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EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
THE ALLSTATE CORPORATION
DEBT SECURITIES, DEBT WARRANTS
AND PREFERRED STOCK
______________________
UNDERWRITING AGREEMENT
______________________
_______, ____
[Underwriters]
c/o [ ]
Ladies and Gentlemen:
From time to time The Allstate Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell certain of its debt securities, debt
warrants and preferred stock registered under the Registration Statement
referred to in Section 2(a) (the "Securities"). The Company intends to enter
into one or more Pricing Agreements (each a "Pricing Agreement") in the form of
Annex I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to issue and sell to the firms named in Schedule I of the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the Securities specified therein) the principal amount of
its Securities specified in Schedule II to the applicable Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Senior Indenture, Subordinated Indenture, Debt Warrant
Agreement or Certificate of Incorporation of the Company (including the
applicable Certificate of Designation), as applicable and in substantially the
form filed
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as an exhibit to the Registration Statement (the "Securities Agreement") and
identified in such Pricing Agreement.
1.(a) Sales; Representatives. Particular sales of Designated Securities
may be made from time to time to the Underwriters of such Securities, for whom
the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as the sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase any of the Securities.
(b) Pricing Agreements. 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 Designated Securities specified therein. Such Pricing Agreement shall
specify the number or aggregate principal amount of such Designated Securities,
the initial public offering price of such Designated Securities, the purchase
price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the number or principal amount of such Designated
Securities to be purchased by each Underwriter. In addition, such Pricing
Agreement shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. Such Pricing Agreement shall also
specify (in a manner consistent with the applicable Securities Agreement and
the Registration Statement and prospectus with respect thereto), the principal
terms of such Designated Securities. A Pricing Agreement shall be in the form
of an executed writing (which may be in counterparts), and may be evidenced by
an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
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2. Representations and Warranties. The Company represents and warrants
to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 under the Securities
Act of 1933, as amended (the "Act") (the file number of which is set forth in
Schedule II to the applicable Pricing Agreement), which has become effective,
for the registration under the Act of the Securities. The Company proposes to
file with the Commission pursuant to Rule 424 under the Act a supplement or
supplements to the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at the date
of this Agreement, is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the Registration Statement is
hereinafter called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the Commission pursuant
to Rule 424 (including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final Prospectus
which has heretofore been filed pursuant to Rule 424 is hereinafter called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before the date of
this Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference;
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(b) As of the date hereof, when the Final Prospectus is first filed or
transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, in the case of
Securities issued pursuant to an Indenture, the Indenture will comply in all
material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the Exchange
Act and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as amended
or supplemented as of such time, will contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustees (the "Form T-1s") or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information relating
to such Underwriter or the underwriting arrangements furnished in writing to
the Company by any Underwriter specifically for use in the Registration
Statement and the Final Prospectus.
(c) Each document incorporated by reference in the Registration Statement
and the Final Prospectus will comply in all material respects, as amended at
the time the Registration Statement becomes effective, with the Exchange Act.
(d) The Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Securities, such Securities will have been duly executed,
authenticated, issued and delivered (and, in the case of Securities
representing capital
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stock of the Company, will be fully paid and nonassessable) and will constitute
valid and legally binding obligations of the Company entitled to the benefits
provided by the applicable Securities Agreement; such Securities Agreement has
been duly authorized and, in the case of Securities issued pursuant to an
Indenture, such Indenture has been duly qualified under the Trust Indenture Act
and, at the Time of Delivery for any Securities, each Securities Agreement will
constitute a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to
or affecting creditors' rights generally and to general principles of equity;
and
(e) The issue and sale of the Securities pursuant to any Pricing
Agreement, and compliance by the Company with all of the provisions of the
Securities, the applicable Securities Agreement, this Agreement and any Pricing
Agreement, will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument for
borrowed money to which the Company or any of the subsidiaries listed in Annex
III hereto (each, a "Principal Subsidiary") is a party or by which the Company
or any of its Principal Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Principal Subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any of its Principal Subsidiaries
or any statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having jurisdiction
over the Company or any of its Principal Subsidiaries or any of their
properties, in each case other than such breaches, conflicts, violations or
defaults which, individually or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries considered as a whole, and
no authorization, approval, order, consent, registration or qualification of or
with any such court or insurance regulatory authority or other governmental
agency or body is required for the issue or sale of the Securities, except (i)
the registration under the Act of the Securities; and (ii) such authorizations,
approvals, orders, consents, regis-
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trations or qualifications as may be required under the Trust Indenture Act or
state or foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, in each case other than such
authorizations, approvals, orders, consents, registrations or qualifications
which (individually or in the aggregate) the failure to make, obtain or comply
with would not have a material adverse effect on the Company and its
subsidiaries considered as a whole.
