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EXHIBIT 1(a)
AMERICAN GENERAL CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT
American General Corporation, a Texas corporation (the "Company"),
proposes to issue and sell from time to time certain of its senior debt
securities (the "Senior Securities") and/or its senior subordinated debt
securities (the "Subordinated Securities" and, together with the Senior
Securities, the "Debt Securities") and/or Warrants (the "Warrants") to purchase
Senior Securities and/or Subordinated Securities registered under the
registration statements referred to in Section 1(a) below (the Senior
Securities, Subordinated Securities and Warrants, or any combination thereof,
shall be referred to herein, individually or together, as the "Registered
Securities"). The Senior Securities will be issued under a senior indenture,
dated as of November 15, 1997 (the "Senior Indenture"), between the Company and
Bankers Trust Company, as Trustee, and the Subordinated Securities will be
issued under a senior subordinated indenture, dated as of November 15, 1997
(the "Subordinated Indenture"), between the Company and Bankers Trust Company,
as Trustee. The Senior Indenture and the Subordinated Indenture are each
sometimes referred to herein as the "Indenture". Bankers Trust Company, in its
capacity as trustee under the Senior Indenture and the Subordinated Indenture,
is referred to herein as the "Trustee". The Warrants will be issued under one
or more warrant agreements (the warrant agreement relating to any issue of
Warrants to be sold pursuant to this Underwriting Agreement (this "Agreement")
will be identified in the applicable Pricing Agreement (as hereinafter defined)
and is referred to herein as the "Warrant Agreement") between the Company and
the warrant agent identified in such Warrant Agreement (the "Warrant Agent").
The Registered Securities will be issued in one or more series which may vary
as to aggregate principal amounts, interest rates, maturities, sinking fund
requirements, redemption provisions, selling prices, exercise provisions and
any other terms which the Indenture or any Warrant Agreement, as the case may
be, contemplates may be contained in the Registered Securities as issued from
time to time. Particular series of the Registered Securities may be sold
pursuant to a Pricing Agreement substantially in the form set forth in Annex I
hereto (the "Pricing Agreement"), subject to the terms and conditions set forth
therein and herein. The Pricing Agreement will incorporate by reference the
provisions of this Agreement, except as otherwise provided therein. The Senior
Securities, the Subordinated Securities and the Warrants may be offered either
together or separately.
The Registered Securities that are the subject of a particular Pricing
Agreement are referred to herein as the "Securities"; provided that the Debt
Securities issuable upon exercise of Warrants are referred to herein as
"Warrant Securities." The firm or firms named in Schedule I to the Pricing
Agreement are referred to herein as the "Underwriters," and the representative
or representatives of the Underwriters, if any, specified in the Pricing
Agreement are referred to herein as the "Representatives"; provided, however,
that if the Pricing Agreement does not specify any representative of the
Underwriters, the term "Representatives" shall mean the Underwriters.
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As provided in Section 2 below, the Pricing Agreement may authorize
the Underwriters to solicit offers from certain investors to purchase
Securities from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"). Securities to be purchased pursuant to Delayed Delivery
Contracts are sometimes referred to herein as "Contract Securities," and
Securities to be purchased by the Underwriters (after giving effect to the
deduction, if any, for Contract Securities) are sometimes referred to herein as
"Underwriters' Securities."
Section 1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement (Nos. 333-_________,
333-________, 333-________, 333-________ and 333-_ ____) on Form S-3
relating to the Registered Securities, including the Securities, and
all post-effective amendments thereto required to the date of the
Pricing Agreement, have been filed with the Securities and Exchange
Commission (the "Commission") 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 on or prior to the date
of the Pricing Agreement, to the Representatives for each of the other
Underwriters) and such registration statement and each such amendment
thereto, if any, have been declared effective by the Commission and no
stop order suspending the effectiveness thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission. For purposes of this Agreement, (i) the term
"Registration Statement" shall mean the foregoing registration
statement, including all exhibits thereto and all documents
incorporated by reference therein as of the effective date thereof;
and any reference to the Registration Statement as amended (or similar
wording) shall mean the Registration Statement, including all
post-effective amendments thereto and all documents filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the effective date of the Registration
Statement and that are deemed to be incorporated by reference in the
Registration Statement upon the filing of such documents with the
Commission and the information, if any, deemed to be a part thereof
pursuant to Rule 434 under the Securities Act of 1933, as amended (the
"Act"); (ii) the term "Prospectus" shall mean the prospectus,
including all documents incorporated by reference therein as of the
date thereof, relating to the Registered Securities in the form
included in the Registration Statement as of the effective date
thereof or, if different, 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 the Pricing Agreement, as amended or supplemented to
reflect the terms of the offering of the Securities by (A) if the
Company elects not to rely on Rule 434 under the Act, the Prospectus
Supplement contemplated by Section 3(a) hereof, in the form in which
such Prospectus Supplement is filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 3(a) hereof or
(B) if the Company elects to rely on Rule 434 under the Act, the Term
Sheet contemplated by Section 3(a) hereof, in the form in which such
Term Sheet is filed with the Commission pursuant to Rule 424(b) (7)
under the Act in accordance with Section 3(a) hereof (and, in such
case, the term "Prospectus" shall include such Term
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Sheet and the Rule 434(c) (2) Prospectus referred to in Section 3(a),
if any, each individually and taken together); any reference to the
date of the Prospectus shall be deemed to refer to the date of such
Prospectus Supplement or Term Sheet, as the case may be, and any
reference to the Prospectus as amended or supplemented (or similar
wording) shall mean the Prospectus, including all supplements thereto
and all documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of the Prospectus and that are deemed to be incorporated by reference
in the Prospectus upon the filing of such documents with the
Commission; and (iii) the term "Preliminary Prospectus" shall mean any
preliminary prospectus, including all documents incorporated by
reference therein as of the date thereof, included in the registration
statement prior to the effectiveness thereof or filed with the
Commission pursuant to Rule 424(a) under the Act; and any reference to
any Preliminary Prospectus as amended or supplemented (or similar
wording) shall mean such Preliminary Prospectus, including all
documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of such
Preliminary Prospectus and that are deemed to be incorporated by
reference in the Preliminary Prospectus upon the filing of such
documents with the Commission. If the Company files a registration
statement to register a portion of the Securities and relies on Rule
462(b) under the Act for such registration statement to become
effective upon filing with the Commission (the "Rule 462 (b)
Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration
statement referred to above (Nos. 333-______ , 333-________,
333-________, 333-________ and 333-_________ (the "Original
Registration Statement")) and the Rule 462 (b) Registration Statement,
as each such registration statement may be amended pursuant to the
Act;
(b) The documents incorporated by reference in the
Prospectus, as amended or supplemented, when they were filed with the
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder, and, when read together with the other information
included or incorporated by reference in the Prospectus at the time
the Registration Statement became effective, at the time any
post-effective amendment thereto became effective and at the time any
annual report on Form 10-K was filed by the Company and incorporated
by reference into the Prospectus, 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 during the
period during which delivery of a prospectus is required in connection
with the offering or sale of the Securities, and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder and, when read together with the other information included
or incorporated by reference in the Prospectus at the time such
documents are filed with the Commission, none of such documents will
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
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upon and in conformity with information furnished in writing to the
