Exhibit 1.2
Hartford Capital III
7.45% Trust Originated Preferred Securities
(liquidation amount $25 per preferred security) guaranteed
to the extent set forth in the Guarantee by
The Hartford Financial Services Group, Inc.
Underwriting Agreement
October 19, 2001
To the Underwriters named in
Schedule I to the Pricing Agreement
Ladies and Gentlemen:
From time to time Hartford Capital III, a statutory business trust formed
under the laws of the State of Delaware (each a "Trust" and collectively, the
"Trusts") and The Hartford Financial Services Group, Inc., a Delaware
corporation, as depositor of each trust and as guarantor (the "Guarantor"),
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, that the Trust identified in Schedule I to the
applicable Pricing Agreement (such Trust being the "Designated Trust" with
respect to such Pricing Agreement) issue and sell to the firms named in Schedule
I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Firm Designated Securities") representing undivided beneficial
interests in the assets of the Designated Trust, guaranteed by the Guarantor to
the extent set forth in the guarantee agreement (the "Guarantee") identified in
such Pricing Agreement. If specified in such Pricing Agreement, the Designated
Trust may grant to the Underwriters the right to purchase at their election an
additional number of Securities, specified in such Pricing Agreement as provided
in Section 3 hereof (the "Optional Designated Securities"). The Firm Designated
Securities and any Optional Designated Preferred Securities are collectively
called the "Designated Securities." The proceeds of the sale of the Designated
Securities and of common securities of the Trust (the "Common Securities") sold
to the Guarantor are to be invested in junior subordinated deferrable interest
debentures of the Guarantor (the "Subordinated Debentures") , to be issued
pursuant to a junior subordinated indenture (the "Indenture") identified in the
Pricing Agreement.
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement (the "Trust Agreement")
identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives") . The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of any Trust to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of any Trust
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of Firm
Designated Securities, the maximum aggregate principal amount of Optional
Designated Securities, if any, the initial public offering price of such Firm
and Optional Designated Securities, the purchase price to the Underwriters of
such Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Trust Agreement and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Each of the Guarantor and the Designated Trust jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement in respect of the Securities 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
2
contained therein, 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 being hereinafter
called a "Preliminary Prospectus"; the various parts of such registration
statement, including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the registration statement at the time it was
declared effective and (ii) all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective but excluding Forms T-l, each as amended at the time such part
of the registration statement became effective, being hereinafter called
the "Registration Statement"; the final prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Guarantor filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus shall be deemed to refer to the
Prospectus in relation to the applicable Designated Securities in the form
in which it is filed with
3
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
in conformity with information furnished in writing to the Designated
Trust or the Guarantor by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date 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 Designated Trust or the
Guarantor by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
4
(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
Designated Trust or the Guarantor 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 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 Guarantor and its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Guarantor
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Guarantor and each subsidiary of the Guarantor which meets the
definition of a significant subsidiary as defined in Regulation S-X of the
Commission (each 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 power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
(f) The Guarantor has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Designated
Trust have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the
Prospectus;
(g) The Designated Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly and validly issued and fully
paid and nonassessable beneficial interests in the Designated Trust
entitled to the benefits provided by the Trust Agreement,
5
which will be substantially in the form filed as an exhibit to the
Registration Statement;
(h) The holders of the Securities (the "Securityholders") 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;
(i) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the depositor of the
Designated Trust and upon delivery by the Designated Trust to the
Guarantor against payment thereof or as set forth in the Trust Agreement,
will be duly and validly issued and nonassessable beneficial interests in
the Designated Trust and will conform 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 each Time of Delivery, all of
the issued and outstanding Common Securities of the Designated Trust will
be directly owned by the Guarantor free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(j) The Guarantee, the Trust Agreement, the Subordinated Debentures and
the Indenture (the Guarantee, the Trust Agreement, the Subordinated
Debentures and the Indenture being collectively referred to as the
"Guarantor Agreements") have each been duly authorized and when validly
executed and delivered by the Guarantor and, in the case of the Guarantee,
