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EXHIBIT 1
$250,000,000
THE ALLSTATE CORPORATION
7 1/8% Senior Quarterly Interest Bonds ("QUIBS")
Due 2097
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UNDERWRITING AGREEMENT
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December 16, 1997
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December 16, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
NationsBanc Xxxxxxxxxx Securities, Inc.
PaineWebber Incorporated
Salomon Brothers Inc
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "Underwriters"), for whom Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
NationsBanc Xxxxxxxxxx Securities, Inc., PaineWebber Incorporated and Salomon
Brothers Inc are acting as Representatives (the "Representatives"), $250,000,000
principal amount of its 7 1/8% Senior Quarterly Interest Bonds registered under
the Registration Statement referred to in Section 2(a) (the "Securities") to be
issued pursuant to the provisions of an Indenture dated as of December 16, 1997,
as supplemented by the First Supplemental Indenture dated as of December 16,
1997 (as so supplemented, the "Indenture") between the Company and State Street
Bank and Trust Company, as Trustee (the "Trustee").
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-10857) under
the Securities Act of 1933, as amended (the "Act"), which has become effective,
for the registration
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under the Act of the Securities. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement or supplements to the
form of prospectus included in such registration statement relating to the
Securities and the plan of distribution thereof. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement, is
hereinafter called the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has heretofore been filed
pursuant to Rule 424 is hereinafter called the "Preliminary Final Prospectus."
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934 (the
"Exchange Act") on or before the date of this Agreement, or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference;
(b) As of the date hereof, when the Final Prospectus is first filed or
transmitted for filing pursuant to Rule 424 under the Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document incorporated
by reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and, the Indenture
will comply
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in all material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the Exchange
Act and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as amended
or supplemented as of such time, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; provided,
however, that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustees (the "Form T-1") or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information relating
to such Underwriter or the underwriting arrangements furnished in writing to the
Company by any Underwriter specifically for use in the Registration Statement
and the Final Prospectus.
(c) Each document incorporated by reference in the Registration
Statement and the Final Prospectus will comply in all material respects, as
amended at the time the Registration Statement becomes effective, with the
Exchange Act.
(d) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each subsidiary of the Company listed in Schedule III hereto (each,
a "Principal Subsidiary") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation,
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has the corporate power and authority to own its property and to conduct its
business as described in the Final Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Securities have been duly authorized and, when the Securities
are issued and delivered pursuant to this Agreement with respect to such
Securities, such Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; and
(i) The issuance and sale of the Securities and compliance by the
Company with all of the provisions of the Securities, the Indenture and this
Agreement will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument for
borrowed money to which the Company or any Principal Subsidiary is a party or by
which the Company or any of its Principal Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Principal Subsidiaries is
subject, nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any of its Principal
Subsidiaries or any statute or any order, rule
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or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any of its
Principal Subsidiaries or any of their properties, in each case other than such
breaches, conflicts, violations or defaults which, individually or in the
aggregate, would not have a material adverse effect on the Company and its
subsidiaries considered as a whole, and no authorization, approval, order,
consent, registration or qualification of or with any such court or insurance
regulatory authority or other governmental agency or body is required for the
issue or sale of the Securities, except (i) the registration under the Act of
the Securities; and (ii) such authorizations, approvals, orders, consents,
registrations or qualifications as may be required under the Trust Indenture Act
or state or foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters, in each case other than
such authorizations, approvals, orders, consents, registrations or
qualifications which (individually or in the aggregate) the failure to make,
obtain or comply with would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(j) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
2. Terms of Sale. The Company hereby agrees to sell to the several
Underwriters, and the Underwriters, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agree, severally and not jointly, to purchase from the Company the respective
principal amounts of the Securities set forth in Schedule I hereto opposite
their names at 96.85% of their principal amount -- the purchase price -- plus
accrued interest, if any, from December 19, 1997 to the date of payment and
delivery.