3. Terms of Sale. Upon the execution of the Pricing Agreement applicable
to any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Final Prospectus as amended or supplemented.
4. Delivery of Designated Securities. Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor in the funds specified in such Pricing Agreement,
all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. Company Covenants. The Company agrees with each of the Underwriters
of any Designated Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to timely file such Final Prospectus pursuant to Rule
424(b) under the Act; (ii) to make no further amendment or any supplement to
the Registration Statement or Final Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Designated Securities and
prior to the Time of Delivery for such Designated Securities unless the
Representatives for such
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Designated Securities shall have had a reasonable opportunity to review and
comment upon any such amendment or supplement prior to any filing thereof; (iii)
to advise the Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies thereof; (iv)
to file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of (I) the time when
any amendment to any Registration Statement has been filed or becomes effective
or any supplement to the Final Prospectus or any amended Final Prospectus has
been filed with the Commission, (II) the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the Final Prospectus,
(III) the suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction or of the initiation or threatening of any
proceeding for any such purpose, or (IV) any request by the Commission for the
amending or supplementing of any Registration Statement or the Final Prospectus
or for additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of the Final
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities and insurance securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Designated Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Final Prospectus as
amended or supplemented
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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 such Designated Securities, and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made
when such Final Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon their
request to 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 Final Prospectus or a supplement to the Final
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the later filed of the Registration Statements (as defined in
Rule 158(c)), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for any Designated Securities and continuing to and including the latter of (i)
the termination of trading restrictions for Designated Securities, as notified
to the Company by the Representatives or their counsel and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any securities of the Company which are substantially
similar to such Designated Securities, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
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6. Fees and Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any Preliminary Final Prospectus and
the Final 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 this Agreement, any Pricing Agreement, any Securities
Agreement, any Blue Sky Survey and any Legal Investment Memoranda in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
reasonable expenses in connection with the qualification of the Securities for
offering and sale under state securities and insurance securities laws as
provided in Section 5(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) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (v) any
fees charged by securities rating services for rating the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee,
Debt Warrant Agent, Paying Agent or Transfer Agent and the fees and
disbursements of counsel for any such Trustee, Debt Warrant Agent, Paying Agent
or Transfer Agent in connection with a Securities Agreement and the Securities
issued pursuant to any Securities Agreement; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided in this Section. It is understood, however,
that, except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject to the condition
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that all representations and warranties of the Company herein are, at and as of
the Time of Delivery for such Designated Securities, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
to be performed at or before such Time of Delivery, and the following additional
conditions:
(a) The Final Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(c) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) [ ], counsel for the Company, shall have furnished to you their
written opinion, dated each Time of Delivery for such Designated Securities, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus as amended and
supplemented; and each of Allstate Insurance Company ("AIC") and
Allstate Life Insurance Company ("XXXX") has been duly incorporated and
is validly existing as an insurance corporation under the laws of the
State of Illinois, with corporate power and authority to own its
properties and conduct its business as described in the Final Prospectus
as amended or supplemented;
(ii) The issue and sale of the Designated Securities and the
performance by the Company of its obligations under the applicable
Securities Agreement and the consummation
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by the Company of the transactions contemplated therein will not 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 material agreement or instrument relating to the
Company or any of its subsidiaries, as such agreements or instruments
have been amended, all as set forth on Schedule A attached hereto
[Schedule A to be a list of material agreements]; nor will any such
action result in any violation of the provisions of the Certificate or
the By-Laws or any applicable United States law or statute or any order,
rule or regulation of any United States court or governmental agency or
body having jurisdiction over the Company, its subsidiaries or any of
their respective properties, provided, that the foregoing opinion is
limited to those statutes, laws, rules and regulations of the United
States of America, the State of Delaware and the State of Illinois, in
each case, which, in our opinion, are normally applicable to
transactions of the type contemplated by this Agreement, and provided
further, that no opinion need be given with respect to (i) the Act, the
Exchange Act, the Trust Indenture Act, the rules and regulations issued
pursuant to each such act, any order, rule or regulation made or
established by any insurance official or regulatory authority or the
National Association of Securities Dealers, Inc., or state securities or
Blue Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters or (ii) conflicts, breaches or
violations which individually and in the aggregate both are not material
to the Company and its subsidiaries taken as a whole and would not have
a material adverse effect on the sale or ownership of the Designated
Securities.