by the Guarantee Trustee (as defined in the Guarantee), in the case of the
Trust Agreement, by the Trustees (as defined in the Trust Agreement) and,
in the case of the Indenture, by the Trustee named therein (the "Debenture
Trustee"), and, in the case of the Subordinated Debentures, when validly
issued by the Guarantor and validly authenticated and delivered by the
Debenture Trustee, will constitute valid and legally binding obligations
of the Guarantor, enforceable in accordance with their respective terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Trust Agreement, the Indenture and the
Guarantee have been duly qualified under the Trust Indenture Act; the
Subordinated Debentures are entitled to the benefits of the Indenture; and
the Guarantor Agreements will conform to the descriptions thereof in the
Prospectus;
6
(k) The issue and sale of the Designated Securities and the compliance
by the Designated Trust with all of the provisions of the Designated
Securities, the Trust Agreement, this Agreement and any Pricing Agreement,
the purchase of the Subordinated Debentures by the Designated Trust and
the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Designated Trust is a party or by which the Designated Trust is bound
or to which any of the property or assets of the Designated Trust is
subject, nor will such action result in any violation of the provisions of
the Trust Agreement or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Designated Trust or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Designated Securities and the Common Securities by the Designated
Trust, the purchase of the Subordinated Debentures by the Designated Trust
or the consummation by the Designated Trust of the transactions
contemplated by this Agreement or any Pricing Agreement or the Trust
Agreement, except such as have been, or will have been prior to the Time
of Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(l) The issuance by the Guarantor of the Guarantee, the compliance by
the Guarantor with all of the provisions of this Agreement and the Pricing
Agreement, the execution, delivery and performance by the Guarantor of the
Guarantor Agreements, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Guarantor or any of its Significant
Subsidiaries is a party or by which the Guarantor or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Guarantor or any of its Significant Subsidiaries is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or by-laws of the Guarantor or the charter or
by-laws of any of its Significant Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
(including, without limitation, any insurance regulatory agency or body)
having jurisdiction over the Guarantor or any of its Significant
Subsidiaries or any
7
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue of the Guarantee or the
consummation by the Guarantor of the other transactions contemplated by
this Agreement or the Pricing Agreement, except such as have been or will
have been obtained prior to the First Time of Delivery, the registration
under the Act of the Securities and the qualification of the Trust
Agreement, the Indenture and the Guarantee under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase of the Securities and distribution of the
Securities by the Underwriters;
(m) Neither the Designated Trust nor the Guarantor is, and after giving
effect to the offering and sale of the Designated Securities, neither the
Designated Trust nor the Guarantor will be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(n) Except as described in the Prospectus, there is no action, suit or
proceeding pending, nor to the knowledge of the Guarantor, 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 Guarantor and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration Statement;
(o) The Pricing Agreement with respect to the Designated Securities has
been duly authorized, executed and delivered by the Guarantor and the
Designated Trust; and
(p) 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 any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
8
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, at the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised only by written notice from the Representatives to the Designated
Trust and the Guarantor, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Designated Securities
to be purchased and the date on which such Optional Designated Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) , or, unless the
Representatives, the Guarantor and the Designated Trust otherwise agree in
writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Guarantor and the Designated Trust has been advised by the
Representatives have been attributed to such Underwriter, provided that, if each
of the Guarantor and the Designated Trust has not been so advised, the number of
Optional Designated Securities to be so added shall be, in each case, that
proportion of Optional Designated Securities which the number of Firm Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Designated Securities (rounded as the
Representatives may determine to the nearest 100 securities). The total number
of Designated Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
number of the Optional Designated Securities which the Underwriters elect to
purchase.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Designated Trust, shall be delivered by or on behalf of the Designated
Trust to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price thereof or by
wire transfer of Federal (same day) funds to the account specified by the
Designated Trust at the
9
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Designated Trust may
agree upon in writing. Such time and date for delivery of Firm Designated
Securities pursuant to the Pricing Agreement relating thereto is herein called
the "First Time of Delivery," such time and date for delivery of Optional
Designated Securities, if not the First Time of Delivery, is herein called the
"Second Time of Delivery," and each such time and date is herein called the
"Time of Delivery."
