EXHIBIT 1.03
Hartford Capital II
Hartford Capital III
Hartford Capital IV
% Cumulative Quarterly Income Preferred Securities
(liquidation amount $25 per preferred security) guaranteed to the extent set
forth in the Guarantee by
ITT Hartford Group, Inc.
Underwriting Agreement
----------------------
__________ __, ____
To the Underwriters named in
Schedule I to the Pricing Agreement
Dear Sirs:
From time to time Hartford Capital II, Hartford Capital III or Hartford
Capital IV, each a statutory business trust formed under the laws of the State
of Delaware (each a "Trust" and collectively, the "Trusts") and ITT Hartford
Group, Inc., a Delaware corporation, as depositor of each trust and as guarantor
(the "Guarantor"), propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, that the Trust identified in Schedule I to
the applicable Pricing Agreement (such Trust being the "Designated Trust" with
respect to such Pricing Agreement) issue and sell to the firms named in Schedule
I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Firm Designated Securities") representing undivided beneficial
interests in the assets of the Designated Trust, guaranteed by the Guarantor to
the extent set forth in the guarantee agreement (the "Guarantee") identified in
such Pricing Agreement. If specified in such Pricing Agreement, the Designated
Trust may grant to the Underwriters the right to purchase at their election an
additional number of Securities, specified in such Pricing Agreement as provided
in Section 3 hereof (the "Optional Designated Securities"). The Firm Designated
Securities and any Optional Designated Preferred Securities are
collectively called the "Designated Securities." The proceeds of the sale of
the Designated Securities and of common securities of the Trust (the "Common
Securities") sold to the Guarantor are to be invested in junior subordinated
deferrable interest debentures of the Guarantor (the "Subordinated Debentures"),
to be issued pursuant to a junior subordinated indenture (the "Indenture")
identified in the Pricing Agreement.
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated trust agreement (the "Trust Agreement")
identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of any Trust to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of any Trust
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of Firm
Designated Securities, the maximum aggregate principal amount of Optional
Designated Securities, if any, the initial public offering price of such Firm
and Optional Designated Securities, the purchase price to the Underwriters of
such Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Trust Agreement and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications
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transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. Each of the Guarantor and the Designated Trust jointly and
severally represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus 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 (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the registration statement at the time it was
declared effective and (ii) all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective but excluding Forms T-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
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deemed to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Guarantor filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus 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, 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
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information furnished in writing to the Designated Trust or the Guarantor
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Designated Trust or the Guarantor by an Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus
as amended or supplemented relating to such Securities;
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the
business, properties, financial condition or results of operations of the
Designated Trust or the Guarantor and its subsidiaries taken as a whole
from the dates as of which information is given in the Registration
Statement and the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on the date of
the latest balance sheet included or incorporated by reference in the
Prospectus) or any material increase in the consolidated long-term debt of
the Guarantor and its subsidiaries or any material adverse change, or any
development involving a prospective material adverse
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change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Guarantor
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Guarantor and each subsidiary of the Guarantor which meets the
definition of a significant subsidiary as defined in Regulation S-X of the
Commission (each a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus;
(f) The Guarantor has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Guarantor
have been duly and validly authorized and issued and are fully paid and
non-assessable; all the outstanding beneficial interests in the Designated
Trust have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the
Prospectus;
(g) The Designated Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly and validly issued and fully paid
and non-assessable beneficial interests in the Designated Trust entitled to
the benefits provided by the Trust Agreement, which will be substantially
in the form filed as an exhibit to the Registration Statement;
(h) The holders of the Securities (the "Securityholders") will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware;
(i) The Common Securities of the Designated Trust have been duly
authorized on behalf of the Designated Trust by the depositor of the
Designated Trust and upon delivery by the Designated Trust to the Guarantor
against payment therefor as set forth in the Trust Agreement, will be duly
and validly issued and non-
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assessable beneficial interests in the Designated Trust and will conform to
the description thereof contained in the Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights; and
at each Time of Delivery, all of the issued and outstanding Common
Securities of the Designated Trust will be directly owned by the Guarantor
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(j) The Guarantee, the Trust Agreement, the Subordinated Debentures