(iii) No consent, approval, authorization, order, registration or
qualification of or with any United States court or governmental agency
or body is required for the issue and sale of the Designated Securities
by
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the Company or the consummation by the Company of the transactions
contemplated by this Agreement, except that we express no opinion with
respect to such consents, approvals, authorizations, orders,
registrations or qualifications (i) as may be required under the Act, the
Exchange Act, the Trust Indenture Act, the rules and regulations issued
pursuant to each such act, any order, rule or regulation made or
established by any insurance official or regulatory authority or the
National Association of Securities Dealers, Inc., or (ii) as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters, (iii) the absence of which individually or in the aggregate
both are not material to the Company and its subsidiaries taken as a
whole and would not have a material adverse effect on the sale or
ownership of the Designated Securities or (iv) as may be required under
foreign laws in connection with the purchase and distribution of the
Designated Securities by any international managers; provided, that the
foregoing opinion is limited to those consents, approvals,
authorizations, orders, registrations and qualifications under laws
which, in our experience, are normally applicable to transactions of the
type contemplated by this Agreement;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(v) The Designated Securities have been duly authorized, and
(assuming their due authentication by the Trustee, if applicable) have
been duly executed, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the applicable Securities Agreement; and the Designated
Securities and the applicable Securities Agreement conform in all
material respects to the descriptions
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thereof in the Final Prospectus as amended or supplemented;
(vi) The applicable Securities Agreement has been duly authorized,
executed and delivered by the Company, and, in the case of the
Certificate of Designation, has been filed with the Secretary of State
of the State of Delaware, and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and, in the case of the Senior Indenture or
the Subordinated Indenture, has been duly qualified under the Trust
Indenture Act;
(vii) The Registration Statement and the Final Prospectus as
amended or supplemented and any further amendments thereto made by the
Company prior to such Time of Delivery for the Designated Securities (in
each case other than with respect to the financial statements,
financial, accounting and statistical data and related schedules
incorporated by reference or included therein or excluded therefrom, or
the exhibits to the Registration Statement including the Form T-1s, as
to which such counsel need express no opinion or belief), appeared on
their face to be appropriately responsive in all material respects to
the requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; and, such
counsel shall not be deemed to be passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Final Prospectus;
and
(viii) As such counsel, such counsel reviewed the Registration
Statement and Final Prospectus as amended or supplemented, participated
in discussions with representatives of the Underwriters and of the
Company
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and its accountants at which contents of the Registration Statement and
Final Prospectus as amended or supplemented and related matters were
discussed; on the basis of the information that such counsel gained in
the course of the performance of their services referred to above,
although such counsel shall not be deemed to be passing upon and shall
not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Final
Prospectuses and not be required to have made an independent check or
verification thereof (except as described in paragraph (v) hereof), on
the basis of the foregoing, no facts have come to the attention of such
counsel in the course of such review which have led such counsel to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and the financial,
accounting and statistical data and related schedules incorporated by
reference or included therein or excluded therefrom, or the exhibits to
the Registration Statement including the Form T-1s, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date, the Final Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and financial,
accounting and statistical data and related schedules incorporated by
reference or included therein or excluded therefrom, or the exhibits to
the Registration Statement including the Form T-1s, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made not misleading.
