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Exhibit 1.4
CHUBB CAPITAL CORPORATION
Convertible Debt Securities
________________
Underwriting Agreement
_____________, 19__
[Name(s) and address(es)
of Representatives.]
Dear Sirs/Mesdames:
From time to time Chubb Capital Corporation, a New Jersey
corporation (the "Company") and The Chubb Corporation, a New Jersey
corporation, as guarantor (the "Guarantor"), propose to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and
sell to the firms named in Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to such Pricing Agreement
and the securities specified therein) certain of the Company's convertible debt
securities (the "Securities") issued pursuant to the indenture dated ______,
199_ between the Company, the Guarantor, and The First National Bank of
Chicago, as Trustee, (the "Indenture"), which may be convertible into shares of
common stock of the Guarantor, par value $1.00 per share ("Common Stock"), as
specified in Schedule II to such Pricing Agreement (with respect to any Pricing
Agreement, the "Designated Securities"). The Securities are to be
unconditionally guaranteed (the "Guarantees") as to payment of principal,
premium, if any, and interest by the Guarantor upon the basis and on the terms
specified in the Indenture.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing
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Agreement relating thereto and in or pursuant to the Indenture.
1. Particular sales of Designated Securities may be made
from time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company or the
Guarantor to sell any of the Securities (including the Guarantees) or as an
obligation of any of the Underwriters to purchase the Securities (including the
Guarantees). The obligation of the Company and the Guarantor to issue and sell
any of the Securities (including the Guarantees) and the obligation of any of
the Underwriters to purchase any of the Securities (including the Guarantees)
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company and the Guarantor jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement in respect of the Securities
(including any Common Stock issuable upon conversion of any
Securities) and the Guarantees has been filed with the Securities and
Exchange Commission
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(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement,
at the time such part of the registration statement became effective
but excluding Form T-1, each as amended at the time such part of the
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Securities,
in the form in which it has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company and
the Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement
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that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in the form in which
it is filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied as to form 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 comply as to form 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 or the Guarantor by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities and such Guarantees;
(c) The Registration Statement and the Prospectus comply
as to form, and any further amendments or supplements to the
Registration Statement or the Prospectus will comply as to form, 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
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applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company or the Guarantor by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities and such Guarantees;
(d) Neither the Guarantor nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with their businesses from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which loss
or interference would have a material adverse effect on the business
or financial condition of the Guarantor and its subsidiaries taken as
a whole, otherwise than as set forth or contemplated in 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 material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Guarantor and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) 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
and other) to own its properties and conduct its business as described
in the Prospectus and has been duly qualified as a foreign corporation
for the transaction of business in each other jurisdiction in which it
owns or leases property, or conducts any business, so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(f) All of the issued shares of capital stock of the
Company have been duly and validly authorized and
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issued and are fully paid and non-assessable and are owned directly or
indirectly by the Guarantor;
(g) The Guarantor has been duly incorporated and is
validly existing as a corporation under the laws of the jurisdiction
of its incorporation with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus and has been duly qualified as a foreign corporation for
the transaction of business in each other jurisdiction in which it
owns or lease property, or conducts any business, so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and any Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
incorporated by reference as an exhibit to the Registration Statement;
the Guarantees have been duly authorized, and, upon due execution,
authentication and delivery of the Securities and the placement of the
Guarantees thereon, the Guarantees will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Guarantor entitled to the benefits provided by the Indenture;
the Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Designated Securities
and the Guarantees will conform, to the descriptions thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities and such Guarantees;
(i) When shares of Common Stock are initially issued upon
conversion of any Securities, such Common Stock will have been duly
and validly authorized and reserved for issuance and, when issued and
delivered in
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accordance with the provisions of the relevant Securities, will be
duly and validly issued, fully paid and non-assessable and will
conform to the description of the Common Stock contained in the
Prospectus as amended or supplemented with respect to such relevant
Securities;
(j) The issue and sale of the Securities (and any Common
Stock into which the Designated Securities may be convertible) and the
Guarantees and the compliance by the Company and the Guarantor with
all of the provisions of the Securities, the Guarantees, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company, Guarantor or any of its subsidiaries
is a party or by which the Company, the Guarantor or any of its
subsidiaries is bound or to which any of the property or assets of the
Company, the Guarantor or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-Laws of the Company or the Restated
Certificate of Incorporation or By-Laws of the Guarantor or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, the Guarantor or
any of its subsidiaries or any of their properties except for such
conflicts, breaches, violations or defaults which would not have a
material adverse effect on the business, financial condition or
results of operations of the Guarantor and its subsidiaries taken as a
whole or on the Company's or Guarantor's ability to perform their
respective obligations under this Agreement, the Securities and the
Guarantees; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities and the Guarantees or the consummation by the Company or
