EXECUTION COPY
EXHIBIT 1.2.
HARTFORD LIFE CAPITAL II
(a Delaware Trust)
8,000,000 Preferred Securities
7.625% Trust Preferred Securities, Series B ("TruPS"(R))
(Liquidation Amount $25 per Preferred Security)
Underwriting Agreement
February 27, 2001
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
As Representatives of the Several Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Hartford Life Capital II (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.), and Hartford Life, Inc., a Delaware corporation (the "Company" and,
together with the Trust, the "Offerors"), confirm their agreement with respect
to the sale to the Underwriters named in Schedule I hereto (the "Underwriters"),
for whom you (the "Representatives") are acting as representatives, of 8,000,000
Preferred Securities designated the 7.625% Trust Preferred Securities, Series B
of the Trust (the "Preferred Securities"). 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.
The Preferred Securities will be guaranteed by the Company with respect
to distributions and payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") to the extent set forth in the Preferred
Securities Guarantee
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(R) "TruPS" is a registered service mark of Salomon Smith Barney Inc..
Agreement (the "Preferred Securities Guarantee Agreement") dated as of March 6,
2001, between the Company and Wilmington Trust Company, as trustee (the
"Guarantee Trustee"), and in certain circumstances described in the Prospectus,
the Trust will distribute Subordinated Debt Securities of the Company to holders
of Preferred Securities. The 8,000,000 Preferred Securities to be purchased by
the Underwriters, together with the related Preferred Securities Guarantee, are
collectively referred to herein as the "Securities".
The Company, the Trust, Hartford Life Capital I and Hartford Life
Capital III (the trusts, collectively, the "Hartford Life Trusts") have filed
with the Securities and Exchange Commission (the "Commission") two registration
statements on Form S-3 (File Nos. 333-21865 and 333-56283) covering the
registration of securities of the Company and the Hartford Life Trusts,
including the Securities, under the Securities Act of 1933, as amended (the
"Act"), including the related preliminary prospectus or prospectuses. Any
reference herein to the Registration Statement, a Preliminary Prospectus or the
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 Effective Date of the Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date of any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
the Declaration (as defined herein), the Subordinated Indenture (as defined
herein), and the Preferred Securities Guarantee Agreement have been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The entire
proceeds from the sale of the Preferred Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities" and, together with the Preferred Securities,
the "Trust Securities"), as guaranteed by the Company, to the extent set forth
in the Prospectus, with respect to distributions and payments upon liquidation
and redemption (the "Common Securities Guarantee" and, together with the
Preferred Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee Agreement" and,
together with the Preferred Securities Guarantee Agreement, the "Guarantee
Agreements") between the Company and the Guarantee Trustee, as Trustee, and will
be used by the Trust to purchase $206,186,000 of 7.625% Junior Subordinated
Deferrable Interest Debt Securities, due 2050 (the "Subordinated Debt
Securities") issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the amended and restated declaration of
trust of the Trust (the "Declaration"), among the Company, as Sponsor, David Foy
and Christine Repasy (the "Regular Trustees"), Wilmington Trust
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Company, as institutional trustee (the "Institutional Trustee") and Delaware
trustee (the "Delaware Trustee" and, together with the Institutional Trustee and
the Regular Trustees, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated Debt
Securities will be issued pursuant to a subordinated indenture, dated as of June
1, 1998 (as may be supplemented from time to time, the "Subordinated
Indenture"), between the Company and Wilmington Trust Company, as trustee (the
"Subordinated Indenture Trustee").