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(c) Xxxxxx X. Xxxx, Vice President, Secretary and General Counsel of the
Company, shall have furnished to you his written opinion, dated each Time of
Delivery for such Designated Securities, in form and substance reasonably
satisfactory to you, to the effect that:
(i) Each Principal Subsidiary has been duly incorporated and is
validly existing as an insurance corporation under the laws of its
jurisdiction of incorporation;
(ii) All of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are fully
paid and nonassessable, and are owned of record directly or indirectly
by the Company, AIC or XXXX, as the case may be (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions
of local or in-house counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(iii) Each Principal Subsidiary is duly licensed or authorized as
an insurer or reinsurer in each other jurisdiction where it is required
to be so licensed, except where the failure to be so licensed or
authorized in any such jurisdiction does not have a material adverse
effect on the financial condition, business or properties of the Company
and its subsidiaries considered as a whole; the Company and each
Principal Subsidiary have made all required filings under applicable
insurance holding company statutes, and each is duly licensed or
authorized as an insurance holding company in each jurisdiction where it
is required to be so licensed, except where the failure to have made
such filings or to be so licensed or authorized in any such jurisdiction
does not have a material adverse effect on the financial condition,
business or properties of the Company and its subsidiaries considered as
a
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whole; [the Company and each Principal Subsidiary have all necessary
authorizations, approvals, orders, consents, registrations or
qualifications of and from all insurance regulatory authorities to
conduct their respective businesses as described in the Final Prospectus
as amended or supplemented, except where the failure to have such
authorizations, approvals, orders, consents, registrations or
qualifications does not have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries
considered as a whole;] and none of the Company or any Principal
Subsidiary has received any notification from any insurance regulatory
authority to the effect that any additional authorization, approval,
order, consent, registration or qualification from such insurance
regulatory authority is needed to be obtained by any of the Company or
any Principal Subsidiary in any case where it could be reasonably
expected that (x) the Company or any Principal Subsidiary would in fact
be required either to obtain any such additional authorization,
approval, order, consent, registration or qualification or cease or
otherwise limit writing certain business and (y) obtaining such
authorization, approval, order, consent, license, certificate, permit,
registration or qualification or limiting such business would have a
material adverse effect on the business, financial position or results
of operations of the Company and its subsidiaries, considered as a whole
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local or in-house counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he believes
that both you and he are justified in relying upon such opinions and
certificates);
(iv) Each Principal Subsidiary is in compliance with the
requirements of the insurance laws and regulations of its state of
incorporation and the insurance laws and regulations of other
jurisdiction which are appli-
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cable to such Principal Subsidiary, and has filed all notices, reports,
documents or other information required to be filed thereunder, or is
subject to no material liability or disability by reason of the failure
to so comply or file (such counsel being entitled to rely in respect of
this clause upon opinions of local or in-house counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he believes
that both you and he are justified in relying upon such opinions and
certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Final Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, individually or in the
aggregate, could reasonably be expected to have a material adverse
effect on the financial condition, business or properties of the Company
and its subsidiaries considered as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened;
(vi) The issue and sale of the Designated Securities by the
Company, the compliance by the Company with all of the provisions of the
Designated Securities, the applicable Securities Agreement, this
Agreement and the Pricing Agreement with respect to the Designated
Securities will not result in any violation of any order, rule or
regulation known to such counsel of any insurance regulatory authority
having jurisdiction over the Company or any of its subsidiaries or any
of their properties which are normally applicable to transactions of the
type contemplated by this Agreement, other than such breaches,
conflicts, violations or defaults which, individually or in the
aggregate, would not have a material ad-
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verse effect on the financial condition, business or properties of the
Company and its subsidiaries considered as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions
of local or in-house counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(vii) To the best of such counsel's knowledge, the Company and its
subsidiaries, as applicable, have filed all notices, reports, documents
or other information required to be filed pursuant to, and have obtained
all authorizations, approvals, orders, consents, registrations or
qualifications required to be obtained under, and have otherwise complied
with all requirements of, all applicable insurance laws and regulations
known to such counsel to be normally applicable to the transactions
contemplated by this Agreement in connection with the issuance and sale
by the Company of the Designated Securities and, except as have been
obtained pursuant to the foregoing clause, no filing, authorization,
approval, order, consent, registration or qualification of or with any
insurance regulatory agency having jurisdiction over the Company or any
