EXHIBIT 1.1.
HARTFORD LIFE, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
February 22, 2001
To the Underwriters named in
Schedule I to the applicable Pricing Agreement.
Ladies and Gentlemen:
From time to time Hartford Life, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture
and the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-21865 and
333-56283) in respect of the Securities have been filed with the Securities
and Exchange Commission (the "Commission"); such registration statements
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to such registration statements, but including all documents incorporated
by reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other Underwriters, have
been declared effective by the Commission in such form; no other document
with respect to such registration statements or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the effectiveness of such
registration statements has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statements or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statements, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the latest
registration statement at the time such part of the registration statements
became effective but excluding Form T-1, each as amended at the time such
part of the registration statements became effective, are hereinafter
collectively called the "Registration Statement"; the prospectus relating
to the Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
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pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development involving a prospective material
adverse change, 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 Statement and 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
consolidated capital stock or any material increase in the consolidated
long-term debt of the Company and its subsidiaries;
(e) 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 full corporate
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power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification except where
the failure to be so qualified in any such jurisdiction would not have,
individually or in the aggregate with such other failures, a material
adverse effect on the financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, considered as a whole;
and each of Hartford Life and Accident Insurance Company, a Connecticut
corporation ("HLAIC"), Hartford Life Insurance Company, a Connecticut
corporation ("HLIC") and Hartford Life and Annuity Insurance Company, a
Connecticut corporation ("HLAC"), (collectively referred to herein as the
"Significant Subsidiaries" and individually as a "Significant Subsidiary")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified for
the transaction of business and is in good standing as a foreign
corporation under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to be so qualified in any such
jurisdiction would not have, individually or in the aggregate with such
other failures, a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole;
(f) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of
acquisition of control and/or affiliate transactions in each jurisdiction
in which such filings or approvals are required, except where the failure
to have made such filings or receive such approvals in any such
jurisdiction would not have, individually or in the aggregate with other
such failures, a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole; each Significant Subsidiary that is
required to be organized and licensed as an insurance company in its
jurisdiction of incorporation is duly organized and licensed as an
insurance company in its respective jurisdiction of incorporation, and each
Significant Subsidiary is duly licensed or authorized as an insurer in each
other jurisdiction in which such licensing or authorization is required,
except where the failure to be so licensed or authorized in any such
jurisdiction would not have, individually or in the aggregate with other
such failures, a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole; the Company and each of its
Significant Subsidiaries have all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications of and from all insurance regulatory authorities to conduct
their respective businesses as described in the Prospectus, except where
the failure to have such authorizations, approvals, orders, consents,
licenses, certificates, permits, registrations or qualifications would not
have, individually or in the aggregate with other such failures, a material
adverse effect on the financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, considered as a whole;
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(g) Without limiting the foregoing, the Company and its Significant
Subsidiaries, as applicable, have filed all notices, reports, documents or
other information required to be filed by them pursuant to, and have
obtained all authorizations, approvals, orders, consents, licenses,
certificates, permits, registrations or qualifications required to be
obtained under, and have otherwise complied with all requirements of, all
applicable insurance laws and regulations in connection with the issuance
and sale of the Designated Securities, except for such authorizations,
approvals, orders, consents, licenses, certificates, permits, registrations
or qualifications which the failure to make, obtain or comply with would
not have, individually or in the aggregate with such other failures, a
material adverse effect on the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, considered as a
whole, and which will not affect the validity, performance or consummation
of the transactions contemplated by the Pricing Agreement with respect to
the Designated Securities;
(h) The Company and each of its Significant Subsidiaries that is an
insurance company is in compliance with the requirements of the insurance
laws and regulations of its jurisdiction of incorporation and the insurance
laws and regulations of other jurisdictions which are applicable to the
Company and each such Significant 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, individually or in
the aggregate with other such failures, have a material adverse effect on
the financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, considered as a whole;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(j) The Securities have been duly authorized, and, when the
Designated Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Securities, such
Designated 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, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
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 equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities; and upon the issuance and sale
of the Designated Securities and the application of the
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proceeds of each such offering as set forth in the Prospectus, the Company
would have the adjusted capitalization as shown therein;
(k) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated have each been duly authorized
by all necessary corporate and shareholder action on the part of the
Company; the issue and sale of the Securities by the Company and the
compliance by the Company with all the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant 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
Significant Subsidiaries or any statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its Significant Subsidiaries or any of their properties; and no