and the Indenture (the Guarantee, the Trust Agreement, the Subordinated
Debentures and the Indenture being collectively referred to as the
"Guarantor Agreements") have each been duly authorized and when validly
executed and delivered by the Guarantor and, in the case of the Guarantee,
by the Guarantee Trustee (as defined in the Guarantee), in the case of the
Trust Agreement, by the Trustees (as defined in the Trust Agreement) and,
in the case of the Indenture, by the Trustee named therein (the "Debenture
Trustee"), and, in the case of the Subordinated Debentures, when validly
issued by the Guarantor and validly authenticated and delivered by the
Debenture Trustee, will constitute valid and legally binding obligations of
the Guarantor, enforceable in accordance with their respective terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Trust Agreement, the Indenture and the
Guarantee have been duly qualified under the Trust Indenture Act; the
Subordinated Debentures are entitled to the benefits of the Indenture; and
the Guarantor Agreements will conform to the descriptions thereof in the
Prospectus;
(k) The issue and sale of the Designated Securities and the compliance
by the Designated Trust with all of the provisions of the Designated
Securities, the Trust Agreement, this Agreement and any Pricing Agreement,
the purchase of the Subordinated Debentures by the Designated Trust and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Designated Trust is a party or
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by which the Designated Trust is bound or to which any of the property or
assets of the Designated Trust is subject, nor will such action result in
any violation of the provisions of the Trust Agreement or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Designated Trust or any of its properties; and
no consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the issue and sale of the Designated Securities and the Common Securities
by the Designated Trust, the purchase of the Subordinated Debentures by the
Designated Trust or the consummation by the Designated Trust of the
transactions contemplated by this Agreement or any Pricing Agreement or the
Trust Agreement, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters;
(l) The issuance by the Guarantor of the Guarantee, the compliance by
the Guarantor with all of the provisions of this Agreement and the Pricing
Agreement, the execution, delivery and performance by the Guarantor of the
Guarantor Agreements, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Guarantor or any of its Significant
Subsidiaries is a party or by which the Guarantor or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the
Guarantor or any of its Significant Subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or by-laws of the Guarantor or the charter or by-laws of any
of its Significant Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body (including, without
limitation, any insurance regulatory agency or body) having jurisdiction
over the Guarantor or any of its Significant Subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the
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issue of the Guarantee or the consummation by the Guarantor of the other
transactions contemplated by this Agreement or the Pricing Agreement,
except such as have been or will have been obtained prior to the First Time
of Delivery, the registration under the Act of the Securities and the
qualification of the Trust Agreement, the Indenture and the Guarantee under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase of the Securities and
distribution of the Securities by the Underwriters;
(m) Neither the Designated Trust nor the Guarantor is, and after
giving effect to the offering and sale of the Designated Securities,
neither the Designated Trust nor the Guarantor will be, an "investment
company" or an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
(n) Except as described in the Prospectus, there is no action, suit
or proceeding pending, nor to the knowledge of the Guarantor, is there any
action, suit or proceeding threatened, which might reasonably be expected
to result in a material adverse change in the financial condition, results
of operations or business of the Guarantor and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration Statement.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer the Firm
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable
to any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, at the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised only by written notice from the Representatives to the Designated
Trust and
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the Guarantor, given within a period specified in the Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof), or, unless the Representatives, the
Guarantor and the Designated Trust otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which each
of the Guarantor and the Designated Trust has been advised by the
Representatives have been attributed to such Underwriter, provided that, if each
of the Guarantor and the Designated Trust has not been so advised, the number of
Optional Designated Securities to be so added shall be, in each case, that
proportion of Optional Designated Securities which the number of Firm Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Designated Securities (rounded as the
Representatives may determine to the nearest 100 securities). The total number
of Designated Securities to be purchased by all the Underwriters pursuant to
such Pricing Agreement shall be the aggregate number of Firm Designated
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
number of the Optional Designated Securities which the Underwriters elect to
purchase.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Designated Trust, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same day) funds to the account specified
by the Designated Trust 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 Designated Trust may agree upon in writing. Such time and date for delivery
of Firm Designated
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Securities pursuant to the Pricing Agreement relating thereto is herein called
the "First Time of Delivery," such time and date for delivery of Optional
Designated Securities, if not the First Time of Delivery, is herein called the
"Second Time of Delivery," and each such time and date is herein called the
"Time of Delivery."