of its subsidiaries or any of their properties known to such counsel to
be normally applicable to the transactions contemplated by this Agreement
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement, the Pricing Agreement with respect to the Designated
Securities or the applicable Securities Agreement, except such filings,
authorizations, approvals, orders, consents, registrations or
qualifications which (individually or in the aggregate) the failure to
make, obtain or comply with would not have a material adverse effect on
the financial condition, business or properties of
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the Company and its subsidiaries considered as a whole;
(viii) As general counsel to the Company, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
participated in various discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of
the Registration Statement and Final Prospectus as amended or
supplemented were discussed; on the basis of the information that such
counsel gained in the course of his activities referred to above, such
counsel confirms that the Registration Statement, as of its effective
date, and the Final Prospectus, as amended or supplemented (in each case
other than with respect to the financial statements, financial and
accounting data and related schedules therein, as to which such counsel
need express no opinion or belief), appeared on their face to be
appropriately responsive in all material respects to the requirements of
the Act and the applicable rules and regulations of the Commission
thereunder; and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement and Final
Prospectus as amended or supplemented (except as expressly set forth in
such opinion), on the basis of the foregoing, no facts have come to the
attention of such counsel in the course of such review which has caused
such counsel to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to
such Time of Delivery (other than the financial statements and financial
and accounting data and related schedules therein and other than
information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and in the descriptions of Designated Securities and underwriting matters
contained in the Final Prospectus as amended or supplemented, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statement therein not misleading or
that, as of its date, the Final Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and financial
and accounting data and related schedules therein and other than
information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and in the descriptions of Designat-
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ed Securities and underwriting matters contained in the Final Prospectus
as amended or supplemented, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statement therein not misleading or that, as of its date, the Final
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and financial and accounting data
and related schedules therein and other than information under the
captions "Description of Debt Securities," "Description of Debt
Warrants," "Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and "Plan
of Distribution" in the Basic Prospectus and in the descriptions of
Designated Securities and underwriting matters contained in the Final
Prospectus as amended or supplemented, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Final Prospectus as amended or supplemented
or any further amendment or supplement (when considered together with the
document to which such supplement relates) thereto made by the Company
prior to such Time of Delivery (other than the financial statements and
financial and accounting data and related schedules therein and other
than information under the captions "Description of Debt Securities,"
"Description of Debt Warrants," "Description of Preferred Stock,"
"Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and in the descriptions of Designated Securities and underwriting matters
contained in the Final Prospectus as amended or supplemented, as to which
such counsel need express
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no opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and he does not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Final
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the Final Prospectus as amended or supplemented
which are not filed or described as required, in each case, other than
with respect to the information under the captions "Description of Debt
Securities," "Description of Debt Warrants," "Description of Preferred
Stock," "Description of Preferred Securities," "Description of Preferred
Securities Guarantees" and "Plan of Distribution" in the Basic Prospectus
and in the descriptions of Designated Securities and underwriting matters
contained in the Final Prospectus as amended or supplemented; and
(ix) On the basis of the information that such counsel gained in
the course of the review referred to in paragraph (ix) above (but without
passing upon or assuming any responsibility for the accuracy,
completeness or fairness of the statements contained in the documents
described below), such counsel confirms that no facts have come to the
attention of such counsel in the course of such review which have caused
such counsel to believe that the documents incorporated by reference in
the Final Prospectus as amended or supplemented (other than the financial
statements and financial, accounting and statistical data and related
schedules therein or excluded therefrom, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, did not comply as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and
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regulations of the Commission thereunder; and he has no reason
to believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading.
(d) On the date of the Pricing Agreement for such Designated Securities
and the Time of Delivery of such Designated Securities, Deloitte & Touche shall
have furnished to the Representatives a letter, dated the effective date of the
later filed of the Registration Statement or the most recent report filed with
the Commission containing financial statements and incorporated by reference in
the Registration Statement if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter dated such
Time of Delivery, in form and substance satisfactory to the Representatives.