consent, approval, authorization, license, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have been, or will have
been prior to the Time of Delivery (as defined below), obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(l) Except as described in the Prospectus, there is no action, suit
or proceeding pending, nor to the knowledge of the Company, is there any
action, suit or proceeding threatened, which might reasonably be expected
to result in a material adverse change in the financial condition, results
of operations or business of the Company and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration Statement;
(m) The Company is not and, after giving effect to the offering and
sale of the Securities, 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 (the "Investment Company Act");
(n) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(o) There are no contracts or other documents of a character required
to be filed as exhibits to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required; and
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(p) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus as amended or supplemented, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis;
any schedules included in the Registration Statement present fairly the
information required to be stated therein.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same day) funds to an account specified by the Company to the
Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Designated Securities and prior to the Time of Delivery for such
Designated Securities which shall be disapproved by the Representatives for
the Underwriters of such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Designated Securities, and during such
same period to advise the Representatives promptly after if receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any
7
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Designated Securities, of the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Designated Securities 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 such Securities for
offering and sale under the 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 such 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 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 Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives,
and (ii) the Time of Delivery for such Designated Securities, not to
8
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated Securities, without
the prior written consent of the Representatives.
6. 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 in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky or similar investment surveys or memoranda and any other
documents 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 laws as provided
in Section 5(b) hereof, including the 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) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
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 for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 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. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated 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 Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
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(b) Sullivan & Cromwell, counsel for the Underwriters shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Debevoise & Plimpton, counsel for the Company, shall have
furnished to the Company (with a statement authorizing the Representatives
to rely therein) their written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Securities constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Securities and the Indenture
conform to the descriptions thereof in the Prospectus as amended or
supplemented; and
(ii) The Indenture constitutes a valid and legally binding
instrument, enforceable in accordance with its 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 equity principles (regardless of
whether such enforceability is considered in a proceeding in equity or
at law); and the Indenture has been duly qualified under the Trust
Indenture Act.
(d) Counsel for the Company satisfactory to the Representatives shall
have furnished to the Representatives their written opinions, dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, 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 power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified in any such
jurisdiction would not have, individually or in the aggregate with
such other failures, a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both the Representatives and the
Company are justified in relying upon such
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opinions and certificates and copies of such opinions and certificates
are made available to the Representatives);
(iii) Each Significant Subsidiary that was organized in the
United States has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and all of the issued shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect to matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both the Representatives
and the Company are justified in relying upon such opinions and
certificates);
(iv) The Company has made all required filings under
applicable insurance holding company statutes, and has received
approvals of acquisition of control and/or affiliate transactions in
each jurisdiction in which such filings or approvals are required,
except where the failure to have made such filings or to receive such
approvals in any such jurisdiction would not have, individually or in
the aggregate with such other failures, a material adverse effect on
the financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, considered as a whole;
(v) Each Significant Subsidiary that is required to be
organized and licensed as an insurance company in its jurisdiction of
incorporation is duly organized and licensed as an insurance company
in its respective jurisdiction of incorporation, and each Significant
Subsidiary is duly licensed or authorized as an insurer in each other
jurisdiction in which such licensing or authorization is required,
except where the failure to be so licensed or authorized in any such
jurisdiction would not have, individually or in the aggregate with
other such failures, a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as a whole; the Company and each of
its Significant Subsidiaries have all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications of and from all insurance regulatory authorities to
conduct their respective businesses as described in the Prospectus,
except where the failure to have such authorizations, approvals,
orders, consents, licenses, certificates, permits, registrations or
qualifications would not, individually or in the aggregate with other
such failures, have a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as a whole;
(vi) The Company and each of its Significant Subsidiaries is
in compliance with the requirements of the insurance laws and
regulations of its
11
jurisdiction of incorporation and the insurance laws and regulations
of other jurisdictions which are applicable to the Company and each
such Significant 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, individually or
in the aggregate with other such failures, a material adverse effect
on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as a whole;
(vii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable;
(viii) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the best of such counsel's
