Exhibit 1.3
THE HARTFORD FINANCIAL SERVICES GROUP, INC.
12,000,000 NORMAL UNITS
UNDERWRITING AGREEMENT
GENERAL TERMS AND CONDITIONS
May 19, 2003
To the Underwriters
named in Schedule I to the Pricing Agreement
attached hereto as Annex I.
Ladies and Gentlemen:
From time to time The Hartford Financial Services Group, Inc., a
Delaware corporation (the "COMPANY"), proposes to enter into one or more Pricing
Agreements in the form of Annex I hereto (each, a "PRICING AGREEMENT") which
incorporates by reference these Underwriting Agreement General Terms and
Conditions (this "UNDERWRITING AGREEMENT"), with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "UNDERWRITERS"
with respect to such Pricing Agreement and the securities specified therein)
certain Normal Units (as defined below) of the Company specified in Schedule II
to such Pricing Agreement (with respect to such Pricing Agreement, the "FIRM
SECURITIES"). If specified in such Pricing Agreement, the Company may grant to
the Underwriters the right to purchase at their election an additional number of
Normal Units, specified in such Pricing Agreement as provided in Section 3
hereof (the "OPTIONAL SECURITIES"). The Firm Securities and the Optional
Securities, if any, which the Underwriters elect to purchase pursuant to Section
3 hereof are herein collectively called the "DESIGNATED SECURITIES".
Each "NORMAL UNIT" is a unit with a stated amount of $50 (the "STATED
AMOUNT") comprised of (a) a stock purchase contract (a "PURCHASE CONTRACT", and
collectively with each other Purchase Contract, the "PURCHASE CONTRACTS") under
which (i) the holder of a Normal Unit (a "HOLDER", and collectively with other
Holders of Normal Units, the "HOLDERS") will purchase from the Company on August
16, 2006 (the "SETTLEMENT DATE"), for $50 per Normal Unit, a number of shares of
common stock, par value $0.01 per share, of the Company (the "COMMON STOCK"), as
set forth in the Purchase Agreement (as defined below) and (ii) the Company will
pay quarterly contract adjustment payments at the rate of 4.44% of the Stated
Amount per year, and (b) a 1/20th undivided beneficial
ownership interest in $1,000 principal amount of the Company's Senior Notes due
August 16, 2008. Each such ownership interest is referred to herein as a "SENIOR
NOTE OWNERSHIP INTEREST" and collectively with each other Senior Note Ownership
Interest, the "SENIOR NOTE OWNERSHIP INTERESTS" and such Senior Notes due August
16, 2008 are referred to herein as the "SENIOR NOTES".
In accordance with the terms of a Purchase Contract Agreement (the
"PURCHASE Agreement") to be dated as of the Time of Delivery (as defined below)
between the Company and JPMorgan Chase Bank, as Purchase Contract Agent (the
"PURCHASE CONTRACT AGENT"), pursuant to which the Purchase Contracts will be
issued, the holders of the Normal Units will pledge all of their respective
title, right and interest in and to the Senior Note Ownership Interests
constituting part of the Normal Units to JPMorgan Chase Bank, as Collateral
Agent (the "COLLATERAL AGENT"), pursuant to a Pledge Agreement (the "PLEDGE
AGREEMENT") to be dated as of the Time of Delivery between the Company, the
Purchase Contract Agent and the Collateral Agent, to secure the Holders'
obligations under the Purchase Contracts. The Purchase Agreement and the Pledge
Agreement are herein collectively referred to as the "EQUITY UNIT AGREEMENTS."
The Senior Notes will be issued pursuant to the Indenture (the "BASE
INDENTURE"), dated as of October 20, 1995 between the Company and JPMorgan Chase
Bank (formerly The Chase Manhattan Bank), as indenture trustee (the "TRUSTEE"),
as supplemented by the First Supplemental Indenture dated as of December 27,
2000 (the "FIRST SUPPLEMENTAL INDENTURE"), the Second Supplemental Indenture
dated as of September 13, 2002 (the "SECOND SUPPLEMENTAL INDENTURE") and the
Third Supplemental Indenture to be dated as of the Time of Delivery between the
Company and the Trustee (the "THIRD SUPPLEMENTAL INDENTURE"). The Base
Indenture, as so amended or supplemented, is herein referred to as the
"INDENTURE."