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus as amended or supplemented any
material adverse change in the financial condition, business or properties of
the Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Final Prospectus as amended or supplemented (and
other than a catastrophe not meeting the threshold contemplated by (w) below),
and (ii) since the respective dates as of which information is given in the
Final Prospectus as amended or supplemented there shall not have been (w) any
catastrophe or any impending catastrophe which, in the Company's judgment, is
highly probable to result in gross
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underwriting losses in excess of $[500 million] pursuant to insurance coverage
written by the Company's subsidiaries, (x) any material addition, or any
development involving a prospective material addition, to either the Company's
consolidated reserve for property-liability insurance claims and claims expense
or the Company's consolidated reserve for life insurance policy benefits or (y)
any material increase in the consolidated long-term debt of the Company.
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or financial strength or claims paying
ability by any of Xxxxx'x Investor Services, Inc., Standard & Poor's
Corporation or A.M. Best & Co. and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
financial strength or claims paying ability, the effect of which, in any such
case described in Clause (i) or (ii), is in your judgment (after consultation
with the Company) so material and adverse as to make it impracticable or
inadvisable to proceed with the pubic offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the Final
Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities; or (iii)
the material outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and
in the manner contemplated by the Final Prospectus as amended or supplemented;
and
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(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities
certificates of officers of the Company reasonably satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may reasonably
request.
8.(a) Indemnification and Contribution. The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Final Prospectus, the Registration Statement, the Final
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement (when considered together with the
document to which such supplement relates) thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that 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 Final Prospectus, the Registration Statement, the Final
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Final Prospectus as amended or supplemented relating to such Securities and,
provided, further, that the Company
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shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to any Preliminary Final Prospectus, the Final
Prospectus or the Final Prospectus as amended or supplemented, as the case may
be, to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact such Underwriter sold Designated 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 Final Prospectus or of the Final
Prospectus as then amended or supplemented, whichever is most recent, in any
case where such delivery is required by the Act if the Company had previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Final Prospectus which was corrected
in the Final Prospectus (or the Final Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Final Prospectus, the Registration Statement, the Final
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement (when considered together with the
document to which such supplement relates) 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 Final Prospectus, the Registration Statement, the
Final Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by 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
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connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly,
with any other indemnifying party similar notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party and who may act in respect of actions involving more than
one indemnified party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
Notwithstanding anything to the contrary in this Section 8, (i) an indemnifying
party shall only be liable for the legal fees and expenses of one national
counsel and appropriate local counsel for the indemnified parties with respect
to any proceeding or related proceedings and in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by __________.
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(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which any such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
consideration. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters, in each case as set forth in the table on the
cover page of the Prospectus relating to such Designated Securities. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any such Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any Pre-
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liminary Final Prospectus result from the fact that such Underwriter sold
Designated 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 Final Prospectus
or of the Final Prospectus as then amended or supplemented, if the Company had
previously furnished copies thereof to such Underwriter. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company under this Section 8 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
Underwriters within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including
any person
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who, with his consent, is named in the Registration Statement as about to become
a director of the Company) and to each person, if any, who controls the Company
within the meaning of the Act.
9.(a) Defaulting Underwriters. If any Underwriter shall default in its
obligation to purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives notify
the Company that the Representatives have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Final Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Final Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of any defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
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the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
related to such Designated Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement;) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. Survival. 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 the Company or any officer or director or
controlling person of the Company and shall survive delivery of and payment for
the Securities.