Company by or on behalf of an Underwriter through the Representatives
expressly for use in the Prospectus;
(c) The Registration Statement, as amended, and the
Prospectus, as amended, conform, and any amendments or supplements
thereto filed during the period during which delivery of a prospectus
is required in connection with the offering or sale of the Securities
will conform, in all material respects to the applicable requirements
of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder. The Registration Statement, as amended, and the
Prospectus, as amended or supplemented, each as of the effective date
of the Registration Statement, as of the effective date of each
post-effective amendment to the Registration Statement, if any, and at
the time any annual report on Form 10-K was filed by the Company and
incorporated by reference into the Prospectus, did not, as of the date
of the Pricing Agreement do not, and as of the Time of Delivery (as
hereinafter defined) and during the period during which delivery of a
prospectus is required in connection with the offering and sale of the
Securities, will not, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of an
Underwriter through the Representatives expressly for use in the
Prospectus, or to the Statements of Eligibility on Form T-1 (the
"Forms T-1"), except as to statements or omissions in such Forms T-1
made in reliance upon information furnished in writing to the Trustee
by or on behalf of the Company for use therein;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the business, financial
condition, or results of operations of the Company and its
subsidiaries taken as a whole, other than as set forth or contemplated
in the Prospectus as amended or supplemented, whether or not arising
in the ordinary course of business;
(e) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Texas with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of
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business and is in good standing under the laws of each other
jurisdiction in which it owns or leases substantial properties, or
conducts business, and where the failure so to qualify and be in good
standing would have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole; each of the Company's
subsidiaries defined under the Indenture as a Designated Subsidiary
(herein the "Selected Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, has corporate power and authority
to own or lease its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
substantial properties, or conducts business, and where the failure so
to qualify and be in good standing would have a material adverse
effect on the business of the Company and its subsidiaries taken as a
whole; and each of the Company and the Selected Subsidiaries has all
required authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies
(including, without limitation, each insurance regulatory authority
having jurisdiction over the Company or any insurance subsidiary of
the Company) to own or lease its properties and conduct its business
as described in the Prospectus, except such authorizations, approvals,
orders, licenses, certificates and permits which, if not obtained,
would not have a material adverse effect on the business of the
Company and its subsidiaries taken as a whole, and neither the Company
nor any of the Selected Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
authorization, approval, order, license, certificate or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the business of
the Company and its subsidiaries taken as a whole;
(f) All of the outstanding shares of capital stock of
each of the Selected Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable, and (except for any
directors' qualifying shares) are owned, directly or indirectly, by
the Company, free and clear of all liens and encumbrances;
(g) The Securities have been duly authorized (or will
have been so authorized prior to their issuance) and, when executed
and authenticated pursuant to the Indenture or Warrant Agreement, as
the case may be, pursuant to which the Securities are being issued,
and issued and delivered against payment therefor pursuant to this
Agreement and the Pricing Agreement (or, in the case of any Contract
Securities, pursuant to the Delayed Delivery Contracts with respect
thereto), will be duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms
and entitled to the benefits of the Indenture or Warrant Agreement, as
the case may be, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; the Indenture or Warrant Agreement, as the
case may be, pursuant to which the Securities are being issued, has
been duly authorized, executed and delivered by the Company, and
constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Indenture has been duly qualified under the Trust Indenture Act; and
the Securities and the Indenture or Warrant Agreement, as the case may
be, conform in all material respects with the descriptions thereof in
the Prospectus;
(h) The Warrant Securities, if any, have been duly authorized
(or will have been so authorized prior to issuance of the Warrants
relating thereto) for issuance and sale upon the
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exercise of the Warrants, and, when executed and authenticated
pursuant to the terms and provisions of the Indenture and issued and
delivered against payment of the exercise price in accordance with the
terms of the Warrant Agreement, will be duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Warrant Securities, if any, will conform in all
material respects with the description thereof in the Prospectus;
(i) In the event any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been (or will be prior to the Time of Delivery) duly
authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and such Delayed Delivery
Contracts will conform in all material respects to the description
thereof in the Prospectus;
(j) The issue and sale of the Securities and Warrant
Securities, if any, the compliance by the Company with all of the
provisions of the Securities and Warrant Securities, if any, the
Indenture, the Warrant Agreement, if any, each of the Delayed Delivery
Contracts, if any, this Agreement and the Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not (i) conflict with or result in a breach 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 for
money borrowed to which the Company or any of the Selected
Subsidiaries is a party or by which the Company or any of the Selected
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Selected Subsidiaries is subject, or (ii) result
in any violation of (x) the provisions of the Restated Articles of
Incorporation, as amended, or the Amended and Restated By-Laws of the
Company or (y) to the best knowledge of the Company, any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of the Selected
Subsidiaries or any of their properties, in any manner which, in the
case of clauses (i) and (ii)(y), would have a material adverse effect
on the business of the Company and its subsidiaries taken as a whole;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or Warrant
Securities, if any, or the consummation by the Company of the other
transactions contemplated by this Agreement, the Pricing Agreement,
the Indenture, the Warrant Agreement, if any, or any Delayed Delivery
Contract, 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
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under "blue sky" or state securities laws or insurance laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(k) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of the Selected Subsidiaries is a party or of
which any property of the Company or any of the Selected Subsidiaries
is subject which, individually or in the aggregate, are expected to
have a material adverse effect on the business, financial condition,
or results of operations of the Company and its subsidiaries taken as
a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and
(l) The Company is not and, after giving effect to the
issue and sale of the Securities and Warrant Securities, if any, will
not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
Section 2. Purchase and Offering of Securities. The obligation of
the Company 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 Securities specified therein. The
Pricing Agreement shall specify the aggregate principal amount (in the case of
Debt Securities) or the number (in the case of Warrants) of the Securities, the
initial public offering price of such Securities, the purchase price to the
Underwriters of such Securities, the names of the Underwriters of such
Securities (subject to substitution as provided by Section 7 herein), the names
of the Representatives of such Underwriters, the principal amount or number of
such Securities to be purchased by each Underwriter and whether any of such
Securities shall be covered by Delayed Delivery Contracts and the commission
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth in the
Indenture or Warrant Agreement, as the case may be, pursuant to which the
Securities are being issued, and the Registration Statement and Prospectus) the
terms of such Securities. The Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and the Pricing Agreement
shall be several and not joint. Upon the execution of the Pricing Agreement
and authorization by the Representatives of the release of the Underwriters'
Securities, the several Underwriters propose to offer the Underwriters'
Securities for sale upon the terms and conditions set forth in the Prospectus.