the Guarantor of the other transactions contemplated by this Agreement
or any Pricing Agreement or the Indenture, except such as have been,
or will have been prior to the Time of Delivery, obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in
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connection with the purchase and distribution of the Securities and
the Guarantees by the Underwriters; and
(k) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending (including proceedings of
any insurance regulatory authority) to which the Guarantor or any of
its subsidiaries is a party or of which any property of the Guarantor
or any of its subsidiaries is the subject which, if determined
adversely to the Guarantor or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Guarantor and its subsidiaries; and, to the best of
the Company's and the Guarantor's knowledge, no such proceedings are
threatened.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Securities and authorization by the
Representatives of the release of such Designated Securities, the several
Underwriters propose to offer such Designated Securities for sale upon the
terms and conditions set forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form to the extent practicable and with the Guarantees placed thereon, 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 certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
5. Each of the Company and the Guarantor agrees with
each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of
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business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof, and such disapproval shall
not be unreasonable; 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 or the Guarantor with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it received notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities, of
the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
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(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
neither the Company nor the Guarantor shall be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to their respective
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)), an earnings statement of the
Guarantor and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule
158); and
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(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company and the
Guarantor by the Representatives and (ii) the Time of Delivery for
such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company or the Guarantor,
or guaranteed by the Guarantor, which debt securities mature more than
one year after such Time of Delivery and are substantially similar to
such Designated Securities or any securities convertible or
exercisable for securities which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
6. Each of the Company and the Guarantor covenants and
agrees with the several Underwriters that the Company and the Guarantor will
pay or cause to be paid the following: (i) the reasonable fees, disbursements
and expenses of the Company's and the Guarantor's counsel and independent
auditors in connection with the registration of the Securities and the
Guarantees 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 producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, the Indenture, any Blue Sky Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities and the Guarantees; (iii) all expenses in connection with the
qualification of the Securities and the Guarantees 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 surveys; (iv) any fees
charged by securities rating services for rating the Securities and the
Guarantees; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities and the Guarantees; (vi) the cost of preparing the Securities and
the Guarantees; (vii) the reasonable fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with the Indenture and the Securities and the Guarantees; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It
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is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company and
the Guarantor 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 in all material respects, the condition
that the Company and the Guarantor shall have performed all of their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to
the Representatives such opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to the validity
of the Indenture, the Designated Securities and (any Common Stock
issuable upon conversion of the Designated Securities), the
Guarantees, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) Robert Rusis, Senior Vice President and General
Counsel of the Guarantor shall have furnished to the Representatives
his written opinion, dated the
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Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Each of the Company and the Guarantor has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
foreign jurisdiction in which it owns or leases property, or
conducts any business, so as to require such qualification, or
is subject to no material liability or disability by reason of
failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Guarantor
or its subsidiaries, provided that such counsel shall state
that he believes that both the Representatives and he are
justified in relying upon such opinions and certificates);
(ii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Guarantor or
any of its subsidiaries is a party or of which any property of
the Guarantor or any of its subsidiaries is the subject which,
if determined adversely to the Guarantor or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the
Guarantor and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened;
(iii) The issue and sale of the Designated Securities
(and any Common Stock for which the Designated Securities may
be convertible), including the Guarantees, and the compliance
by the Company and the Guarantor with all of the provisions of
the Designated Securities, the Guarantees, the Indenture, this
Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed or trust, loan agreement or other
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agreement or instrument known to such counsel to which the
Guarantor or any of its subsidiaries is a party or by which
the Guarantor or any of its subsidiaries is bound or to which
any of the property or assets of the Guarantor or any of its
subsidiaries is subject, nor will such actions result in any
violation, of the provisions of the Certificate of
Incorporation or By-laws of the Company, the Restated
Certificate of Incorporation or By-Laws of the Guarantor 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 Guarantor or any of its subsidiaries or
of any of their properties, such as would be material to the
business of the Company or the Guarantor and their
subsidiaries taken as a whole;
(iv) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the issue of the Guarantees or
the consummation by the Company of the other transactions
contemplated by this Agreement or such Pricing Agreement or
the Indenture, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters.
In rendering the foregoing opinion such counsel may rely as to
matters of law of the State of New Jersey upon the opinion of New Jersey
counsel satisfactory to the Representatives, provided such counsel shall state
therein that he believes that both the Underwriters and he are justified in
relying upon such opinion.
