and each Principal Subsidiary
have made all required filings under applicable insurance holding company
statutes, and each is duly licensed or authorized as an insurance holding
company in each jurisdiction where it is required to be so licensed, except
where the failure to have made such filings or to be so licensed or
authorized in any such jurisdiction does not have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries taken
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as a whole; the Company and each Principal Subsidiary have all necessary
authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to conduct
their respective businesses as described in the Final Prospectus as amended
or supplemented, except where the failure to have such authorizations,
approvals, orders, consents, registrations or qualifications does not have
a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries taken as a whole; and none
of the Company or any Principal Subsidiary has received any notification
from any insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, registration or qualification from
such insurance regulatory authority is needed to be obtained by any of the
Company or any Principal Subsidiary in any case where it could be
reasonably expected that (x) the Company or any Principal Subsidiary would
in fact be required either to obtain any such additional authorization,
approval, order, consent, registration or qualification or cease or
otherwise limit writing certain business and (y) obtaining such
authorization, approval, order, consent, license, certificate, permit,
registration or qualification or limiting such business would have a
material adverse effect on the business, financial position or results of
operations of 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 or in-house counsel and in respect of 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 and certificates);
(iv) To the best of such counsel's knowledge, after due inquiry, each
Principal Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are applicable
to such Principal Subsidiary, and has filed all notices, reports, documents
or other information required to be filed thereunder, or is subject to no
material liability or disability by reason of the failure to so comply or
file (such counsel being entitled to rely in respect of this clause upon
opinions of local or in-house counsel and in respect of 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 and certificates);
(v) To the best of such counsel's knowledge, after due inquiry, and
other than as set forth in the Final Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, individually or in the
aggregate, could reasonably be expected to have a material adverse effect
on the financial condition, business or properties of the Company and its
subsidiaries taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened;
(vi) The issuance and sale of the Securities and the performance by
the Company of its obligations under the Indenture, the Securities or this
Agreement and the consummation by the Company of the transactions
contemplated therein and herein will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
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Page 15 of 49
default under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument relating to the Company or any of
its subsidiaries, as such agreements or instruments have been amended
(which indentures, mortgages, deeds of trust, loan agreements or other
agreements or instruments may be specified by such counsel on a schedule
attached to his opinion); nor will any such action result in any violation
of the provisions of the Certificate of Incorporation or the Bylaws of the
Company or any of its Principal Subsidiaries or any applicable United
States law or statute or any order, rule or regulation of any United States
court or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties, provided, that the
foregoing opinion is limited to those statutes, laws, rules and regulations
of the United States of America, the General Corporation Law of the State
of Delaware and the State of Illinois, in each case, which, in the opinion
of such counsel, are normally applicable to transactions of the type
contemplated by this Agreement, and provided further, that no opinion need
be given with respect to (A) the Act, the Exchange Act, the Trust Indenture
Act, the rules and regulations issued pursuant to each such act, any order,
rule or regulation made or established by any insurance official or
regulatory authority or the National Association of Securities Dealers,
Inc., or state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters or (B) conflicts,
breaches or violations which individually and in the aggregate both would
not have a material adverse effect on the financial condition, business or
operations of the Company and its subsidiaries taken as a whole and would
not have a material adverse effect on the sale or ownership of the
Securities (such counsel being entitled to rely in respect of the opinion
in this clause (vi) upon opinions of local or in-house counsel and in
respect of 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 and
certificates);
(vii) No consent, approval, authorization, order, registration or
qualification of or with any United States court or governmental agency or
body is required for the issue and sale of the Securities by the Company or
the consummation by the Company of the transactions contemplated by this
Agreement, except that such counsel need not express any opinion with
respect to such consents, approvals, authorizations, orders, registrations
or qualifications (A) as may be required under the Act, the Exchange Act,
the Trust Indenture Act, the rules and regulations issued pursuant to each
such act, any order, rule or regulation made or established by any
insurance official or regulatory authority or the National Association of
Securities Dealers, Inc., or (B) as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters, (C) the absence of which individually or in
the aggregate both are not material to the Company and its subsidiaries
taken as a whole and would not have a material adverse effect on the sale
or ownership of the Securities or (D) as may be required under foreign laws
in connection with the purchase and distribution of the Securities by any
international managers; provided, that the foregoing opinion is limited to
those consents, approvals, authorizations, orders, registrations and
qualifications under laws which, in the experience of such counsel, are
normally applicable to transactions of the type contemplated by this
Agreement;
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Page 16 of 49
(viii) To the best of such counsel's knowledge, after due inquiry, the
Company and its subsidiaries, as applicable, have filed all notices,
reports, documents or other information required to be filed pursuant to,
and have obtained all authorizations, approvals, orders, consents,
registrations or qualifications required to be obtained under, and have
otherwise complied with all requirements of, all applicable insurance laws
and regulations known to such counsel to be normally applicable to the
transactions contemplated by this Agreement in connection with the issuance
and sale by the Company of the Securities and, except as have been obtained
pursuant to the foregoing clause, no filing, authorization, approval,
order, consent, registration or qualification of or with any insurance
regulatory agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties known to such counsel to be
normally applicable to the transactions contemplated by this Agreement or
the Indenture is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement, except such filings, authorizations, approvals, orders,
consents, registrations or qualifications which (individually or in the
aggregate) the failure to make, obtain or comply with would not have a
material adverse effect on the financial condition, business or properties
of the Company and its subsidiaries taken as a whole or a material adverse
effect on the sale or ownership of the Securities;
(ix) To the best of such counsel's knowledge, after due inquiry, there
are no material contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any notes or
debt of the Company owned or to be owned by such person or to require the
Company to include such securities for registration pursuant to either of
the Registration Statements or pursuant to any other registration statement
filed by the Company under the Act.
