EXHIBIT 1.2
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
6,000,000 CORPORATE UNITS
UNDERWRITING AGREEMENT
GENERAL TERMS AND CONDITIONS
September 9, 2002
To the Underwriters
named in Schedule I to the Pricing Agreement
attached hereto as Annex I.
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 (each, a "PRICING AGREEMENT") which
incorporates by reference these Underwriting Agreement General Terms and
Conditions (this "UNDERWRITING 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 Corporate Units (as defined below) of the Company specified in Schedule
II to such Pricing Agreement (with respect to such Pricing Agreement, the "FIRM
SECURITIES"). If specified in such Pricing Agreement, the Company may grant to
the Underwriters the right to purchase at their election an additional number of
Corporate Units, specified in such Pricing Agreement as provided in Section 3
hereof (the "OPTIONAL SECURITIES"). The Firm Securities and the Optional
Securities, if any, which the Underwriters elect to purchase pursuant to Section
3 hereof are herein collectively called the "DESIGNATED SECURITIES".
Each "CORPORATE UNIT" is a unit with a stated amount of $50 (the
"STATED AMOUNT") comprised of (a) a stock purchase contract (a "PURCHASE
CONTRACT", and collectively with each other Purchase Contract, the "PURCHASE
CONTRACTS") under which (i) the holder of an Corporate Unit (a "HOLDER," and
collectively with other Holders of Corporate Units, the "HOLDERS") will purchase
from the Company on November 16, 2006 (the "SETTLEMENT DATE"), for $50 per
Corporate
Unit, a number of shares of common stock, par value $0.01 per share, of the
Company (the "COMMON STOCK"), as set forth in the Purchase Agreement (as defined
below) and (ii) the Company will pay quarterly contract adjustment payments at
the rate of 1.9% of the Stated Amount per year, and (b) $50 principal amount of
the Company's Senior Notes due November 16, 2008 (a "SENIOR NOTE" and
collectively with each other Senior Note, the "SENIOR NOTES").
In accordance with the terms of a Purchase Contract Agreement (the
"PURCHASE AGREEMENT") to be dated as of the Time of Delivery (as defined below)
between the Company and JPMorgan Chase Bank, as Purchase Contract Agent (the
"PURCHASE CONTRACT AGENT"), pursuant to which the Purchase Contracts will be
issued, the holders of the Corporate Units will pledge all of their respective
title, right and interest in and to the Senior Notes constituting part of the
Corporate Units to JPMorgan Chase Bank, as Collateral Agent (the "COLLATERAL
AGENT"), pursuant to a Pledge Agreement (the "PLEDGE AGREEMENT") to be dated as
of the Time of Delivery between the Company, the Purchase Contract Agent and the
Collateral Agent, to secure the Holders' obligations under the Purchase
Contracts. The Purchase Agreement and the Pledge Agreement are herein
collectively referred to as the "EQUITY UNIT AGREEMENTS."
The Senior Notes will be issued pursuant to the Indenture (the "BASE
INDENTURE"), dated as of October 20, 1995 between the Company and JPMorgan Chase
Bank (formerly The Chase Manhattan Bank), as indenture trustee (the "TRUSTEE"),
as supplemented by the First Supplemental Indenture (the "FIRST SUPPLEMENTAL
INDENTURE") to be dated as of the Time of Delivery between the Company and the
Trustee. The Base Indenture, as so amended or supplemented, is herein referred
to as the "INDENTURE."
Pursuant to a Remarketing Agreement (the "REMARKETING AGREEMENT") to be
dated as of the Time of Delivery between the Company, the Purchase Contract
Agent and the Remarketing Agent (as defined in the Remarketing Agreement, the
"REMARKETING AGENT"), the Remarketing Agent, will remarket the Senior Notes,
subject to the terms and condition set forth therein.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto.