3. Payment and Delivery of the Securities. Payment for the Securities
shall be made by wire transfer payable to the order of the Company in
immediately available funds at the office of Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on December 19,
1997, or at such other time on the same or such other date, not later than
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December 24, 1997, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Time of Delivery" for such
Securities.
Payment for the Securities shall be made against delivery to you or a
depositary on your behalf for the respective accounts of the several
Underwriters of the Securities registered in such names and in such
denominations as you shall request in writing not later than two full business
days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Securities to the Underwriters duly paid.
4. Company Covenants. The Company agrees with each of the Underwriters
of the Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the Securities in a form approved by the Representatives and to
timely file such Final Prospectus pursuant to Rule 424(b) under the Act; (ii) to
make no further amendment or any supplement to the Registration Statement or
Final Prospectus as amended or supplemented after the date hereof and prior to
the Time of Delivery for the Securities unless the Representatives shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; (iii) to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; (iv) to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
of (I) the time when any amendment to any Registration Statement has been filed
or becomes effective or any supplement to the Final Prospectus or any amended
Final Prospectus has been filed with the Commission, (II) the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Final Prospectus, (III) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose,
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or (IV) any request by the Commission for the amending or supplementing of any
Registration Statement or the Final Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of the Final Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities and insurance securities laws of such
jurisdictions as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Final Prospectus as
amended or supplemented in such quantities as the Representatives may from time
to time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Securities, and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made
when such Final Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon their
request to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to time
reasonably request of an amended Final Prospectus or a supplement to the Final
Prospectus or a document incorporated by reference in the Final Prospectus which
will correct such statement or omission or effect such compliance;
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(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, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations thereunder; and
(e) During the period beginning from the date hereof and continuing to
and including the latter of (i) the termination of trading restrictions for the
Securities, as notified to the Company by the Representatives or their counsel
and (ii) the Time of Delivery for the Securities, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company which are
substantially similar to the Securities, without the prior written consent of
the Representatives, which consent shall not be unreasonably withheld.
5. Fees and Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing this Agreement, the Indenture, any Blue Sky Survey and any
Legal Investment Memoranda in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all reasonable expenses in connection with the
qualification of the Securities for offering and sale under state securities and
insurance securities laws as provided in Section 4(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and Legal Investment
surveys; (iv) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (v) any fees charged by securities rating services for rating the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee, Paying Agent or Transfer Agent
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and the fees and disbursements of counsel for any such Trustee, Paying Agent or
Transfer Agent in connection with the Indenture and the Securities; and (viii)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided in this Section. It is
understood, however, that, except as provided in this Section, Section 7 and
Section 8 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
6. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of the Securities shall be subject to the condition that all
representations and warranties of the Company herein are, at and as of the Time
of Delivery for the Securities, true and correct, the condition that the Company
shall have performed all of its obligations hereunder to be performed at or
before such Time of Delivery, and the following additional conditions:
(a) The Final Prospectus as amended or supplemented in relation to the
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 4(a) hereof; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxx, counsel for the Company, shall have furnished to
you their written opinion, dated the Time of Delivery for the Securities, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its
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properties and conduct its business as described in the Final Prospectus as
amended and supplemented;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) The Securities have been duly authorized, and
(assuming their due authentication by the Trustee) have been duly executed,
issued and delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture and the Securities
and the Indenture conform in all material respects to the descriptions thereof
in the Final Prospectus as amended or supplemented;
