Exhibit 1.1
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
COMMON STOCK
($0.01 PAR VALUE PER SHARE)
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UNDERWRITING AGREEMENT
GENERAL TERMS AND CONDITIONS
October 17, 2001
To the Underwriter named in
Schedule I to the applicable Pricing Agreement.
Ladies and Gentlemen:
From time to time The Hartford Financial Services Group, Inc., a
Delaware corporation (the "Company"), proposes to enter into one or more Pricing
Agreements in the form of Annex I hereto which incorporates by reference these
Underwriting Agreement General Terms and Conditions (each, a "Pricing
Agreement"), 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 shares of its
Common Stock, $0.01 par value per share (the "Shares") specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Shares").
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to
time to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares 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 an Underwriter who act without any firm being designated
as its or their representatives. The Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the Shares or as an
obligation of the Underwriters to purchase any of the shares. The obligation of
the Company to
issue and sell any of the Shares and the obligation of any of the Underwriters
to purchase any of the Shares shall be evidenced by the Pricing Agreement with
respect to the Designated Shares specified therein. Each Pricing Agreement shall
specify the aggregate number of the Designated Shares, the initial public
offering price of such Designated Shares or the manner of determining such
price, the purchase price to the Underwriters of such Designated Shares, the
names of the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters, the number of such Designated Shares to be
purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Shares, and payment therefor. 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 any Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-49666)
in respect of the Shares has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement 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 statement, 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 statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
each in the form heretofore delivered to the Representatives); and no
stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Act is hereinafter called a "Preliminary Prospectus"); the various
parts of such registration statement, including all exhibits thereto
and the documents incorporated by reference in the prospectus contained
in the latest registration statement at the time such
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part of the registration statements became effective, each as amended
at the time such part of the registration statement became effective,
are hereinafter collectively called the "Registration Statement"; the
final prospectus relating to the Shares, 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 Sections 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 shall be deemed to refer
to the Prospectus in relation to the applicable Designated Securities
in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all 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
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in conformity with information furnished in writing to the Company by
an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Shares;
(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 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 and any applicable Time of Delivery 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 Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(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 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 (other than issuances
of capital stock upon the 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 material increase in the consolidated long-term
debt of the Company and its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, and stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company and each subsidiary of the Company which meets
the definition of a significant subsidiary as defined in Regulation
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S-X (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 the jurisdiction of its incorporation, with full
corporate power and authority to own its properties and conduct its
business;
(f) 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;
(g) The Shares have been duly and validly authorized, and,
when the Designated Shares are issued and delivered pursuant to the
Pricing Agreement with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and fully paid and
non-assessable; the Shares conform to the description thereof contained
in the Registration Statement and the Designated Shares will conform to
the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares.
(h) The issue and sale of the Shares and the compliance by the
Company with all the provisions of the Pricing Agreement with respect
to the Designated Shares and the consummation of the transactions
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, and 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 is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, 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 the Pricing Agreement
with respect to the Designated Shares, and have not resulted and will
not result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute, rule or
regulation, or any order or decree of any court or regulatory authority
or other governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval,
authorization, license, order, registration or qualification of or with
any such court, regulatory
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authority or other governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by the Pricing Agreement with respect to the
Designated Shares, except those which have been, or will have been
prior to the Time of Delivery, obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or state insurance
securities laws in connection with the purchase and distribution of the
Shares by the Underwriters, and except for such consents, approvals,
authorizations, licenses, orders, 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 Shares;
(i) 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 considered as a whole or which is required to be disclosed
in the Registration Statement;
(j) The Pricing Agreement with respect to the Designated
Shares has been duly authorized executed and delivered by the Company;
and
(k) 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 which are not filed or described as required.