Pursuant to a Remarketing Agreement (the "REMARKETING AGREEMENT") to be
dated as of the Time of Delivery between the Company, the Purchase Contract
Agent and the Remarketing Agent (as defined in the Remarketing Agreement, the
"REMARKETING AGENT"), the Remarketing Agent, will remarket the Senior Notes,
subject to the terms and condition set forth therein.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Normal Units in the
Pricing Agreement relating thereto will act as representatives (the
"REPRESENTATIVES"). The term "REPRESENTATIVES" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. The
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Underwriting Agreement shall not be construed as an obligation of the Company to
sell any of the Normal Units or as an obligation of the Underwriters to purchase
any of the Normal Units. The obligation of the Company to issue and sell any of
the Normal Units and the obligation of any of the Underwriters to purchase any
of the Normal Units shall be evidenced by the Pricing Agreement with respect to
the Designated Securities specified therein. Each Pricing Agreement shall
specify the aggregate number of the Designated Securities, the initial public
offering price of such Designated Securities or the manner of determining such
price, the purchase price to the Underwriters of such Designated Securities, the
names of the Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters, the number of such Designated Securities
to be purchased by each Underwriter and the commission, if any, payable to such
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of, and payment for, the Firm Securities and Optional Securities, if
any. A Pricing Agreement shall be in the form of an executed writing (which may
be in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under any Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-103915) in respect of certain securities of the Company, including
the Designated Securities, the Purchase Contracts, and the Senior
Notes, has been filed with the Securities and Exchange Commission (the
"COMMISSION"); such registration statement and any post-effective
amendment thereto, each in the form (excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained in the registration statement)
heretofore delivered or to be delivered to the Representatives, have
been declared effective by the Commission in such form; other than a
registration statement increasing the size of the offering (a "RULE
462(b) REGISTRATION STATEMENT"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "ACT"), which became
effective upon filing, no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of such registration statement or the Rule
462(b) Registration Statement has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission; any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule
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424(b) of the rules and regulations of the Commission under the Act is
hereinafter called a "PRELIMINARY PROSPECTUS"; the various parts of
such registration statement and the Rule 462(b) Registration Statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in such registration statements
at the time such parts of the registration statements became effective,
each as amended at the time such parts of the registration statements
became effective, are hereinafter collectively called the "REGISTRATION
STATEMENT"; the final prospectus relating to the Designated Securities,
in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing, being hereinafter called the "PROSPECTUS"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any report of the Company filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement.
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
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Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Designated Securities.
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT") and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date, the date of the
applicable Pricing Agreement and any applicable Time of Delivery (as
defined below) as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Designated
Securities.
(d) Except as described in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in, or any adverse development which materially
affects, the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole from
the dates as of which information is given in the Registration
Statement and the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the consolidated capital
stock (other than issuances of capital stock upon the exercise of
options and stock appreciation rights, upon earn outs of performance
securities, upon conversions of convertible securities and upon
exercises of stock purchase contracts, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any material increase
in the consolidated long term debt of the Company and its subsidiaries
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business
affairs, management, financial position, and stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus.
(e) The Company and each subsidiary of the Company which
meets the definition of a significant subsidiary as defined in
Regulation
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S-X (collectively referred to herein as the "SIGNIFICANT SUBSIDIARIES"
and individually as a "SIGNIFICANT SUBSIDIARY") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full
corporate power and authority to own its properties and conduct its
business; to the Company's knowledge, all of the issued shares of
capital stock of each Significant Subsidiary are owned directly, or
indirectly through wholly-owned subsidiaries, by the Company, free and
clear of all material liens, encumbrances, equities or claims.
(f) The Company's authorized share capital is as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non assessable.
(g) The Designated Securities have been duly and validly
authorized, and when the Designated Securities are executed and
authenticated in accordance with the provisions of the Purchase
Agreement and delivered against payment therefor in accordance with
this Underwriting Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding in law or equity); provided, however,
that upon the occurrence of a Termination Event, the Bankruptcy Code
(11 U.S.C. Sections 101-1330, as amended) should not substantively
limit the provisions of Sections 3.15 and 5.06 of the Purchase
Agreement or Section 5.04 of the Pledge Agreement that require
termination of the Purchase Contracts and release of the Collateral
Agent's security interest in (1) the applicable Senior Note Ownership
Interests, (2) the Treasury Securities or (3) the applicable ownership
interest of the Treasury Portfolio, as applicable, and the transfer of
such securities to the Purchase Contract Agent, for the benefit of the
Holders of the Equity Units (as defined in the Prospectus); provided
further, however, the Company makes no representation as to whether a
court exercising bankruptcy jurisdiction might issue a temporary
restraining order or provide other interim relief that would delay the
exercise of such termination right for a period of time pending final
adjudication of any challenge to the exercise of such right during a
bankruptcy case involving the Company; and the Equity Units will
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented with respect to such Designated
Securities.