Underwriters' Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement, 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 twenty-four hours prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for
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the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor, by certified or official bank check
or checks, payable to the order of the Company or by wire transfer to a bank
account specified by the Company, in the funds specified in the Pricing
Agreement, all at the place and time and date specified in the Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for the Underwriters' Securities.
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement in the amount of any compensation payable by the Company to
the Underwriters in respect of any Delayed Delivery Contracts as provided in
this Section and in the Pricing Agreement.
The Company may specify in Schedule II to the Pricing Agreement that
the Underwriters are authorized to solicit offers to purchase Securities from
the Company pursuant to Delayed Delivery Contracts, substantially in the form
of Annex III attached hereto but with such changes therein as the
Representatives and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Representatives, for the accounts of the
Underwriters, at the Time of Delivery such commission, if any, as may be set
forth in the Pricing Agreement. Delayed Delivery Contracts, if any, are to be
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any
responsibility in respect of the validity or performance of any Delayed
Delivery Contracts.
The principal amount (in the case of Debt Securities) or number (in
the case of Warrants) of Contract Securities to be deducted from the principal
amount or number of Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement shall be equal to the principal amount
or number of Contract Securities which the Company has been advised by the
Representatives have been attributed to such Underwriter, provided that, if the
Company has not been so advised, the amount or number of Contract Securities to
be so deducted shall be, in each case, that proportion of Contract Securities
which the principal amount or number of Securities to be purchased by such
Underwriter under the Pricing Agreement bears to the total principal amount or
number of the Securities (rounded as the Representatives may determine). The
total principal amount or number of Underwriters' Securities to be purchased by
all the Underwriters pursuant to the Pricing Agreement shall be the total
principal amount or number of Securities set forth in Schedule I to the Pricing
Agreement less the principal amount or number of the Contract Securities. The
Company will deliver to the Representatives not later than 3:30 p.m., New York
City time, on the second business day preceding the Time of Delivery (or such
other time and date as the Representatives and the Company may agree upon in
writing) a written notice setting forth the names of the investors with which
the making of Delayed Delivery Contracts has been approved by the Company and
the principal amount or number of Contract Securities to be covered by each
such Delayed Delivery Contract.
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Section 3. Certain Agreements of the Company. The Company agrees
with each of the Underwriters:
(a) Immediately following the execution of the Pricing
Agreement, to prepare (i) if the Company elects not to rely on Rule
434 under the Act, an amendment or supplement to the prospectus
related to the Registered Securities to reflect the terms of the
offering of the Securities (the "Prospectus Supplement") in a form
reasonably approved by the Representatives, and to file the Prospectus
Supplement pursuant to Rule 424(b) (2) or (5) under the Act by 3:00
p.m., New York City time, on the business day immediately succeeding
the date of the Pricing Agreement (or such other time as shall be
specified in the Pricing Agreement), or (ii) if the Company elects to
rely on Rule 434 under the Act, (A) an abbreviated term sheet relating
to the Securities (the "Term Sheet") that complies with the
requirements of Rule 434(c) (3) and (e) under the Act in a form
reasonably approved by the Representatives, and (B) if required by
Rule 434(c) (2) under the Act, a form of Prospectus relating to the
Securities (the "Rule 434(c) (2) Prospectus") complying with Rule
434(c) (2) under the Act in a form reasonably approved by the
Representatives, and to file such Term Sheet pursuant to Rule 424(b)
(7) under the Act, and any such Rule 434(c) (2) Prospectus pursuant to
Rule 424(b) under the Act, in each case by 3:00 p.m., New York City
time, on the business day immediately succeeding the date of the
Pricing Agreement (or such other time as shall be specified in the
Pricing Agreement); except as otherwise required by law, to make no
amendment or supplement to the Registration Statement or Prospectus
after the date of the Pricing Agreement and prior to the Time of
Delivery which shall be reasonably disapproved by the Representatives
promptly after reasonable notice thereof; for so long as the delivery
of a prospectus is required in connection with the offering or sale of
the Securities, to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, and 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 (other than any
supplement or amendment to the Prospectus relating exclusively to a
series of Registered Securities other than the Securities) has been
filed or transmitted for filing 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 (other than any supplement or amendment to the Prospectus
relating exclusively to a series of Registered Securities other than
the Securities) or for additional information; and, in the event of
the issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
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(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities and
any Warrant Securities for offering and sale under the securities and
insurance laws of such jurisdictions as the Representatives may
reasonably request and to comply with such laws to the extent
necessary 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, however, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
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 or condition exist
as a result of which the Prospectus, as it may then be 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, in
the opinion of the Representatives or the Company, 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 of such event, condition, filing, amendment
or supplement and upon the Representatives' request to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its security holders
as soon as practicable, but in any event not later than 90 days
following the close of the period covered thereby, an earnings
statement, covering a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Act) of the
Registration Statement, of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including Rule
158);
(e) During the period beginning from the date of the
Pricing Agreement and continuing to and including the Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company (except for any debt securities
issued upon exercise of outstanding warrants, if any, and except that
the Company shall have the right to close during such period the sale
of any debt securities under its medium-term note programs that it had
agreed to sell on or before the date of the Pricing Agreement and of
which it had informed the Representatives prior to their execution of
the Pricing Agreement)
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having an original maturity of more than one year after such Time of
Delivery, or any warrants for the purchase of any such debt securities
of the Company, without the prior consent of the Representatives; and
(f) The Company shall file in a timely manner all
documents required to be filed with the Commission pursuant to
Sections 13 and 14 of the Exchange Act.