3. Upon the execution of the Pricing Agreement applicable to the
Designated Shares and authorization by the Representatives of the release of the
Designated Shares, the several Underwriters propose to offer the Designated
Shares for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, 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
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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 the account specified
by the Company to the Representatives at least forty-eight hours in advance as
specified in such Pricing Agreement, with respect to the Designated Shares, all
in the manner and 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 "First Time of Delivery". Such time and date for delivery is herein called a
"Time of Delivery". For purposes of this Agreement, New York Business Day shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with each of the Underwriters of the
Designated Shares:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Shares 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 Shares, 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 Shares and prior to the Time of
Delivery for such Shares which shall be disapproved by the
Representatives for such Shares 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 Shares, and
during such same period to advise the Representatives, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Shares, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or
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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
Shares or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for
offering and sale under the insurance securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 12:00 p.m., New York City time, on the New York
Business Day next succeeding the date of the Pricing Agreement
applicable to the Designated Shares and from time to time, 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
Shares 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 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 or the Exchange 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 securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c)
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under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for the Designated Shares and continuing to and including the
date 90 days after the date of the Prospectus Supplement, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company which are substantially
similar to the Designated Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, shares of the Company's Common Stock
(other than issuances of capital stock upon the 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 such substantially
similar 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 Shares 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, any Pricing Agreement, any Blue Sky
Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
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
survey(s); (iv) the cost of preparing certificates for the Shares; (v) the cost
and charges of any transfer agent or registrar or dividend disbursing agent; and
(vi) 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, and Sections 8
and 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
Shares by them, and any advertising expenses connected with any offers they may
make.
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7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement applicable to such Designated Shares 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 Shares are, at
and as of the Time of Delivery for such Designated Shares, 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 Shares 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;
(b) Davis Polk & Wardwell, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Shares, with respect to the
Pricing Agreement applicable to the Designated Shares, the validity of
the Designated Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus and such 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 you to rely
thereon) their written opinion dated the Time of Delivery for such
Designated Shares, in form and substance satisfactory to you, to the
effect that the Designated Shares being delivered at the Time of
Delivery have been duly and validly authorized and issued and are fully
paid and non-assessable.
(d) C. Michael O'Halloran, Esq. Senior Vice President and
Director of Corporate Law to The Company, shall have furnished to you
his written opinion, dated the Time of Delivery for such Designated
Shares, in form and substance satisfactory to you, to the effect that:
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(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and
authority (corporate or other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Company (including
the Designated Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and
are fully paid and non-assessable; and the Designated Shares
conform to the description thereof in the Prospectus as
amended or supplemented;
(iii) Except as described in the Prospectus, as amended or
supplemented on or prior to the date of the Pricing Agreement
relating to the Designated Shares, there is no action, suit or
proceeding pending, nor to such counsel's best 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, considered as a whole, or
which is required to be disclosed in the Registration
Statement;
(iv) The Pricing Agreement with respect to the Designated
Shares has been duly authorized, executed and delivered by the
Company;
(v) The issue and sale of the Designated Shares and the
compliance by the Company with the Pricing Agreement with
respect to the Designated Shares and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the
Certificate of Incorporation or By-Laws of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
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(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue or sale
of the Designated Shares or the consummation by the Company of
the transactions contemplated by The Pricing Agreement, except
such as have been obtained under the Act and any such consent,
approval, authorization, order, registration or qualification
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Shares by the Underwriters;
(vii) 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 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 document; and
(viii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company on or prior to the
date of the Pricing Agreement relating to the Designated
Shares (other
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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 rules and regulations
thereunder; and 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 on or prior to the
date of the Pricing Agreement relating to the Designated
Shares (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 on or prior to the
date of the Pricing Agreement relating to the Designated
Shares (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 the
light of the circumstances under 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 on or prior to the date of the Pricing
Agreement relating to the Designated Shares (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 the light of the circumstances in which
they were made, not misleading; and such counsel 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
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independently verified factual statements in the Prospectus
(or any such amendment or supplement);
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 you and he