A registration statement on Form S-3 (File No. 333-88762) in respect of
the Designated Securities has been filed with the Securities and Exchange
Commission (the "COMMISSION"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (the " ACT"), relating to the registration of certain
securities of the Company, including the Corporate Units, the Purchase Contracts
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and the Senior Notes (the "SHELF SECURITIES"), to be sold from time to time by
the Company. The registration statement as amended at the time it became
effective, including information if any deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Act, but
excluding Form T-1, is hereinafter referred to as the "REGISTRATION STATEMENT,"
and the prospectus included therein relating to the Shelf Securities at the time
the Registration Statement became effective is hereinafter referred to as the
"BASIC PROSPECTUS." The Basic Prospectus, as supplemented by the prospectus
supplement dated September 9, 2002 (the "PROSPECTUS SUPPLEMENT"), relating to
the Corporate Units, in the form first used to confirm sales of the Corporate
Units is hereinafter referred to as the "PROSPECTUS." If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule
462 Registration Statement. Any reference in this Underwriting Agreement to the
Registration Statement, the Basic Prospectus, any preliminary form of Prospectus
(a "PRELIMINARY PROSPECTUS") filed with the Commission pursuant to Rule 424 or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this Agreement or
the date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be and any reference to "AMEND", "AMENDMENT" or "SUPPLEMENT"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any Preliminary Prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
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 Corporate Units 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 or Underwriters 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 Corporate Units or as an obligation of the Underwriters to
purchase any of the Corporate Units. The obligation of the Company to issue and
sell any of the Corporate Units and the obligation of any of the Underwriters to
purchase any of the Corporate Units shall be evidenced by the Pricing Agreement
with respect to the Designated Securities specified therein. Each Pricing
Agreement shall specify
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the aggregate number of the Designated Securities, the initial public offering
price of such Designated Securities or the manner of determining such price, 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, the number of such Designated Securities to be purchased
by each Underwriter and the commission, if any, payable to such Underwriters
with respect thereto and shall set forth the date, time and manner of delivery
of, and payment for, the Firm Securities and Optional Securities, if any. 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) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company, threatened or contemplated by the Commission.
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Designated
Securities.
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(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 Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated
Securities.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development 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 securities 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 business 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 S-X
(collectively referred to herein as the "SIGNIFICANT SUBSIDIARIES" and
individually as a "SIGNIFICANT SUBSIDIARY") has been duly incorporated
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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; to
the Company's knowledge, all of the issued shares of capital stock of
each Significant Subsidiary are owned directly, or indirectly through
wholly-owned subsidiaries, by the Company, free and clear of all
material liens, encumbrances, equities or claims.
(f) The Company's authorized share capital is 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 Corporate Units have been duly and validly authorized,
and when the Designated Securities are executed and authenticated in
accordance with the provisions of the Purchase Agreement and delivered
against payment thereof in accordance with this Underwriting Agreement
and the Pricing Agreement with respect to such Designated Securities,
such Corporate Units will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding in law or equity); provided, however, that upon the
occurrence of a Termination Event, the Bankruptcy Code (11 U.S.C.
Sections 101-1330, as amended) should not substantively limit the
provisions of Sections 3.15 and 5.06 of the Purchase Agreement or
Section 5.04 of the Pledge Agreement that require termination of the
Purchase Contracts and release of the Collateral Agent's security
interest in (1) the Senior Notes, (2) the Treasury Securities or (3)
the applicable ownership interest of the Treasury Portfolio, as
applicable, and the transfer of such securities to the Purchase
Contract Agent, for the benefit of the Holders of the Equity Units (as
defined in the Prospectus); provided further, however, the Company
makes no representation as to whether a court exercising bankruptcy
jurisdiction might issue a temporary restraining order or provide other
interim relief that would delay the exercise of such termination right
for a period of time pending final adjudication of any challenge to the
exercise of such right during a bankruptcy case involving the Company;
and the Equity Units will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented with
respect to such Designated Securities.
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(h) The issue and sale of the Corporate Units (including the
Purchase Contracts and the Senior Notes forming a part thereof) and the
compliance by the Company with all the provisions of the Equity Units,
the Senior Notes, the Indenture, the Equity Unit Agreements, the
Remarketing Agreement, this Underwriting Agreement and the Pricing
Agreement (collectively the "TRANSACTION DOCUMENTS") 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 Transaction Documents, 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 authority or other governmental agency or
body is required for the issue and sale of the Corporate Units or the
consummation by the Company of the transactions contemplated by the
Transaction Documents, except those which have been, or will have been
prior to the Time of Delivery, obtained under the Act and the
Securities Exchange Act of 1934, as amended (the "EXCHANGE 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 Corporate Units 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
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affect the validity, performance or consummation of the transactions
contemplated by the Transaction Documents.
(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
Securities has been duly authorized, executed and delivered by the
Company.