(x) As general counsel to the Company, such counsel reviewed the
Registration Statements and Final Prospectus as amended or supplemented,
participated in various discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of
the Registration Statements and Final Prospectus as amended or supplemented
were discussed; on the basis of the information that such counsel gained in
the course of his activities referred to above and as general counsel, such
counsel confirms that the Registration Statements, as of their respective
effective dates, and the Final Prospectus, as amended or supplemented (in
each case other than with respect to the financial statements, financial
and accounting data and related schedules incorporated by reference or
included therein or excluded therefrom, as to which such counsel need
express no opinion or belief), appear on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder; and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statements and Final Prospectus as amended or
supplemented (except as expressly set forth in such opinion), on the basis
of the foregoing, no facts have come to the attention of such counsel in
the course of such review which has caused such counsel to believe that, as
of their respective effective dates, the Registration Statements or any
further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial
13
Page 17 of 49
statements and financial and accounting data and related schedules
incorporated by reference or included therein or excluded therefrom or the
exhibits to the Registration Statements including the Form T-1s and other
than information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred Securities
Guarantees" and "Plan of Distribution" in the Basic Prospectus and under
the captions "Description of the Notes" and "Underwriting" contained in the
Final Prospectus as amended or supplemented, 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
Final 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 and financial and accounting data and
related schedules incorporated by reference or included therein or excluded
therefrom or the exhibits to the Registration Statements including the Form
T-1s and other than information under the captions "Description of Debt
Securities," "Description of Debt Warrants," "Description of Preferred
Stock," "Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and under the captions "Description of the Notes" and "Underwriting"
contained in the Final Prospectus as amended or supplemented, 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 the Time of Delivery, either the Registration Statements or the Final
Prospectus as amended or supplemented or any further amendment or
supplement (when considered together with the document to which such
supplement relates) thereto made by the Company prior to such Time of
Delivery (other than the financial statements and financial and accounting
data and related schedules incorporated by reference or included therein or
excluded therefrom or the exhibits to the Registration Statements including
the Form T-1s and other than information under the captions "Description of
Debt Securities," "Description of Debt Warrants," "Description of Preferred
Stock," "Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and under the captions "Description of the Notes" and "Underwriting"
contained in the Final Prospectus as amended or supplemented, 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 Statements required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statements or required to be incorporated by reference into
the Final Prospectus as amended or supplemented or required to be described
in the Registration Statements or the Final Prospectus as amended or
supplemented which are not filed or described as required, in each case,
other than with respect to the information under the captions "Description
of Debt Securities," "Description of Debt Warrants," "Description of
Preferred Stock," "Description of Preferred Securities," "Description of
Preferred Securities Guarantees" and "Plan of
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Page 18 of 49
Distribution" in the Basic Prospectus and under the captions "Description
of the Notes" and "Underwriting" contained in the Final Prospectus as
amended or supplemented; and
(xi) On the basis of the information that such counsel gained in the
course of the review referred to in paragraph (x) above and as general
counsel (but without passing upon or assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in the
documents described below), such counsel confirms that no facts have come
to the attention of such counsel in the course of such review which have
caused such counsel to believe that the documents incorporated by reference
in the Final Prospectus as amended or supplemented (other than the
financial statements and financial and accounting data and related
schedules incorporated by reference or included therein or excluded
therefrom, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be, did
not comply 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 he has 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 that
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
to make the statements therein, in light of the circumstances under which
they were made not misleading.