5. The Designated Trust and the Guarantor jointly and severally
agree with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the
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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;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith neither the Designated Trust nor the
Guarantor shall be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) In the case of the Guarantor, to make generally available to its
security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration
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Statement (as defined in Rule 158(c)), an earnings statement of the
Guarantor and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Guarantor Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Guarantor by the Representatives
and (ii) 30 days after the Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of any
Securities, any other beneficial interests in the assets of the Designated
Trust, or any preferred securities or any other securities of the
Designated Trust or the Guarantor, as the case may be, that are
substantially similar to such Designated Securities (including any
guarantee of such securities) or any securities that are convertible into
or exchangeable for, or that represent the right to receive securities,
preferred securities or any such substantially similar securities of either
the Designated Trust or the Guarantor;
(f) In the case of the Guarantor, to issue the Guarantee concurrently
with the issue and sale of the Securities as contemplated herein or in the
Pricing Agreement; and
(g) To use its best efforts to list, subject to notice of issuance,
the Securities on the New York Stock Exchange.
6. The Guarantor covenants and agrees with the several Underwriters
that the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Trusts' and the Guarantor's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Trust Agreement, any Indenture, any Guarantee, any Blue Sky or similar
investment surveys or memoranda and any other documents in connection with the
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offering, purchase, sale and delivery of the Securities; (iii) all reasonable
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities and the Subordinated
Debentures; (vii) the fees and expenses of any Trustee, Debenture Trustee and
Guarantee Trustee, and any agent of any trustee and the fees and disbursements
of counsel for any trustee in connection with any Trust Agreement, Indenture,
Guarantee and the Securities; (viii) the cost of qualifying the Securities with
The Depository Trust Company; (ix) all fees and expenses in connection with the
listing of the Securities on the New York Stock Exchange and the cost of
registering the Securities under Section 12 of the Exchange Act; and (x) all
other costs and expenses incident to the performance of its obligations
hereunder and under any Over-allotment Option which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the respective Time of Delivery
for such Designated Securities, true and correct, the condition that the
Designated Trust and the Guarantor shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations
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under the Act and in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the respective Time of
Delivery for such Designated Securities, with respect to the incorporation
of the Guarantor and the formation of the Designated Trust, the validity of
the Designated Securities, the Subordinated Debentures, the Guarantee, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Counsel for the Designated Trust and the Guarantor satisfactory to
the Representatives shall have furnished to the Representatives their
written opinion, dated the respective Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) The Guarantor has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Guarantor have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) Except as described in the Prospectus, there is no action,
suit or proceeding pending, nor to the best of such counsel's
knowledge, is there any action, suit or proceeding threatened, which
might reasonably be expected to result in a
-15-
material adverse change in the financial condition, results of
operations or business of the Guarantor and its subsidiaries taken as
a whole or which is required to be disclosed in the Registration
Statement;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Designated Trust and the Guarantor;
(v) The Designated Securities have been duly authorized by the
depositor on behalf of the Designated Trust, are duly and validly
issued and nonassessable beneficial interests in the Designated Trust
and are entitled to the benefits provided by the Trust Agreement; and
the Designated Securities conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of
the provisions of this Agreement, the execution, delivery and
performance by the Guarantor of the Guarantor Agreements and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Guarantor or any of its
Significant Subsidiaries is a party or by which the Guarantor or any
of its Significant Subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its Significant
Subsidiaries is subject, nor will such actions result in any violation
of the provisions of the Guarantor's Certificate of Incorporation or
by-laws or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body (including any
insurance regulatory agency or body) having jurisdiction over the
Guarantor or any of its Significant Subsidiaries or any of their
properties;
(vii) The Guarantor Agreements have each been duly authorized,
executed and delivered by the parties thereto and constitute valid and
legally
-16-
binding obligations of the Guarantor, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law); the Guarantor
Agreements conform to the descriptions thereof in the Prospectus as
amended or supplemented; the Subordinated Debentures are entitled to
the benefits provided by the Indenture; and the Trust Agreement, the
Indenture and the Guarantee have been duly qualified under the Trust
Indenture Act;
(viii) The issue and sale of the Designated Securities and the
compliance by the Designated Trust with all of the provisions of the
Designated Securities, the Trust Agreement, this Agreement and the
Pricing Agreement with respect to the Designated Securities, the