(k) The Purchase Agreement and the Pledge Agreement have each
been duly authorized by the Company, and, when executed and delivered
in accordance with their terms by the Company and the other parties
thereto will each be, a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in law or equity);
provided, however, that upon the occurrence of a Termination Event (as
defined in the Purchase Contract), the Bankruptcy Code (11 U.S.C.
Sections 101-1330, as amended) should not substantively limit the
provisions of Sections 3.15 and 5.06 of the Purchase Agreement or
Section 5.04 of the Pledge Agreement that require termination of the
Purchase Contracts and release of the Collateral Agent's security
interest in (1) the Senior Notes, (2) the Treasury Securities (as
defined in the Purchase Agreement) or (3) the applicable ownership
interest of the Treasury Portfolio (as defined in the Purchase
Agreement), as applicable, and the transfer of such securities to the
Purchase Contract Agent, for the benefit of the Holders of the Equity
Units; provided further, however, the Company makes no representation
as to whether a court exercising bankruptcy jurisdiction might issue a
temporary restraining order or provide other interim relief that would
delay the exercise of such termination right for a period of time
pending final adjudication of any challenge to the exercise of such
right during a bankruptcy case involving the Company. The Purchase
Agreement and the Pledge Agreement will conform in all material
respects to the descriptions thereof in the Prospectus
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(l) The Remarketing Agreement has been duly authorized by the
Company and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The Remarketing Agreement will conform in
all material respects to the descriptions thereof in the Prospectus.
(m) The Designated Securities and the shares of Common Stock,
to be issued and sold by the Company pursuant to the Purchase
Contracts, have been (i) approved for listing on the New York Stock
Exchange (the "EXCHANGE"), subject to official notice of issuance, and
(ii) duly registered under the Exchange Act;
(n) The shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts have been duly authorized
and reserved for issuance and, when issued and delivered in accordance
with the provisions of the Pricing Agreement and the Purchase
Agreement, will be validly issued, fully paid and non-assessable and
will conform to the description thereof in the Prospectus as amended or
supplemented with respect to the Designated Securities.
(o) The Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and, when the Second Supplemental
Indenture is executed and delivered by the Company and the Trustee (and
assuming due execution and delivery of the Second Supplemental
Indenture by the Trustee), the Indenture will constitute a valid and
binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture will conform in all material respects
to the descriptions thereof in the Prospectus.
(p) The Senior Notes have been duly authorized by the Company,
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement and the Pricing Agreement,
will constitute valid and binding obligations of the Company, entitled
to the benefits provided by the Indenture, and enforceable against the
Company in accordance with their terms, subject,
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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. The
Senior Notes will conform in all material respects to the description
thereof contained in the Prospectus.
(q) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Prospectus as amended or
supplemented, such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be
stated therein.
(r) There are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required.
3. Upon the execution of the Pricing Agreement applicable to the Firm
Securities and authorization by the Representatives of the release of the Firm
Securities, the several Underwriters propose to offer the Firm Securities for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "OVERALLOTMENT OPTION") to purchase at their election a certain number
of Optional Securities, on the terms set forth in such Pricing Agreement, for
the sole purpose of covering sales of Corporate Units in excess of the number of
Firm Securities. Any such election to purchase Optional Securities may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Securities to be purchased and the date on which such
Optional 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 and the Company 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 Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
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Pricing Agreement applicable to such Designated Securities shall be, in each
case, the number of Optional Securities which the Company has been advised by
the Representatives have been allocated to such Underwriter; provided that, if
the Company has not been so advised, the number of Optional Securities to be so
added shall be, in each case, that proportion of Optional Securities which the
number of Firm Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate number of Firm Securities (rounded as the
Representatives may determine to the nearest 20 Corporate Units). 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 Securities set
forth in Schedule I to such Pricing Agreement plus the aggregate number of
Optional Securities which the Underwriters elect to purchase.