1. Representations and Warranties. The Offerors jointly and severally
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represent and warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The Company and the Hartford Life Trusts meet the requirements for
use of Form S-3 under the Act and have prepared and filed with the Commission
the Registration Statement on Form S-3, including the related preliminary
prospectus, for the registration under the Act of the offering and sale of the
Securities. The Offerors may have filed one or more amendments thereto,
including a related preliminary prospectus or prospectuses, each of which has
previously been furnished to you. The Offerors will next file with the
Commission one of the following: either (1) after the Effective Date of such
Registration Statement, a final prospectus in accordance with Rules 430A and
424(b), or (2) a final prospectus in accordance with Rules 415 and 424(b). In
the case of clause (1), the Offerors have included in such Registration
Statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such Registration Statement and the Prospectus. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except to
the extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Offerors have advised
you, prior to the Execution Time, will be included or made therein. If the
Registration Statement contains the undertaking specified by Regulation S-K Item
512(a), the Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x);
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date (as defined herein), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did not or
will not 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; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement date, the
Prospectus (together with any supplement thereto) will not, include any untrue
statement
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of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Offerors make no
representations or warranties as to the information contained in or omitted from
the Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished herein or in writing
to the Offerors by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto);
(c) 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;
(d) 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 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, Hartford Life Insurance
Company, a Connecticut corporation and Hartford Life and Annuity Insurance
Company, a Connecticut corporation (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;
(e) The Company has made all required filings under applicable
insurance holding company statutes, and has received approvals of acquisition of
control transactions or affiliate transactions, or both, in each jurisdiction in
which such filings or
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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 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;
(f) 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 it 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 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 this Agreement with respect to the
Securities;
(g) The Company and each of the 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 or 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;
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(h) 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;
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and authority
to own property and to conduct its business as described in the Registration
Statement and Prospectus and to enter into and perform its obligations under
this Agreement, the Preferred Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business as a foreign
company and is in good standing in each jurisdiction in which such qualification
is necessary, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the business or operations of the
Trust; the Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus; the Trust is and will, under current
law, be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation;
(j) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and will represent undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and at the Closing Date all
of the issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right;
(k) This Agreement has been duly authorized, executed and delivered
by each of the Offerors;
(l) The Declaration has been duly authorized by the Company and, at
the Closing Date, will have been duly executed and delivered by the Company and
the Trustees and, assuming due authorization, execution and delivery of the
Declaration by the Institutional Trustee and the Delaware Trustee, the
Declaration will, at the Closing Date, be a valid and binding obligation of the
Company and the Regular Trustees, enforceable against the Company and the
Regular Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) (the "Bankruptcy Exceptions") and will conform
in all material respects to the description thereof contained in the Prospectus;
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(m) Each of the Guarantee Agreements has been duly authorized by the
Company and, when validly executed and delivered by the Company, and, in the
case of the Preferred Securities Guarantee Agreement, assuming due
authorization, execution and delivery of the Preferred Securities Guarantee by
the Guarantee Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except to
the extent that enforcement thereof may be limited by the Bankruptcy Exceptions,
and each of the Guarantees and the Guarantee Agreements will conform in all
material respects to the description thereof contained in the Prospectus;
(n) The Preferred Securities have been duly authorized for issuance
and sale to the Underwriters and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully paid and non-
assessable, will represent undivided beneficial interests in the assets of the
Trust, and will conform in all material respects to the description thereof
contained in the Prospectus; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights;
(o) The Subordinated Indenture has been duly authorized by the
Company and qualified under the 1939 Act and, at the Closing Date, will have
been duly executed and delivered by the Company and, assuming due authorization,
execution and delivery of the Subordinated Indenture by the Subordinated
Indenture Trustee, the Subordinated Indenture will, at the Closing Date, be a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; the Subordinated Indenture will conform in
all material respects to the description thereof contained in the Prospectus;
(p) Except as described in the Prospectus, there is no action, suit
or proceeding pending nor, to the knowledge of the Offerors, 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
the Trust or which is required to be disclosed in the Registration Statement;
(q) Neither the Company nor the Trust is and, after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof as described in the 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;
(r) There are no contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus that are not filed or
described as required;
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(s) The holders of the Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware;
(t) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the consolidated results of their operations for the periods
specified; and, except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis;
(u) The statements set forth in (i) the Prospectus under the captions
"Description of Junior Subordinated Debt Securities and Corresponding Junior