5. The Designated Trust and the Guarantor jointly and severally agree with
each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such Securities
which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Guarantor 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
Securities, 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 Securities, of the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement
or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the
10
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith neither the Designated Trust nor the
Guarantor shall be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) In the case of the Guarantor, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Guarantor 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 Guarantor Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including
11
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Guarantor by the Representatives
and (ii) 30 days after the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of
any Securities, any other beneficial interests in the assets of the
Designated Trust, or any preferred securities or any other securities of
the Designated Trust or the Guarantor, as the case may be, that are
substantially similar to such Designated Securities (including any
guarantee of such securities) or any securities that are convertible into
or exchangeable for, or that represent the right to receive securities,
preferred securities or any such substantially similar securities of
either the Designated Trust or the Guarantor;
(f) In the case of the Guarantor, to issue the Guarantee concurrently
with the issue and sale of the Securities as contemplated herein or in the
Pricing Agreement; and
(g) To use its best efforts to list, subject to notice of issuance, the
Securities on the New York Stock Exchange.
6. The Guarantor covenants and agrees with the several Underwriters that
the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Guarantor's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Trust Agreement, any Indenture, any Guarantee, any Blue Sky or similar
investment surveys or memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all reasonable
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities and the Subordinated
Debentures; (vii) the fees and expenses of any Trustee, Debenture Trustee and
Guarantee Trustee, and any agent of any trustee and the fees and disbursements
of counsel for any trustee in connection with any Trust Agreement, Indenture,
Guarantee and the Securities; (viii) the cost of qualifying the Securities with
The Depository Trust Company;
12
(ix) all fees and expenses in connection with the listing of the Securities on
the New York Stock Exchange and the cost of registering the Securities under
Section 12 of the Exchange Act; and (x) all other costs and expenses incident to
the performance of its obligations hereunder and under any Over-allotment Option
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the respective Time of Delivery
for such Designated Securities, true and correct, the condition that the
Designated Trust and the Guarantor shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the respective Time of
Delivery for such Designated Securities, the validity of the Subordinated
Debentures, the Guarantee, the Registration Statement, the Prospectus as
amended or supplemented and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Counsel for the Designated Trust and the Guarantor satisfactory to
the Representatives shall have furnished to the Representatives their
written opinion, dated the respective Time of
13
Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Guarantor 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 and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) The Guarantor 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 Guarantor have been duly and validly
authorized and issued and are fully paid and non-assessable;
(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 Securities, there is no action, suit or
proceeding pending, nor to the best of such counsel's knowledge, is
there any action, suit or proceeding threatened, which might
reasonably be expected to result in a material adverse change in the
financial condition, results of operations or business of the
Guarantor and its subsidiaries taken as a whole or which is required
to be disclosed in the Registration Statement;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Guarantor;
(v) The Designated Securities have been duly authorized by the
depositor on behalf of the Designated Trust, are duly and validly
issued and nonassessable beneficial interests in the Designated
Trust and are entitled to the benefits provided by the Trust
Agreement; and the Designated Securities conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(vi) The issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of
the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or
14
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 Guarantor or any of its Significant Subsidiaries is a
party or by which the Guarantor or any of its Significant
Subsidiaries is bound or to which any of the property or assets of
the Guarantor or any of its Significant Subsidiaries is subject, nor
will such actions result in any violation of the provisions of the
Guarantor's Certificate of Incorporation or by-laws or any statute
or any order, rule or regulation known to such counsel of any court
or governmental agency or body (including any insurance regulatory
agency or body) having jurisdiction over the Guarantor or any of its
Significant Subsidiaries or any of their properties;
(vii) The Guarantor Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid
and legally binding obligations of the Guarantor, enforceable in
accordance with their respective terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
the Guarantor Agreements conform to the descriptions thereof in the