purchase by the Designated Trust of the Subordinated Debentures and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
agreement or instrument known to such counsel to which the Designated
Trust is a party or by which the Designated Trust is bound or to which
any of the property or assets of the Designated Trust is subject;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue of the Guarantee or the consummation by the
Guarantor of the transactions contemplated by this Agreement or such
Pricing Agreement or the Guarantor Agreements, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(x) Neither the Designated Trust nor the Guarantor is an
"investment company" or an entity
-17-
controlled by an "investment company" required to be registered under
the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and based upon specified participation of such counsel in
connection with the preparation of the Registration Statement, such
counsel has no reason to believe that any of such documents, when they
became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of other documents
which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein in
the light of the circumstances under which they were made when such
documents were so filed, not misleading; it being understood that such
counsel need express no opinion as to the financial statements or
other financial data included in any of the documents mentioned in
this clause and that such counsel may state that he has not
independently verified factual statements in any such documents; and
(xii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Guarantor or the Designated Trust prior to the Time of Delivery
for the Designated Securities (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; based upon specified
participation of such counsel in connection with the preparation of
the
-18-
Registration Statement and the Prospectus, such counsel has no reason
to believe that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Guarantor or the
Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Guarantor or the Designated Trust prior to the Time of
Delivery (other than the financial statements and related schedules
and other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances in which they were
made, not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Guarantor or
the Designated Trust prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to 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);
-19-
(d) Richards, Layton & Finger, special Delaware Counsel to the
Designated Trust and the Guarantor, shall have furnished to you, the
Guarantor and the Designated Trust their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you, to
the effect that
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of
the Designated Trust as a business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to own
property and conduct its business, all as described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and legally binding
obligation of the Guarantor and the Trustees, enforceable against the
Guarantor and the Trustees, in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to (a)
execute and deliver, and to perform its obligations under the
Underwriting Agreement and the Pricing Agreement, and (b) issue and
perform its obligations under the Designated Securities and the Common
Securities;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust of the
Underwriting Agreement and the Pricing Agreement, and the performance
by the Designated Trust of its obligations thereunder, have been duly
authorized by all necessary action on the part of the Designated
Trust;
(vi) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and
-20-
validly issued and, subject to the qualifications set forth herein,
fully paid and nonassessable beneficial interests in the Designated
Trust and are entitled to the benefits provided by the Trust
Agreement; the Securityholders, as beneficial owners of the Designated
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided
that such counsel may note that the Securityholders may be obligated,
pursuant to the Trust Agreement, to (a) provide indemnity and/or
security in connection with and pay taxes or governmental charges
arising from transfers or exchanges of Securities Certificates and the
issuance of replacement Securities Certificates and (b) provide
security and indemnity in connection with requests of or directions to
the Property Trustee (as defined in the Trust Agreement) to exercise
its rights and remedies under the Trust Agreement;
(vii) The Common Securities have been duly authorized by the Trust
Agreement and are validly issued and represent beneficial interests in
the Designated Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the Common
Securities is not subject to preemptive rights;
(ix) The issuance and sale by the Designated Trust of Designated
Securities and the Common Securities, the execution, delivery and
performance by the Designated Trust of the Underwriting Agreement and
the Pricing Agreement, the consummation by the Designated Trust of the
transactions contemplated thereby and compliance by the Designated
Trust with its obligations thereunder will not violate (a) any of the
provisions of the Certificate of Trust of the Designated Trust or the
Trust Agreement, or (b) any applicable Delaware law or administrative
regulation;
(x) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with
-21-
the Secretary of State of the State of Delaware) or employees in the
State of Delaware, no authorization, approval, consent or order of any
Delaware court or governmental authority or agency is required to be
obtained by the Designated Trust solely in connection with the
issuance and sale of the Designated Securities and the Common
Securities. In rendering the opinion expressed in this paragraph (x),
such counsel need express no opinion concerning the securities laws of
the State of Delaware; and
(xi) Assuming that the Designated Trust derives no income from or
connected with services provided within the State of Delaware and has
no assets, activities (other than maintaining the Delaware Trustee and
the filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware, the Securityholders
(other than those holders of the Securities who reside or are
domiciled in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their
participation in the Designated Trust, and the Designated Trust will
not be liable for any income tax imposed by the State of Delaware.