Subordinated Debt Securities", "Description of Preferred Securities" and
"Description of Guarantee", and (ii) in the Prospectus as amended or
supplemented under the captions "Description Of The Preferred Securities",
"Description Of The Series B Junior Subordinated Debt Securities", "Description
Of Guarantee" and "Relationship Among the Preferred Securities, the Series B
Junior Subordinated Debt Securities and the Guarantee", insofar as they
constitute a summary of the terms of the Securities, Subordinated Debt
Securities, the Guarantees, the Guarantee Agreements, the Declaration, and the
Subordinated Indenture, in each case are accurate, complete, and fair;
(v) The Subordinated Debt Securities have been duly authorized by the
Company and, at the Closing Date, will have been duly executed by the Company
and, when authenticated in the manner provided for in the Subordinated Indenture
and delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions, and will be in the form
contemplated by, and entitled to the benefits of, the Subordinated Indenture and
will conform in all material respects to the description thereof in the
Prospectus;
(w) Neither the Company nor any of its Significant Subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
any other instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject, or in violation of
any applicable law, administrative regulation or administrative or court order
or decree, which violation or default would, singly or in the aggregate, have a
material adverse effect on the business or operations of the Company and its
subsidiaries, considered as a whole. The Trust is not in violation of the
Declaration or its certificate of trust filed with the State of Delaware on June
4, 1998 (the "Certificate of Trust"); and
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(x) None of the execution, delivery and performance of this
Agreement, the Declaration, the Preferred Securities, the Common Securities, the
Subordinated Indenture, the Subordinated Debt Securities, the Guarantee
Agreements and the Guarantees, and the consummation of the transactions
contemplated herein and therein and compliance by the Offerors with their
respective obligations hereunder and thereunder, did or will result in a breach
of any of the terms or provisions of, or constitute a default under or require
the consent of any party under the Certificate of Trust of the Trust or the
charter or by-laws of the Company and its Significant Subsidiaries, any
contract, indenture, mortgage, note, lease, agreement or other instrument to
which either the Trust, the Company or any of its Significant Subsidiaries is a
party or by which any of them may be bound, or, to the Company's knowledge, any
applicable law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Trust, the Company or any of its Significant Subsidiaries
or any of their respective properties or assets, or did or will result in the
creation or imposition of any lien on the properties or assets of the Trust, the
Company or any of its Significant Subsidiaries except for such breaches,
conflicts, violations or defaults which would not have, individually or in the
aggregate with such other breaches, conflicts, violations and defaults, 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 this Agreement with respect to the Securities.
Any certificate required hereunder to be signed by any officer of the
Company or Regular Trustee of the Trust and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company, or the Trust, as
the case may be, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
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upon the representations and warranties herein set forth, the Offerors agree to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Trust, at a purchase price of $25 per share, the
amount of the Securities set forth opposite such Underwriter's name in Schedule
I hereto. As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Subordinated Debt Securities of the Company,
the Company hereby agrees to pay at the Closing Date to Salomon Smith Barney,
Inc., for the accounts of the several Underwriters, an amount equal to $0.7875
per Preferred Security to be delivered at the Closing Date ($6,300,000 in the
aggregate).
3. Delivery and Payment. Delivery of and payment for the Securities shall
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be made at 10:00 AM, New York City time, on March 6, 2001, which date and time
may be postponed by agreement between the Representatives and the Offerors or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment
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by the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Offerors 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 Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Offerors agree with the several Underwriters that:
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(a) The Offerors will use their respective best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the offering
of the Securities, the Offerors will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Offerors have furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or filing of
the Prospectus is otherwise required under Rule 424(b), the Offerors will cause
the Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Offerors will promptly advise the
Representatives (1) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (2) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by either
of the Offerors of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Offerors will use their
respective best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof;
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act any event occurs as a result of which the
Prospectus as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act
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or the Exchange Act or the respective rules thereunder, the Offerors promptly
will (1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request (at the expense of any such Underwriter
at any time nine months or more after the time of issue of the Prospectus);
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act;
(d) The Offerors will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request (at the expense of any
such Underwriter at any time nine months or more after the time of issue of the
Prospectus). The Company will pay the expenses of printing or other production
of all documents relating to the offering;
(e) The Offerors will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any fee of
the National Association of Securities Dealers, Inc., in connection with its
review of the offering; provided that in no event shall either of the Offerors
be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action that would subject it to service of process
in suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject; and
(f) Neither the Trust nor the Company will, without the prior written
consent of Morgan Stanley & Co. Incorporated and Salomon Smith Barney Inc., for
a period of 30 days following the Execution Time, offer, sell or contract to
sell, or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or the Trust or any affiliate thereof or any person in
privity with the Company or the Trust or any affiliate thereof) directly or
indirectly, or announce the offering of, any preferred securities or preferred
stock or any other securities (including any backup undertakings of such
preferred stock or other securities) of the Company or the Trust, in each case,
that are substantially similar to the Preferred Securities, or any securities
convertible into, or exchangeable for the preferred securities or any such
substantially similar securities.