Prospectus as amended or supplemented; the Subordinated Debentures
are entitled to the benefits provided by the Indenture; and the
Trust Agreement, the Indenture and the Guarantee have been duly
qualified under the Trust Indenture Act;
(viii) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the
Designated Securities, the Trust Agreement, this Agreement and the
Pricing Agreement with respect to the Designated Securities, the
purchase by the Designated Trust of the Subordinated Debentures 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
agreement or instrument known to such counsel to which the
Designated Trust is a party or by which the Designated Trust is
bound or to which any of the property or assets of the Designated
Trust is subject;
15
(ix) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue of the Guarantee or the consummation
by the Guarantor of the transactions contemplated by this Agreement
or such Pricing Agreement or the Guarantor Agreements, except such
as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(x) Neither the Designated Trust nor the Guarantor is an
"investment company" or an entity controlled by an "investment
company" required to be registered under the Investment Company Act;
(xi) 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 documents; and
16
(xii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Guarantor or the Designated Trust on or prior to the date of
the Pricing Agreement relating to the Designated Securities (other
than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; based upon specified participation of
such counsel in connection with the preparation of the Registration
Statement and the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Guarantor or the Designated
Trust on or prior to the date of the Pricing Agreement relating to
the Designated Securities (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion) 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 Guarantor or the Designated Trust on or prior to the date of the
Pricing Agreement relating to the Designated Securities (other than
the financial statements and related schedules and other financial
data therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein,
in light of the circumstances in which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Guarantor
or the Designated Trust on or prior to the date of the Pricing
Agreement relating to the Designated Securities (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contains
an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading; and such
counsel 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
17
be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required; it
being understood that such counsel may state that he has not
independently verified factual statements in the Prospectus (or any
such amendment or supplement);
(d) Richards, Layton & Finger, special Delaware Counsel to the
Designated Trust and the Guarantor, shall have furnished to you, the
Guarantor and the Designated Trust their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you, to
the effect that
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence
of the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the
Prospectus;
(iii) The Trust Agreement constitutes a valid and legally binding
obligation of the Guarantor and the Trustees, enforceable against
the Guarantor and the Trustees, in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver, and to perform its obligations under the
Underwriting Agreement and the Pricing Agreement, and (b) issue and
perform its obligations under the Designated Securities and the
Common Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of
18
the Underwriting Agreement and the Pricing Agreement, and the
performance by the Designated Trust of its obligations thereunder,
have been duly authorized by all necessary action on the part of the
Designated Trust;
(vi) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
beneficial interests in the Designated Trust and are entitled to the
benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Designated 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; provided that such counsel
may note that the Securityholders may be obligated, pursuant to the
Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of Securities Certificates and the issuance
of replacement Securities Certificates and (b) provide security and
indemnity in connection with requests of or directions to the
Property Trustee (as defined in the Trust Agreement) to exercise its
rights and remedies under the Trust Agreement;
(vii) The Common Securities have been duly authorized by the
Trust Agreement and are validly issued and represent beneficial
interests in the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities, the execution, delivery and
performance by the Designated Trust of the Underwriting Agreement
and the Pricing Agreement, the consummation by the Designated Trust
of the transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not violate
(a) any of the provisions of the Certificate of Trust of the
Designated Trust or the Trust Agreement, or (b) any applicable
Delaware law or administrative regulation;
19
(x) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the
Designated Trust solely in connection with the issuance and sale of
the Designated Securities and the Common Securities. In rendering
the opinion expressed in this paragraph (x) , such counsel need
express no opinion concerning the securities laws of the State of
Delaware; and
(xi) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and
has no assets, activities (other than maintaining the Delaware
Trustee and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware, the
Securityholders (other than those holders of the Securities who
reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely
as a result of their participation in the Designated Trust, and the
Designated Trust will not be liable for any income tax imposed by
the State of Delaware.