(iv) The Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered by the
Company, and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(v) The Registration Statement and the Final
Prospectus as amended or supplemented and any further amendments thereto made by
the Company prior to such Time of Delivery for the Securities (in each case
other than with respect to the financial statements, financial, accounting and
statistical data and related schedules incorporated by reference or included
therein or excluded therefrom, or the exhibits to the Registration Statement
including the Form T-1, as to which such counsel need express no opinion or
belief), appear on their face to be appropriately responsive in all material
respects to the requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; provided that,
such counsel shall not be deemed to be passing upon and shall not be required to
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Final Prospectus;
(vi) As such counsel, such counsel reviewed the
Registration Statement and Final Prospectus as amended or
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supplemented, participated in discussions with representatives of the
Underwriters and of the Company and its accountants at which contents of the
Registration Statement and Final Prospectus as amended or supplemented and
related matters were discussed; on the basis of the information that such
counsel gained in the course of the performance of their services referred to
above, although such counsel shall not be deemed to be passing upon and shall
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final Prospectuses and
not be required to have made an independent check or verification thereof
(except as described in paragraph (ii) hereof), on the basis of the foregoing,
no facts have come to the attention of such counsel in the course of such review
which have led such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and the
financial, accounting and statistical data and related schedules incorporated by
reference or included therein or excluded therefrom, or the exhibits to the
Registration Statement including the Form T-1, 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 or the Time of
Delivery, the Final Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and financial, accounting and
statistical data and related schedules incorporated by reference or included
therein or excluded therefrom, or the exhibits to the Registration Statement
including the Form T-1, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made not misleading; and
(vii) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
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(c) Xxxxxx X. Xxxx, Vice President, Secretary and General Counsel of
the Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to you, to the effect
that:
(i) Each of Allstate Insurance Company ("AIC") and Allstate Life
Insurance Company ("XXXX") has been duly incorporated and is validly existing as
an insurance corporation under the laws of the State of Illinois, with corporate
power and authority to own its properties and conduct its business as described
in the Final Prospectus as amended or supplemented;
(ii) All of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are fully paid and
nonassessable, and are owned of record directly or indirectly by the Company,
AIC or XXXX, as the case may be (such counsel being entitled to rely in respect
of the opinion in this clause (ii) upon opinions of local or in-house counsel
and in respect of matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state that he believes
that both you and he are justified in relying upon such opinions and
certificates);
(iii) Each Principal Subsidiary is duly licensed or authorized as
an insurer or reinsurer in each other jurisdiction where it is required to be so
licensed, except where the failure to be so licensed or authorized in any such
jurisdiction does not have a material adverse effect on the financial condition,
business or properties of the Company and its subsidiaries considered as a
whole; the Company and each Principal Subsidiary have made all required filings
under applicable insurance holding company statutes, and each is duly licensed
or authorized as an insurance holding company in each jurisdiction where it is
required to be so licensed, except where the failure to have made such filings
or to be so licensed or authorized in any such jurisdiction does not have a
material adverse effect on the financial condition, business or properties of
the Company and its subsidiaries considered as a whole; the Company and each
Principal Subsidiary have all necessary authorizations, approvals, orders,
consents, registrations or qualifications of and from all insurance regulatory
authorities to conduct their respective businesses as described in the Final
Prospectus as
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amended or supplemented, except where the failure to have such authorizations,
approvals, orders, consents, registrations or qualifications does not have a
material adverse effect on the financial condition, business or properties of
the Company and its subsidiaries considered as a whole; and none of the Company
or any Principal Subsidiary has received any notification from any insurance
regulatory authority to the effect that any additional authorization, approval,
order, consent, registration or qualification from such insurance regulatory
authority is needed to be obtained by any of the Company or any Principal
Subsidiary in any case where it could be reasonably expected that (x) the
Company or any Principal Subsidiary would in fact be required either to obtain
any such additional authorization, approval, order, consent, registration or
qualification or cease or otherwise limit writing certain business and (y)
obtaining such authorization, approval, order, consent, license, certificate,
permit, registration or qualification or limiting such business would have a