-11-
6. Conditions to the Obligations of the Underwriters. 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 Offerors contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Offerors made in any certificates pursuant to the provisions hereof, to
the performance by the Offerors of their respective obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM New
York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened;
(b) The Company shall have furnished to the Representatives the
opinion of Debevoise and Plimpton, counsel for the Company, dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) The statements in the Prospectus under the headings
"Description Of The Preferred Securities", "Description Of The Series B
Junior Subordinated Debt Securities", "Description Of The Guarantee",
and "Relationship Among The Preferred Securities, The Series B Junior
Subordinated Debt Securities and The Guarantee," to the extent that
they involve matters of law (except insofar such statements are
statements of Delaware law), summaries of legal terms, the Company's
charter or bylaws or legal proceedings or legal conclusions, have been
reviewed by such counsel and are correct in all material respects;
(ii) The Company and each of the Hartford Life Trusts meet the
registrant requirements for use of Form S-3 under the 1933 Act
Regulations; the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened;
(iii) This Agreement has been duly authorized, executed and
delivered by the Offerors;
-12-
(iv) Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Securities and the application
of the proceeds thereof as described in the 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;
(v) No consent, approval, authorization, filing with or order
of any governmental agency or body of the United States or the State of
New York is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as may
be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as have
been obtained;
(vi) The Declaration has been duly authorized, executed and
delivered by the Company and the Regular Trustees; and the Declaration
has been duly qualified under the 1939 Act;
(vii) The Subordinated Debt Securities, each of the Guarantees,
the Subordinated Indenture and each of the Guarantee Agreements conform
in all material respects to the descriptions thereof contained in the
Prospectus;
(viii) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Preferred
Securities Guarantee Agreement, assuming it is duly authorized,
executed, and delivered by the Guarantee Trustee, constitutes a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the Preferred
Securities Guarantee Agreement has been duly qualified under the 1939
Act;
(ix) The Subordinated Indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution,
and delivery thereof by the Subordinated Indenture Trustee, is a valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions; and the
Subordinated Indenture has been duly qualified under the 1939 Act; and
(x) The Subordinated Debt Securities are in the form
contemplated by the Subordinated Indenture and have been duly
authorized, executed and delivered by the Company and, when
authenticated by the Subordinated Indenture Trustee in the manner
provided for in the Subordinated Indenture and delivered against
payment therefor as provided in this Agreement, will constitute valid
and binding obligations of the Company, enforceable against
-13-
the Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
In rendering such opinion, such counsel may state
that they express no opinion as to any laws other than the laws of the
State of New York, the General Corporation Law of the State of Delaware
and the Federal Laws of 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 they
believe that both you and they are justified in relying upon such
opinions and certificates and copies of such opinions and certificates
are made available to you.
(c) The Company shall have furnished to the
Representatives the opinion of counsel for the Company, dated the Closing Date
and addressed to the Representatives, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each of the Company and the Significant
Subsidiaries that is incorporated in the United States has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate 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 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 opinions and certificates and copies of such opinions
and certificates are made available to the Representatives);
(iii) The Company's authorized capitalization is as
set forth in the Prospectus; the capital stock of the Company conforms
in all material respects to the description thereof contained in the
Prospectus; the Preferred Securities Guarantee and the Subordinated
Debt Securities have been duly and validly authorized by the Company,
and the Subordinated Debt Securities, when issued and delivered to and
paid for by the Trust pursuant to the Debenture Purchase Agreement
between the Company and the Trust, will be fully paid and
nonassessable; and the holders of outstanding shares of capital stock
of the
-14-
Company are not entitled to preemptive or other rights under the
Delaware General Corporation Law or the Certificate of Incorporation of
the Company to subscribe for the Securities;
(iv) To the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or any of its Significant Subsidiaries or its or their
property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus;
(v) This Agreement has been duly authorized, executed
and delivered by the Offerors;
(vi) All the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus and for directors qualifying shares, all
outstanding shares of capital stock of the Significant Subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries 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;
(vii) All of the issued and outstanding Common Securities
of the Trust are directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right;
(viii) To the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Prospectus, as
amended or supplemented and any further amendments or supplements
thereto made prior to or on the Closing Date (other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion), comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and the Registration
Statement and the Prospectus, as amended or supplemented and any
further amendments or supplements thereto made prior to or on the
Closing Date (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
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder;
(ix) 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
-15-
no opinion), when they became effective or were so 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;
(x) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its Significant
Subsidiaries pursuant to, (i) the charter or by-laws of the Company or
its Significant Subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its Significant Subsidiaries is a
party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its Significant Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or its
Significant Subsidiaries or any of its or their properties, except in
the case of clauses (ii) or (iii), breaches, violations or impositions
of liens which would not have, individually or in the aggregate, a
material adverse effect on the financial position, shareholders equity,
or results of operations of the Company and its subsidiaries taken as a
whole, and which would not affect the validity, performance or
consummation of such transactions;
(xi) 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;
(xii) 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
the 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
-16-
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;
(xiii) The Company and each of the 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 Securities or the consummation by the Company
of the transactions contemplated by this Agreement or the Subordinated
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act; and
(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.