(e) Debevoise & Plimpton, as tax counsel for the Designated Trust and
the Guarantor, shall have furnished to you their written opinion, dated
the respective Time of Delivery, in form and substance satisfactory to
you, to the effect that such firm confirms its opinion set forth in the
Prospectus under the caption "Certain Federal Income Tax Considerations";
(f) On the date of the Pricing Agreement for the Designated Securities
at a time prior to the execution of the Pricing Agreement with respect to
such Designated Shares and at each Time of Delivery for such Designated
Securities, the independent accountants of the Guarantor who have
certified the financial statements of the Guarantor and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated such Time of
Delivery and, if applicable, such date of the Pricing Agreement,
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;
20
(g) Except as contemplated in the Prospectus, as amended or
supplemented on or prior to the date of the Pricing Agreement relating to
the Designated Securities, since the respective dates as of which
information is given in such Prospectus, there shall not have been any
change in the consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in such Prospectus) or
any material increase in the consolidated or long-term debt of the
Guarantor and its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Guarantor and its subsidiaries, otherwise than as set forth or
contemplated in such Prospectus, the effect of which, in any such case is
in the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the
Designated Securities, (i) no downgrading shall have occurred in the
rating accorded the Guarantor'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 Guarantor's debt securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a material suspension or limitation
in trading in the Company's securities on the New York Stock Exchange;
(iii) a general moratorium on commercial banking activities in New York
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
21
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(j) The Designated Securities to be sold by the Designated Trust at the
respective Time of Delivery shall have been duly listed, subject to notice
of issuance, on the New York Stock Exchange; and
(k) The Designated Trust and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the respective Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Guarantor satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Trust and the
Guarantor herein at and as of such Time of Delivery, as to the performance
by the Designated Trust and the Guarantor of all of their 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 Designated Trust and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter 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 any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment 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 will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Guarantor
shall 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 made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Designated Trust or
the Guarantor by any Underwriter of Designated Securities through the
22
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities and; provided, further, that neither the Designated
Trust nor the Guarantor shall be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary Prospectus or
any preliminary prospectus supplement to the extent that a court of competent
jurisdiction has found by final and nonappealable order that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus as
then amended or supplemented (excluding documents incorporated by reference) (it
being understood that if at the time of any such claim such Underwriter shall
certify that it has sent or given the Prospectus as then amended or supplemented
to any person making such claim at or prior to the written confirmation of such
sale, it shall be presumed that such Prospectus has been so sent or given unless
the Designated Trust or the Guarantor shall have sustained the burden of
proving, in a court of competent jurisdiction by a final and nonappealable
order, that the facts are otherwise), if (i) such delivery to such person is
required by Section 5 of the Act, (ii) the Designated Trust or the Guarantor has
furnished copies of such Prospectus as amended or supplemented to such
Underwriter a reasonable period of time prior to the Underwriter being required
so to deliver such Prospectus as amended or supplemented and (iii) such
Prospectus as amended or supplemented corrected the untrue or alleged untrue
statement or omission or alleged omission of material fact contained in the
Preliminary Prospectus or any preliminary prospectus supplement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Designated Trust and the Guarantor against any losses,
claims, damages or liabilities to which the Designated Trust or the
Guarantor 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 any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment 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, 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 any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon
23
and in conformity with written information furnished to the Designated
Trust or the Guarantor by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Designated Trust or the
Guarantor for any legal or other expenses reasonably incurred by the
Designated Trust or the Guarantor in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above 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 such subsection, 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 such subsection. 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 (8b) 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 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 expense 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 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, proceedings 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 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
24
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Designated
Trust and the Guarantor on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(c) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Designated Trust and the Guarantor on the one hand
and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits
received by the Designated Trust and the Guarantor on the one hand and
such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Designated Trust less the total underwriting
compensation paid by the Guarantor bear to the total underwriting
discounts and commissions received by such 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 Designated Trust and the Guarantor 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 Designated Trust, the Guarantor 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
which the applicable Designated Securities underwritten by it and
25
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 Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Designated Trust and the Guarantor under
this Section 8 shall be in addition to any liability which the Designated
Trust and the Guarantor may otherwise have and shall extend, upon the same
terms and conditions, to each partner, 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 8 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 officer and director of the Guarantor, to
each administrative trustee of the Designated Trust and to each person, if
any, who controls the Designated Trust or the Guarantor within the meaning
of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Designated Securities or the Optional Designated Securities which it has
agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust and the Guarantor that
they have so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Guarantor notify the Representatives that they have so