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(h) The issue and sale of the Designated Securities
(including the Purchase Contracts and the applicable Senior Note
Ownership Interests forming a part thereof) and the compliance by the
Company with all the provisions of the Equity Units, the Senior Notes,
the Indenture, the Equity Unit Agreements, the Remarketing Agreement,
this Underwriting Agreement and the Pricing Agreement (collectively the
"TRANSACTION DOCUMENTS") and the consummation of the transactions
therein contemplated have not conflicted with or resulted in a breach
or violation of any of the terms or provisions of, or constituted a
default under, and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, except for such breaches, conflicts, violations or
defaults which would not have, individually or in the aggregate with
such other breaches, conflicts, violations and defaults, a material
adverse effect on the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, considered
as a whole, and which will not affect the validity, performance or
consummation of the transactions contemplated by the Transaction
Documents, and have not resulted and will not result in any violation
of the provisions of the Certificate of Incorporation or By laws of the
Company or any statute, rule or regulation, or any order or decree of
any court or regulatory authority or other governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, license, order, registration or
qualification of or with any such court, regulatory authority or other
governmental agency or body is required for the issue and sale of the
Designated Securities or the consummation by the Company of the
transactions contemplated by the Transaction Documents, except those
which have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Exchange Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or state insurance
securities laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters, and except for such
consents, approvals, authorizations, licenses, orders, registrations or
qualifications which the failure to make, obtain or comply with would
not have, individually or in the aggregate with such other failures, a
material adverse effect on the financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
considered as a whole, and which will not affect the validity,
performance or consummation of the transactions contemplated by the
Transaction Documents.
(i) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the knowledge of the
Company, is there
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any action, suit or proceeding threatened, which might reasonably be
expected to result in a material adverse change in the financial
condition, results of operations or business of the Company and its
subsidiaries considered as a whole or which is required to be disclosed
in the Registration Statement.
(j) This Underwriting Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly authorized,
executed and delivered by the Company.
(k) The Purchase Agreement and the Pledge Agreement have
each been duly authorized by the Company, and, when executed and
delivered in accordance with their terms by the Company and the other
parties thereto will each be, a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in law or equity);
provided, however, that upon the occurrence of a Termination Event (as
defined in the Purchase Contract), the Bankruptcy Code (11 U.S.C.
Sections 101-1330, as amended) should not substantively limit the
provisions of Sections 3.15 and 5.06 of the Purchase Agreement or
Section 5.04 of the Pledge Agreement that require termination of the
Purchase Contracts and release of the Collateral Agent's security
interest in (1) the Senior Notes, (2) the Treasury Securities (as
defined in the Purchase Agreement) or (3) the applicable ownership
interest of the Treasury Portfolio (as defined in the Purchase
Agreement), as applicable, and the transfer of such securities to the
Purchase Contract Agent, for the benefit of the Holders of the Equity
Security Units; provided further, however, the Company makes no
representation as to whether a court exercising bankruptcy jurisdiction
might issue a temporary restraining order or provide other interim
relief that would delay the exercise of such termination right for a
period of time pending final adjudication of any challenge to the
exercise of such right during a bankruptcy case involving the Company.
The Purchase Agreement and the Pledge Agreement will conform in all
material respects to the descriptions thereof in the Prospectus.
(l) The Remarketing Agreement has been duly authorized by
the Company and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity
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principles. The Remarketing Agreement will conform in all material
respects to the descriptions thereof in the Prospectus.
(m) The Designated Securities and the shares of Common
Stock, to be issued and sold by the Company pursuant to the Purchase
Contracts, have been (i) approved for listing on the New York Stock
Exchange (the "EXCHANGE"), subject to official notice of issuance, and
(ii) duly registered under the Exchange Act.
(n) The shares of Common Stock to be issued and sold by
the Company pursuant to the Purchase Contracts have been duly
authorized and reserved for issuance and, when issued and delivered in
accordance with the provisions of the Pricing Agreement and the
Purchase Agreement, will be validly issued, fully paid and
non-assessable and will conform to the description thereof in the
Prospectus as amended or supplemented with respect to the Designated
Securities.
(o) The Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when the Third
Supplemental Indenture is executed and delivered by the Company and the
Trustee (and assuming due execution and delivery of the Third
Supplemental Indenture by the Trustee), the Indenture will constitute a
valid and binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The Indenture will conform in all material
respects to the descriptions thereof in the Prospectus.
(p) The Senior Notes have been duly authorized by the
Company, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement and the
Pricing Agreement, will constitute valid and binding obligations of the
Company, entitled to the benefits provided by the Indenture, and
enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles. The
Senior Notes will conform in all material respects to the description
thereof contained in the Prospectus.
(q) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Prospectus as amended or
supplemented, such financial statements have been prepared in
conformity with generally
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accepted accounting principles in the United States applied on a
consistent basis; any schedules included in the Registration Statement
present fairly the information required to be stated therein.
(r) There are no contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required.