In addition to the matters set forth above, such opinion
shall also include a statement to the effect that such counsel has not
checked the accuracy or completeness of, or otherwise verified, and is
not passing upon and assume no responsibility for the accuracy or
completeness of, the information contained in the Registration
Statement or the Prospectuses, or any amendment or supplement thereto,
except to the limited extent set forth in such opinion, that in the
course of such counsel's review and discussion of the contents of the
Registration Statement and the Prospectuses with certain officers and
employees of the Company, such counsel participated in conferences with
representatives of the Company, the independent public accountants of
the Company and the Underwriters and their counsel with respect
thereto, but without independent check or verification, and that in the
course of such review no facts have come to such counsel's attention
which have caused such counsel to believe that the Registration
Statement or amendment thereto, including any documents incorporated by
reference therein (except as to financial statements and related
schedules and other financial information contained therein, as to
which such counsel expresses no belief), at the time the Registration
Statement or any amendment thereto became effective (or in the case of
documents incorporated by reference, when such documents became
effective or were filed), contained an untrue statement of a material
fact or omitted to state a material fact required to be
-17-
stated therein or necessary to make the statements therein not
misleading, or that the Prospectuses or any amendment or supplement
thereto (except as to the financial statements and related schedules
and other financial information contained therein, as to which such
counsel express no belief), at the time they were filed pursuant to
Rule 424(b) or on the Closing Date, contained or contain an untrue
statement of a material fact or omitted or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that such
counsel expresses no opinion as to the laws of any jurisdiction outside
the States of Connecticut and the General Corporation Law of the State
of Delaware 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 such counsel believes that both
the Representatives and such counsel are justified in relying upon such
opinions and certificates and copies of such opinions and certificates
are made available to the Representatives.
(d) The Company shall have furnished to the Representatives the
opinion of Debevoise & Plimpton, special tax counsel to the Company, dated the
Closing Date and in form and substance satisfactory to counsel for the
Underwriter, to the effect that the statements in the Prospectus under the
caption "United States Federal Income Tax Consequences" have been reviewed by
such counsel and, insofar as they constitute legal conclusions or matters of
law, fairly summarize the matters referred to therein;
(e) The favorable opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel to the Offerors, dated the Closing Date and addressed
to the Representatives to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act,
and all filings required under the laws of the state of Delaware with
respect to the creation and valid existence of the Trust as a business
trust have been made;
(ii) Under the Delaware Act and the Declaration, the Trust
has the trust power and authority to own property and conduct its
business, all as described in the Prospectus;
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against
the Company and the Trustees in accordance with its terms, subject, as
to enforcement, to (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable
-18-
public policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Act and the Declaration, the
Trust has the trust power and authority to (i) execute and deliver, and
to perform its obligations under, this Agreement and (ii) issue, and
perform its obligations under, the Trust Securities;
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement, and the
performance by the Trust of its obligations hereunder have been duly
authorized by all necessary trust action on the part of the Trust;
(vi) Under the Delaware Act, the certificate attached to
the Declaration as Exhibit A-l is an appropriate form of certificate
evidence ownership of the Preferred Securities; the securities have
been duly authorized by the Declaration and are duly and validly issued
and, subject to qualifications hereinafter expressed in this paragraph
(vi), fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the holders of the Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of
Delaware; said counsel may note that the holders of the Preferred
Securities may be obligated to make payments as set forth in the
Declaration;
(vii) The Common Securities have been duly authorized by
the Declaration and are duly and validly issued and represent undivided
beneficial interests in the assets of the Trust;
(viii) Under the Delaware Act and the Declaration, the
issuance of the Trust securities is not subject to preemptive rights;
(ix) The issuance and sale by the Trust of the Trust
Securities, the purchase by the Trust of the Subordinated Debt
Securities, the execution, delivery and performance by the Trust of
this Agreement, the consummation by the Trust of the transactions
contemplated hereby and compliance by the Trust with its obligations
hereunder and thereunder will not violate (i) any of the provisions of
the Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation; and
(x) With respect to the statements made in the
Prospectus under the caption "Description of Preferred Securities,"
insofar as such statements are statements of Delaware law, such
statements are fairly presented.