arranged for the purchase of such Designated Securities, the Representatives or
the Designated Trust and the Guarantor shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or
26
arrangements, and the Designated Trust and the Guarantor agree to file promptly
any amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust and the Guarantor as provided in subsection (a)
above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, then the Designated Trust and the Guarantor shall have the right
to require each non-defaulting Underwriter to purchase the principal
amount of Firm Designated Securities or Optional Designated Securities, as
the case may be, which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Firm Designated Securities or Optional
Designated Securities, as the case may be, which such Underwriter agreed
to purchase under such Pricing Agreement) of the Firm Designated
Securities or Optional Designated Securities, as the case may be, 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
Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust and the Guarantor as provided in subsection (a)
above, the aggregate principal amount of Firm Designated Securities or
Optional Designated Securities, as the case may be, which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Firm Designated Securities or Optional Designated Securities, as the case
may be, to be purchased at the respective Time of Delivery, as referred to
in subsection (b) above, or if the Designated Trust and the Guarantor
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Designated Securities or
Optional Designated Securities, as the case may be, of a
27
defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Firm Designated Securities or Optional Designated
Securities, as the case may be, shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter, the Designated
Trust or the Guarantor, except for the expenses to be borne by the
Designated Trust, the Guarantor 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 Designated Trust, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust, the Guarantor, or any officer or director
or controlling person of the Designated Trust or the Guarantor, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Guarantor
shall then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason Designated Securities are not delivered by or on behalf of the
Designated Trust as provided herein, the Designated Trust and the Guarantor will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Designated Trust and the Guarantor shall then be under no further
liability to any Underwriter with respect to such Designated Securities except
as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
28
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Guarantor shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Guarantor set forth in the Registration Statement:
Attention: Corporate Secretary, with a copy to Hartford Fire Insurance Company,
Hartford Plaza, Hartford, Connecticut 06115. Attention: Office of the Treasurer,
Facsimile Transmission No. (203) 547-6487; 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 Designated Trust and the
Guarantor by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Designated Trust and the
Guarantor and, to the extent provided in Section 8 and Section 1 hereof, the
officers and directors of the Designated Trust or the Guarantor and each person
who controls the Designated Trust, the Guarantor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day 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. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
29
If the foregoing is in accordance with your understanding, please sign and
return to us six 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
HARTFORD CAPITAL III
By: The Hartford Financial Services
Group, Inc., as Depositor
By: /s/ David M. Johnson
--------------------------------------------
Name: David M. Johnson
Title: Executive Vice President and
Chief Financial Officer
Accepted on behalf of ourselves and the other Underwriters listed in Schedule I
to the Pricing Agreement:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
By: Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Joseph E (Jeff) Consolino
-------------------------------------------------
Name: Joseph E (Jeff) Consolino
Title: Director
30
ANNEX I
PRICING AGREEMENT
To the Underwriters named in
Schedule I hereto.
October 19, 2001
Ladies and Gentlemen:
Hartford Capital III, a statutory business trust formed under the laws of
the State of Delaware (the "Designated Trust") and The Hartford Financial
Services Group, Inc., a Delaware corporation (the "Guarantor"), propose, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated October 19, 2001 (the "Underwriting Agreement"), between the Guarantor on
the one hand and the Underwriters named in Schedule I hereto (the
"Underwriters") , on the other hand, to issue and sell to the Underwriters the
Securities specified in Schedule II hereto (the "Designated Securities"
consisting of Firm Designated Securities and any Optional Designated Securities
the Underwriters may elect to purchase). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
I-1
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto the principal amount of Designated Securities set
forth opposite the name of such Underwriter in Schedule I hereto; (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Designated Securities, as provided below, the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust at the purchase price to the Underwriters set out in Schedule II hereto
that portion of the number of Optional Designated Securities as to which such
election shall have been exercised; and (c) the Guarantor agrees to pay the
Representatives on behalf of the Underwriters the Underwriters' Compensation per
Designated Security for each Designated Security so issued and sold as set forth
in Schedule II.
The Designated Trust hereby grants to each of the Underwriters the right
to purchase at their election up to the number of Optional Designated Securities
determined pursuant to Section 3 of the Underwriting Agreement on the terms
referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised by written notice
from the Representatives to the Designated Trust and the Guarantor given within
a period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery or, unless the Representatives, the Guarantor and the Designated Trust
otherwise agree in writing, no earlier than two or later than ten business days
after the date of such notice.
I-2
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Trust and the Guarantor. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Guarantor for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
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
HARTFORD CAPITAL III
By: The Hartford Financial Services
Group, Inc., as Depositor
By: /s/ David M. Johnson
--------------------------------------------
Name: David M. Johnson
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
UBS Warburg LLC
By: Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: s/ Joseph E (Jeff) Consolino
--------------------------------------------
Name: Joseph E (Jeff) Consolino
Title: Director
I-3
On behalf of each of the Underwriters
SCHEDULE I
TOTAL NUMBER
OF
FIRM
DESIGNATED
SECURITIES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated 2,357,500
UBS Warburg LLC 2,357,500
A.G. Edwards & Sons, Inc. 2,345,000
First Union Securities, Inc. 2,345,000
Morgan Stanley & Co. Incorporated 2,345,000
Prudential Securities Incorporated 2,345,000
Salomon Smith Barney Inc. 2,345,000
Banc of America Securities LLC 650,000
J.P. Morgan Securities Inc. 650,000
Quick & Reilly, Inc. 650,000
Wells Fargo Van Kasper LLC 650,000
ABN AMRO Incorporated 40,000
BB&T Capital Markets, A division of Scott and 40,000
Stringfellow, Inc.