(e) Debevoise & Plimpton, as tax counsel for the Designated Trust and
the Guarantor, shall have furnished to you their written opinion, dated the
respective Time of Delivery, in form and substance satisfactory to you, to
the effect that such firm confirms its opinion set forth in the Prospectus
under the caption "Certain Federal Income Tax Considerations";
(f) At the respective Time of Delivery for such Designated
Securities, and, if so specified in the Pricing Agreement, on the date of
the Pricing Agreement, the independent accountants of the Guarantor who
have certified the financial statements of the Guarantor and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated such
Time of Delivery and, if applicable, such date of the Pricing Agreement,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request
-22-
and in form and substance satisfactory to the Representatives;
(g) Except as contemplated in the Prospectus, since the respective
dates as of which information is given in the Prospectus as amended or
supplemented until the respective Time of Delivery of the Designated
Securities, there shall not have been any change in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any material increase in
the consolidated or long-term debt of the Guarantor and its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented, the effect of which, in any such case is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the
Designated Securities, (i) no downgrading shall have occurred in the rating
accorded the Guarantor's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Guarantor's
debt securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities until the respective Time of Delivery of the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a material suspension or limitation in
trading in the Company's securities on the New York
-23-
Stock Exchange; (iii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war, 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;
(j) The Designated Securities to be sold by the Designated Trust at
the respective Time of Delivery shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange; and
(k) The Designated Trust and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the respective Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Guarantor satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Trust and the
Guarantor herein at and as of such Time of Delivery, as to the performance
by the Designated Trust and the Guarantor of all of their obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Designated Trust and the Guarantor will jointly and
severally indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with
-24-
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Guarantor
-------- -------
shall be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Designated Trust or
the Guarantor by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities and; provided, further, that neither the
-------- -------
Designated Trust nor the Guarantor shall be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that a court of competent jurisdiction has found by
final and nonappealable order that any such loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter sold Securities to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) (it being
understood that if at the time of any such claim such Underwriter shall certify
that it has sent or given the Prospectus as then amended or supplemented to any
person making such claim at or prior to the written confirmation of such sale,
it shall be presumed that such Prospectus has been so sent or given unless the
Designated Trust or the Guarantor shall have sustained the burden of proving, in
a court of competent jurisdiction by a final and nonappealable order, that the
facts are otherwise), if (i) such delivery to such person is required by Section
5 of the Act, (ii) the Designated Trust or the Guarantor has furnished copies of
such Prospectus as amended or supplemented to such Underwriter a reasonable
period of time prior to the Underwriter being required so to deliver such
Prospectus as amended or supplemented and (iii) such Prospectus as amended or
supplemented corrected the untrue or alleged untrue statement or omission or
alleged omission of material fact contained in the Preliminary Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Designated
Trust and the Guarantor against any losses, claims, damages or liabilities to
which the Designated Trust or the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims,
-25-
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Designated Trust or the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Designated Trust or the Guarantor for any legal or other expenses
reasonably incurred by the Designated Trust or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and 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.