(d) The Representatives shall have received from Willkie Farr & Gallagher,
counsel for the Underwriters, such opinion or opinions, dated the Time of
Delivery and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Final Prospectus as amended and supplemented and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
this purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, Secretary, General
Counsel or Treasurer of the Company, dated the Time of Delivery, to the effect
that the signatory of such certificate has carefully examined the Registration
Statements, the Final Prospectus and amendments and supplements thereto and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Time of Delivery with the
same effect as if made on the Time of Delivery and the Company has complied
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of either of the
Registration Statements has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
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Page 19 of 49
(iii) since the date of the Final Prospectus there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statements or Final Prospectus, and there has been no document
required to be filed under the Act and the rules and regulations thereunder
which, upon filing, would be deemed to be incorporated by reference in the
Final Prospectus which has not been so filed.
(f) On the date hereof, Deloitte & Touche shall have furnished to the
Representatives a letter, dated the effective date of the most recent of the
Registration Statements or, if more recently filed, the most recent report filed
with the Commission containing financial statements and incorporated by
reference in the Registration Statements if the date of such report is later
than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Schedule IV hereto, and with respect to
such letter dated such Time of Delivery, in form and substance satisfactory to
the Representatives.
(g) Subsequent to the effective date of this Agreement, there shall not
have been any decrease in the rating of any of the Company's debt securities by
any of Moody's Investor Services, Inc. or Standard & Poor's Corporation or any
public notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(h) Prior to or at the Time of Delivery, the Company shall have furnished
or shall furnish to the Representatives such additional certificates of officers
of the Company as to such other matters as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Time of Delivery by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be delivered
at the office of Willkie Farr & Gallagher, counsel to the Underwriters, at 787
Seventh Avenue, New York, New York 10019, at the Time of Delivery.
8. Reimbursement of Underwriters' Expenses. (a) If the sale of the
Securities provided herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 (other than Section 7(d))
hereof is not satisfied, because of any termination pursuant to Section 11 (i)
hereof or because of any refusal, inability or failure by the Company to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Salomon Smith Barney Inc. on demand for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
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Page 20 of 49
9. (a) Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter, within
the meaning of either the Act or the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as: (i) such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statements as originally filed or in
any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto; or (ii) 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. The Company agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case arising in connection with this Section 9 to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein, and, provided, further, that the Company
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Final Prospectus, the Final
Prospectus or the Final Prospectus as amended or supplemented, as the case may
be, to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold the Securities to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Final Prospectus or of the Final
Prospectus as then amended or supplemented, whichever is most recent, in any
case where such delivery is required by the Act if the Company had previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Final Prospectus which was corrected
in the Final Prospectus (or the Final Prospectus as amended or supplemented).
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statements, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or Final Prospectus is as follows: under the heading "Underwriting"
or "Plan of Distribution," (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related to
concessions and reallowances, and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus.
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Page 21 of 49
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party: (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses; and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below) and to participate in and assume the
defense of the claim associated with such action; provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if: (i)
the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise, or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 9 is unavailable to, or insufficient to hold harmless, an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and by the Underwriters, on the other, from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the total price at
which the applicable Securities underwritten by it and distributed to the public
were offered to the public. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only
18
Page 22 of 49
such relative benefits but also the relative fault of the Company, on the one
hand, and of the Underwriters, on the other, in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things: (i) whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company, on the
one hand, or the Underwriters, on the other; (ii) the intent of the parties and
their relative knowledge; (iii) access to information; and (iv) the opportunity
to correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 9, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statements and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
10. Defaulting Underwriters. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by the
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Securities set forth opposite
their names on Schedule II hereto bears to the aggregate amount of Securities
set forth opposite the names of all the remaining Underwriters) the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set forth on Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without any liability to any non-defaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth in
this Section 10, the Time of Delivery shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes to the Registration Statements and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting Underwriter for damages
occasioned by its default hereunder.
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Page 23 of 49
11. Termination. This Agreement is subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's securities shall have been suspended by the
Commission, (ii) trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States or a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplements thereto).
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 9 hereof, and will survive the delivery of and payment for the
Securities. The provisions of Section 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives will be mailed, delivered
or telefaxed to the Salomon Smith Barney Inc. General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, Salomon Smith Barney Inc., at
388 Greenwich Street, New York, New York 10013, Attention: General Counsel; or
it sent to the Company, will be mailed, delivered or telefaxed to the address of
the Company set forth in the Registration Statement, Attention: Secretary.
14. Successors and Assigns. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agent and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. Time; 'Business Day'. As used herein, the term 'business day' shall
mean any day other than a Saturday, Sunday or a legal holiday or a day on which
banking institutions or trust companies are authorized or obligated by law to
close in New York City.
16. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
17. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
THE ALLSTATE CORPORATION
By:/s/ James P. Zils
----------------------------------
Name: James P. Zils
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON SMITH BARNEY INC.
BNY CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
FIRST UNION SECURITIES, INC.
BANC ONE CAPITAL MARKETS, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SUNTRUST CAPITAL MARKETS, INC.
UBS WARBURG LLC
By: Salomon Smith Barney Inc.
By: /s/ Anne C. Kronenberg
-------------------------------
Name: Anne C. Kronenberg
Title: Managing Director
For themselves and the other
Underwriters, if any, named in
Schedule II to the foregoing
Agreement
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SCHEDULE I
Representatives
Salomon Smith Barney Inc.
BNY Capital Markets, Inc.
Banc of America Securities LLC
J.P. Morgan Securities Inc.
First Union Securities, Inc.
Banc One Capital Markets, Inc.
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
SunTrust Capital Markets, Inc.
UBS Warburg LLC
Page 26 of
SCHEDULE II
Underwriters Principal Amount of
- ------------
Securities to be Purchased
Salomon Smith Barney Inc.......................... $203,500,000
BNY Capital Markets, Inc.......................... $99,000,000
Banc of America Securities LLC.................... $49,500,000
J.P. Morgan Securities Inc........................ $49,500,000
First Union Securities, Inc....................... $49,500,000
Banc One Capital Markets, Inc..................... $16,500,000
Credit Suisse First Boston Corporation............ $16,500,000
Lehman Brothers Inc............................... $16,500,000
Merrill Lynch, Pierce, Fenner &
Smith Incorporated.............................. $16,500,000
SunTrust Capital Markets, Inc..................... $16,500,000
UBS Warburg LLC................................... $16,500,000
Total.......... $550,000,000
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SCHEDULE III
Principal Subsidiaries Jurisdiction Of Incorporation
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
Page 28 of 49
SCHEDULE IV
Pursuant to Section 7(f) 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
Exchange Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules, certain summary and selected consolidated financial
and operating data, and any supplementary financial information and
schedules (and, if applicable, pro forma financial information) audited by
them and included or incorporated by reference in the Final Prospectus as
amended or supplemented or the Registration Statement 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
thereunder; and, they have performed a review in accordance with standards
established under Statement of Auditing Standards No. 71 established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, and any supplementary financial
information and schedules, selected financial data, pro forma financial
information, prospective financial statements and/or condensed financial
statements derived from audited financial statements of the Company
included or incorporated by reference in the Final Prospectus, as amended
or supplemented or the Registration Statement, for the periods specified in
such letter, and, as indicated in their report thereon, copies of which
have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) On the basis of limited procedures, not constituting an audit 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
Final Prospectus as amended or supplemented, 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) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows and certain
summary and selected consolidated financial and operating data
included or incorporated by reference in the Final Prospectus as
amended or supplemented 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
thereunder and generally accepted accounting principles, applied on a
basis substantially consistent with that of the audited financial
statements included or by reference in the Final Prospectus;
Page 29 of 49
(B) any other unaudited income statement data and balance sheet
items included or incorporated by reference in the Final Prospectus as
amended or supplemented 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 Final Prospectus as
amended or supplemented;
(C) the unaudited financial statements which were not included or
incorporated by reference in the Final Prospectus as amended or
supplemented but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included or incorporated
by reference in the Final Prospectus as amended or supplemented and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited consolidated financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements.
(E) as of a specified date not more than five business days prior
to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the consolidated
borrowings or consolidated reserve for property-liability insurance
claims and claims expense or consolidated reserve for life insurance
policy benefits, or asset reserves of the Company and its
subsidiaries, or any decreases in consolidated fixed income securities
available for sale, consolidated equity securities, consolidated
investments or shareholder equity, or any decrease in AIC's or ALIC's
statutory capital and surplus, or other items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Final Prospectus as amended or supplemented, except in each case for
changes, increases or decreases which the Final Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented to the specified date referred
to in Clause (E) there were any decreases in consolidated premiums
earned, consolidated net investment income, or other items specified
by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
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period of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for decreases
or increases which the Final Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Final Prospectus as amended or
supplemented and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (ii) and (iii)
above, they have carried out certain procedures as specified in their
letter, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived
from the general accounting records of the Company and its subsidiaries,
which appear or are incorporated by reference in the Final Prospectus as
amended or supplemented or in Part II of, or in exhibits and schedules to,
the Registration Statement specified by the Representatives, and have
compared certain of such specified amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
3
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