(f) The opinion of Morris, James, Hitchens & Williams LLP,
counsel to Wilmington Trust Company as Institutional Trustee under the
Declaration, and
-19-
Guarantee Trustee under the Preferred Securities Guarantee Agreement, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) Wilmington Trust Company is a Delaware banking
corporation with trust powers, duly incorporated, validly existing and
in good standing under the laws of the State of Delaware;
(ii) The execution, delivery and performance by Wilmington
Trust Company of the Declaration, the Preferred Securities Guarantee
Agreement and the Indenture have been duly authorized by all necessary
corporate action on the part of the Wilmington Trust Company. The
Declaration, the Preferred Securities Guarantee Agreement and the
Indenture have been duly executed and delivered by the Wilmington Trust
Company;
(iii) The execution, delivery and performance of the
Declaration, the Preferred Securities Guarantee Agreement and the
Indenture by the Wilmington Trust Company are not prohibited by (i) the
Charter or Bylaws of Wilmington Trust Company, or (ii) to the knowledge
of such counsel, any other agreements or instruments to which
Wilmington Trust Company is a party or by which Wilmington Trust
Company is bound or any judgments, orders, or decrees applicable to
Wilmington Trust Company; and
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority in the State of
Delaware or the United States of America governing the trust powers of
Wilmington Trust Company is required for the execution, delivery or
performance by Wilmington Trust Company of the Declaration, the
Preferred Securities Guarantee Agreement and the Indenture.
(g) The Representatives shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the Prospectus (together
with any supplement thereto) 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 the purpose of enabling them to pass upon
such matters. The opinion or opinions of such counsel shall be rendered to the
Underwriters at the request of the Company and shall so state therein;
(h) The Company shall have furnished to the Representative (i) a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company and (ii) a
certificate of the Trusts signed by a Regular Trustee, in each case, dated the
Closing Date, to the effect that the signers of such certificates have carefully
examined the Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that:
-20-
(i) The representations and warranties of the Company or
the Trust, as the case may be, in this Agreement are true and correct
in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company, or the Trust, as
the case may be, has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) To their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or as the case may
be, threatened; and
(iii) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(i) Arthur Andersen LLP shall have furnished to the
Representatives letters, dated respectively as of the Execution Time and as
of the Closing Date, in form and substance satisfactory to the
Representatives, to the effect set forth in Exhibit 1 hereto;
(j) On the date of this Agreement at a time prior to the
execution of this Agreement, PricewaterhouseCoopers LLP, the independent
accountants of Fortis, Inc. shall have furnished to the Representatives a
letter, dated February 5, 2001 to the effect set forth in Exhibit 2 hereto;
(k) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (i) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the reasonable judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto);
-21-
(l) The 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;
(m) At the Closing Date, the Preferred Securities shall be rated in
one of the four highest rating categories for long term debt ("Investment
Grade") by any nationally recognized statistical rating agency, and the Trust
shall have delivered to the Underwriters a letter, dated the Closing Date, from
such nationally recognized statistical rating agency, or other evidence
satisfactory to the Underwriters, confirming that the Preferred Securities have
Investment Grade ratings; and (i) there shall not have occurred any decrease in
the ratings of any of the debt securities of the Company or of the Preferred
Securities by Moody's Investor Services, Inc., Standard & Poor's, A. M. Best
Company, Inc. or Duff & Phelps Credit Rating Co., Inc. and (ii) such
organizations shall not have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the debt
securities of the Company or of the Preferred Securities or financial strength
or claims paying ability, the effect of which, in any case described in Clause
(i) or (ii), is in the Representatives reasonable judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus; and
(n) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 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 canceled at,
or at any time prior to, the Closing Date 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 6 shall be
delivered at the office of Sullivan & Cromwell, counsel for the Underwriters, at
125 Broad Street, New York, New York 10004, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of 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 on demand for all out-of-pocket expenses
(including reasonable fees and
-22-
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Offerors agree 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 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 Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and 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
Offerors 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 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 Offerors by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Offerors, each of their respective directors, trustees,
officers and agents, and each person who controls the Offerors within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Offerors to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Offerors by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity and 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.