3. Upon the execution of the Pricing Agreement applicable to the
Designated Securities and authorization by the Representatives of the release of
the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "OVERALLOTMENT OPTION") to purchase at their election a certain number
of Optional Securities, on the terms set forth in such Pricing Agreement, for
the sole purpose of covering sales of Normal Units in excess of the number of
Firm Securities. Any such election to purchase Optional Securities may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by the Representatives
but in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless the Representatives and the Company otherwise agree in
writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Pricing Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Securities shall be, in each
case, the number of Optional Securities which the Company has been advised by
the Representatives have been allocated to such Underwriter; provided that, if
the Company has not been so advised, the number of Optional Securities to be so
added shall be, in each case, that proportion of Optional Securities which the
number of Firm Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the aggregate number of Firm Securities (rounded as the
Representatives may determine to the nearest Normal Unit). The total number of
Designated Securities to be purchased by all the Underwriters pursuant to such
Pricing Agreement shall be the aggregate number of Firm Securities set forth in
Schedule I to such Pricing Agreement plus the aggregate number of Optional
Securities which the Underwriters elect to purchase.
4. Certificates for the Designated Securities to be purchased by
each Underwriter pursuant to the Pricing Agreement relating thereto, in the form
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specified in such Pricing Agreement, (including, if so specified, in global
form) and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of each such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer of Federal (same day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, (i) with respect to the Firm Securities, all in the manner
and at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "FIRST TIME OF
DELIVERY", and (ii) with respect to the Optional Securities, if any, in the
manner and at the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "SECOND TIME OF DELIVERY". Each such time
and date for delivery is herein called a "TIME OF DELIVERY". For purposes of
this Agreement, "NEW YORK BUSINESS DAY" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters of the
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities, or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior
to the Time of Delivery for such Designated Securities which shall be
disapproved by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the 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,
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promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Designated Securities, of the suspension
of the qualification of such Designated Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Designated Securities or suspending
any such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities for offering and sale under the insurance and 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; and provided further that the
Company shall not be required to qualify the Designated Securities in
any jurisdiction if such qualification would result in any obligation
on the part of the Company to make filings with any governmental entity
in such jurisdiction after the completion of the offering;
(c) Prior to 12:00 p.m., New York City time, on the
business day next succeeding the date of the Pricing Agreement
applicable to the Designated Securities and from time to time, to
furnish the Underwriters with copies of the Prospectus as amended or
supplemented in such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Designated Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify the
12
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158); and
(e) Without the prior written consent of each of the
Representatives on behalf of the Underwriters, it will not, during the
period beginning from the date of the Pricing Agreement for the
Designated Securities and continuing to and including the date 90 days
after the date of the Prospectus Supplement (the "LOCK-UP PERIOD"), (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any Equity Units, Purchase Contracts or shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Equity Units, Purchase Contracts or shares of Common
Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of
ownership of the Equity Units, Purchase Contracts or shares of Common
Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Equity Units, Purchase Contracts
or shares of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) the sale of
any Designated Securities to the Underwriters hereunder, (b)
transactions relating to the Company's Common Stock or other securities
acquired in open market transactions after the completion of the public
offering by the several Underwriters of the Designated Securities, (c)
any shares of capital stock upon the exercise of an option, warrant or
right or the conversion or exercise of a security outstanding on the
date hereof, (d) any capital stock issued or options to purchase shares
of the Company's Common Stock granted pursuant to employment benefit
plans of the Company or other employee or non-employee director
compensation arrangements or agreements in existence as of the date of
the Prospectus, (e) any capital stock or any securities convertible
into or exercisable or exchangeable for capital stock of the Company as
consideration for any acquisition by the Company, provided that in any
such transaction not registered under the Act in which the recipients
would
13
receive such capital stock or securities during the Lock-up Period, the
recipients of such capital stock or securities agree in writing not to
sell or otherwise transfer such capital stock or securities during the
Lock-up Period, (f) any shares of Common Stock of the Company to be
issued in connection with the Stripped Units (as defined in the
Prospectus) or the Normal Units to be created or recreated upon
substitution of pledged securities or issuable upon settlement of the
Stripped Units or Normal Units, or (g) the sale of shares of Common
Stock to be sold by the Company to the several underwriters (the
"COMMON STOCK UNDERWRITERS") named in Schedule I to the Pricing
Agreement relating to such shares of Common Stock, dated May 19, 2003,
between the Company and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Citibank Global Markets
Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, acting as
representatives of the Common Stock Underwriters.
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Company shall either
(a) by the time of filing pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or (b) at the time of filing submit
with the 462(b) Registration Statement the certification required under
Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Designated 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, any Transaction Document, any Blue Sky
Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Designated Securities; (iii) all expenses in connection with the qualification
of the Normal Units for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky survey(s); (iv) the cost of preparing certificates at the Time
of Delivery for the Designated Securities; (v) the cost and charges of any
transfer agent or registrar or dividend disbursing agent and any securities
intermediary in connection with the Transaction Documents and of the Purchase
Contract Agent and the Collateral Agent; and (vi) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in
14
this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Designated Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement applicable to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with.
(b) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated each Time of Delivery for such Designated Securities, with
respect to the Pricing Agreement applicable to the Designated
Securities, the validity of the Designated Securities being delivered
at such Time of Delivery, the Registration Statement, the Prospectus
and such other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters.