4. Certificates for the Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, (including, if so specified, in global
form) and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, (i) with respect to the Firm Securities, 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", and (ii) with respect to the Optional Securities, if any, in the
manner and at the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "SECOND TIME OF DELIVERY." Each 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
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the
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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 Corporate Units and prior to the
Time of Delivery for such Corporate Units which shall be disapproved by
the Representatives for such Corporate Units 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 Corporate
Units, 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 Corporate Units, of the suspension of
the qualification of such Corporate Units 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 Corporate Units 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 Corporate Units
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 Corporate Units, 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;
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(c) Prior to 12:00 p.m., New York City time, on the business
day next succeeding the date of the Pricing Agreement applicable to the
Designated Securities 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 Corporate Units
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) 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) Without the prior written consent of each of the
Representatives on behalf of the Underwriters, it will not, during the
period beginning from the date of the Pricing Agreement for the
Designated Securities and continuing to and including the date 90 days
after the date of the Prospectus Supplement (the "LOCK-UP PERIOD"), (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any Equity Units, Purchase
13
Contracts or shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Equity Units, Purchase Contracts or
shares of Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Equity Units, Purchase Contracts or
shares of Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Equity Units,
Purchase Contracts or shares of Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (a) the
sale of any Designated Securities to the Underwriters hereunder, (b)
transactions relating to the Company's Common Stock or other securities
acquired in open market transactions after the completion of the public
offering by the several Underwriters of the Designated Securities, (c)
any shares of capital stock upon the exercise of an option, warrant or
right or the conversion of a security outstanding on the date hereof,
(d) any capital stock issued or options to purchase shares of the
Company's Common Stock granted pursuant to employment benefit plans of
the Company or other employee or non-employee director compensation
arrangements or agreements in existence as of the date of the
Prospectus, (e) any capital stock or any securities convertible into or
exercisable or exchangeable for capital stock of the Company as
consideration for any acquisition by the Company, provided that in any
such transaction not registered under the Act in which the recipients
would receive such capital stock or securities during the Lock-up
Period, the recipients of such capital stock or securities agree in
writing not to sell or otherwise transfer such capital stock or
securities during the Lock-up Period, (f) any shares of Common Stock of
the Company to be issued in connection with the Treasury Units (as
defined in the Prospectus) or the Corporate Units to be created or
recreated upon substitution of pledged securities or issuable upon
settlement of the Treasury Units or Corporate Units, or (g) the sale of
shares of Common Stock to be sold by the Company to the several
underwriters (the "COMMON STOCK UNDERWRITERS") named in Schedule I to
the Pricing Agreement relating to such shares of Common Stock, dated
September 9, 2002, between the Company and Banc of America Securities
LLC, Morgan Stanley & Co. Incorporated and Salomon Smith Barney Inc.
acting as representatives of the Common Stock Underwriters.
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 Equity Units 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 Transaction Document, any Blue Sky
Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Corporate Units;
14
(iii) all expenses in connection with the qualification of the Corporate Units
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 at the Time of Delivery for
the Equity Units; (v) the cost and charges of any transfer agent or registrar or
dividend disbursing agent and any securities intermediary in connection with the
Transaction Documents and of the Purchase Contract Agent and the Collateral
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 Corporate Units 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 applicable to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with.
(b) Davis Polk & Wardwell, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
each Time of Delivery for such Designated Securities, with respect to
the Pricing Agreement applicable to the Designated Securities, the
validity of the Designated Securities 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
15
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 each Time of Delivery for such
Designated Securities, in form and substance satisfactory to you, to
the effect set forth in Annex II to this Underwriting Agreement.
(d) Neal S. Wolin, Esq. Executive Vice President and General
Counsel to the Company, shall have furnished to you his written
opinion, dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the 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's share capital as set forth in the
Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable; and the Common Stock to be delivered under the
Purchase Contracts conforms to the description in the
Prospectus as amended or supplemented;
(iii) Except as described in the Prospectus, 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 Underwriting Agreement and the Pricing
Agreement with respect to the Designated Securities have been
duly authorized, executed and delivered by the Company;
(v) The issue and sale of the Designated Securities
and the compliance by the Company with the Transaction
Documents and the consummation of the transactions herein and
therein
16
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 Amended and Restated
Certificate of Incorporation or Amended 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;
(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 Securities or the consummation by the
Company of the transactions contemplated by the Transaction
Documents except such as have been obtained under the Act, the
Exchange Act and the Trust Indenture 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 Securities 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
17
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;
(viii) The Designated Securities and the shares of
Common Stock, to be issued and sold by the Company pursuant to
the Purchase Contracts, have been (i) approved for listing on
the New York Stock Exchange, subject to official notice of
issuance, and (ii) duly registered under the Exchange Act;
(ix) 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
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
rules and regulations of the Commission 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 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 Company 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 the light of the circumstances
under which they were made, not misleading or that, as of the
Time of Delivery,
18