(d) Davis Polk & Wardwell, special counsel to the
Company, shall have furnished to the Representatives their written
opinion, dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) Each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws
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of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) At such Time of Delivery the Common Stock
issuable upon conversion of the Convertible Debt Securities
being issued has been duly and validly authorized and reserved
for issuance and when issued (in accordance with the
applicable Pricing Agreement or the Convertible Debt
Securities) will be validly issued and fully paid and non-
assessable and the provisions relating to such Common Stock
will conform to the description thereof in the Prospectus, as
amended or supplemented;
(iii) This Agreement and any Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company and the
Guarantor;
(iv) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
and the Designated Securities, the Guarantees and the
Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(v) The Guarantees have been duly authorized, and,
when the Securities have been executed, authenticated,
delivered in accordance with the Indenture and paid for
pursuant to this Agreement, will constitute valid and binding
obligations of the Guarantor entitled to the benefits provided
by the Indenture subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and the Guarantor and constitutes
a valid and legally binding instrument of the Company and the
Guarantor, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of
15
16
general applicability relating to or affecting creditor's
rights and to general equity principles; and each Indenture
has been duly qualified under the Trust Indenture Act;
(vii) The Company is exempt from all provisions of the
Investment Company Act; and
(viii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company and the Guarantor
prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
and the Guarantor prior to the Time of Delivery (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and
related schedules 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 to
make the statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company and the Guarantor
prior to the Time of Delivery (other than the financial
statements and related schedules 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
to make the statements therein, in light of the circumstances
in which they were made, not misleading;
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In rendering the foregoing opinion such counsel may rely as to
matters of law of the State of New Jersey upon the opinion of New Jersey
counsel satisfactory to the Representatives, provided such counsel shall state
therein that they believe that both the Underwriters and they are justified in
relying upon such opinion.
(e) At the Time of Delivery for such Designated
Securities, the independent auditors of the Guarantor who have
certified the financial statements of the Guarantor and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter dated
such Time of Delivery, to the effect set forth in Annex II hereto and
as to such other matters as the Representatives may reasonably
request, in form and substance satisfactory to the Representatives;
(f) (i) Neither the Guarantor nor any of its
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii)
since the respective dates as of which information is given in the
Prospectus as amended or supplemented there shall not have been any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities (including the Guarantees) on the terms and in
the manner contemplated in the Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities no downgrading shall have
occurred in the rating accorded the Company's or the Guarantor's debt
securities by Moody's Investors Service, Inc. or Standard & Poor's
Corporation;
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(h) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
engagement by the United States in hostilities which have resulted in
the declaration, on or after the date of such Pricing Agreement, of a
national emergency or war if the effect of any such event specified in
this Clause (iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities (including the Guarantees)
on the terms and in the manner contemplated in the Prospectus as
amended or supplemented; and
(i) The Company and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery
for the Designated Securities a certificate or certificates of
officers of the Company and the Guarantor satisfactory to the
Representatives as to the accuracy in all material respects of the
representations and warranties of the Company and the Guarantor herein
at and as of such Time of Delivery, as to the performance by the
Company and the Guarantor 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 and the Guarantor will jointly
and severally indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities or the Guarantees, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably
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19
incurred by such Underwriter in connection with investigating or defending any
such action or claim 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 made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company and
the Guarantor by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities or such Guarantees; provided, however, that the
foregoing indemnity agreement with respect to the Preliminary Prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities.
(b) Each Underwriter will indemnify and hold harmless the
Company, the Guarantor, the officers and directors of the Company and the
Guarantor, and each person, if any, who controls the Company or the Guarantor
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or the Guarantor may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Guarantees, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
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20
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company or the Guarantor for any legal or other expenses reasonably incurred by
the Company or the Guarantor in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor on the one hand
and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities (including the Guarantees) to which
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21
such loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Guarantor on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Guarantor on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company and the Guarantor
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, the Guarantor and the Underwriters agree that it would
not be just and equitable if contribution pursuant to subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and 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
21
22
person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company and the Guarantor
under this Section 8 shall be in addition to any liability which the Company
and the Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or the Guarantor and to each person, if
any, who controls the Company or the Guarantor 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 Designated Securities,
the Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties to
whom the Representatives shall not unreasonably object to purchase such
Designated Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company and the Guarantor
that they have so arranged for the purchase of such Designated Securities, or
the Company and the Guarantor notify the Representatives that they have so
arranged for the purchase of such Designated Securities, the Representatives or
the Company and the Guarantor shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company and the Guarantor agree to
file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to
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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 and the Guarantor as
provided in subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of the Designated Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Designated Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the principal amount of Designated Securities which
such Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the Guarantor as
provided in subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred to in subsection (b)
above, or if the Company and the Guarantor 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 or the Guarantor, except for the expenses to be
borne by the Company, the Guarantor and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company, the Guarantor
and the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in
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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, the Guarantor or any officer or
director or controlling person of the Company or the Guarantor, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant
to Section 9 hereof, the Company and the Guarantor shall not then be under any
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Designated Securities are not delivered by or on
behalf of the Company and the Guarantor as provided herein, the Company and the
Guarantor will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Company and the Guarantor shall then be under no further
liability to any Underwriter with respect to such Designated Securities except
as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriter, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement. All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company or the Guarantor set forth
in the Registration Statement; 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.