are justified in relying upon such opinions and certificates and copies
of such opinions and certificates are made available to you;
(e) On the date of the Pricing Agreement for the Designated
Shares at a time prior to the execution of the Pricing Agreement with
respect to such Designated Shares and at each Time of Delivery for such
Designated Shares, 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 and a letter dated such
Time of Delivery, respectively, as to such matters ordinarily included
in accountants' "comfort letters" to underwriters 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, as amended or supplemented
on or prior to the date of the Pricing Agreement relating to the
Designated Shares, 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 or supplemented on or prior to the date of the Pricing
Agreement relating to the Designated Shares; and (ii) except as
contemplated in the Prospectus, as amended or supplemented on or prior
to the date of the Pricing Agreement relating to the Designated Shares,
since the respective dates as of which information is given in the
Prospectus as amended or supplemented on or prior to the date of the
Pricing Agreement relating to the Designated Shares there shall not
have been any change in the 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 long-term debt
14
of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
business affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered
as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended on or prior to the date of the Pricing Agreement
relating to the Designated Shares, the effect of which, in any such
case described in clause (i) or (ii), is in the reasonable 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 Shares on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Shares;
(g) On or after the date of the Pricing Agreement relating to
the Designated Shares (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 the effect of which, in any
case described in clause (i) or (ii), is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Shares on the terms and in the manner contemplated in the Prospectus,
as amended or supplemented relating to the Designated Shares;
(h) On or after the date of the Pricing Agreement relating to
the Designated Shares 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 (the "Exchange");
(ii) a material suspension or limitation in trading in the Company's
securities on the Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) a material adverse change in the financial
markets, the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war or other calamity or crisis; if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Shares on the terms and in
the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Shares;
15
(i) The Shares being delivered at each Time of Delivery shall
have been duly listed, subject to notice of issuance, on the Exchange;
and
(j) The Company shall have furnished or caused to be furnished
to the Representatives at each Time of Delivery for the Designated
Shares 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 an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, or any amendments 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 losses,
claims, damages, liabilities or action as such expenses are incurred; provided,
however, that the Company shall 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 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 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 of Designated Shares 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
16
in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a 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, 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 shall, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In the case of parties indemnified
pursuant to Section 8(a) above, counsel to the indemnified parties
shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to the indemnified
parties shall be selected by the Guarantor. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 8 (whether or not the indemnified parties are actual or
potential parties
17
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section is
unavailable to 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 Designated
Shares or (ii) If the allocation provided by clause (i) is not
permitted by applicable law, in such proportions 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 of
omissions which resulted in such losses, claims, damages or liabilities
as well as any relevant equitable considerations. The relative benefits
received by the Company on one hand and the Underwriters on the other
hand shall be deemed to be in the same proportions 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 on
the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at
18
which the Designated Shares 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 obligations of the Underwriters of Designated
Shares 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 officer and
director of the Underwriters and 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 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 Shares which it has agreed to purchase under the Pricing
Agreement relating to such Shares, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such Shares
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 Shares, as the case may be, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to the Representatives to purchase such
Shares 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 Shares, or the Company notifies the Representatives that it
has so arranged for the purchase of such Shares, the Representatives or the
Company shall have the right to postpone a Time of Delivery for such Shares 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
the Pricing Agreement shall include any person
19
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 Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of the
Designated Shares to be purchased at the respective Time of Delivery,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Designated Shares which such
Underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Shares and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of
Designated Shares which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Shares 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 Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Designated Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of the
Designated Shares 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 Shares of
a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Shares shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters
as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth or incorporated by reference in the Pricing Agreement with respect to
the Designated Shares or made by or on behalf of them, respectively, pursuant to
such Pricing 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
20
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated pursuant to Section
7(b) or Section 9 hereof, the Company shall not then be under any liability to
any Underwriter with respect to the Designated Shares with respect to which such
Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if for any
other reason Designated Shares are not delivered by or on behalf of the Company
as provided herein (other than in respect of a breach of the Pricing Agreement
by any Underwriter of Designated Shares covered by such Pricing Agreement), 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
Shares, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares except as provided in
Sections 6 and 8 hereof.