material adverse effect on the business, financial position or results of
operations of the Company and its subsidiaries, considered as a whole (such
counsel being entitled to rely in respect of the opinion in this clause upon
opinions of local or in-house counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge, each Principal
Subsidiary is in compliance with the requirements of the insurance laws and
regulations of its state of incorporation and the insurance laws and regulations
of other jurisdictions which are applicable to such Principal Subsidiary, and
has filed all notices, reports, documents or other information required to be
filed thereunder, or is subject to no material liability or disability by reason
of the failure to so comply or file (such counsel being entitled to rely in
respect of this clause upon opinions of local or in-house counsel and in respect
of matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he believes that both
you and he are justified in relying upon such opinions and certificates);
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(v) To the best of such counsel's knowledge and other than as set
forth in the Final Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could reasonably be expected to
have a material adverse effect on the financial condition, business or
properties of the Company and its subsidiaries considered as a whole; and, to
the best of such counsel's knowledge, no such proceedings are threatened;
(vi) The issuance and sale of the Securities and the performance by
the Company of its obligations under the Indenture, the Securities or this
Agreement and the consummation by the Company of the transactions contemplated
therein and herein will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument relating
to the Company or any of its subsidiaries, as such agreements or instruments
have been amended (which indentures, mortgages, deeds of trust, loan agreements
or other agreements or instruments may be specified by such counsel on a
schedule attached to his opinion); nor will any such action result in any
violation of the provisions of the Certificate or the By-Laws or any applicable
United States law or statute or any order, rule or regulation of any United
States court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties, provided, that
the foregoing opinion is limited to those statutes, laws, rules and regulations
of the United States of America, the State of Delaware and the State of
Illinois, in each case, which, in the opinion of such counsel, are normally
applicable to transactions of the type contemplated by this Agreement, and
provided further, that no opinion need be given with respect to (A) the Act, the
Exchange Act, the Trust Indenture Act, the rules and regulations issued pursuant
to each such act, any order, rule or regulation made or established by any
insurance official or regulatory authority or the National Association of
Securities Dealers, Inc., or state securities or Blue Sky laws in connection
with the purchase and distribution of
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the Securities by the Underwriters or (B) conflicts, breaches or violations
which individually and in the aggregate both would not have a material adverse
effect on the financial condition, business or operations of the Company and its
subsidiaries taken as a whole and would not have a material adverse effect on
the sale or ownership of the Securities (such counsel being entitled to rely in
respect of the opinion in this clause (vi) upon opinions of local or in-house
counsel and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that he
believes that both you and he are justified in relying upon such
opinions and certificates);
(vii) No consent, approval, authorization, order, registration or
qualification of or with any United States court or governmental agency or body
is required for the issue and sale of the Securities by the Company or the
consummation by the Company of the transactions contemplated by this Agreement,
except that such counsel need not express any opinion with respect to such
consents, approvals, authorizations, orders, registrations or qualifications (A)
as may be required under the Act, the Exchange Act, the Trust Indenture Act, the
rules and regulations issued pursuant to each such act, any order, rule or
regulation made or established by any insurance official or regulatory authority
or the National Association of Securities Dealers, Inc., or (B) as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters, (C) the absence of which
individually or in the aggregate both are not material to the Company and its
subsidiaries taken as a whole and would not have a material adverse effect on
the sale or ownership of the Securities or (D) as may be required under foreign
laws in connection with the purchase and distribution of the Securities by any
international managers; provided, that the foregoing opinion is limited to those
consents, approvals, authorizations, orders, registrations and qualifications
under laws which, in the experience of such counsel, are normally applicable to
transactions of the type contemplated by this Agreement;
(viii) To the best of such counsel's knowledge, the Company and its
subsidiaries, as applicable, have filed all notices, reports, documents or other
information required to be
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filed pursuant to, and have obtained all authorizations, approvals, orders,
consents, registrations or qualifications required to be obtained under, and
have otherwise complied with all requirements of, all applicable insurance laws
and regulations known to such counsel to be normally applicable to the
transactions contemplated by this Agreement in connection with the issuance and
sale by the Company of the Securities and, except as have been obtained pursuant
to the foregoing clause, no filing, authorization, approval, order, consent,
registration or qualification of or with any insurance regulatory agency having