Section 4. Payment of Expenses. The Company agrees to pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Registered Securities and any Warrant 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, the Pricing Agreement, the
Indenture, any Warrant Agreement, any Delayed Delivery Contracts, any Blue Sky
and Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Registered Securities and any
Warrant Securities; (iii) all expenses in connection with the qualification of
the Registered Securities and any Warrant Securities for offering and sale
under state securities laws as provided in Section 3(b) hereof, including the
reasonable 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 and any Warrant 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 and any Warrant Securities; (vi) the
cost of preparing the Securities and any Warrant Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and of any Warrant Agent
and any agent of any Warrant Agent; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder and under any Delayed
Delivery Contracts which are not otherwise specifically provided for in this
Section 4. It is understood, however, that, except as provided in this Section
4, Section 6 and Section 8 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees and disbursements of their own counsel,
transfer taxes on resale of any of the Securities or Warrant Securities by
them, and any advertising expenses connected with any offers they may make.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters under the Pricing Agreement shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties of the Company in or incorporated by reference
in the Pricing Agreement are, at and as of the Time of Delivery, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus Supplement or, if the Company shall
have elected to rely on Rule 434 under the Act, the Term Sheet and any
Rule 434 (c) (2) Prospectus required by Rule 434 (c) (2) under the
Act, shall have been filed with the Commission pursuant to Rule 424(b)
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within the applicable time period prescribed therefor by Section 3(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement 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) ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters (or
such other counsel as shall be indicated in the Pricing Agreement),
shall have furnished to the Representatives such opinion or opinions,
dated the Time of Delivery, with respect to the due and valid
authorization, execution and delivery of the Indenture, the Warrant
Agreement, if any, the Securities and the Delayed Delivery Contracts,
if any, and the Registration Statement, the Prospectus 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 (in
rendering such opinion or opinions, ▇▇▇▇▇ & Wood LLP may rely as to
matters of Texas law upon the opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. (or
other counsel licensed to practice in the State of Texas) and of the
General Counsel, the Deputy General Counsel or the Associate General
Counsel - Corporate/Finance of the Company referred to in subsections
5(c) and 5(d), respectively);
(c) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company (or
such other counsel as shall be indicated in the Pricing Agreement),
shall have furnished to the Representatives their written opinion,
dated the Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(ii) The Pricing Agreement (including the provisions of
this Agreement) and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(iii) The Indenture or Warrant Agreement, as the case may
be, pursuant to which the Securities are being issued has been
duly authorized, executed and delivered by the Company and
(assuming the Indenture or Warrant Agreement, as the case may
be, has been duly authorized, executed and delivered by the
Trustee or Warrant Agent, as applicable) constitutes a valid
and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equity
principles; such Indenture has been duly qualified under the
Trust Indenture Act; and such Indenture or Warrant Agreement,
as the case may be, conforms in all material respects to the
description thereof in the Prospectus;
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(iv) The Securities have been duly authorized and, when
executed and authenticated pursuant to the Indenture or
Warrant Agreement, as the case may be, pursuant to which the
Securities are being issued, and issued and delivered against
payment therefor pursuant to this Agreement and the Pricing
Agreement (or, in the case of any Contract Securities,
pursuant to the Delayed Delivery Contracts with respect
thereto), will be duly executed, authenticated, issued and
delivered and will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of
such Indenture or Warrant Agreement, as the case may be,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Securities are in the
form authorized in or pursuant to the Indenture or Warrant
Agreement, as the case may be, pursuant to which the
Securities are being issued and conform in all material
respects to the description thereof in the Prospectus;
(v) The Warrant Securities, if any, have been duly
authorized for issuance and sale upon the exercise of the
Warrants, and, when executed and authenticated pursuant to the
terms and provisions of the applicable Indenture and issued
and delivered against payment of the exercise price in
accordance with the terms of the Warrant Agreement, will be
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with
their terms and entitled to the benefits of the applicable
Indenture, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the form of Warrant
Securities, if any, conforms in all material respects to the
description thereof in the Prospectus;
(vi) The Registration Statement is effective under the
Act and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or threatened by the Commission;
(vii) The Registration Statement, at the time it became
effective, and as amended or supplemented as of the date of
the Pricing Agreement (or, if the Company shall have elected
to rely on Rule 434 under the Act, as of the time the Term
Sheet was filed with the Commission pursuant to Rule 434(b)
(7) under the Act) (other than the financial statements and
other financial information included therein or the Forms T-1,
as to which no opinion or belief need be expressed), appeared
on its face to be appropriately responsive in all material
respects to the applicable requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the
Commission thereunder; and
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(viii) The Company is not, and, after giving effect to the
issue and sale of the Securities and Warrant Securities, if
any, will not be, an "investment company" as such term is
defined in the Investment Company Act.