-26-
(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 Designated Trust and the Guarantor on the one
hand and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Guarantor on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated
Trust and the Guarantor on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Designated Trust less the
total underwriting compensation paid by the Guarantor bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Designated Trust and the Guarantor on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Designated
Trust, the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages
-27-
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 person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Designated Trust and the Guarantor under
this Section 8 shall be in addition to any liability which the Designated Trust
and the Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Guarantor, to each administrative trustee of the
Designated Trust and to each person, if any, who controls the Designated Trust
or the Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Designated Securities or the Optional Designated Securities which it has
agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or such Optional Designated Securities, as the case may
be, then the Designated Trust and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
-28-
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust and the Guarantor that
they have so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Guarantor notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the Representatives or
the Designated Trust and the Guarantor shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Designated Trust and the Guarantor
agree to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives and
the Designated Trust and the Guarantor as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, to be purchased at the respective Time of Delivery, then the Designated
Trust and the Guarantor shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Firm Designated Securities or
Optional Designated Securities, as the case may be, which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Firm Designated
Securities or Optional Designated Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Designated Securities or Optional Designated Securities, as the case may be, of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
-29-
(c) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters by the Representatives and
the Designated Trust and the Guarantor as provided in subsection (a) above, the
aggregate principal amount of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate principal amount of the Firm Designated Securities or Optional
Designated Securities, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in subsection (b) above, or if the Designated
Trust and the Guarantor shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Firm Designated
Securities or Optional Designated Securities, as the case may be, of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating to
such Firm Designated Securities or Optional Designated Securities, as the case
may be, shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter, the Designated Trust or the Guarantor, except for the
expenses to be borne by the Designated Trust, the Guarantor and the Underwriters
as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Designated Trust, the Guarantor and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Designated Trust, the Guarantor, or any officer or
director or controlling person of the Designated Trust or the Guarantor, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Guarantor shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof; but, if
for any other reason Designated Securities are not delivered by or on behalf of
the Designated Trust as provided herein, the Designated Trust and the Guarantor
will reimburse the Underwriters
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through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust and the
Guarantor shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Guarantor shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Guarantor set forth in the Registration Statement:
Attention: Corporate Secretary, with a copy to Hartford Fire Insurance Company,
Hartford Plaza, Hartford, Connecticut 06115. Attention: Office of the
Treasurer, Facsimile Transmission No. (203) 547-6487; provided, however, that
-------- -------
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Designated Trust and the
Guarantor by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Designated Trust and
the Guarantor and, to the extent provided in Section 8 and Section 10 hereof,
the officers and directors of the Designated Trust or the Guarantor and each
person who controls the Designated Trust, the Guarantor or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing
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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.
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If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
ITT HARTFORD GROUP, INC.
By: _______________________
Name:
Title:
HARTFORD CAPITAL II
By: ITT Hartford Group, Inc.,
as Depositor
By: ________________________
Name:
Title:
HARTFORD CAPITAL III
By: ITT Hartford Group, Inc.,
as Depositor
By: ________________________
Name:
Title:
HARTFORD CAPITAL IV
By: ITT Hartford Group, Inc.,
as Depositor
By: ________________________
Name:
Title:
Accepted on behalf of ourselves and the other Underwriters listed below as of
the date hereof:
By: ______________________
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Annex I
Pricing Agreement
-----------------
To the Underwriters named in
Schedule I hereto.
_________ __, ____
Dear Sirs:
Hartford Capital ___, a statutory business trust formed under the laws
of the State of Delaware (the "Designated Trust") and ITT Hartford Group, Inc.,
a Delaware corporation (the "Guarantor"), propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated ________ __,
1996 (the "Underwriting Agreement"), between the Guarantor on the one hand and
the Underwriters named in Schedule I hereto (the "Underwriters"), on the other
hand, to issue and sell to the Underwriters the Securities specified in Schedule
II hereto (the "Designated Securities" consisting of Firm Designated Securities
and any Optional Designated Securities the Underwriters may elect to purchase).