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13. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the
Company, the Guarantor and, to the extent provided in Section 8 and Section 10
hereof, the officers and directors of the Company, the Guarantor and each
person who controls the Company and the Guarantor or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us ___ counterparts hereof.
Very truly yours,
CHUBB CAPITAL CORPORATION
By:__________________________
Name:
Title:
THE CHUBB CORPORATION
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26
By:__________________________
Name:
Title:
Accepted as of the date hereof:
By: ____________________________
Name:
Title:
26
27
ANNEX I
Pricing Agreement
[Name and Address of Representative(s)]
__________, 19__
Dear Sirs:
Chubb Capital Corporation, a New Jersey corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _______, 199_ (the "Underwriting Agreement"),
between the Company and The Chubb Corporation (the "Guarantor") on the one hand
and _________________________________ on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of
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the Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us ___ counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters, the Company and the Guarantor. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company and the
Guarantor for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
CHUBB CAPITAL CORPORATION
By:______________________
Name:
Title:
THE CHUBB CORPORATION
By:______________________
Name:
Title:
Accepted as of the date hereof:
[Name of Representatives]
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_______________________________
On behalf of each of the Underwriters
3
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SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriters Purchased
------------ ----------
[Names of Underwriters] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
==========
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SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate Principal Amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from [and accrued amortization, if any,
from ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from ] [and accrued amortization, if
any, from ]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture and Ranking:
The Designated Securities will be [subordinated] indebtedness of the
Company issued under the Indenture dated ________ __, 19__, between
the Company, the Guarantor and _______________, as Trustee
Guarantees:
The Designated Securities will be unconditionally guaranteed as to
payment of principal, premium, if any, and interest by the Guarantors
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
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Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, [in
the amount of [$] or an integral multiple thereof,] [on or after
, at the following redemption prices (expressed in percentages of
principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter] at 100% of their principal amount, together in each
case with accrued interest to the redemption date] [on any interest
payment date falling in or after , , at
the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$] principal amount of Designated Securities
on in each of the years through at 100% of
their principal amount plus accrued interest] [, together with
[cumulative] [noncumulative] redemptions at the option of the Company
to retire an additional [$]
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principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert--
Extendable provisions:
Securities are repayable on , [insert
date and years], at the option of the holder, at their principal
amount with accrued interest. Initial annual interest rate will be
%, and thereafter annual interest rate will be adjusted on
, and to a rate not less than % of the
effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
and ] [to an annual rate of
% above the average rate for -year [month] [securities]
[certificates of deposit] issued by and [insert
names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield
equivalent of the weekly average per annum market discount rate
for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) then current weekly
average per annum secondary market yield for -month
certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate
for -month Treasury bills); [from and
thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
Defeasance provisions:
Initial Conversion Price: $ Per share of Common Stock
Initial Conversion Date:
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Final Conversion Date:
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
4
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ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the
independent auditors shall furnish letters to the Underwriters to the effect
that:
(i) They are independent auditors with respect to the
Guarantor and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, prospective financial
statements and/or condensed financial statements derived from audited
financial statements of the Guarantor for the periods specified in
such letter, as indicated in their reports thereon, copies of which
have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of
the Guarantor for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Guarantor's Annual Reports on Form 10-K for such fiscal years;
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(iv) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Guarantor and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Guarantor's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with the basis for
the audited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Guarantor's
Annual Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which
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were derived the unaudited condensed financial statements
referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference in
the Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock of the Company upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or in
the combined net case reserves with respect to the business
managed by Chubb & Son Inc., or any increase in the
consolidated long-term debt or in notes and mortgages payable
of the Guarantor and its subsidiaries, combined net premiums
receivable with respect to the business managed by Chubb & Son
Inc. or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts as of the date of the
latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E)
there
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were any decreases in combined net premiums with respect to
the business managed by Chubb & Son Inc. or in the investment
income of the Guarantor and its property and casualty
insurance subsidiaries or any increases in the combined net
loss and loss adjustment expenses incurred (exclusive of
changes in incurred but not reported losses) with respect to
the business managed by Chubb & Son Inc. or any increases or
decreases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with the preceding period of corresponding
length specified by the Representatives, except in each case
for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(v) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (iv) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Guarantor and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference) or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the amounts included in or
which can be derived from audited financial statements or with the
accounting records of the Guarantor and its subsidiaries and have
found them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated
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Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
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