In addition, such opinion shall also contain a
statement that no facts have come to such counsel's attention
that lead them to believe that the Registration Statement
(other than the financial statements and other financial and
statistical data contained therein, as to which such counsel
need not express any comment), at the time it became
effective, and if an amendment to the Registration Statement
or an annual report on Form 10-K has been filed by the Company
with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time each such amendment
became effective and the most recent such Form 10-K was filed,
as the case may be, and as of the date of the Pricing
Agreement, 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 the Prospectus (other than the financial statements and
other financial and statistical data contained therein, as to
which such counsel need not express any comment), as amended
or supplemented to reflect the terms of the offering of the
Securities by the Prospectus Supplement or Term Sheet, as the
case may be, and as amended or supplemented at the Time of
Delivery, contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(d) The General Counsel, the Deputy General Counsel or
the Associate General Counsel - Corporate/Finance of the Company shall
have furnished to the Representatives his or her written opinion,
dated the Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each of the Selected Subsidiaries has been duly
incorporated and is validly existing as a business corporation
or an insurer, as the case may be, in good standing under the
laws of its jurisdiction of incorporation, provided, however,
that "good standing" means with respect to any corporation
incorporated under the laws of the State of Indiana that such
corporation has filed its most recent annual report required
by the laws of the State of Indiana and Articles of
Dissolution have not been filed in the State of Indiana with
respect to such corporation; to the knowledge of such counsel,
each of the Company and the Selected Subsidiaries has been
duly qualified as a foreign corporation for the transaction of
business or licensed to transact business as an insurance
company, as the case may be, and is in good standing under the
laws of each other jurisdiction in which it owns or leases
substantial properties, or conducts business, and where the
failure so to qualify would have a material adverse effect on
the business of the Company and its subsidiaries taken as a
whole; all of the outstanding shares of capital stock of each
Selected Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable, and (except for any
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directors' qualifying shares) are owned, directly or
indirectly, by the Company, free and clear of all liens and
encumbrances; and, to the knowledge of such counsel, each of
the Company and the Selected Subsidiaries has all required
authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and
bodies (including, without limitation, each insurance
regulatory authority having jurisdiction over the Company or
any insurance subsidiary of the Company) to own or lease its
properties and to conduct its business as described in the
Prospectus, except such authorizations, approvals, orders,
licenses, certificates and permits which, if not obtained,
would not have a material adverse effect on the business of
the Company and its subsidiaries taken as a whole (such
counsel being entitled to rely in respect of the opinion in
this clause (i) upon opinions (in form and substance
reasonably satisfactory to the Representatives) of local
counsel and of counsel for the Selected Subsidiaries, such
counsel being acceptable to counsel for the Underwriters,
copies of which shall be furnished to the Representatives; and
in respect of matters of fact upon certificates of officers of
the Company or the Selected Subsidiaries, provided that such
counsel shall state that he or she believes that he or she is
justified in relying upon such opinions and certificates);
(ii) To the knowledge of such counsel, there are no
legal or governmental proceedings pending or threatened of a
character that are required to be disclosed in the
Registration Statement and Prospectus, other than as disclosed
therein; to the knowledge of such counsel, there are no
contracts, indentures, mortgages, deeds of trust, loan
agreements or other documents of a character required to be
described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein) or to
be filed as exhibits to the Registration Statement that are
not described and filed as required;
(iii) The issue and sale of the Securities and Warrant
Securities, if any, the compliance by the Company with all of
the provisions of the Securities, the Warrant Securities, if
any, the applicable Indenture, the Warrant Agreement, if any,
each of the Delayed Delivery Contracts, if any, this Agreement
and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not (A)
conflict with or result in a breach 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 for money borrowed to which the Company or any of
its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
or (B) result in any violation of (x) the provisions of the
Restated Articles of Incorporation or the Amended and Restated
By-Laws of the Company or (y) any statute or any order, rule
or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties,
in any manner which, in the case of clauses (A) and (B)(y),
would have a material adverse effect on the business of the
Company
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and its subsidiaries taken as a whole (such counsel being
entitled to rely in respect of the opinion in this clause
(iii) with respect to subsidiaries upon opinions (in form and
substance reasonably satisfactory to the Representatives) of
counsel for the subsidiaries, such counsel being acceptable to
counsel for the Underwriters, copies of which shall be
furnished to the Representatives, provided that such counsel
shall state that he or she believes that he or she is
justified in relying upon such opinions); and
(iv) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities or the Warrant Securities, if any, or the
consummation by the Company of the other transactions
contemplated by this Agreement, the Pricing Agreement, the
applicable Indenture, the Warrant Agreement, if any, or any
Delayed Delivery Contract, except such as may be required
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under "blue sky" or state securities laws or
insurance laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(e) At the Time of Delivery, the independent certified
public accountants who have audited the consolidated financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter or letters dated such Time
of Delivery, with respect to such consolidated financial statements,
in form and substance reasonably satisfactory to the Representatives,
to the effect set forth in Annex II hereto;
(f) Since the date of the Pricing Agreement and since the
respective dates as of which information is given in the Prospectus,
there shall have been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
business, financial condition, or results of operations of the Company
and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, the effect of which is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Underwriters' Securities on the terms and in the
manner contemplated in the Prospectus;
(g) Subsequent to the date of the Pricing Agreement, no
downgrading shall have occurred in the rating accorded the Company's
long-term debt securities by either ▇▇▇▇▇'▇ Investors Service, Inc. or
Standard & Poor's Ratings Services;
(h) Subsequent to the date of the Pricing Agreement, 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 or any other exchange on which application shall have
been made to list the Securities; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal
or New York State authorities; or (iii) the
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engagement by the United States in hostilities which have resulted in
the declaration of a national emergency or war on or after the date of
such Pricing Agreement, if the effect of any such event specified in
this subsection 5(h), in the reasonable judgment of the
Representatives, makes it impracticable to proceed with the public
offering or the delivery of the Underwriters' Securities on the terms
and in the manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery, a
certificate or certificates of the Company signed by the Chairman, the
Vice Chairman, the President or a Vice President as to the accuracy of
the representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to such Time of
Delivery, and as to the matters set forth in the first two clauses of
subsection 5(a) and in subsection 5(f).
Section 6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, as incurred, 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, the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating,
preparing for or defending against any such action or claim, commenced
or threatened; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives expressly for use therein;
and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus to the extent that any such
loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Underwriters' 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 therein)
in any case where such delivery is required by the Act if the Company
has previously furnished copies thereof to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an
untrue statement or omission or alleged untrue statement or omission
of a material fact contained in the Preliminary
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Prospectus which was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities, as
incurred, to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the
Prospectus, 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, the Registration Statement, the Prospectus, or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such
Underwriter through the Representatives expressly for use therein, and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating, preparing
for or defending against any such action or claim, commenced or
threatened.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement or threat 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 or threat 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 commenced or threatened
against any indemnified party and it shall notify the indemnifying
party of the commencement or threat thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish and so elect within a reasonable time after receipt of such
notification, 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 it being
understood that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (provided that local counsel
may be retained to the extent necessary) for all such indemnified
parties (treating the indemnified party and the persons referred to in
subsection (e) below to which the provisions of this Section 6 shall
extend as a single indemnified party for such purpose)), 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
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of investigation. Whether or not the indemnifying party elects to
assume the defense of any action commenced or threatened in accordance
with this subsection (c), the indemnifying party shall not be liable
for any settlement of such action effected by the indemnified party
unless such settlement is effected with the prior written consent of
the indemnifying party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities. 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 or is not entitled to receive the
indemnification provided for in subsection (a) above because of the
second proviso thereof, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, including, with respect
to any Underwriter, the extent to which such losses, claims, damages
or liabilities (or actions in respect thereof) with respect to any
Preliminary Prospectus result from the fact that such Underwriter sold
Underwriters' 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) in any case where such delivery is required
by the Act, if the Company has previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability results from
an untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the Preliminary Prospectus
which was corrected in the Prospectus (or the Prospectus as amended or
supplemented). The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in
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this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating,
preparing for or defending against 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 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 in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect
to the Securities and not joint.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company 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 6 shall be
in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
Section 7. Default of Underwriters.
(a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase
under the Pricing Agreement, the Representatives may in their
discretion arrange for themselves or another party or other parties to
purchase such Underwriters' Securities on the terms contained herein.