Each of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the
-2-
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 incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto the principal amount of Firm Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto and, (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Designated Securities, as provided below, the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust at the purchase price to the Underwriters set out in Schedule II hereto
that portion of the number of Optional Designated Securities as to which such
election shall have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities 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 Designated Securities. Any such
election to purchase Optional Designated Securities may be exercised by written
notice from the Representatives to the Designated Trust and the Guarantor given
within a period of ____ calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Designated Securities to be
purchased and the date on which such Optional Designated Securities are to be
delivered, as determined by the Representatives but in no event earlier than the
First Time of Delivery or, unless the Representatives, the Guarantor and the
Designated Trust otherwise agree in writing, no earlier than two or later than
ten business days after the date of such notice.
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If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, the Trust and the Guarantor. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Guarantor for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
ITT HARTFORD GROUP, INC.
By:
-----------------------------
Name: J. Richard Garrett
Title: Vice President and
Treasurer
HARTFORD CAPITAL ____
By: ITT Hartford Group, Inc.,
as Depositor
By:
-----------------------------
Name:
Title:
-4-
Accepted as of the date hereof:
By:____________________________
On behalf of each of the Underwriters
-5-
SCHEDULE I
UNDERWRITER PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
FIRM OPTIONAL
DESIGNATED DESIGNATED
SECURITIES SECURITIES
TO BE TO BE
PURCHASED PURCHASED
$ $
Total.......
=========================
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SCHEDULE II
DESIGNATED TRUST:
Hartford Capital ___
TITLE OF DESIGNATED SECURITIES:
____% Cumulative Quarterly Income Preferred Securities
("QUIPS")
AGGREGATE PRINCIPAL AMOUNT:
Aggregate principal amount of Firm Designated
Securities: $__________________
Maximum aggregate principal amount of Optional Designated Securities:
$___________________
PRICE TO PUBLIC:
____% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
____% of the principal amount of the Designated Securities
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
New York Clearing House (next day) funds
ACCOUNTANTS' LETTER TO BE DELIVERED ON DATE OF PRICING AGREEMENT:
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated ____________, between the
Guarantor and the Trustees named therein
INDENTURE:
Indenture dated _______________, between the Guarantor and
________________, as Debenture Trustee (the "Indenture")
-7-
GUARANTEE:
Guarantee Agreement dated ____________, between Guarantor
and Guarantee Trustee
MATURITY:
INTEREST RATE:
____%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
No sinking fund provisions.
DEFEASANCE PROVISIONS:
[FIRST] TIME OF DELIVERY:
CLOSING LOCATION:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
NAMES AND ADDRESSES OF REPRESENTATIVES:
ANNEX II
Accountants' Letter
-------------------
Pursuant to Section 7(f) of the Underwriting Agreement, the
Guarantor's independent certified public accountants shall furnish letters to
the effect that:
(i) they are independent certified public accountants 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 reasonably
requested by the Representatives, 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 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 2 of the Guarantor's Registration
Statement on Form 10 or Item 6 of the Guarantor's Annual Report on Form 10-K
for the most recent fiscal year, as applicable, agrees with the corresponding
amounts (after restatement where applicable) in the audited consolidated
financial statements for the five such fiscal years which were included or
incorporated by reference in the Guarantor's Registration Statement on Form
10 or the Guarantor's Annual Reports on Form 10-K for such fiscal years, as
applicable;
(iv) on the basis of limited procedures, not constituting an
examination 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 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 (if any) 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 Registration
Statement on Form 10 of the Guarantor's Annual Report on Form 10-K for the
most recent fiscal year, as applicable;
(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 Registration
Statement on Form 10 or the Guarantor's Annual Report on Form 10-K for the
most recent fiscal year, as applicable;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited income
statement date 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 Registration Statement on Form
10 or the Guarantor's Annual Report on Form 10-K for the most recent fiscal
year, as applicable;
(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 upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated short-term
borrowings or long-term debt of the Guarantor and its subsidiaries or any
other items specified by the Representatives, or any decreases in total
investments, total assets or any other items specified by the
Representatives, in each case as compared with amounts shown in 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 were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other 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 examination 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 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, if so delivered, 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 Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.