jurisdiction over the Company or any of its subsidiaries or any of their
properties known to such counsel to be normally applicable to the transactions
contemplated by this Agreement or the Indenture is required for the issue and
sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, except such filings, authorizations, approvals,
orders, consents, registrations or qualifications which (individually or in the
aggregate) the failure to make, obtain or comply with would not have a material
adverse effect on the financial condition, business or properties of the Company
and its subsidiaries considered as a whole;
(ix) As general counsel to the Company, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
participated in various discussions with representatives of the Underwriters and
of the Company and its accountants at which contents of the Registration
Statement and Final Prospectus as amended or supplemented were discussed; on the
basis of the information that such counsel gained in the course of his
activities referred to above, such counsel confirms that the Registration
Statement, as of its effective date, and the Final Prospectus, as amended or
supplemented (in each case other than with respect to the financial statements,
financial and accounting data and related schedules therein, as to which such
counsel need express no opinion or belief), appear on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission thereunder; and,
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement and Final Prospectus as amended or supplemented (except
as expressly set
-16-
18
forth in such opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel in the course of such review which
has caused such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial statements and
financial and accounting data and related schedules therein and other than
information under the captions "Description of Debt Securities," "Description of
Debt Warrants," "Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and "Plan of
Distribution" in the Basic Prospectus and under the captions "Description of the
Bonds" and "Underwriters" contained in the Final Prospectus as amended or
supplemented, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statement therein not misleading
or that, as of its date, the Final Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to such Time
9of Delivery (other than the financial statements and financial and accounting
data and related schedules therein and other than information under the captions
"Description of Debt Securities," "Description of Debt Warrants," "Description
of Preferred Stock," "Description of Preferred Securities," "Description of
Preferred Securities Guarantees" and "Plan of Distribution" in the Basic
-17-
19
Prospectus and under the captions Description of the Bonds" and "Underwriters"
contained in the Final Prospectus as amended or supplemented, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statement therein not misleading or that, as of the Time
of Delivery, either the Registration Statement or the Final Prospectus as
amended or supplemented or any further amendment or supplement (when considered
together with the document to which such supplement relates) thereto made by the
Company prior to such Time of Delivery (other than the financial statements and
financial and accounting data and related schedules therein and other than
information under the captions "Description of Debt Securities," "Description of
Debt Warrants," "Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and "Plan of
Distribution" in the Basic Prospectus and under the captions "Description of the
Bonds" and "Underwriters" contained in the Final Prospectus as amended or
supplemented, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and he does not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Final Prospectus
as amended or supplemented or required to be described in the Registration
Statement or the Final Prospectus as amended or supplemented which are not filed
or described as required, in each case, other than with respect to the
information under the captions "Description of Debt Securities," "Description of
Debt Warrants," "Description of Preferred Stock," "Description of Preferred
Securities," "Description of Preferred Securities Guarantees" and "Plan of
Distribution" in the Basic Prospectus and under the captions "Description of the
Bonds" and "Underwriters" contained in the Final Prospectus as amended or
supplemented; and
(x) On the basis of the information that such counsel gained in the
course of the review referred to in paragraph (ix) above (but without passing
upon or assuming any responsibility for the accuracy, completeness or fairness
of the statements contained in the documents described below), such counsel
confirms that no facts have come to the attention of such counsel in the course
of such review which have caused such counsel to believe that the documents
incorporated by reference in the Final Prospectus as amended or supplemented
(other than the financial statements and financial, accounting and statistical
data and related schedules therein or excluded therefrom, as to which such
counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, did not comply as to form in
all material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder; and he
has no reason to believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of a
material fact or omitted to state a
-18-
20
material fact required to be stated therein or necessary to make the statements
therein not misleading or, in the case of other documents that 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 to make the
statements therein, in light of the circumstances under which they were made not
misleading.
(d) LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., special counsel to the
Underwriters, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance reasonably satisfactory to you, covering the
matters referred to in subparagraphs (ii), (iii), (iv) and (vi) of paragraph (b)
above.