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 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 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 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
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at each Time of Delivery
for such Designated Securities, Deloitte and Touche LLP, the
independent accountants of the Company, 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, there has not been any
material adverse change in, or any adverse development which materially
affects, the
19
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 Securities; and (ii)
except as contemplated in the Prospectus, since the respective dates as
of which information is given in the Prospectus as amended or
supplemented on or prior to the date of the Pricing Agreement relating
to the Designated Securities 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
securities 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 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 Securities, 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 Securities on the terms and in the manner contemplated
in the Prospectus as first amended or supplemented relating to the
Designated Securities;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the 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,
20
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 Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to
the Designated Securities;
(i) The Corporate Units being delivered at each Time of
Delivery and the shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts, 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
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter,
its partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon 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
21
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 Securities will severally
and not jointly indemnify and hold harmless the Company, its directors
and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, against any losses, claims,
damages or liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon 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. 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
22
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, 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
Securities 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
23
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 Designated Securities underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities 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 Securities which it has agreed to purchase under the Pricing
Agreement relating to such Corporate Units, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Corporate Units on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, 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 Corporate Units 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 Corporate Units, or
the Company
24
notifies the Representatives that it has so arranged for the purchase of such
Corporate Units, the Representatives or the Company shall have the right to
postpone a Time of Delivery for such Corporate Units 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 substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Corporate Units
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Designated Securities 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
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Designated Securities
which remains unpurchased exceeds one-eleventh of the aggregate number
of the Designated Securities as referred to in subsection (b) above, or
if the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section
25
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 Securities 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 officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Corporate Units.
11. If any Pricing Agreement shall be terminated due to the failure of
Davis Polk & Wardwell to deliver its opinion to the Representatives pursuant to
Section 7(b) or pursuant to Section 9 hereof, the Company shall not then be
under any liability to any Underwriter with respect to the Designated Securities
set forth in such Pricing Agreement except as provided in Sections 6 and 8
hereof; but, if for any other reason Designated Securities 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 Securities
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 Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings under the Pricing Agreement applicable to the
Designated Securities, 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 Securities; 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:
26
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 Securities 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,
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 Corporate Units 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.
27
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/ John N. Giamalis
---------------------
Name: John N. Giamalis
Title: Senior Vice President and
Treasurer
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
BANC OF AMERICA SECURITIES LLC
By: /s/ Trevor Ganshaw
-------------------
Name: Trevor Ganshaw
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Kevin Woodruff
-------------------
Name: Kevin Woodruff
Title: Executive Director
SALOMON SMITH BARNEY INC.
By: /s/ Anne Kronenberg
--------------------
Name: Anne Kronenberg
Title: Managing Director
ANNEX I
PRICING AGREEMENT
Banc of America Securities LLC
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
September 9, 2002
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 September 9,
2002, attached hereto, to issue and sell to the Underwriters named in Schedule I
hereto (the "UNDERWRITERS") the Corporate Units specified in Schedule II hereto
(the "DESIGNATED SECURITIES", consisting of Firm Securities and any Optional
Securities the Underwriters may elect to purchase). 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 Representatives designated to act on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement General Terms and Conditions and the addresses of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree to purchase from the Company, at the time and place and at
the purchase price to the Underwriters set forth in Schedule II hereto, the
number
I-1
of Firm Securities set forth opposite the name of such Underwriter in Schedule I
hereto and, in the event and to the extent that the Underwriters shall exercise
the election to purchase Optional Securities, as provided below, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the purchase price to the Underwriters set forth in Schedule II hereto such
number of Optional Securities (as to which such election shall have been
exercised) determined pursuant to Section 3 of the Underwriting Agreement
General Terms and Conditions, attached hereto.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Securities set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering over-allotments in
the sale of the Firm Securities. Any such election to purchase Optional
Securities may be exercised by written notice from the Representatives to the
Company given within a period of 30 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.
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 each of the Underwriters, 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 each of the Underwriters, on the one hand, and the Company, on
the other. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
I-2
Very truly yours,
THE HARTFORD FINANCIAL SERVICES
GROUP, INC.
By: /s/ John N. Giamalis
---------------------
Name: John N. Giamalis
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
BANC OF AMERICA SECURITIES LLC
By: /s/ Trevor Ganshaw
-------------------
Name: Trevor Ganshaw
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Kevin Woodruff
-------------------
Name: Kevin Woodruff
Title: Executive Director
SALOMON SMITH BARNEY INC.