knowledge, is there any action, suit or proceeding threatened, which
might reasonably be expected to result in a material adverse change in
the financial condition, results of operations or business of the
Company and its subsidiaries taken as a whole or which is required to
be disclosed in the Registration Statement;
(ix) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and
delivered by the Company;
(x) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(xi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its 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 equity principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Indenture has been duly
qualified under the Trust Indenture Act;
(xii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated have in each case been
duly authorized by all necessary corporate and shareholder action on
the part of the Company; the issue and sale of the Designated
Securities and the compliance by the Company with all of the
provisions of the Designated Securities, the Indenture, this Agreement
and the
12
Pricing Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein contemplated have
not conflicted with or resulted in a breach or violation of any of the
terms or provisions of, or constituted a default under, will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of
its Significant Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Significant Subsidiaries is
subject, and such actions have not resulted and will not result in any
conflict with, breach of or constitute a default under the provisions
of the Certificate of Incorporation or By-laws of the Company and will
not contravene any law, rule or regulation of the United States of
America, the State of New York or the General Corporation Law of the
State of Delaware or, to the knowledge of such counsel, any insurance
statutes 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 Significant Subsidiaries
or any of its properties;
(xiii) The Company and its Significant Subsidiaries have filed
all notices, reports, documents or other information required to be
filed by them pursuant to, and have obtained all authorizations,
approvals, orders, consents, licenses, certificates, permits,
registrations or qualifications required to be obtained under all
applicable insurance laws and regulations in connection with the
issuance and sale of the Designated Securities by the Company and the
purchase and distribution of the Designated Securities by the
Underwriters. No further filing, authorization, approval, order,
consent, license, certificate, permit, registration or qualification
of or with any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties is required for the
issue and sale of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement, the
Pricing Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act;
(xiv) To the knowledge of such counsel, there are no
contracts or other documents of a character required to be filed as
exhibits to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(xv) 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;
(xvi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules and other financial data therein, as
to which such counsel need express
13
no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and based upon specified participation of such counsel in
connection with the preparation of the Registration Statement, such
counsel 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, and, in the case of other documents
which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein in
the light of the circumstances under which they were made when such
documents were so filed, not misleading; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data included in any of the documents mentioned in
this clause and that such counsel may state that he has not
independently verified factual statements in any such documents;
(xvii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities (other than the financial statements and related
schedules and other financial data therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; based upon specified participation
of such counsel in connection with the preparation of the Registration
Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules
and other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related schedules
and other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances in which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances in which
they were made, not misleading; and such counsel
14
does not know of any amendment to the Registration Statement required
to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as
amended or supplemented or required to be described in the
Registration Statement or the Prospectus as amended or supplemented
which are not filed or incorporated by reference or described as
required; it being understood that such counsel may state that he has
not independently verified factual statements in the Prospectus (or
any such amendment or supplement); and
(xviii) In rendering such opinion, such counsel may state that
he expresses no opinion as to the laws of any jurisdiction outside the
United States and in respect of matters of fact such counsel may rely
upon certificates of officers of the Company and its subsidiaries;
provided that such counsel shall state he believes that both the
Representatives and the Company are justified in relying upon such
opinions and certificates and copies of such opinions and certificates
are made available to the Representatives;
(e) On the date of the Pricing Agreement for the Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to the Designated Securities and at each Time of Delivery for such
Designated Securities, Arthur Andersen LLP, the independent accountants of
the Company who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the Registration
Statement, shall have furnished to the Representatives a letter, dated the
date of the Pricing Agreement, to the effect set forth in Annex II hereto,
and a letter dated such Time of Delivery as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) Except as described in or contemplated by the Registration
Statement and the 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, considered as a whole, from the dates as of
which information is given in the Registration Statement and the Prospectus
as amended prior to the date of the Pricing Agreement relating to the
Designated Securities; and (ii) except as contemplated in the Prospectus,
since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have been any change
in the consolidated capital stock or any material increase in the
consolidated or long-term debt of the Company and its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented on or prior to the date of the Pricing Agreement, the effect
of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as so amended or supplemented;
15
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities, (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iii) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Prospectus as
amended or supplemented on or prior to the date of the Pricing
Agreement; and
(i) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if
any, who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
--------
however, that the Company will not be liable in any such case to the
-------
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for
16
use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in Schedule II.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in
Schedule II.