(e) On the date hereof and the Time of Delivery of the Securities,
Deloitte & Touche shall have furnished to the Representatives a letter, dated
the effective date of the Registration Statement or, if more recently filed, the
most recent report filed with the Commission containing financial statements and
incorporated by reference in the Registration Statement if the date of such
report is later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Schedule II hereto, and with
respect to such letter dated such Time of Delivery, in form and substance
satisfactory to the Representatives.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited
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21
financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented any material adverse change in the
financial condition, business or properties of the Company and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated in the Final
Prospectus as amended or supplemented (and other than a catastrophe not meeting
the threshold contemplated by (w) below), and (ii) since the respective dates as
of which information is given in the Final Prospectus as amended or supplemented
there shall not have been (w) any catastrophe or any impending catastrophe
which, in the Company's judgment, is highly probable to result in gross
underwriting losses in excess of $500 million pursuant to insurance coverage
written by the Company's subsidiaries, (x) any material addition, or any
development involving a prospective material addition, to either the Company's
consolidated reserve for property-liability insurance claims and claims expense
or the Company's consolidated reserve for life insurance policy benefits or (y)
any material increase in the consolidated long-term debt of the Company.
(g) On or after the date hereof, (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or financial strength or
claims paying ability by any of Xxxxx'x Investor Services, Inc., Standard &
Poor's Corporation or A.M. Best & Co. and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
financial strength or claims paying ability, the effect of which, in any such
case described in clause (i) or (ii), is in your judgment (after consultation
with the Company) so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Final Prospectus
as amended or supplemented;
(h) On or after the date hereof, there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or New York
State authorities; or (iii) the material outbreak or escalation of hostilities
involving the United States or the declaration by
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22
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated by the
Final Prospectus as amended or supplemented;
(i) On or after the date hereof, there shall not have occurred any
change in financial markets or any calamity or crisis that, in the mutual
judgment of both the Company and the Representatives, makes it impractical to
market the Securities on the terms and in the manner contemplated in the Final
Prospectus as amended or supplemented; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery certificates of officers of the Company
reasonably satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of the Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Time of Delivery, as to the matters
set forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
7. (a) Indemnification and Contribution. The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Final Prospectus, the Registration Statement, the Final Prospectus,
the Final Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement (when considered
together with the document to which such supplement relates) thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in
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connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Final Prospectus, the
Registration Statement, the Final Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Final Prospectus as amended or supplemented relating to the Securities and,
provided, further, that the Company shall not be liable to any Underwriter under
the indemnity agreement in this subsection (a) with respect to any Preliminary
Final Prospectus, the Final Prospectus or the Final Prospectus as amended or
supplemented, as the case may be, to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact such Underwriter
sold the Securities to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Final Prospectus or of
the Final Prospectus as then amended or supplemented, whichever is most recent,
in any case where such delivery is required by the Act if the Company had
previously furnished copies thereof to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Final Prospectus which
was corrected in the Final Prospectus (or the Final Prospectus as amended or
supplemented).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Final Prospectus, the Registration Statement, the
Final Prospectus, the Final Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement (when
considered together with the document to which such supplement relates) thereto,
or arise out of or are based upon the omission or
-22-
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Final
Prospectus, the Registration Statement, the Final Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly, with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying party
and who may act in respect of actions involving more than one indemnified
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding anything to the contrary
in this Section 7, an indemnifying party shall only be liable for the legal fees
and expenses of one national counsel
-23-
25
and appropriate local counsel for the indemnified parties with respect to any
proceeding or related proceedings and in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Underwriters and controlling persons not having actual or
potential differing interests with you or among themselves, which firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable consideration. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters,
in each case as set forth in the table on the cover page of the Final
Prospectus. The relative fault shall be determined by reference to, among
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other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. With respect to
any Underwriter, such relative fault shall also be determined by reference to
the extent (if any) to which such losses, claims, damages or liabilities (or
actions in respect thereof) with respect to any Preliminary Final Prospectus
result from the fact that such Underwriter sold the Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Final Prospectus or of the Final Prospectus as then
amended or supplemented, if the Company had previously furnished copies thereof
to such Underwriter. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to the Securities and not joint.