12. In all dealings under the Pricing Agreement applicable to the
Designated Shares, the Representatives of the Underwriters of the Designated
Securities shall act on behalf of each of such Underwriters, and the parties
thereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any such Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in such 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 with respect to the Designated Shares; 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:
General Counsel; 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 with respect to the
Designated Shares shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
21
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of such Pricing Agreement. No purchaser of any
of the Shares 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 other than a Saturday or Sunday or a
day on which banks in the City of New York are authorized or required to close.
15. These Underwriting Agreement General Terms and Conditions and each
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York.
16. The Agreement and each Pricing Agreement may be executed by any
one or more of the parties 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.
22
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
THE HARTFORD FINANCIAL SERVICES
GROUP, INC.
By: /s/ David M. Johnson
--------------------------------------
Name: David M. Johnson
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
SALOMON SMITH BARNEY INC.
By: /s/ Ricky Spiro
--------------------------
Name: Ricky Spiro
Title: Managing Director
ANNEX I
PRICING AGREEMENT
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
October 17, 2001
Ladies and Gentlemen:
The Hartford Financial Services Group, Inc., a Delaware corporation
(the "Company", proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement General Terms and Conditions, dated October 17,
2001, attached hereto, to issue and sell to the Underwriter named in Schedule I
hereto (the "Underwriter") the Shares specified in Schedule II hereto (the
"Designated Shares"). Each of the provisions of the Underwriting Agreement
General Terms and Conditions 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. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement
General Terms and Conditions so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement General Terms and Conditions are used herein as therein defined. The
addresses of the Representatives referred to in Section 12 of the Underwriting
Agreement General Terms and Conditions 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 Shares, 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 General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, at the time and place and at
the purchase price to the Underwriter set forth in Schedule II hereto, the
number of Designated Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
I-1
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon acceptance hereof by you, on
behalf of the Underwriter, this letter and such acceptance hereof, including the
provisions of the Underwriting Agreement General Terms and Conditions
incorporated herein by reference, shall constitute a binding agreement between
the Underwriter, on the one hand, and the Company, on the other.
Very truly yours,
THE HARTFORD FINANCIAL SERVICES
GROUP, INC.
By: /s/ David M. Johnson
------------------------------------
Name: David M. Johnson
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
SALOMON SMITH BARNEY INC.
By: /s/ Ricky Spiro
------------------------
Name: Ricky Spiro
Title: Managing Director
I-2
SCHEDULE I
NUMBER OF
DESIGNATED
SHARES TO BE
UNDERWRITER PURCHASED
----------- ---------
Salomon Smith Barney Inc......................................... 7,042,253
---------
Total............................................................ 7,042,253
=========
SCHEDULE II
TITLE OF DESIGNATED SHARES:
Common Stock (par value $.01 per share)
NUMBER OF DESIGNATED SHARES:
7,042,253
INITIAL OFFERING PRICE BY UNDERWRITER:
$57.00
PURCHASE PRICE BY UNDERWRITER:
$56.82 per Share
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
10:00 a.m. (New York City time) on October 22, 2001
CLOSING LOCATION:
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017
NAMES AND ADDRESSES OF REPRESENTATIVES:
Salomon Smith Barney Inc., 388 Greenwich Street, New York, New York 10013
INFORMATION PROVIDED BY THE UNDERWRITER:
The Underwriter has furnished to the Company for use in the Prospectus
Supplement:
(a) The first sentence of the third paragraph of text under the caption
"Underwriting" in the Prospectus Supplement, concerning the nature of
the transactions by the Underwriter; and
I-4
(b) The first and second paragraphs of text following the table under
the caption "Underwriting" in the Prospectus Supplement, concerning
short sales and other stabilizing transactions by the Underwriter.
I-5