(c) Promptly after receipt by an indemnified party under this
Section 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 subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which are indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
17
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement
18
relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such
Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the
Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and
the Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in the opinion of
the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such Designated
Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of the Designated Securities, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Designated Securities which such
Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Designated Securities
of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution
agreements in Section
19
8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer
or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to
any Underwriter with respect to the Designated Securities covered by
such Pricing Agreement except as provided in Section 6 and Section 8
hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for
all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery
of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of
such Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of
the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Representatives as set forth in the Pricing Agreement;
and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Corporate Secretary, with a copy to
The Hartford Financial Services Group, Inc., Hartford Plaza, Hartford,
Connecticut 06115 Attention: Office of the Treasurer, Facsimile
Transmission No. (860) 547-5462; provided, however, that any notice to
-------- -------
an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Company and, to the extent provided
20
in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or
by virtue of this Agreement or any such Pricing Agreement. No purchaser
of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement.
As used herein, "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of
New York.
16. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any
number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
21
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof.
Very truly yours,
HARTFORD LIFE, INC.
By: /s/ David Foy
-------------
Name: David Foy
Title: Senior Vice President, Treasurer
and Chief Financial Officer
BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
----------------------------------
Name: Lily Chang
Title: Principal
CHASE SECURITIES INC.
By: /s/ Jose C. Padilla
-------------------------
Name: Jose C. Padilla
Title: Vice President
On behalf of each of the Underwriters
Annex I
Pricing Agreement
-----------------
To the Underwriters named
in Schedule I hereto
February 22, 2001
Ladies and Gentlemen:
Hartford Life, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated February 22, 2001 (the "Underwriting Agreement"),
between the Company on the one hand and the Underwriters named in Schedule I
hereto (the "Underwriters"), on the other hand, to issue and sell to the
Underwriters the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto the principal amount of Designated Securities set forth opposite the name
of such Underwriter in Schedule I hereto.
Notwithstanding Section 7 of the Underwriting Agreement
incorporated herein by reference, the obligations of the Underwriters of any
Designated Securities under this Pricing
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Agreement shall also be subject, in the discretion of the Representatives, to
the conditions that (1) the Designated Securities shall have been listed and
admitted and authorized for trading on the New York Stock Exchange, and
satisfactory evidence of such actions shall have been provided to the
Representatives, and (2) on the date of this Pricing Agreement for the
Designated Securities at a time prior to the execution of this Pricing Agreement
with respect to such Designated Securities, PricewaterhouseCoopers LLP, the
independent accountants of Fortis, Inc. ("Fortis"), shall have furnished to the
Representatives a letter, dated February 5, 2001, to the effect set forth in
Exhibit 1 hereto.
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If the foregoing is in accordance with your understanding,
please sign and return to us seven counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
HARTFORD LIFE, INC.
By: /s/ David Foy
------------------------------------
Name: David Foy
Title: Senior Vice President, Treasurer
and Chief Financial Officer
BANC OF AMERICA SECURITIES LLC
By: /s/ Lily Chang
-----------------------------
Name: Lily Chang
Title: Principal
CHASE SECURITIES INC.