(c) Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, shall
have furnished to the Company (with a statement authorizing you to rely
thereon) their written opinion dated each Time of Delivery for such
Designated Securities, in form and substance satisfactory to you, to
the effect set forth in Annex II to this Underwriting Agreement.
(d) ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Executive Vice President and
General Counsel to the Company, shall have furnished to you his written
opinion, dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to you, to the effect that:
15
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, with power
and authority (corporate or other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Company's share capital as set forth in
the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non
assessable; and the Common Stock to be delivered under the
Purchase Contracts conforms to the description in the
Prospectus as amended or supplemented;
(iii) Except as described in the Prospectus, there
is no action, suit or proceeding pending, nor to such
counsel's best knowledge is there any action, suit or
proceeding threatened, which might reasonably be expected to
result in a material adverse change in the financial
condition, results of operations or business of the Company
and its subsidiaries, considered as a whole, or which is
required to be disclosed in the Registration Statement;
(iv) The Underwriting Agreement and the Pricing
Agreement with respect to the Designated Securities have been
duly authorized, executed and delivered by the Company;
(v) The issue and sale of the Designated
Securities and the compliance by the Company with the
Transaction Documents and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the
Amended and Restated Certificate of Incorporation or Amended
By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its properties;
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue or sale
of the Designated Securities or the consummation by the
Company of the transactions contemplated by the Transaction
Documents
16
except such as have been obtained under the Act, the Exchange
Act and the Trust Indenture Act and any such consent,
approval, authorization, order, registration or qualification
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(vii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
data therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and based upon specified
participation of such counsel in connection with the
preparation of the Registration Statement, such counsel has no
reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
and in the case of other documents which were filed under the
Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein in the
light of the circumstances under which they were made when
such documents were so filed, not misleading; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data included in any
of the documents mentioned in this clause and that such
counsel may state that he has not independently verified
factual statements in any such document;
(viii) The Designated Securities and the shares of
Common Stock, to be issued and sold by the Company pursuant to
the Purchase Contracts, have been duly registered under the
Exchange Act;
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company on or
prior to the date of the Pricing Agreement relating to the
Designated Securities (other than the financial statements and
related schedules and other financial data therein, as to
which such counsel need express no opinion), comply as to form
in all material respects with the
17
requirements of the Act and the rules and regulations of the
Commission thereunder; and based upon specified participation
of such counsel in connection with the preparation of the
Registration Statement and the Prospectus, such counsel has no
reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto on or
prior to the date of the Pricing Agreement relating to the
Designated Securities (other than the financial statements and
related schedules and other financial data therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its
date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company on or
prior to the date of the Pricing Agreement relating to the
Designated Securities (other than the financial statements and
related schedules and other financial data therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended
or supplemented or any further amendment or supplement thereto
made by the Company on or prior to the date of the Pricing
Agreement relating to the Designated Securities (other than
the financial statements and related schedules and other
financial data therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which
they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required; it being understood that
such counsel may state that he has not independently verified
factual statements in the Prospectus (or any such amendment or
supplement);
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside the
United States and in respect of matters of fact such counsel may rely
upon certificates of officers of the Company and its subsidiaries;
provided that
18
such counsel shall state he believes that both you and he are justified
in relying upon such opinions and certificates and copies of such
opinions and certificates are made available to you;
(e) On the date of the Pricing Agreement for the
Designated Securities at a time prior to the execution of the Pricing
Agreement with respect to such Designated Securities and at each Time
of Delivery for such Designated Securities, Deloitte and Touche LLP,
the independent accountants of the Company, shall have furnished to the
Representatives a letter, dated the date of the Pricing Agreement and a
letter dated such Time of Delivery, respectively, as to such matters
ordinarily included in accountants' "comfort letters" to underwriters
as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) Except as described in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in, or any adverse development which materially
affects, the business, properties, financial condition or results of
operations of the Company and its subsidiaries, considered as a whole,
from the dates as of which information is given in the Registration
Statement and the Prospectus as amended or supplemented on or prior to
the date of the Pricing Agreement relating to the Designated
Securities; and (ii) except as contemplated in the Prospectus, since
the respective dates as of which information is given in the Prospectus
as amended or supplemented on or prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have
been any change in the capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights, upon earn
outs of performance securities and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or long term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the business affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended on or prior to the date of
the Pricing Agreement relating to the Designated Securities, the effect
of which, in any such case described in clause (i) or (ii), is in the
reasonable judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
19
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a material suspension or
limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption
in commercial banking or securities settlement or clearance services in
the United States; or (iv) a material adverse change in the financial
markets, the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war or other calamity or crisis, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Securities;
(i) The Designated Securities being delivered at each
Time of Delivery and the shares of Common Stock to be issued and sold
by the Company pursuant to the Purchase Contracts, shall have been duly
listed, subject to notice of issuance, on the Exchange; and
(j) The Company shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
20
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus, or any
amendments or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such losses, claims, damages, liabilities or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Schedule II.