By: /s/ Anne Kronenberg
--------------------
Name: Anne Kronenberg
Title: Managing Director
I-3
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
FIRM SECURITIES SECURITIES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
- -------------------------------------------------- --------------- ----------------
Banc of America Securities LLC ................... 1,437,600 143,756
Morgan Stanley & Co. Incorporated ................ 1,437,600 143,760
Salomon Smith Barney Inc. ........................ 1,437,600 143,760
A.G. Edwards & Sons, Inc. ........................ 287,400 28,740
Edward D. Jones & Co., L.P. ...................... 287,400 28,740
Goldman, Sachs & Co. ............................. 287,400 28,740
Merrill Lynch, Pierce, Fenner & Smith Incorporated 287,400 28,740
UBS Warburg LLC .................................. 287,400 28,740
ABN AMRO Financial Services Inc. ................. 31,275 3,128
Bny Capital Markets, Inc. ........................ 31,275 3,128
Fleet Securities Inc. ............................ 31,275 3,128
Keffe, Bruyette & Woods, Inc. .................... 31,275 3,128
Raymond James & Associates, Inc. ................. 31,275 3,128
Robert W. Baird & Co. Incorporated ............... 31,275 3,128
SunTrust Capital Markets, Inc. ................... 31,275 3,128
U.S. Bancorp Piper Jaffray Inc. .................. 31,275 3,128
--------- -------
Total ............................................ 6,000,000 600,000
--------- -------
I-4
SCHEDULE II
TITLE OF DESIGNATED SECURITIES: 6% Corporate Units
NUMBER OF DESIGNATED SECURITIES:
NUMBER OF FIRM SECURITIES: 6,000,000
MAXIMUM NUMBER OF OPTIONAL SECURITIES: 600,000
PURCHASE PRICE BY UNDERWRITER: $48.40 per Corporate Unit
PRICE TO PUBLIC PER CORPORATE UNIT: $50
GROSS SPREAD PER CORPORATE UNIT: 3.20%
REFERENCE PRICE (CLOSING PRICE OF COMPANY COMMON STOCK ON SEPTEMBER 9, 2002):
$47.25
THRESHOLD APPRECIATION PRICE: $57.6450
PAYMENT DATES: February 16, May 16, August 16 and November 16
CONTRACT ADJUSTMENT PAYMENT DATES: February 16, May 16, August 16 and November
16
PURCHASE CONTRACT SETTLEMENT DATE: November 16, 2006
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES: $300,000,000
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES (IF THE UNDERWRITERS PURCHASE ALL OF
THE OPTIONAL SECURITIES): $30,000,000
MATURITY OF THE SENIOR NOTES: November 16, 2008
INTEREST RATE ON THE SENIOR NOTES: 4.1%
STOCK EXCHANGE LISTING: New York Stock Exchange
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Federal (same day) funds
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated custodian
for trading in the Same Day Funds Settlement System of DTC, and to be made
available for checking by the Representatives at least twenty-four hours prior
to the Time of Delivery at DTC.
TIME OF DELIVERY:
10:00 a.m. (New York City time) on September 13, 2002, or at such other
time and date as the Representatives and the Company may agree to in writing
CLOSING LOCATION:
Debevoise Plimpton, 919 Third Avenue, New York, New York 10022
NAMES AND ADDRESSES OF REPRESENTATIVES:
BANC OF AMERICA SECURITIES LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
SALOMON SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
INFORMATION PROVIDED BY THE UNDERWRITERS:
The Underwriters have furnished to the Company for use in the
Prospectus Supplement:
(a) The names of the Underwriters in the table of Underwriters
under the caption "Underwriting" in the Prospectus Supplement;
(b) The second paragraph of text following the first table under
the caption "Underwriting" in the Prospectus Supplement,
concerning the terms of the offering;
SII-2
(c) The third and fourth sentence of the fourth paragraph of text
following the first table under the caption "Underwriting" in
the Prospectus Supplement, concerning market making by the
Underwriters; and
(d) The first paragraph of text following the second table under
the caption "Underwriting" in the Prospectus Supplement,
concerning short sales and other stabilizing transactions by
the Underwriters.