If within twenty-four hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Underwriters'
Securities, then the Company shall be entitled to a further period of
twenty-four hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such
Underwriters' Securities on such terms. In the event that, within the
respective prescribed periods, the Representatives notify the Company
that they have so arranged for the purchase of such Underwriters'
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Underwriters' Securities, the
Representatives or the Company shall have the right to postpone the
Time of Delivery for such Underwriters' 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, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement
or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this
Agreement and the Pricing Agreement shall include any person
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substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate amount of such Underwriters'
Securities which remains unpurchased does not exceed ten percent of
the aggregate amount of the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the
amount of Underwriters' Securities which such Underwriter agreed to
purchase under the Pricing Agreement and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on
the amount of the Securities which such Underwriter agreed to purchase
under the Pricing Agreement) of the Underwriters' Securities of such
defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default. The respective
commitments of the Underwriters for purposes of this Section shall be
determined without regard to reduction in the respective Underwriters'
obligations to purchase the amounts of the Securities set forth
opposite their names in Schedule I to the Pricing Agreement as a
result of Delayed Delivery Contracts, if any, entered into by the
Company.
(c) If, after giving effect to any arrangements for the
purchase of the Underwriters' Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate amount of Underwriters' Securities
which remains unpurchased exceeds ten percent of the aggregate amount
of the Securities as determined as set forth in subsection (b) above,
or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase
Underwriters' Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 4 hereof and the indemnity and
contribution agreements in Section 6 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(d) As used in this Section 7 only, "aggregate amount" refers
to the aggregate principal amount of any Debt Securities and the
public offering price of any Warrants.
Section 8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company 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
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities. If the Pricing
Agreement shall be
-21-
22
terminated pursuant to Section 7 hereof, the Company shall not then be under
any liability to any Underwriter except as provided in Section 4 and Section 6
hereof; but, if for any other reason Underwriters' Securities are not delivered
by or on behalf of the Company as provided herein, the Company will reimburse
the Underwriters through the Representatives for all reasonable out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of
the Underwriters' Securities, but the Company shall then be under no further
liability to any Underwriter with respect to the Securities except as provided
in Section 4 and Section 6 hereof.
Section 9. Parties and Notices.
(a) In all dealings hereunder, the Representatives shall act on
behalf of each of the 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; and
(b) All statements, requests, notices and agreements hereunder shall
be in writing, or by telegram or facsimile transmission if promptly confirmed
in writing, and if to the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representatives, as such, at the
address of the Representatives designated for such purpose as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 6(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request.
Section 10. Successors. This Agreement and the Pricing Agreement
shall be binding upon, and inure solely to the benefit of the Underwriters, the
Company and, to the extent provided in Section 6 and Section 8 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or the Pricing Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
Section 11. Governing Law. This Agreement and the Pricing Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New York applicable to agreements made and to be performed in such State.
Section 12. Counterparts. The Pricing Agreement may be executed by
any one or more of the parties thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
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23
ANNEX I
Pricing Agreement
[Name of Representatives]
[Name of Co-Representative(s)]
As representatives of the several
Underwriters named in Schedule I hereto
[c/o Representatives]
[Address of Representative]
............, 19...
Dear Sirs:
American General Corporation, a Texas corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (Nos. 333-______, 333-________ 333-_________,
333-________ and 333-_______) and attached hereto (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the [debt securities (the "Debt Securities")] [and]
[warrants to purchase debt securities (the "Warrants")] specified in Schedule
II hereto ([such Debt Securities and Warrants being collectively referred to
as] the "Securities"). 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 Pricing Agreement to the same extent as if such provisions had
been set forth in full herein; and each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of
this Pricing Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement 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 each of the Underwriters
pursuant to Section 9 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 9 are set forth in Schedule II
hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the [principal amount of Debt Securities] [and] [number of Warrants]
set forth opposite the name of such Underwriter in Schedule I hereto, [less the
[principal amount of Debt Securities] [and] [number of Warrants] covered by
Delayed Delivery Contracts, if any, as may be specified in such Schedule II].
If the foregoing is in accordance with your understanding, please sign
and return to us _____________ counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the
-1-
24
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 and the
Company.
Very truly yours,
AMERICAN GENERAL CORPORATION
By:
------------------------------
(Title)
Accepted as of the date hereof:
[Name of Representative Corporation
By: ]
------------------------------
(Title)
[Name of Representative Partnership
---------------------------------
(Name of Representative Partnership)]
On behalf of each of the Underwriters
-2-
25
SCHEDULE I
[Principal Amount of [Number of
Debt Securities to be Warrants to
Underwriter Purchased be Purchased
----------- --------------------- ------------
[Name of Representatives] ................ $
[Names of other Underwriters] ............
-------- -------
Total ............................. $ ] ]
======== =======
-1-
26
SCHEDULE II
[If Securities include Debt Securities, insert --
TITLE OF DEBT [_____%] [Floating Rate] [Zero Coupon] [Senior] [Subordinated]
SECURITIES: [Notes] [Debentures] Due
FORM OF DEBT [Global Security - Book Entry] [Certificated] [Bearer]
SECURITIES:
AGGREGATE PRINCIPAL $________________
AMOUNT:
PRICE TO PUBLIC: _____% of the principal amount of the Debt Securities, plus
accrued interest[, if any,] from ________ to ___________ [and
accrued amortization, if any, from __________ to __________]
PURCHASE PRICE BY ____% of the principal amount of the Debt Securities
UNDERWRITERS: plus accrued interest[, if any,] from __________ to
____________ [and accrued amortization, if any, from
___________ to __________]
METHOD OF AND SPECIFIED FUNDS FOR [By certified or official bank check or checks, payable to the
PAYMENT OF PURCHASE PRICE: order of the Company in [New York] Clearing House funds]
[By wire transfer to a bank account specified by the Company in
immediately available funds]
INDENTURE: [Senior Indenture, dated as of November 15, 1997, between the
Company and Bankers Trust Company, as Trustee.]
[Senior Subordinated Indenture, dated as of November 15, 1997,
between the Company and Bankers Trust Company, as Trustee.]
-1-
27
TIME OF DELIVERY: [Time and date], 19__.
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES: Designated Representatives:
Address for Notices, etc.:
[SECURITIES EXCHANGE: Debt Securities to be listed on the [New York] Stock Exchange]
[FILING DATE: Time and date Prospectus Supplement and/or Term Sheet to be filed
pursuant to Rule 424 (b) [if different than provided in Section
3(a)]]
DELAYED DELIVERY: [None] [Underwriters' commission shall be ____% of the principal
amount of Debt Securities for which Delayed Delivery Contracts have
been entered into. Such commission shall be payable to the order
of ______________________________.]