(b) Each Underwriter of Designated Securities will
severally and not jointly indemnify and hold harmless the Company, its
directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as
such in Schedule II.
(c) Promptly after receipt by an indemnified party under
this section of notice of the commencement of any action, such
indemnified
21
party shall, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In the case of parties indemnified
pursuant to Section 8(a) above, counsel to the indemnified parties
shall be selected by the Representatives. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section
is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Designated
Securities or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportions as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements of
omissions which resulted in such losses, claims, damages or liabilities
as well as any relevant equitable considerations. The relative benefits
received by the Company on one hand and the Underwriters on the other
hand shall be deemed to be in the same proportions as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
22
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Designated Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
officer and director of the Underwriters and to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director
of the Company, to each officer of the Company who signed the
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such 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
23
thirty six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, as the case may be,
then the Company shall be entitled to a further period of thirty six hours
within which to procure another party or other parties reasonably satisfactory
to the Representatives to purchase such Designated Securities on such terms. In
the event that, within the respective prescribed period, the Representatives
notify the Company that they have so arranged for the purchase of such
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 a Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"UNDERWRITER" as used in the Pricing Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Designated
Securities which remains unpurchased does not exceed one eleventh of
the aggregate number of the Designated Securities to be purchased at
the respective Time of Delivery, then the Company shall have the right
to require each non defaulting Underwriter to purchase the number of
Designated Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and, in
addition, to require each non defaulting Underwriter to purchase its
pro rata share (based on the number of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Designated Securities
which remains unpurchased exceeds one eleventh of the aggregate number
of the Designated Securities as referred to in subsection (b) above, or
if the Company shall not exercise the right described in subsection (b)
above to require non defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement
24
relating to such Designated Securities shall thereupon terminate,
without liability on the part of any non defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth or incorporated by reference in the Pricing Agreement with respect to
the Designated Securities or made by or on behalf of them, respectively,
pursuant to such Pricing Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Designated
Securities.
11. If any Pricing Agreement shall be terminated due to the
failure of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ to deliver its opinion to the Representatives
pursuant to Section 7(b) or pursuant to Section 9 hereof, the Company shall not
then be under any liability to any Underwriter with respect to the Designated
Securities set forth in such Pricing Agreement except as provided in Sections 6
and 8 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein (other than in
respect of a breach of the Pricing Agreement by any Underwriter of Designated
Securities covered by such Pricing Agreement), the Company will reimburse the
Underwriters through the Representatives for all out of pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings under the Pricing Agreement applicable to the
Designated Securities, the Representatives of the Underwriters of the Designated
Securities shall act on behalf of each of such Underwriters, and the parties
thereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any such Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in such Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement with respect to the Designated Securities; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the
25
address of the Company set forth in the Registration Statement: Attention:
General Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement with respect to the
Designated Securities shall be binding upon, and inure solely to the benefit of,
the Underwriters and the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of such Pricing Agreement. No purchaser of any
of the Designated Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "BUSINESS DAY" shall mean any day other than a Saturday or Sunday
or a day on which banks in the City of New York are authorized or required to
close.
15. These Underwriting Agreement General Terms and Conditions and
each Pricing Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
16. The Agreement and each Pricing Agreement may be executed by
any one or more of the parties thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
26
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
THE HARTFORD FINANCIAL
SERVICES GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
▇▇▇▇▇▇▇, SACHS & CO.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
________________________________
(▇▇▇▇▇▇▇, Sachs & Co.)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Associate Director
ANNEX I
PRICING AGREEMENT
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
UBS Warburg LLC
May 19, 2003
Ladies and Gentlemen:
The Hartford Financial Services Group, Inc., a Delaware corporation
(the "COMPANY"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement General Terms and Conditions dated May 19, 2003,
attached hereto, to issue and sell to the Underwriters named in Schedule I
hereto (the "UNDERWRITERS") the Normal Units specified in Schedule II hereto
(the "DESIGNATED SECURITIES", consisting of Firm Securities and any Optional
Securities the Underwriters may elect to purchase). Each of the provisions of
the Underwriting Agreement General Terms and Conditions is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement. Each reference
to the Representatives herein and in the provisions of the Underwriting
Agreement General Terms and Conditions so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement General Terms and Conditions are used herein as therein
defined. The Representatives designated to act on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement General Terms and Conditions and the addresses of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement General Terms and Conditions incorporated herein by
reference, the Company agrees to issue and sell to 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 such Underwriter set
forth in Schedule II hereto, the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule I hereto and, in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Securities, as provided below, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price to the Underwriters
set forth in Schedule II hereto such number of Optional Securities (as to which
such election shall have been exercised) as determined pursuant to Section 3 of
the Underwriting Agreement General Terms and Conditions, attached hereto.