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11. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason, Designated Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter in respect of such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. Reliance Upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters of Designated
Securities 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 of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
13. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; if to the Company, shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
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14. Successors and Assigns. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of, the Underwriters,
the Company, and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time; "Business Day." Time shall be of the essence of each Pricing
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
17. Counterparts. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ____________________________________
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
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ANNEX I TO
UNDERWRITING
AGREEMENT
PRICING AGREEMENT
_________, ____
[ ]
As representatives of the
several Underwriters
named in Schedule I hereto
c/o [ ]
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ___________, ____ (the "Underwriting Agreement"),
between the Company on the one hand and
_________________________________________________________ on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting Agreement in
relation to the Final Prospectus (as therein defined) and also a representation
and warranty as of the date of this Pricing Agreement in relation to the Final
Prospectus as amended or supplemented relating to the Designated Securities
which are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms
34
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defined in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section ___
of the Underwriting Agreement and the address of the Representatives referred to
in such Section ___ are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Final
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination
35
36
upon request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
[ ]
On behalf of each of the Underwriters
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SCHEDULE I TO ANNEX I
Principal
Amount of
Designated
Securities to
Underwriters be Purchased
------------ -------------
_________________________________ . . . . . . . . .
_________________________________ . . . . . . . . .
_________________________________ . . . . . . . . .
_________________________________ . . . . . . . . .
[Names of Underwriters]
Total . . . . . . . . . ----------
$
==========
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SCHEDULE II TO ANNEX I
UNDERWRITING AGREEMENT DATED ______________, ____
REGISTRATION STATEMENT NO. __________
TITLE, PURCHASE PRICE AND DESCRIPTION OF DESIGNATED SECURITIES
Title:
Number or Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriters (include accrued interest or
amortization, if any):
Sinking Fund Provisions:
Redemption Provisions:
Other Provisions:
APPLICABLE SECURITIES AGREEMENT:
MATURITY:
INTEREST RATE:
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39
INTEREST PAYMENT DATES:
TIME OF DELIVERY AND LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
UNDERWRITERS:
[OTHER TERMS]:
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40
ANNEX II TO
UNDERWRITING
AGREEMENT
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements, certain summary
and selected consolidated financial and operating data, and any
supplementary financial information and schedules (and, if applicable,
pro forma financial information) audited by them and included or
incorporated by reference in the Final Prospectus as amended or
supplemented or the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act
and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, and any
supplementary financial information and schedules, selected financial
data, pro forma financial information, prospective financial statements
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, and,
as indicated in their report thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives");
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred
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41
to below, a reading of the latest available interim financial statements
of the Company and its subsidiaries, inspection of the minute books of
the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows and certain summary and selected consolidated financial and
operating data included or incorporated by reference in the Final
Prospectus as amended or supplemented do not comply as to form in
all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations
thereunder;
(B) any other unaudited income statement data and balance
sheet items included or incorporated by reference in the Final
Prospectus as amended or supplemented do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Final Prospectus as amended
or supplemented;
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42
(C) the unaudited financial statements which were not
included or incorporated by reference in the Final Prospectus as
amended or supplemented but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included
or incorporated by reference in the Final Prospectus as amended or
supplemented and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
consolidated financial statements included or incorporated by
reference in the Final Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Final Prospectus as amended or supplemented do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements.
(E) as of a specified date not more than five business days
prior to the date of such letter, there have been any changes in
the consolidated capital stock or any increase in the
consolidated borrowings or consolidated reserve for
property-liability insurance claims and claims expense or
consolidated reserve for life insurance policy benefits, or asset
reserves of the Company and its subsidiaries, or any decreases in
consolidated fixed in-
II-3
43
come securities available for sale, consolidated equity
securities, consolidated investments or shareholder equity, or any
decrease in AIC's or XXXX'x statutory capital and surplus, or
other items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included
or incorporated by reference in the Final Prospectus as amended
or supplemented, except in each case for changes, increases or
decreases which the Final Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Final
Prospectus as amended or supplemented to the specified date
referred to in Clause (E) there were any decreases in
consolidated premiums earned, consolidated net investment income,
or other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for decreases or increases
which the Final Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Final Prospectus as amended
or supplemented and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (ii) and (iii)
above, they have carried out certain procedures as specified in their
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44
letter, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived
from the general accounting records of the Company and its subsidiaries,
which appear or are incorporated by reference in the Final Prospectus as
amended or supplemented or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such specified amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
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45
ANNEX III TO
UNDERWRITING
AGREEMENT
PRINCIPAL SUBSIDIARIES JURISDICTION OF INCORPORATION
---------------------- -----------------------------
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
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