MATURITY:
INTEREST RATE: [_____%] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES: [months and dates]
RECORD DATES:
-2-
28
REDEMPTION PROVISIONS: [No provisions for redemption]
[The Debt Securities may be redeemed, [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, in
the amount of $__________ or an integral multiple thereof,
___________]
[on or after ______________________, _______ at the following
redemption prices (expressed in percentages of principal amount).
If [redeemed on or before __________________, _____%, and if]
redeemed during the 12-month period beginning ______________,
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after
_________________, ___________, at the election of the Company, at
a redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
REPAYMENT PROVISIONS: [None] [Debt Securities are repayable on ________, ___ [insert
date and year[s]], at the option of the holder, at their
principal amount with accrued interest.]
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29
SINKING FUND PROVISIONS: [No sinking fund provisions]
[The Debt Securities are entitled to the benefit of a sinking
fund to retire $_________ principal amount of Debt Securities
on ___________ in each of the years _____ through _____ at 100%
of their principal amount plus accrued interest] [, together
with [cumulative] [non-cumulative] redemptions at the option of
the Company to retire an additional $_________ principal amount
of Debt Securities in the years _____ through _____ at 100% of
the principal amount plus accrued interest.]
[If Debt Securities are Extendible Securities, insert --
EXTENDIBLE PROVISIONS: Debt Securities are repayable on ______________, ____________
[insert date and years], at the option of the holder at their
principal amount with accrued interest. Initial annual
interest rate will be _____%, and thereafter annual interest
rate will be adjusted on ___________, __________________ and
_______ to a rate not less than _____% of the effective annual
interest rate on U.S. Treasury obligations with ___-year
maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[If Debt Securities are Floating Rate Securities, insert --
-4-
30
FLOATING RATE Initial annual interest rate will be _____% through
PROVISIONS: ______________ [and thereafter will be adjusted [monthly] [on each
_____________, ______________, ______________ and __________] [to
an annual rate of _____% above the average rate for _____-year
[month] [securities] [certificates of deposit] by ______________
and ______________ [insert names of banks].] [and the annual
interest rate [thereafter] [from ____________ through
_____________] will be the interest yield equivalent of the weekly
average per annum market discount rate for _____-month Treasury
bills plus _____% of Interest Differential (the excess, if any, of
(i) then current weekly average per annum secondary market yield
for _____-month certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per annum market
discount rate of _____-month Treasury bills); [from _____________
and thereafter the rate will be the then current interest yield
equivalent plus _____% of Interest Differential].]
[OTHER TERMS]*:]
[If Securities include Warrants, insert --
NUMBER OF WARRANTS TO BE
ISSUED:
WARRANT AGENT:
WARRANT AGREEMENT:
ISSUABLE JOINTLY WITH [Yes] [No]
DEBT SECURITIES:
[Number of Warrants issued
with each $ principal
amount of Debt Securities:]
[Detachable Date:]
--------------------
* A DESCRIPTION OF PARTICULAR TAX, ACCOUNTING OR OTHER UNUSUAL FEATURES
OF THE DEBT SECURITIES SHOULD BE SET FORTH, OR REFERENCED TO AN ATTACHED AND
ACCOMPANYING DESCRIPTION, IF NECESSARY TO THE ISSUER'S UNDERSTANDING OF THE
TRANSACTION CONTEMPLATED. SUCH A DESCRIPTION MIGHT APPROPRIATELY BE IN THE
FORM IN WHICH SUCH FEATURES WILL BE DESCRIBED IN THE PROSPECTUS SUPPLEMENT FOR
THE OFFERING.
-5-
31
DATE FROM WHICH WARRANTS
ARE EXERCISABLE:
DATE ON WHICH WARRANTS
EXPIRE:
EXERCISE PRICE:
PRICE TO PUBLIC:
PURCHASE PRICE BY
UNDERWRITERS:
METHOD OF AND SPECIFIED
FUNDS FOR PAYMENT OF
PURCHASE PRICE:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF
REPRESENTATIVES:
[SECURITIES EXCHANGE:]
DELAYED DELIVERY:
TITLE OF WARRANT Principal amount of Warrant Securities
SECURITIES: purchasable upon exercise of one Warrant:
Indenture: [Senior Indenture, dated as of November 15, 1997, between the
Company and Bankers Trust Company, as Trustee.]
[Senior Subordinated Indenture, dated as of November 15, 1997,
between the Company and Bankers Trust Company, as Trustee.]