SII-3
ANNEX II
FORM OF OPINION OF DEBEVOISE & PLIMPTON TO BE DELIVERED PURSUANT TO
SECTION 7(c) OF THE UNDERWRITING AGREEMENT GENERAL TERMS AND CONDITIONS
1. The shares of Common Stock to be issued and sold by the Company pursuant to
the Purchase Contracts have been duly authorized and reserved for issuance and,
when issued and delivered in accordance with the provisions of the Purchase
Agreement, will be validly issued, fully paid and nonassessable.
2. The Purchase Agreement and the Pledge Agreement have each been duly
authorized, executed and delivered by the Company, and, assuming each such
agreement has been duly authorized, executed and delivered by the other parties
thereto, each is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in law or
equity); provided, however, that upon the occurrence of a Termination Event (as
defined in the Purchase Contract), the Bankruptcy Code (11 U.S.C. Sections
101-1330, as amended) should not substantively limit the provisions of Sections
3.15 and 5.06 of the Purchase Agreement or Section 5.04 of the Pledge Agreement
that require termination of the Purchase Contracts and release of the Collateral
Agent's security interest in (1) the Senior Notes, (2) the Treasury Securities
(as defined in the Purchase Agreement) or (3) the applicable ownership interest
of the Treasury Portfolio (as defined in the Purchase Agreement), as applicable,
and the transfer of such securities to the Purchase Contract Agent, for the
benefit of the Holders of the Equity Units; provided further, however, that no
opinion is expressed as to whether a court exercising bankruptcy jurisdiction
might issue a temporary restraining order or provide other interim relief that
would delay the exercise of such termination right for a period of time pending
final adjudication of any challenge to the exercise of such right during a
bankruptcy case involving the Company.
3. The Corporate Units have been duly authorized by the Company and when
executed and authenticated in accordance with the provisions of the Purchase
Agreement and delivered against payment therefor in accordance with the terms of
the Underwriting Agreement and the Pricing Agreement, will be entitled to the
benefits of the Purchase Agreement and will be valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in law or equity); provided, however, that upon the occurrence of a
Termination Event, the Bankruptcy Code (11 U.S.C. Sections 101-1330, as amended)
should not substantively limit the provisions of Sections 3.15 and 5.06 of the
Purchase Agreement or Section 5.04 of the Pledge Agreement that require
termination of the Purchase Contracts and release of the Collateral Agent's
security interest in (1) the Senior Notes, (2) the Treasury Securities or (3)
the applicable ownership interest of the Treasury Portfolio, as applicable, and
the transfer of such securities to the Purchase Contract Agent, for the benefit
of the Holders of the Corporate Units; provided further, however, that no
opinion is expressed as to whether a court exercising bankruptcy jurisdiction
might issue a temporary restraining order or provide other interim relief that
would delay the exercise of such termination right for a period of time pending
final adjudication of any challenge to the exercise of such right during a
bankruptcy case involving the Company; and the Equity Units conform as to legal
matters in all material respects to the description thereof in the Prospectus as
amended or supplemented.
4. The Senior Notes have been duly authorized by the Company and, when executed
and authenticated by the Trustee in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement and the Pricing Agreement, will be valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in law or equity), and will be
entitled to the benefits of the Indenture.
5. The Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended; the Indenture (including the First Supplemental Indenture) has been
duly authorized, executed and delivered by the Company; and assuming due
authorization, execution and delivery by the Trustee, the Indenture is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in law or equity).
6. The Remarketing Agreement has been duly authorized, executed and delivered by
the Company and assuming due authorization, execution and delivery thereof by
the other parties thereto, is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as (i) the
enforceability thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in law or equity) and (ii) rights to indemnification and contribution
contained therein may be limited by state and federal securities laws or the
public policy underlying such laws.
7. The statements made in the Prospectus Supplement under the captions
"Description of the Equity Units", "Description of the Purchase Contracts",
"Certain Provisions of the Purchase Contracts, the Purchase Contract Agreement
and the Pledge Agreement" and "Description of the Senior Notes", insofar as such
statements purport to summarize certain provisions of the documents referred to
therein, are accurate and fair in all material respects.
In giving the foregoing opinions, Debevoise & Plimpton may make
customary assumptions and qualifications, including, with respect to the opinion
given in paragraph 3 above, that it expresses no opinion on the priority status
of the Senior Note component of the Corporate Units, and, with respect to the
opinion given in paragraph 4 above, that it expresses no opinion on the priority
status of the Senior Notes.