The Company hereby grants to each of the Underwriters the right to
purchase at its election up to the number of Optional Securities set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering over-allotments in
the sale of the Firm Securities. Any such election to purchase Optional
Securities may be exercised by written notice from the Representatives to the
Company given within a period of 13 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement General Terms and
Conditions incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters, on the one hand, and the Company, on
the other. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
THE HARTFORD FINANCIAL
SERVICES GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
and Treasurer
Accepted as of the date hereof by the Representatives of the Underwriters listed
in Schedule I to the Pricing Agreement:
▇▇▇▇▇▇▇, SACHS & CO.
/s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
_____________________________________________
(▇▇▇▇▇▇▇, Sachs & Co.)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
UBS WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
_________________________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Associate Director
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
FIRM SECURITIES SECURITIES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
▇▇▇▇▇▇▇, Sachs & Co............................... 3,599,000 539,850
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated.................................. 1,200,000 180,000
UBS Warburg LLC................................... 1,200,000 180,000
Citigroup Global Markets Inc...................... 1,200,000 180,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.................................... 1,200,000 180,000
Banc of America Securities LLC.................... 468,000 70,200
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.......................... 468,000 70,200
▇.▇. ▇▇▇▇▇▇ Securities Inc........................ 468,000 70,200
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P........................ 468,000 70,200
SunTrust Capital Markets, Inc..................... 468,000 70,200
Wachovia Securities, Inc.......................... 468,000 70,200
▇▇▇▇▇ Fargo Securities, LLC....................... 468,000 70,200
ABN AMRO Rothschild LLC........................... 25,000 3,750
BB&T Capital Markets, a division of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇▇, Inc............................. 25,000 3,750
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
Incorporated.................................. 25,000 3,750
Banc One Capital Markets, Inc..................... 25,000 3,750
Bear, ▇▇▇▇▇▇▇ & Co. Inc........................... 25,000 3,750
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
FIRM SECURITIES SECURITIES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
BNY Capital Markets, Inc.......................... 25,000 3,750
Deutsche Bank Securities Inc...................... 25,000 3,750
▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ Inc.............................. 25,000 3,750
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.................. 25,000 3,750
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated.................................. 25,000 3,750
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc................... 25,000 3,750
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.................... 25,000 3,750
Quick & ▇▇▇▇▇▇, Inc............................... 25,000 3,750
---------- ---------
Total............................................. 12,000,000 1,800,000
========== =========
SCHEDULE II
TITLE OF DESIGNATED SECURITIES: 7.00% Normal Units
NUMBER OF DESIGNATED SECURITIES:
NUMBER OF FIRM SECURITIES: 12,000,000
MAXIMUM NUMBER OF OPTIONAL SECURITIES: 1,800,000
PURCHASE PRICE BY UNDERWRITER: $48.50 per Normal Unit
PRICE TO PUBLIC PER NORMAL UNIT: $50.00
GROSS SPREAD PER NORMAL UNIT: 3.00%
REFERENCE PRICE (CLOSING PRICE OF COMPANY COMMON STOCK ON MAY 19, 2003): $45.50
THRESHOLD APPRECIATION PRICE: $56.8750
PAYMENT DATES: February 16, May 16, August 16 and November 16
CONTRACT ADJUSTMENT PAYMENT DATES: February 16, May 16, August 16 and November
16
PURCHASE CONTRACT SETTLEMENT DATE: August 16, 2006
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES: $600,000,000
AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES (IF THE UNDERWRITERS PURCHASE ALL OF
THE OPTIONAL SECURITIES): $690,000,000
MATURITY OF THE SENIOR NOTES: August 16, 2008
INTEREST RATE ON THE SENIOR NOTES: 2.56%
STOCK EXCHANGE LISTING: New York Stock Exchange
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Federal (same day) funds
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated custodian
for trading in the Same Day Funds Settlement System of DTC, and to
be made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at DTC.
TIME OF DELIVERY:
10:00 a.m. (New York City time) on May 23, 2003, or at such other time
and date as the Representatives and the Company may agree to in writing
CLOSING LOCATION:
Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NAMES AND ADDRESSES OF REPRESENTATIVES:
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
INFORMATION PROVIDED BY THE UNDERWRITERS:
The Underwriters have furnished to the Company for use in the
Prospectus Supplement:
(a) The names of the Underwriters in the table of Underwriters
under the caption "Underwriting" in the Prospectus Supplement;
(b) The first paragraph of text following the first table under
the caption "Underwriting" in the Prospectus Supplement,
concerning the terms of the offering;
(c) The second, third and fourth sentences of the first paragraph
of text following the second table under the caption
"Underwriting" in the Prospectus Supplement, concerning market
making by the Underwriters; and
(d) The sixth, seventh and eighth paragraphs of text following the
second table under the caption "Underwriting" in the
Prospectus Supplement, concerning short sales and other
stabilizing transactions by the Underwriters.