(c) Promptly after receipt by an indemnified party under this Section
8 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 8, 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
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satisfactory to the indemnified party (who shall not, except with the consent of
the indemnified party, be counsel to the indemnifying party) 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).
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 and which
conflict with the defenses available to the indemnified 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 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Offerors 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 Offerors
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and by the Underwriters on the other from the offering of the Securities.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Offerors and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Offerors 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 Offerors 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 Prospectus. Relative fault shall be determined by reference to,
among other things,
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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 Offerors on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Offerors 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), 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 underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. 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.
(e) The obligations of the Offerors under this Section 8 shall be in
addition to any liability that the Offerors may otherwise have and will extend,
upon the same terms and conditions, to each person, if any, 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 the obligations of the
Underwriters under this Section 8 shall be in addition to any liability that the
respective Underwriters may otherwise have and will extend, upon the same terms
and conditions, to each person who controls the Offerors within the meaning of
either the Act or the Exchange Act and each director, trustee, officer, employee
and agent of the Offerors shall have the same rights to contribution as the
Offerors, subject in each case to the applicable terms and conditions of
paragraph (d). The obligations of the Underwriters in paragraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their 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 in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities that 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 in
Schedule I 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 nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Offerors. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
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required changes in the Registration Statement and the 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 Offerors and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Offerors
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in any securities of the Company shall have been suspended
by the Commission or the New York Stock Exchange or 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, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of 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 reasonable judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Offerors or
their respective officers and agents and of the 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 Offerors or
any of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. 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 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, if
sent to the Company, will be mailed, delivered or telefaxed to Hartford Life,
Inc., c/o David Foy, Senior Vice-President and Chief Financial Officer (Fax No.:
(860) 843-3528) and confirmed to it at Hartford Life, Inc., 200 Hopmeadow
Street, Simsbury, Connecticut 06089, attention of Christine Repasy, General
Counsel.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
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15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated. "Business Day" shall mean any day other than
a Saturday, a 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.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities included in the Registration Statement at the
Effective Date.
"Registration Statement" shall mean the registration statements
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
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"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement.
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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,
HARTFORD LIFE, INC.
By: /s/ David Foy
---------------------------
Name: David Foy
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
HARTFORD LIFE CAPITAL II
By: HARTFORD LIFE, INC. as Sponsor
By: /s/ David Foy
-----------------------
Name: David Foy
Title: Senior Vice
President,
Treasurer and
Chief Financial
Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
A.G. EDWARDS & SONS, INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
UBS WARBURG LLC
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
-----------------------------
Name: Michael Fusco
Title: Principal
SALOMON SMITH BARNEY INC.
By: /s/ Anne C. Kronenberg
-----------------------------
Name: Anne C. Kronenberg
Title: Managing Director
On behalf of the Underwriters named in Schedule I hereto.
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SCHEDULE I
Number of
Underwriters Securities to be Purchased
------------ --------------------------
Morgan Stanley & Co. Incorporated.......................................... 1,470,000
Salomon Smith Barney Inc................................................... 1,470,000
A.G. Edwards & Sons, Inc................................................... 1,460,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated......................... 1,460,000
UBS Warburg LLC............................................................ 1,460,000
Advest, Inc................................................................ 40,000
Banc of America Securities LLC............................................. 40,000
BB&T Capital Markets, a Division of Scott & Stringfellow................... 40,000
Dain Rauscher Wessels, a division of Dain Rauscher Incorporated............ 40,000
First Union Capital Markets Corporation.................................... 40,000
Gruntal & Co. L.L.C........................................................ 40,000
H&R Block Financial Advisors, Inc.......................................... 40,000
Janney Montgomery Scott Inc................................................ 40,000
J.J.B. Hilliard, W.L. Lyons, Inc........................................... 40,000
Legg Mason Wood Walker, Incorporated....................................... 40,000
Pershing / Division of Donaldson, Lufkin & Jeanrette Securities Inc........ 40,000
Prudential Securities Incorporated......................................... 40,000
Raymond James & Associates, Inc............................................ 40,000
Robert W. Baird & Co. Incorporated......................................... 40,000
The Robinson-Humphrey Company, LLC......................................... 40,000
U.S. Bancorp Piper Jaffray Inc............................................. 40,000
Wells Fargo Van Kasper, LLC................................................ 40,000
---------------------------------
Total: 8,000,000
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