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Repayment Provisions:
Sinking Fund Provisions:
[Other Provisions:]]
-6-
32
ANNEX II
Pursuant to subsection 5(e) of the Underwriting Agreement, the
Underwriters shall have received from the independent certified public
accountants who have audited the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus, one or more letters, dated as of the Time of
Delivery, each of which shall be to the effect that they are independent
auditors with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder and which, when read
together, shall be to the further effect that:
(i) In their opinion, the consolidated financial statements
audited by them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations thereunder;
(ii) On the basis of performing the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement on Auditing
Standards No. 71, Interim Financial Information, on any unaudited
financial statements included or incorporated by reference in the
Registration Statement and Prospectus, a reading of any other unaudited
financial statement data included or incorporated by reference in the
Registration Statement and Prospectus, a reading of the latest available
interim unaudited financial statements of the Company and its
subsidiaries ("Interim Financials"), if any, a reading of any unaudited
pro forma financial statements included or incorporated by reference in
the Registration Statement and Prospectus and a reading of the minutes
of the Company's shareholder's meetings, the meetings of the Board of
Directors, the Executive Committee of the Board of Directors, the Audit
Committee of the Board of Directors and the Terms Committee of the Board
of Directors since the end of the most recent fiscal year with respect
to which an audit report has been issued and inquiries of and
discussions with certain officials of the Company who have
responsibility for financial and accounting matters with respect to the
unaudited financial statements and any other unaudited financial
statement data included or incorporated by reference in the Registration
Statement and Prospectus, any Interim Financials, and any unaudited pro
forma financial statements included or incorporated by reference in the
Registration Statement and Prospectus, and as to whether (1) as of a
specified date not more than three days prior to the date of the letter,
there was any change in the consolidated capital stock (other than
issuances of capital stock upon the exercise of options or for purposes
of employee compensation plans, upon earn-outs of performance shares,
upon conversions of convertible securities and upon the exercise of put
options, 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 consolidated long-term debt of the Company and its
subsidiaries (except for increases due to accretion of discount on
original issue discount securities, if any) or any decrease in the
consolidated net assets of the Company and its subsidiaries (before
considering the effect of unrealized gains and losses on debt and equity
securities classified as "available-for-sale" under Statement of
Financial
33
Accounting Standards (SFAS) No. 115) as compared with the amounts shown
on the most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus (the "Recent Balance Sheet") or (2) during the
period, if any, from the date of the Recent Balance Sheet to the date of
the most recent balance sheet included in the Interim Financials (the
"Interim Period") there was any decrease, as compared with the
corresponding period in the preceding year, in consolidated total
revenues or in consolidated net income of the Company and its
subsidiaries, or (3) during the period from the date of the Interim
Financials or, if there are no Interim Financials, from the date of the
Recent Balance Sheet to a specified date not more than three days prior
to the date of the letter there was any decrease, as compared with the
corresponding period in the preceding year, in consolidated total
revenues or in consolidated net income of the Company and its
subsidiaries, which reading, inquiries and discussions would not
necessarily reveal changes in the financial position or results of
operations or inconsistencies in the application of generally accepted
accounting principles or other matters of significance with respect to
the following, nothing came to their attention that caused them to
believe that (A) any material modifications should be made to the
unaudited financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus for them to be in conformity with generally accepted
accounting principles or that such unaudited financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related published
rules and regulations thereunder, (B) the Interim Financials, if any,
are not stated on a basis substantially consistent with that of the
audited consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus, (C) any other
unaudited financial statement data included or incorporated by reference
in the Registration Statement and Prospectus do not agree with the
corresponding items in the unaudited financial statements from which
such data were derived or any such unaudited financial statement data
were not determined on a basis substantially consistent with the
corresponding amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and Prospectus,
(D) any unaudited pro forma financial statements included or
incorporated by reference in the Registration Statement and Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements, (E)(1) as of the date of the
Interim Financials, if any, and as of a specified date not more than
three days prior to the date of the letter, there was any change in the
consolidated capital stock (other than issuances of capital stock upon
the exercise of options or for purposes of employee compensation plans,
upon earn-outs of performance shares, upon conversions of convertible
securities and upon the exercise of put options, 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
consolidated long-term debt of the Company and its subsidiaries (except
for increases due to accretion of discount on original issue discount
securities, if any) or any decrease in the consolidated net assets of
the Company and its subsidiaries (before considering the effect of
unrealized gains and losses on debt and equity securities classified as
"available-for sale" under Statement of Financial Accounting Standards
-2-
34
(SFAS) No. 115) as compared with the amounts shown on the Recent Balance
Sheet or (2) during any Interim Period, there was any decrease, as
compared with the corresponding period in the preceding year, in
consolidated total revenues or in consolidated net income of the Company
and its subsidiaries, or (3) during the period from the date of the
Interim Financials or, if there are no Interim Financials, from the date
of the Recent Balance Sheet to a specified date not more than three days
prior to the date of the letter there was any decrease, as compared with
the corresponding period in the preceding year, in consolidated total
revenues or in consolidated net income of the Company and its
subsidiaries except in each such case for (1), (2) and (3) as set forth
in or contemplated by the Registration Statement and Prospectus or
except for such exceptions as may be enumerated in such letter; and
(iii) In addition to the limited procedures referred to in clause
(ii) above, they have carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information which are derived from the general financial
and accounting records of the Company and its subsidiaries, which are
included or incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Representatives and have
compared such amounts, percentages and financial information with the
financial and accounting records of the Company and its subsidiaries and
have found them to be in agreement.
-3-
35
ANNEX III
Delayed Delivery Contract
___________________, 19__
AMERICAN GENERAL CORPORATION,
c/o [Name and address of appropriate
Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from American General
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
[$______________________________________
principal amount] [(insert number of Warrants)] of the Company's [Title of
Securities] (the "Securities"), offered by the Company's Prospectus dated
_______________, 19__, as amended or supplemented by the Prospectus Supplement
dated _______________, 19__, receipt of a copy of which is hereby acknowledged,
at a purchase price of [ % of the principal amount thereof] [, plus accrued
interest, if any, from the date from which interest accrues as set forth
below,] [and accrued amortization, if any, from [___________] [the date from
which interest accrues as set forth below][ to the Delivery Date] [and]] [_____
per Warrant] and on the further terms and conditions set forth in this
contract.
[The undersigned will purchase the Securities from the Company on
_____________, 19__ (the "Delivery Date") and interest on the Securities so
purchased will accrue from _________, 19__.]
[The undersigned will purchase the Securities from the Company on the
delivery date or dates and in the [principal amount or amounts] [number or
numbers] set forth below:
[Principal [Date from Which
Delivery Date Amount Interest Accrues [Number
------------- ---------- ---------------- --------
_______, 19__ $ _______, 19__ __
_______, 19__ $ ] _______, 19__ __] ]
36
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".]
Payment for the Securities which the undersigned has agreed to purchase
on [the] [each] Delivery Date shall be made to the Company or its order by
certified or official bank check in ______________________ Clearing House funds
at the office of _________________________________ or by wire transfer to a
bank account specified by the Company, on [the] [such] Delivery Date upon
delivery to the undersigned of the Securities then to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than [three] full business days prior to
[the] [such] Delivery Date.
The obligation of the Company to make delivery of and accept payment
for, and the obligation of the undersigned to take delivery of and make payment
for, Securities on [the] [each] Delivery Date shall be subject only to the
conditions that (1) the purchase of the Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the
laws of any jurisdiction to which the undersigned is subject, and (2) the
Company shall have sold to the Underwriters the total [principal amount]
[number] of the Securities less the [principal amount] [number] thereof covered
by this and other similar contracts. The obligation of the undersigned to take
delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for Securities
pursuant to other contracts similar to this contract. The undersigned
represents and warrants that, as of the date of this contract, the undersigned
is not prohibited from purchasing the Securities hereby agreed to be purchased
by it under the laws of any jurisdiction to which the undersigned is subject.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinions of counsel for the
Company delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need
not be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This
-2-
37
will become a binding contract between the Company and the undersigned when
such counterpart is so mailed or delivered by the Company.
This contract shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed in such state.
Yours very truly,
(Name of Purchaser)
By
(Signature)
(Name and Title)
(Address)
Accepted________________________, 19__
AMERICAN GENERAL CORPORATION
By
-------------------------------------
[Title]
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print)
Telephone No.
Name (including Area Code)
---- ---------------------
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