ANNEX II
FORM OF OPINION OF DEBEVOISE & ▇▇▇▇▇▇▇▇ TO BE DELIVERED PURSUANT TO SECTION 7(c)
OF THE UNDERWRITING AGREEMENT GENERAL TERMS AND CONDITIONS
1. The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contracts have been duly authorized and reserved for
issuance and, when issued and delivered in accordance with the provisions of the
Purchase Agreement, will be validly issued, fully paid and nonassessable.
2. The Purchase Agreement and the Pledge Agreement have each been duly
authorized, executed and delivered by the Company, and, assuming each such
agreement has been duly authorized, executed and delivered by the other parties
thereto, each is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in law or
equity); provided, however, that upon the occurrence of a Termination Event (as
defined in the Purchase Contract), the Bankruptcy Code (11 U.S.C. Sections
101-1330, as amended) should not substantively limit the provisions of Sections
3.15 and 5.06 of the Purchase Agreement or Section 5.04 of the Pledge Agreement
that require termination of the Purchase Contracts and release of the Collateral
Agent's security interest in (1) the Senior Notes, (2) the Treasury Securities
(as defined in the Purchase Agreement) or (3) the applicable ownership interest
of the Treasury Portfolio (as defined in the Purchase Agreement), as applicable,
and the transfer of such securities to the Purchase Contract Agent, for the
benefit of the Holders of the Equity Security Units; provided further, however,
that no opinion is expressed as to whether a court exercising bankruptcy
jurisdiction might issue a temporary restraining order or provide other interim
relief that would delay the exercise of such termination right for a period of
time pending final adjudication of any challenge to the exercise of such right
during a bankruptcy case involving the Company.
3. The Normal Units have been duly authorized by the Company and when
executed and authenticated in accordance with the provisions of the Purchase
Agreement and delivered against payment therefor in accordance with the terms of
the Underwriting Agreement and the Pricing Agreement, will be entitled to the
benefits of the Purchase Agreement and will be valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights generally and (ii)
general principles
of equity (regardless of whether enforceability is considered in a proceeding in
law or equity); provided, however, that upon the occurrence of a Termination
Event, the Bankruptcy Code (11 U.S.C. Sections 101-1330, as amended) should not
substantively limit the provisions of Sections 3.15 and 5.06 of the Purchase
Agreement or Section 5.04 of the Pledge Agreement that require termination of
the Purchase Contracts and release of the Collateral Agent's security interest
in (1) the Senior Notes, (2) the Treasury Securities or (3) the applicable
ownership interest of the Treasury Portfolio, as applicable, and the transfer of
such securities to the Purchase Contract Agent, for the benefit of the Holders
of the Normal Units; provided further, however, that no opinion is expressed as
to whether a court exercising bankruptcy jurisdiction might issue a temporary
restraining order or provide other interim relief that would delay the exercise
of such termination right for a period of time pending final adjudication of any
challenge to the exercise of such right during a bankruptcy case involving the
Company; and the Equity Security Units conform as to legal matters in all
material respects to the description thereof in the Prospectus as amended or
supplemented.
4. The Senior Notes have been duly authorized by the Company and, when
executed and authenticated by the Trustee in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement and the Pricing Agreement, will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in law or equity), and will be
entitled to the benefits of the Indenture.
5. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended; the Indenture (including the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture) has been
duly authorized, executed and delivered by the Company; and assuming due
authorization, execution and delivery by the Trustee, the Indenture is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in law or equity).
6. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company and assuming due authorization, execution and delivery
thereof by the other parties thereto, is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as (i) the enforceability thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is considered
in a proceeding in law or equity) and (ii) rights to indemnification and
contribution contained therein may be limited by state and federal securities
laws or the public policy underlying such laws.
7. The statements made in the Prospectus Supplement under the captions
"Description of the Equity Security Units", "Description of the Purchase
Contracts", "Certain Provisions of the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement", "Description of the Senior Notes" and
"United States Federal Income Tax Consequences", insofar as such statements
purport to summarize certain provisions of the documents or legal matters
referred to therein, are accurate and fair in all material respects.
8. The discussion under the caption "United States Federal Income Tax
Consequences" constitutes, in all material respects, a fair and accurate summary
of the United States federal income tax consequences of the purchase, ownership,
and disposition of the Senior Notes, Equity Security Units and shares of Common
Stock acquired in connection with the ownership of the Equity Security Units.
In giving the foregoing opinions, Debevoise & ▇▇▇▇▇▇▇▇ may make
customary assumptions and qualifications, including, with respect to the opinion
given in paragraph 3 above, that it expresses no opinion on the priority status
of the Senior Note component of the Normal Units, and, with respect to the
opinion given in paragraph 4 above, that it expresses no opinion on the priority
status of the Senior Notes.