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(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend
upon the same terms and conditions, to each person, if any, who controls any
Underwriters within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any
person who, with his consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
8. Default; Termination. (a) If, at the Time of Delivery, any one or
more of the Underwriters shall fail or refuse to purchase Securities that it or
they have agreed to purchase hereunder on such date, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in Schedule I
bears to the principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 2 be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, at the Time of
Delivery any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased on such date, and arrangements satisfactory
to you and the Company for the purchase of such Securities are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any
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such case either you or the Company shall have the right to postpone the Time of
Delivery but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Final Prospectus or in
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
(b) If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter, or the Company or any officer or director or
controlling person of the Company and shall survive delivery of and payment for
the Securities.
10. Reliance Upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters and the parties hereto
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such of the
Representatives, if any, as may be designated for such purpose by Xxxxxx Xxxxxxx
& Co. Incorporated.
11. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or
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facsimile transmission to such Underwriters in the care of Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Fax (000) 000-0000, Attention:
Xxxxxxx Xxxxx; if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 7(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. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
12. Successors and Assigns. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company, and, to the
extent provided in Sections 7 and 8 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. "Business Day." As used herein, the term "business
day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
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30
If the foregoing is in accordance with your understanding,
please sign and return to us seven counterparts hereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ________________________
Name:
Title:
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX
SECURITIES, INC.
PAINEWEBBER INCORPORATED
SALOMON BROTHERS INC
Acting on behalf of themselves
and the several Underwriters
named herein.
By XXXXXX XXXXXXX & CO.
INCORPORATED
By: __________________________
Name:
Title:
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31
SCHEDULE I TO UNDERWRITING AGREEMENT
Principal
Amount
Underwriters of Bonds
------------ --------
Xxxxxx Xxxxxxx & Co. Incorporated $32,625,000
Xxxxxxx, Sachs & Co. 32,625,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 32,625,000
NationsBanc Xxxxxxxxxx Securities, Inc. 32,625,000
PaineWebber Incorporated 32,625,000
Salomon Brothers Inc 32,625,000
BT Xxxx Xxxxx Incorporated 1,875,000
CIBC Xxxxxxxxxxx Corp. 1,875,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 1,875,000
X.X. Xxxxxxx & Sons, Inc. 1,875,000
EVEREN Securities, Inc. 1,875,000
Xxx-Xxxx, Xxxxxx Inc. 1,875,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 1,875,000
Xxxxxx Brothers Inc. 1,875,000
X.X. Xxxxxx Securities Inc. 1,875,000
Olde Discount Corporation 1,875,000
SBC Warburg Xxxxxx Xxxx Inc. 1,875,000
Xxxxxx Xxxxxxx Incorporated 1,875,000
US Clearing Corp. 1,875,000
Wheat, First Securities, Inc. 1,875,000
Advest, Inc. 875,000
Xxxxxx X. Xxxxx & Co. Incorporated 875,000
Xxxxxxxx & Partners, L.P. 875,000
X.X. Xxxxxxxx & Co. 875,000
Commerzbank Capital Markets Corporation 875,000
Xxxxx & Company 875,000
Xxxxxxx, Xxxxxx & Co. 875,000
Xxxx Xxxxxxxx Incorporated 875,000
Xxxxxxxxxx & Co. Inc. 875,000
First Albany Corporation 875,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 875,000
Interstate/Xxxxxxx Lane Corporation 875,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 875,000
Xxxxxxx, Xxxxxx Inc. 875,000
XxXxxxxx & Company Securities, Inc. 875,000
XxXxxx, Xxxxx & Co., Inc. 875,000
Mesirow Financial, Inc. 875,000
Xxxxxx Xxxxxx & Company, Inc. 875,000
The Ohio Company 875,000
Xxxxx Xxxxxxx Inc. 875,000
32
Principal
Amount
Underwriters of Bonds
------------ --------
Principal Financial Securities, Inc. 875,000
Xxxxxxxx Xxxxxx Refsnes, Inc. 875,000
Xxxxxxx Xxxxx & Associates, Inc. 875,000
Redwood Securities Group, Inc. 875,000
The Xxxxxxxx-Xxxxxxxx Company, LLC 875,000
Xxxxx & Co. L.L.C 875,000
Xxxxxx Xxxxxxx & Co., Inc. 875,000