By: /s/ Jose C. Padilla
-----------------------------
Name: Jose C. Padilla
Title: Vice President
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities to
Underwriter Be Purchased
----------- ------------
Banc of America Securities LLC.................. $ 140,000,000
Chase Securities Inc............................ 140,000,000
First Union Securities, Inc..................... 30,000,000
Goldman, Sachs & Co............................. 30,000,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated.......................... 30,000,000
Wells Fargo Brokerage Securities, LLC........... 30,000,000
-------------
Total........................................... $ 400,000,000
=============
SCHEDULE II
Title of Designated Securities:
7.375% Senior Notes due March 1, 2031
Aggregate Principal Amount:
$400,000,000
Price to Public:
99.260% of the principal amount of the Designated Securities, plus
accrued interest, if any, from March 1, 2001 to the date of delivery
Purchase Price by Underwriters:
98.385% of the principal amount of the Designated Securities, plus
accrued interest, if any, from March 1, 2001 to the date of delivery
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC
Specified Funds for Payment of Purchase Price:
Federal (same day) funds
Time of Delivery:
10:00 a.m. (New York City time) on March 1, 2001
Indenture:
Indenture, dated as of May 19, 1997, between the Company and Citibank,
N.A., as Trustee
Maturity:
March 1, 2031
Interest Rate:
7.375%
Interest Payment Dates:
Each March 1 and September 1, commencing September 1, 2001
Redemption Provisions:
The Company may redeem the Designated Securities at any time. The Company may
make redemptions of Designated Securities with denominations larger than $1,000
only in multiples of $1,000. The redemption price will equal any accrued and
unpaid interest plus the greater of:
(a) 100% of the principal amount of the Designated Securities being
redeemed; and
(b) an amount equal to the discounted remaining fixed amount payments.
The discounted remaining fixed amount payments will equal the sum of the current
values of the amounts of interest and principal that would have been payable by
the Company on each interest payment date after the redemption date and at
stated maturity of the final payment of principal of the Designated Securities.
In making this calculation, the Company will assume that it has not redeemed the
Designated Securities prior to the stated maturity.
The current value of any amount is the present value of that amount on the
redemption date after discounting that amount on a semiannual basis from the
originally scheduled date for payment. The Company will use the treasury rate
plus 10 basis points to calculate this present value.
The treasury rate is a per annum rate, determined on the redemption date to be
the per annum rate equal to the semiannual bond equivalent yield to maturity for
United States Treasury securities maturing at the stated maturity of the final
payment of principal of the Designated Securities redeemed. The Company will
determine this rate by reference to the weekly average yield to maturity for
United States Treasury securities maturing on that stated maturity, if reported
in the most recent Statistical Release H.15(519) of the Board of Governors of
the Federal Reserve or a successor release. If no such securities mature at the
stated maturity, but the release or any successor release continues to be
published, the Company will determine the rate by interpolation between the most
recent weekly average yields to maturity for two series of United States
Treasury securities, (1) one maturing as close as possible to, but earlier than,
the stated maturity and (2) the other maturing as close as possible to, but
later than, the stated maturity, in each case as published in the most recent
Statistical Release H.15(519) of the Board of Governors of the Federal Reserve
or a successor release. If the Board of Governors of the Federal Reserve ceases
publication of the weekly average yield to maturity for United States Treasury
securities in Statistical Release H.15(519) or any successor release, then the
treasury rate will be determined by a primary U.S. Government securities dealer
in The City of New York selected by the trustee after consultation with us.
Notice of any redemption will be mailed at least 30 but not more than 60 days
before the redemption date to each holder of Designated Securities to be
redeemed at the holder's registered address. Unless the Company defaults in
payment of the redemption price, interest will cease to accrue on the Designated
Securities called for redemption on and after the redemption date.
Sinking Fund Provisions:
No sinking fund provisions
II-2
Closing Location for Delivery of Designated Securities:
Sullivan & Cromwell, 125 Broad Street, New York, New York 10004
Names and Addresses of Representatives:
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255
Attention: Capital Markets Services
Fax: (704) 388-9939
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Other Terms:
The Designated Securities have been approved for listing on the New
York Stock Exchange subject to official notice of issuance.
II-3
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement incorporated by
reference into the Pricing Agreement with respect to the Designated Securities,
the accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder; and, if applicable, they have made a review
in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Prospectus and/or included
in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon
copies of which have been separately furnished to the Representatives;
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and, if applicable, the Exchange
Act, and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and, if applicable, the Exchange Act, and the related published
rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
or incorporated by reference in the Prospectus agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements;
(v) They have compared the information included or
incorporated by reference in the Prospectus under selected captions
with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Prospectus reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included or incorporated by reference in the Prospectus but from
which were derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and
referred to in clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
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(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes in
the consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an 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 in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
-3-
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement incorporated by reference into
the Pricing Agreement with respect to the Designated Securities for purposes of
such letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
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