Bear, Stearns & Co. Inc. 40,000
Charles Schwab & Co. Inc. 40,000
CIBC World Markets Corp. 40,000
Dain Rauscher Incorporated 40,000
Deutsche Banc Alex. Brown Inc. 40,000
Goldman, Sachs & Co. 40,000
H&R Block Financial Advisors, Inc. 40,000
I-4
TOTAL NUMBER
OF
FIRM
DESIGNATED
SECURITIES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
Legg Mason Wood Walker, Incorporated 40,000
McDonald Investments Inc. 40,000
Raymond James & Associates, Inc. 40,000
SunTrust Capital Markets, Inc. 40,000
TD Securities (USA) Inc. 40,000
U.S. Bancorp Piper Jaffray Inc. 40,000
Advest, Inc. 20,000
Robert W. Baird & Co. Incorporated 20,000
William Blair & Company, L.L.C. 20,000
D.A. Davidson & Co. 20,000
Fahnestock & Co. Inc. 20,000
Fifth Third Securities, Inc. 20,000
Gibraltar Securities Co. 20,000
Gruntal & Co., L.L.C. 20,000
HSBC Securities (USA) Inc. 20,000
Janney Montgomery Scott LLC 20,000
J.J.B. Hilliard, W.L. Lyons, Inc. 20,000
Keefe, Bruyette & Woods, Inc. 20,000
Mesirow Financial, Inc. 20,000
Morgan Keegan & Company, Inc. 20,000
NatCity Investments, Inc. 20,000
SWS Securities, Inc. 20,000
I-5
TOTAL NUMBER
OF
FIRM
DESIGNATED
SECURITIES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
Stifel, Nicolaus & Company, Incorporated 20,000
Tucker Anthony Incorporated 20,000
TOTAL: 20,000,000
I-6
SCHEDULE II
DESIGNATED TRUST:
Hartford Capital III
TITLE OF DESIGNATED SECURITIES:
7.45% Trust Originated Preferred Securities ("TOPrS")
AGGREGATE LIQUIDATION AMOUNT:
Aggregate liquidation amount of Firm Designated Securities:
$500,000,000
Maximum aggregate liquidation amount of Optional Designated
Securities: $75,000,000
PRICE TO PUBLIC:
$25 per Designated Security
PURCHASE PRICE BY UNDERWRITERS:
$25 per Designated Security
UNDERWRITERS' COMPENSATION:
$0.7875 per Designated Security
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TRUST AGREEMENT:
Amended and Restated Trust Agreement to be dated on or about October
26, 2001 between the Guarantor and the Trustees named therein
I-7
INDENTURE:
Junior Subordinated Indenture dated October 30, 1996, between the
Guarantor and Wilmington Trust Company, as Debenture Trustee and the
Supplemental Indenture thereto to be dated on or about October 26,
2001(collectively the "Indenture")
GUARANTEE:
Guarantee Agreement to be dated on or about October 26, 2001, between
Guarantor and Guarantee Trustee
MATURITY:
October 31, 2050.
ANNUAL RATE OF CASH DISTRIBUTIONS:
7.45%
EXTENSION PERIOD:
20 quarters
TERM OF DESIGNATED TRUST:
55 years, unless earlier terminated by Guarantor in accordance with the
Trust Agreement.
REDEMPTION PROVISIONS:
The redemption provisions set forth in the Prospectus.
SINKING FUND PROVISIONS:
No sinking fund provisions.
TIME OF DELIVERY:
10:00 a.m., New York City time
October 26, 2001
I-8
CLOSING LOCATION:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
NAMES AND ADDRESSES OF REPRESENTATIVES:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
222 Broadway
New York, NY 10038
UBS Warburg, LLC
67 Washington Boulevard
Stamford, CT 06901
I-9