Xxxxxxxx Inc. 875,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 875,000
Sutro & Co. Incorporated 875,000
Xxxxxxxx Capital Partners, L.P. 875,000
Wedbush Xxxxxx Securities 875,000
Total........................... $250,000,000
============
33
SCHEDULE II TO UNDERWRITING AGREEMENT
Pursuant to Section 6(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that: (i)
They are independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable published
rules and regulations thereunder; (ii) In their opinion, the financial
statements, certain summary and selected consolidated financial and operating
data, and any supplementary financial information and schedules (and, if
applicable, pro forma financial information) audited by them and included or
incorporated by reference in the Final Prospectus as amended or supplemented or
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial statements,
and any supplementary financial information and schedules, selected financial
data, pro forma financial information, prospective financial statements and/or
condensed financial statements derived from audited financial statements of the
Company for the periods specified in such letter, and, as indicated in their
report thereon, copies of which have been furnished to representatives of the
Underwriters (the "Representatives"); (iii) On the basis of limited procedures,
not constituting an audit in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
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flows and certain summary and selected consolidated financial and operating data
included or incorporated by reference in the Final Prospectus as amended or
supplemented do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder;
(B) any other unaudited income statement data and balance
sheet items included or incorporated by reference in the Final Prospectus as
amended or supplemented do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by reference
in the Final Prospectus as amended or supplemented;
(C) the unaudited financial statements which were not included
or incorporated by reference in the Final Prospectus as amended or supplemented
but from which were derived any unaudited condensed financial statements
referred to in Clause (A) and any unaudited income statement data and balance
sheet items included or incorporated by reference in the Final Prospectus as
amended or supplemented and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited consolidated
financial statements included or incorporated by reference in the Final
Prospectus as amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Final Prospectus as
amended or supplemented do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements.
(E) as of a specified date not more than five business days
prior to the date of such letter, there have been any changes in the
consolidated capital stock or any increase in the
35
consolidated borrowings or consolidated reserve for property-liability insurance
claims and claims expense or consolidated reserve for life insurance policy
benefits, or asset reserves of the Company and its subsidiaries, or any
decreases in consolidated fixed income securities available for sale,
consolidated equity securities, consolidated investments or shareholder equity,
or any decrease in AIC's or XXXX'x statutory capital and surplus, or other items
specified by the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in the Final
Prospectus as amended or supplemented, except in each case for changes,
increases or decreases which the Final Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Final Prospectus as
amended or supplemented to the specified date referred to in Clause (E) there
were any decreases in consolidated premiums earned, consolidated net investment
income, or other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each case for
decreases or increases which the Final Prospectus discloses have occurred or may
occur or which are described in such letter; and (iv) In addition to the
examination referred to in their report(s) included or incorporated by reference
in the Final Prospectus as amended or supplemented and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain procedures as
specified in their letter, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives, which
are derived from the general accounting records of the Company and its
subsidiaries, which appear or are incorporated by reference in the Final
Prospectus as amended or supplemented or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives, and
have compared certain of such specified amounts, percentages and financial
information with the
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accounting records of the Company and its subsidiaries and have found them to be
in agreement.
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SCHEDULE III TO UNDERWRITING AGREEMENT
PRINCIPAL SUBSIDIARIES JURISDICTION OF INCORPORATION
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
